Opinion
Record No. 0402-93-4
Decided: November 29, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY, William L. Winston, Judge
Affirmed.
Stephen J. Crum (Crum King, on brief), for appellant.
Robert B. Condon, Assistant Attorney General, (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
This appeal is from convictions for burglary, abduction for pecuniary benefit, and robbery. We hold that the trial court did not abuse its discretion by admitting evidence that the defendant had previously committed similar crimes involving another victim.
Generally, evidence of other crimes should be excluded if offered merely to show that the defendant has a propensity to commit a crime. Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990). However, "[p]roof of modus operandi is competent evidence" where identity is in dispute. Id. The other incidents need not be "virtual carbon copies" of the offense being tried; "[r]ather, it is sufficient if the other crimes bear 'a singular strong resemblance to the pattern of the offense charged.' " Id. at 89-90, 393 S.E.2d at 616. The other crimes must be " 'sufficiently idiosyncratic to permit an inference of pattern for the purposes of proof,' thus tending to establish the probability of a common perpetrator." Id. See Hewston v. Commonwealth, ___ Va. App. ___ 444 S.E.2d 267 (1994) (finding "a singularly strong resemblance" between two cases where both victims were abducted in the same area within one month, were taken across the same bridge to the same secluded location in a white four-door sedan with blue interior, were both asked whether they knew Greta, were both made to lie on their stomachs in the back seat and were forcibly sodomized, and both identified the defendant as their assailant). See also United States v. Connelly, 874 F.2d 412, 417 (1988) (finding sufficient similarity where two armed robberies involved multiple participants, a lookout, guns, the use of walkie-talkies, and binding victims' eyes and hands with duct tape, even though the robberies were of different scope and scale).
Both cases alleged to have been committed by this defendant involved forced entry into ground level residences while the female victims were alone; both offenses took place around 9:00 p.m. on weekend nights just six days apart; the residences were about a mile apart; in both cases, the assailant, wearing no mask, wielded a knife and demanded money; he disabled the telephone; he used telephone or electrical cord to bind the victims' hands and feet; and he used his knife to cut a towel to gag the victims.
The cases were not identical. In the Arlington case, the assailant cut out a screen window to enter, while in the Alexandria case, the assailant tampered with the porch light, and accosted the victim when she went out onto the porch to check it. The Arlington assailant wore gloves, while the Alexandria assailant did not. In the Arlington case, the assailant took money and jewelry, while the Alexandria assailant took money, a bank card, and the victim's car.
The trial court limited the purpose for which the jury could consider the evidence of the other crime. It instructed the jury:
You may consider evidence that the defendant committed offenses other than the offense for which he is on trial only as evidence of the defendant's identity and as evidence of the unique nature of the method of committing the crimes charged in connection with the offense for which he is on trial and for no other purpose.
We conclude that the two crimes are idiosyncratic enough for a jury to find it probable that the offenses were committed by the same person. Furthermore, we find that the trial court did not abuse its discretion in balancing the probative value against the potential for prejudice and the instruction insured that the evidence was not improperly considered. Therefore, the judgments of conviction are affirmed.
Affirmed.