Tucker v. Commonwealth , 17 Va. App. 520 ( 1993 )

Opinion

BARROW, J.

The defendant appeals his conviction for forging a public record because evidence of another unrelated crime was admitted into evidence at his trial. Evidence of the other crime, grand larceny, did not tend to establish an element of the crime for which he was being tried. Furthermore, to the extent that evidence of the other crime tended to show the defendant’s willfulness or motive in forging the public record, its prejudice to the defendant far outweighed its minimal probative value to the Commonwealth because the defendant did not dispute that he had willfully signed a name, other than his own, to the record. Therefore, we hold that evidence of the other crime should have been redacted from the document before the trial court admitted the document into evidence.

The defendant identified himself falsely when arrested for grand larceny and attempting to purchase cocaine. Fie first told the arresting officer he was “Phillip White.” Later, at the police headquarters, when he was processed, he said that his name was “Phillip Edward White.” He then signed a Central Criminal Records Exchange (CCRE) form as “Phillip White.” A later computer check of his fingerprints revealed that he was not Phillip Edward White. He had, instead, previously been fingerprinted under nine names, one of which was Glenn E. Tucker. On the basis of his false signature on the CCRE form relating to grand larceny, he was indicted for forging a public record, in violation of Code § 18.2-168.

At trial, the defendant moved to exclude evidence of the nature of the other charge, i.e., grand larceny, for which he had been arrested. The trial court’s denial of that motion is the subject of this appeal.

The rule excluding other crimes evidence is deeply rooted in Virginia common law. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). See also Boyd v. Commonwealth, 156 Va. 934, 943-44, 157 S.E. 546, 549 (1931); Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985). The purpose of the exclusion of other crimes evidence is to protect the accused “against unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt.” Sutphin, 1 Va. App. at 245, 337 S.E.2d at 899 (citing Fleenor v. Commonwealth, 200 Va. 270, 274-75, 105 S.E.2d 160, 163 (1958)).

The many exceptions to the rule are as well established as the rule itself. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. Specifically, other crimes evidence is admissible where it shows the conduct and feeling of an accused toward his victim or establishes their prior relations; where it proves motive or opportunity to commit the crime charged; where it proves an element in the actus reus of the crime charged; where it proves intent or guilty knowledge on the part of the accused, or negates good faith or the possibility of mistake or accident; where it proves the identity of the accused as the one who committed the crime charged by showing criminal acts so distinct as to indicate a modus operandi; and where it demonstrates a common scheme or plan of which the crime charged is part. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805; Boyd, 156 Va. at 944, 157 S.E. at 549-50; Sutphin, 1 Va. App. at 245-46, 337 S.E.2d at 899-900. In general, other crimes evidence “must be relevant to an issue or element in the present case” in order to be admissible. Sutphin, 1 Va. App. at 245, 337 S.E.2d at 899.

In addition, other crimes evidence is admissible where it “is connected with or leads up to the offense for which the accused is on trial.” Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. “[I]t may be necessary to allow evidence of other crimes when it is so intimately connected and blended with facts proving the commission of the offense charged that it cannot be separated with propriety.” Sutphin, 1 Va. App. at 246, 337 S.E.2d at 899. See also Timmons v. Commonwealth, 204 Va. 205, 215, 129 S.E.2d 697, 704 (1963); Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949); Huffman v. Commonwealth, 168 Va. 668, 683-84, 190 S.E. 265, 272 (1937); Colvin v. Commonwealth, 147 Va. 663, 669-70, 137 S.E. 476, 478 (1927). Under this exception, the issue is not the relevance of the other crimes evidence but its separability from otherwise relevant and admissible evidence. Unless the unredacted CCRE form falls under one or more of the exceptions to the rule, it is inadmissible.

The defendant sought only to exclude the nature of the charge from the jury’s consideration. He did not seek to exclude the fact that he was required to sign the form because he was under arrest for the commission of a crime. In fact, even after elimination of the nature of the offense, the CCRE form conveyed this information. He specifically suggested that the nature of the charge could be redacted from the CCRE form before its admission into evidence. The three words on the form - “GRAND LARCENY (AUTO)”- could readily be obscured or obliterated to render them illegible without affecting the evidentiary value of the CCRE form. Thus, the nature of the crime was not inseparable from the proof of the form.

The nature of the crime was not probative of an element of the crime which the Commonwealth was required to prove. Had it been, it would have been admissible. See Hunter v. Commonwealth, 15 Va. App. 717, 724, 427 S.E.2d 197, 202 (1993). The fact that the defendant was originally charged with a felony is not a material element in the offense of forging a public document. The elements of that offense require only that a defendant “forge a public record.” See Code § 18.2-168. The nature of the crime with which a defendant may be charged is of no significance in determining if he or she has forged a public record in violation of the statute.

Significantly, however, the defendant’s willfulness and his motive for forging the CCRE form were not in issue at the trial. The defendant did not challenge the correctness of the Commonwealth’s evidence against him. He offered no evidence. Had he done so, the Commonwealth would have had an opportunity to rebut his evidence. The cross examination of the Commonwealth’s three witnesses was limited to perfunctory questions that did not dispute their direct testimony. The defendant’s sole issue at trial was whether the CCRE form was a “public record.”

Thus, even if the Commonwealth was entitled to demónstrate the defendant’s willfulness or to show his motive in forging the CCRE form, the slight probative value of nature of the offense would not outweigh its prejudicial effect. The value to the Commonwealth of proving the defendant’s willfulness or motive in order to establish that the defendant was the person who signed a name other than his own to the document, a fact that was not contested, was minimal. The prejudice to the defendant — that the jury might consider the nature of an unresolved criminal charge in determining his sentence — however, was great. No instruction was given limiting how the jury could use evidence of the charge of grand larceny. Without such an instruction, we cannot say that the evidence did not impermissibly affect the jury’s verdict.

For these reasons, we conclude that the trial court abused its discretion in admitting evidence of the pending charge of grand larceny. The judgment of conviction is, therefore, reversed, and the proceeding is remanded for a new trial.

Reversed and remanded.

Benton, J., concurred.