Kurvyn Darnell Minor v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
KURVYN DARNELL MINOR
MEMORANDUM OPINION ∗ BY
v. Record No. 3105-01-2 JUDGE LARRY G. ELDER
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
J. Overton Harris (J. Overton Harris, P.C.,
on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Kurvyn Darnell Minor (appellant) appeals from his jury
trial convictions for three counts of abduction, two counts each
of rape, oral sodomy, and robbery, and one count each of anal
sodomy, credit card theft and use of a firearm in the commission
of an abduction. The convictions arose out of events which
involved three different victims and occurred on three different
dates. Appellant admitted his sexual contact with the women to
authorities but claimed the contact was consensual. On appeal,
appellant contends the trial court erroneously denied his motion
for three separate trials based on the offenses alleged against
each victim. Under the facts of this case, we agree that the
∗
Pursuant to Code § 17.1-413, this opinion is not
refusal to sever was reversible error. Therefore, we reverse
and remand for new trials.
I.
BACKGROUND
A.
THE OFFENSES
The offenses involved three separate incidents and victims
and occurred in the late evening to early morning hours of
April 2-3, April 12-13 and September 29-30, 2000. In each
instance, appellant approached a female pedestrian within the
same one-and-one-half mile radius on the North Side of Richmond
and offered her a ride in the vehicle he was driving. The
victims were all between twenty-five and forty years old and of
the same race. In each instance, appellant mentioned something
about his alleged employment and spoke of traveling to Ashland.
The first two victims entered his car willingly when he offered
each a ride, and he abducted the third at knife-point when she
refused his offer of a ride.
In each instance, appellant drove on Interstate 95 to the
same exit and took the victim to the same secluded area of
Hanover County. He took the first two victims to a church and
the third victim into some woods about a mile away from the
church. In all three instances, appellant possessed or wore a
condom and used a weapon in an effort to force the victim to
designated for publication.
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engage in anal intercourse and other sexual acts. He used a gun
in the first two attacks and a knife in the third. Other
evidence established that a gun had been seized from appellant
in a traffic stop on May 19, 2000, after the first two attacks
and before the third, in which appellant displayed only a knife.
The first victim escaped before appellant forced her to
engage in any sexual acts.
In the second attack, the victim escaped after appellant
raped her and forced her to perform oral sodomy on him.
Appellant grabbed her purse as she ran from his car, and he
attempted unsuccessfully to use her ATM card at two different
banks within blocks of his residence. DNA evidence recovered
from sperm left on the second victim established the sperm was
210 million times more likely to have come from appellant than
from an unknown member of appellant's race.
In the third attack, appellant raped the victim, forced her
to engage in oral and anal sodomy, and robbed her before leaving
her in the woods.
B.
APPELLANT'S ARREST AND QUESTIONING
During interrogation after being advised of his Miranda
rights, appellant identified photographs of the first two
victims, saying that they were "prostitutes he had been with."
He admitted driving them both to Ashland and dropping them off.
Appellant also admitted knowing the third victim, saying she,
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too, was a prostitute. He said he had sex with the third victim
in Richmond and then drove her to Ashland at her request
"because she wanted to perform more prostitution at the truck
stop in Ashland."
C.
THE MOTION TO SEVER
Appellant was indicted for the instant offenses and moved
to sever so that only the offenses relating to a particular
victim would be tried together. He argued as follows:
It does not appear that the offenses charged
[in the three groups of indictments] are
connected in their commission with each
other or that there is a common element of
substantial importance in their commission
and, therefore, these three groups of
indictments involving different dates depend
for their proof on different [sets] of
facts. The evidence admissible on one group
of indictments pertaining to an individual
alleged victim is not admissible on either
of the other groups of indictments involving
different alleged victims and the effect of
evidence pertaining to one alleged victim
being introduced in a trial involving other
alleged victims will be to unreasonably and
unfairly prejudice [appellant] and would be
in violation of the due process clause of
the Fourteenth Amendment . . . . Limiting
instructions . . . would be insufficient to
overcome such prejudice.
At the hearing on the motion, appellant's counsel argued
the evidence of the other offenses was inadmissible "to
establish signature." He explained there was no identification
issue because "in [appellant's] statement he's acknowledged that
he's had [sexual intercourse] with all three women. The issue's
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going to be whether it was consensual or whether it was as the
Commonwealth alleges." The Commonwealth conceded appellant's
counsel's statement
is accurate; we don't have an ID problem in
this case. We've got strong ID, however,
they say that it was appropriate in . . .
Satcher [v. Commonwealth, 244 Va. 220, 421
S.E.2d 821 (1992),] which was two rapes that
were similar in location, similar in modus
operandi, similar to the facts, etcetera,
and that'll be developed through direct
examination. And then importantly in
Farrell [v. Commonwealth, 11 Va. App. 380,
399 S.E.2d 614 (1990)], the reason for the
Commonwealth's argument for the joinder is
to show that [appellant's] modus operandi
was the same, and they've said in Farrell
that that's appropriate.
The Commonwealth then offered testimony from two sheriff's
department employees who investigated the offenses.
After hearing the testimony, the court ordered the parties
to submit memoranda on the severance issue, which they did. The
trial court then denied the motion to sever without further
explanation.
II.
ANALYSIS
Rule 3A:10(c) provides "[t]he court may direct that an
accused be tried at one time for all offenses then pending
against him, if justice does not require separate trials and (i)
the offenses meet the requirements of Rule 3A:6(b) or (ii) the
accused and the Commonwealth's attorney consent thereto." This
rule provides the "trial court [with] limited discretion to
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order an accused to be tried for more than one offense at the
same time." Godwin v. Commonwealth, 6 Va. App. 118, 121, 367
S.E.2d 520, 521 (1988). 1
Where an accused does not consent to having the charges
tried together, the trial court may "not try them together
unless the offenses [meet] the criteria of Rule 3A:6(b) and
justice [does] not require separate trials." Id. at 121, 367
S.E.2d at 522. "Justice requires separate trials where the
evidence of one of the crimes is not admissible in the trial of
the other. The efficiency promoted by joinder of offenses does
not outweigh the harm caused by the introduction of inadmissible
evidence of another crime." Id. at 123, 367 S.E.2d at 522(citation omitted). We need not consider whether the offenses
meet the criteria of Rule 3A:6(b) 2 because we hold that justice
required separate trials under the facts of this case.
Evidence of other crimes committed by an accused usually is
incompetent and inadmissible to prove the accused committed or
likely committed the particular crime charged. Kirkpatrick v.
Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).
1
Godwin was decided under Rule 3A:10(b). Rule 3A:10 was
amended January 1, 1994, and former subsection (b) was
redesignated as subsection (c). The amendment effected no
substantive change in the part of the rule at issue in this
case.
2
To meet the requirements of Rule 3A:6(b), the offenses
must be "based [(1)] on the same act or transaction, or [(2)] on
two or more acts or transactions that [(a)] are connected or
[(b)] constitute parts of a common scheme or plan."
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This rule "is deeply rooted in Virginia common law," Tucker v.
Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),
and exists to prevent "confusion of offenses . . . and a
suggestion of 'criminal propensity,' thus preserving the
'presumption of innocence,'" Crump v. Commonwealth, 13 Va. App.
286, 289, 411 S.E.2d 238, 240 (1991) (citations omitted). Other
crimes evidence may be admissible under limited circumstances if
it is offered "(1) to prove any element of the offense charged,
(2) to show the motive, intent, or knowledge of the accused, (3)
to show the conduct and feeling of the accused toward his or her
victim, or (4) to show premeditation or malice." Shifflett v.
Commonwealth, 29 Va. App. 521, 529, 513 S.E.2d 440, 444 (1999).
Evidence of another crime or crimes to show modus operandi may
be admissible to prove not only the identity of a crime's
perpetrator but also, "by inference, the accused's intent,
motive, malice, premeditation, or the accused's feelings toward
the victim." Id. at 530-31, 513 S.E.2d at 444-45.
However, even where evidence is relevant to prove one of
these issues or elements, it is admissible only if its probative
value outweighs its prejudicial effect. Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).
Determining whether the probative value of the evidence
outweighs its prejudicial effect is within the discretion of the
trial court and may be reversed only for an abuse of that
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discretion. See, e.g., Coe v. Commonwealth, 231 Va. 83, 87, 340
S.E.2d 820, 823 (1986).
The Commonwealth argues that evidence of the offense
against each victim would be admissible at trial for the
offenses against each of the other victims because it shows
"modus operandi, motive, intent, identity, opportunity,
relationship to the victims, absence of mistake or accident and
interconnection of the offenses." However, the only one of
these elements which was properly and genuinely in issue in
appellant's trial was the intent with which he acted. Appellant
admitted having sexual contact with all three victims but
claimed it was consensual.
As we previously have noted, where evidence of other crimes
is relevant to prove an issue or element which is "genuinely
uncontested, any nominal probative value will be easily
outweighed by the danger of prejudice." Blaylock v.
Commonwealth, 26 Va. App. 579, 592, 496 S.E.2d 97, 103 (1998)
(in sexual battery case in which defendant denied incident and
presented alibi evidence, holding "issue of intent was not
genuinely in dispute" and that "admission of child pornography
and [pornographic] story on the issue of [Blaylock's] intent
[was] an abuse of discretion"). Thus, evidence of a common
modus operandi, although often highly probative on the issue of
the identity of a common perpetrator, see, e.g., Shifflett, 29
Va. App. at 530-31, 513 S.E.2d at 444-45, was of little
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probative value here because appellant admitted the sexual
contacts. The Commonwealth agreed in argument on the severance
motion that "we don't have an ID problem in this case. We've
got strong ID." Thus, any probative value the other crimes
evidence had on the issue of identity was easily outweighed by
the prejudice likely to result from the testimony of each of the
other victims that appellant sexually assaulted her. See, e.g.,
Blaylock, 26 Va. App. at 592, 496 S.E.2d at 103.
Although proof of a common modus operandi may be probative
of other elements of an offense, see Shifflett, 29 Va. App. at
530-31, 513 S.E.2d at 444-45, assuming the evidence here is
sufficient to prove a common modus operandi, it is inadmissible
to prove appellant's intent, the only issue in genuine dispute.
We reached just such a conclusion in Foster v. Commonwealth, 5
Va. App. 316, 318, 362 S.E.2d 745, 746 (1987), in which the
defendant, charged with rape and robbery, denied the robbery and
claimed the intercourse was consensual. In Foster, we relied on
the decision of the Fourth Circuit Court of Appeals in Lovely v.
United States, 169 F.2d 386 (4th Cir. 1948). See also United
States v. Tate, 715 F.2d 864, 865-66 (4th Cir. 1983) (referring
to Lovely as "our leading case" for the principle that
"[e]vidence of other crimes or wrongs is not admissible" to
prove criminal propensity).
In Lovely, the defendant admitted to being with the victim
on the night of the alleged rape, but he denied having
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intercourse with her. 169 F.2d at 388. Over the defendant's
objection, the prosecution was allowed to introduce the
testimony of another woman that the defendant had raped her
under similar circumstances "fifteen days prior to the alleged
rape on the prosecutrix, and to go into the circumstances as
fully as though that case were on trial." Id.Ruling in Lovely that the admission of such evidence was
error, the Court reasoned as follows:
[T]he only question was whether [the
defendant] had had carnal knowledge of [the
alleged victim] forcibly and against her
will. The fact, if it was a fact, that he
had ravished another woman some weeks
before, threw no light whatever on that
question. It showed merely that he was a
bad man, likely to commit that sort of
crime; and this is precisely what the
prosecution is not allowed to show in a
criminal case. . . .
* * * * * * *
The rule which forbids the introduction
of evidence of other offenses having no
reasonable tendency to prove the crime
charged, except in so far as they may
establish a criminal tendency on the part of
the accused, is not a mere technical rule of
law. It arises out of the fundamental
demand for justice and fairness which lies
at the basis of our jurisprudence. If such
evidence were allowed, . . . persons accused
of crime would be greatly prejudiced before
juries and would be otherwise embarrassed in
presenting their defenses on the issues
really on trial. In the case at bar for
instance, . . . [the] accused was called
upon to defend another charge of rape, while
his hands were full defending the charge
contained in the indictment, and the jury
was necessarily given the impression . . .
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that he was a bad man who had been guilty of
other crimes and who might well be convicted
on that account. . . .
Id. at 388-89; see Foster, 5 Va. App. at 320-22, 362 S.E.2d at
747-48.
In adopting this reasoning from Lovely in Foster, we noted
that "'the majority of jurisdictions and the better reasoned
decisions'" follow the Lovely approach. Foster, 5 Va. App. at
321, 362 S.E.2d at 748 (quoting State v. Irving, 601 P.2d 954,
957 (Wash. Ct. App. 1979)). Thus, we concluded in Foster that
the fact that [another alleged victim of the
accused] had been attacked nine days after
the offenses under indictment had no bearing
as to whether [the victim of the rape for
which the accused was then on trial]
consented to the intercourse. [Such
evidence] merely showed that [the accused]
had a propensity to commit this type of
crime[, which] is precisely what the
prosecution is not allowed to show in a
criminal case.
Id. at 320, 362 S.E.2d at 747.
Here, under the reasoning of Lovely and Foster, we conclude
the testimony of each victim also was inadmissible at the trial
for the offenses allegedly committed against each of the other
victims. Neither the number of alleged victims nor the strength
of similarities between or among the offenses has any bearing on
the admissibility of evidence of other offenses where, as here,
the only issue genuinely in dispute is whether the acts were
consensual or forcible. Accordingly, the court's decision to
allow appellant to be tried jointly for the groups of offenses
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against each victim was an abuse of discretion and constituted
reversible error.
The holding in Satcher v. Commonwealth, 244 Va. 220, 421
S.E.2d 821 (1992), cited by the Commonwealth at trial, does not
support a different result. Satcher involved two rapes followed
by robberies which "occurred within a few yards and about
one-half hour of each other. Both victims were forcibly removed
from the [same] bicycle path at a location concealed behind [a]
'sound barrier wall'" and were "brutally beaten and partially
disrobed." Id. at 229, 421 S.E.2d at 827. Finally, both
victims' purses were stolen and "were found in approximately the
same location, with only money missing from both." Id.Although significant evidence proved Satcher was the perpetrator
in both instances, Satcher took the stand and denied any
involvement in the offenses, squarely placing the element of the
perpetrator's identity in issue. Id. at 229, 251-52, 421 S.E.2d
at 827, 840. Further, the intent of the perpetrator was not at
issue. As the Supreme Court noted, "[t]he criminal intent of
the assailant--to commit rape and robbery--was the same in both
situations." Id. at 229, 421 S.E.2d at 827.
In appellant's case, by contrast, the reverse was true--
identity was genuinely not in issue, and appellant's intent was
the disputed element. As set out above, the other crimes
evidence was not admissible to prove the victim's absence of
consent and appellant's intent to commit rape. Compare Foster,
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5 Va. App. at 320, 362 S.E.2d at 747 (holding evidence of
another alleged rape was inadmissible propensity evidence where
only contested issue was whether alleged victim consented), with
Spencer v. Commonwealth, 240 Va. 78, 87-91, 393 S.E.2d 609,
615-17 (1990) (upholding admission of evidence of other
rape-murders where identity of perpetrator was disputed);
Yellardy v. Commonwealth, 38 Va. App. 19, 24-26, 561 S.E.2d 739,
742-43 (2002) (holding two robbery charges were properly tried
together where "identical methods used to commit the two
robberies tend[ed] to prove the identity of [the accused] as the
person who committed both offenses" and "also tend[ed] to prove
that the confrontation was a robbery rather than a homosexual
encounter[], which [the accused] contended at trial").
For these reasons, we reverse appellant's convictions and
remand for further proceedings consistent with this opinion.
Reversed and remanded.
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