Scott v. Com.

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

OTIS SCOTT, III

v. Record No. 062454 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 2, 2007
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the circuit court

abused its discretion in granting the Commonwealth’s motion to

have a defendant tried at the same time for nine robberies and

other related crimes, which were based on incidents involving

different victims that occurred in various locations on

different dates over a four-month period.

Otis Scott, III, was indicted in the Circuit Court of the

City of Virginia Beach for 27 offenses based on incidents that

occurred between February 2003 and June 2003. Scott was

indicted for nine counts of robbery and 18 other related

charges, including three counts of burglary, one count of

abduction with the intent to extort money, one count of

attempted extortion, one count of attempted carjacking, and 12

counts of use of a firearm in the commission of these offenses.1

1
The grand jury did not issue indictments for three of the
charges against Scott, including two counts of use of a firearm
in the commission of a felony and one count of burglary, until
after the circuit court’s ruling on the motion for joinder.
 The Commonwealth filed a pretrial motion for joinder in the

circuit court, requesting that the court join Scott’s offenses

for a single trial. The Commonwealth alleged that the robberies

were part of a “common scheme or plan” and, therefore, could be

tried together under the provisions of Rules 3A:6(b) and

3A:10(c). According to the Commonwealth, the robberies had the

following similarities: the robberies occurred between 10:00

p.m. and 12:30 a.m. in residential neighborhoods; each of the

victims was an adult and was alone at the time of the crime;

each of the victims was threatened by the robber with a gun; the

robber demanded personal property from each victim; in five of

the robberies the victim was asked for a personal identification

number (PIN) to provide access to a bank account or credit card;

each victim had either just stepped out of a vehicle or was in a

garage; most of the victims were threatened with or suffered

bodily harm; and each robbery was committed by a lone, black

male. The Commonwealth also asserted that justice did not

require separate trials for the offenses under Rule 3A:10(c),

because if each offense were tried separately, evidence of the

other offenses would be admissible in the separate trials in

order to prove the robber’s identity.

These charges, however, were related to the robbery charges and
were included in the trial against Scott.

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 Scott opposed the motion for joinder. After hearing oral

argument on the motion, the circuit court granted the

Commonwealth’s motion to join the offenses in a single trial.

The circuit court held that several of the Commonwealth’s

witnesses might be required to testify regarding the identity of

the perpetrator in the different offenses, and that there were

substantial similarities among the offenses that constituted a

“modus operandi.” The case proceeded to a jury trial.

At trial, Michelle P. Bingaman testified that about 10:30

p.m. on February 4, 2003, a black man approached her as she

stepped out of her vehicle in the parking lot of her apartment

building. Bingaman stated that after the man displayed a gun

and demanded that she give him her purse, she complied and

dropped her purse on the ground. According to Bingaman, the man

directed her to lie on the ground “face down,” and then the man

fled on foot. Bingaman stated that after the man departed, she

discovered that her purse had been taken. At trial, Bingaman

identified Scott as the man who robbed her.

Florentina Lizan testified that at 10:40 p.m. on March 16,

2003, a black male approached her after she left her vehicle and

walked onto the front porch of her residence. Lizan stated that

the man held a gun to her head and said, “This is a holdup,” and

“Give me your money. If not, I’m going to kill you.” After

Lizan gave the man her wallet, the man demanded Lizan’s PIN for

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a certain credit card. Upon Lizan’s refusal to give the man her

PIN, the man ran toward a vehicle parked across the street.

According to Lizan, the man spoke with her several times on

the telephone after the robbery demanding her PIN. The

Commonwealth introduced into evidence telephone records

indicating that the telephone calls to Lizan were made from a

nearby convenience store. At trial, Lizan identified Scott as

her assailant.

The Commonwealth presented testimony from Katherine F.

Holloway about the night she was robbed. Holloway stated that

about 10:00 p.m. on March 23, 2003, a black man with a gun

appeared as she was unloading bags from her vehicle, which was

parked in front of her home. According to Holloway, the man

said, “Give me your money and your credit cards,” and Holloway

complied. Holloway testified that the man also asked for her

“ATM number,” and when she told him that she did not have one,

he left. Holloway was unable to identify her assailant.

Next, Jeffrey R. Ratliff testified that he was robbed on

April 27, 2003, about 10:00 p.m. Ratliff stated that he was in

the driveway of a friend’s home vacuuming the inside of a van

when a man placed a gun to the back of Ratliff’s head.

According to Ratliff, the man, whom Ratliff described as a black

male, asked for Ratliff’s wallet and for the “codes” to his

credit cards. Ratliff stated that he gave the man his wallet

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and told him that he did not have any “codes.” Ratliff

testified that after he complied with the robber’s demand to lie

face down on the ground, Ratliff heard the man run away.

Ratliff identified Scott at trial as his assailant.

Holly L. Narducci testified about an incident that occurred

between 7:30 p.m. and 8:30 p.m. on May 2, 2003. Narducci

related that she was sitting in her garage, with the garage door

open, when a black man entered the garage and said, “Scream, and

I’ll kill you.” Narducci stated that the man pointed a gun at

her head and demanded a wallet lying on a nearby workbench.

Narducci testified that after she gave the man a credit card

from the wallet, the man demanded a PIN. According to Narducci,

she told the man the card did not have a PIN. As she “grabbed

for” the man’s gun, he ran away. Narducci identified Scott as

the robber in a photographic lineup and at trial.

Next, Aderonke Aderonmu testified that she was driving home

from work about 12:30 a.m. on May 15, 2003, when she noticed

that a vehicle appeared to be following her car. Aderonmu

stated that she saw the vehicle stop near her neighbor’s home

and assumed that the driver was her neighbor. Aderonmu

testified that after she parked her vehicle in the driveway of

her residence, a black man approached her. He pointed a gun at

her head and said, “Give me all the money or I blow your head.”

According to Aderonmu, she gave the man her purse, and the man

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drove away in the vehicle that was parked near her neighbor’s

home. Aderonmu identified Scott in a photographic lineup and at

trial as the man who robbed her.

Samuel K. Owens also testified, stating that he was robbed

in the garage of his home at 9:30 p.m. on May 31, 2003. Owens

testified that he was painting the inside of his garage, with

the garage door open, when a black male ran into the garage and

pointed a gun at Owens’ head. According to Owens, the man asked

for his wallet but Owens did not have his wallet with him.

Owens stated that the man forced Owens, at gunpoint, inside the

house to retrieve his wallet. Owens testified that after the

man took his wallet and asked for Owens’ PIN, Owens gave the man

an incorrect PIN and the man left the house. Owens identified

Scott as the perpetrator of the crime in both a photographic

lineup and at trial.

Next, Jean Becker testified that she was robbed on the

night of May 31, 2003. Becker stated that around 11:00 p.m.,

after she parked her vehicle in the driveway of her home, a

black man appeared next to her vehicle. Becker stated that she

tried to move to the other side of the vehicle to get away from

the man but he reached into the vehicle, attempting to seize

Becker’s wallet. Becker testified that the man struggled with

her and hit her in the mouth with a hard object that chipped her

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tooth. The man next grabbed Becker’s wallet and left. At

trial, Becker identified Scott as her assailant.

Finally, the Commonwealth presented the testimony of Ian P.

Goodwin, who described the details of the night he was robbed.

Goodwin stated that on June 7, 2003, between 10:00 p.m. and

10:30 p.m., he left a friend’s home. As Goodwin entered his

vehicle that was parked on a street, a black male holding a gun

approached the car and said, “Give me the keys to your car.”

Goodwin stated that he responded, “No,” and began yelling for

help. According to Goodwin, the man hit Goodwin several times

with the gun while the two men engaged in a struggle. Goodwin

testified that the man ultimately left the scene by driving away

in a vehicle. After the incident, Goodwin discovered that his

wallet had been taken. Goodwin was unable to identify his

assailant.

Officer Michael A. Melnyk of the City of Virginia Beach

Police testified that about one week after the Goodwin robbery,

Melnyk initiated a traffic stop of Scott’s vehicle for several

apparent traffic violations. William Handlin, another police

officer present during the traffic stop, testified that Scott, a

black male, was ultimately arrested for driving with a suspended

driver’s license. Handlin stated that he found Goodwin’s debit

card in Scott’s pants pocket.

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 Charles P. Primeaux, a City of Virginia Beach police

officer who interviewed Scott after his arrest, testified that

during an initial interview, Scott denied any involvement in the

robberies. However, during a later interview, when Primeaux

asked Scott why he committed robberies, Scott replied that he

owed many people money. Primeaux also testified that when he

asked Scott where he obtained the gun used in the robberies

under investigation, Scott responded that he had purchased the

gun in Portsmouth. Scott did not testify at trial.

The jury convicted Scott of seven counts of robbery, three

counts of burglary, one count of abduction with the intent to

extort money, one count of attempted extortion, and nine related

counts of use of a firearm in the commission of a felony. The

jury acquitted Scott of the two robbery counts and related

firearm charges involving victims Holloway and Ratliff. The

jury also acquitted Scott of the charges of attempted carjacking

and use of a firearm, in which Goodwin was the victim. The

circuit court sentenced Scott to a total of 253 years’

imprisonment, in accordance with the jury verdict.

Scott appealed from the circuit court’s judgment to the

Court of Appeals, which held that the circuit court did not

abuse its discretion in granting the Commonwealth’s motion for a

single trial of all the charged offenses. Scott v.

Commonwealth, 48 Va. App. 401, 632 S.E.2d 12 (2006). The Court

8
of Appeals held that the nine robberies had “strikingly similar”

characteristics and that, therefore, the circuit court

reasonably concluded that the robberies were part of a “common

scheme,” within the meaning of Rule 3A:6(b). Id. at 417, 632

S.E.2d at 20. The Court of Appeals also held that the circuit

court properly exercised its discretion in concluding that

justice did not require separate trials under Rule 3A:10(c),

because evidence of the other crimes would have been admissible

in each individual trial to establish the identity of the

criminal agent. Id. at 417, 632 S.E.2d at 19.

On appeal to this Court, Scott argues that the Court of

Appeals erred in affirming the circuit court’s judgment.

According to Scott, the Commonwealth failed to show that the

offenses could be tried together under Rule 3A:10(c) as a

“common scheme or plan,” within the meaning of Rule 3A:6(b).

Scott further contends that the Commonwealth failed to establish

that the robberies shared unusual characteristics, were linked

to one another, were committed within a limited geographic area,

or were committed to meet a single goal.

In response, the Commonwealth argues that reasonable

inferences drawn from the evidence demonstrated a “pattern”

among the robberies sufficient to satisfy the requirements of

Rule 3A:6(b). The Commonwealth contends that this “pattern” was

established by the various shared characteristics of the crimes,

9
including that the robber targeted residents of Virginia Beach

who were alone outside residential properties, and that the

robber used a gun to carry out a “common purpose” of obtaining

the victims’ money, credit cards and, in several instances,

their PINs. We disagree with the Commonwealth’s arguments.

A circuit court’s determination whether a defendant may be

tried for multiple offenses in a single trial is a matter

submitted to that court’s sound discretion. Commonwealth v.

Minor, 267 Va. 166, 172, 591 S.E.2d 61, 65 (2004); Commonwealth

v. Smith, 263 Va. 13, 16, 557 S.E.2d 223, 225 (2002); Cheng v.

Commonwealth, 240 Va. 26, 33-34, 393 S.E.2d 599, 603 (1990).

Therefore, unless the circuit court abused its discretion in

ordering a single trial for multiple offenses pending against a

defendant, the circuit court’s decision will be affirmed on

appeal. Minor, 267 Va. at 172, 591 S.E.2d at 65; Smith, 263 Va.

at 16, 557 S.E.2d at 225; Cheng, 240 Va. at 33-34, 393 S.E.2d at

603.

Under Rule 3A:10(c), when a defendant is charged with more

than one offense, a court may order that the defendant be tried

in a single trial “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.” See also Satcher

v. Commonwealth, 244 Va. 220, 229, 421 S.E.2d 821, 827 (1992);

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Smith, 263 Va. at 16, 557 S.E.2d at 225; Cheng, 240 Va. at 33,

393 S.E.2d at 603. Here, because Scott did not consent to be

tried in a single trial for the pending offenses, the

Commonwealth was required to establish both of the two other

conditions of Rule 3A:10(c), namely, that the offenses satisfied

the requirements of Rule 3A:6(b), and that justice did not

require separate trials.

Under Rule 3A:6(b), two or more offenses may be joined in a

single indictment “if the offenses are based on the same act or

transaction, or on two or more acts or transactions that are

connected or constitute parts of a common scheme or plan.” See

also Satcher, 244 Va. at 229, 421 S.E.2d at 827; Smith, 263 Va.

at 16, 557 S.E.2d at 225. Because the Commonwealth does not

argue that the pending offenses were based on the same act or

transaction or that they were “connected,” within the meaning of

Rule 3A:6(b), we limit our consideration of Rule 3A:6(b) to the

Commonwealth’s sole argument that the charged offenses were part

of a “common scheme or plan,” as contemplated by that Rule.

In deciding this issue, we first observe that we have not

defined the term “common scheme or plan” in the context of Rule

3A:6(b). However, in our decisions addressing the admissibility

of evidence of other crimes in criminal trials, we often have

applied the term in discussing pattern offenses or modus

operandi. For example, in Scates v. Commonwealth, 262 Va. 757,

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553 S.E.2d 756 (2001), we held that evidence of similar offenses

is admissible to prove a “common scheme, design, or plan,” for

purposes of establishing a defendant’s identity, when those

offenses exhibit “such a concurrence of common features that the

various acts are naturally to be explained as caused by a

general plan of which they are the individual manifestations.”

Id. at 762, 553 S.E.2d at 759 (quoting McWhorter v.

Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 26 (1951)). We

also have stated that evidence of other crimes is admissible in

cases of disputed identity to prove the probability of a common

perpetrator, provided that the other crimes bear a “singular

strong resemblance to the pattern of the offense charged” and

are “sufficiently idiosyncratic to permit an inference of

pattern for purposes of proof.” Turner v. Commonwealth, 259 Va.

645, 651, 529 S.E.2d 787, 791 (2000) (quoting Chichester v.

Commonwealth, 248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994));

accord Spencer v. Commonwealth, 240 Va. 78, 89-90, 393 S.E.2d

609, 616-17 (1990).

With this discussion in mind, we define the terms “common

scheme” and “common plan” for application in Rule 3A:6(b).

Initially, we observe that the terms “common scheme” and “common

plan” are not synonymous. The term “common scheme” describes

crimes that share features idiosyncratic in character, which

permit an inference that each individual offense was committed

12
by the same person or persons as part of a pattern of criminal

activity involving certain identified crimes. See e.g., Johnson

v. Commonwealth, 259 Va. 654, 676-78, 529 S.E.2d 769, 782-83

(2000) (evidence of two other rapes admissible to prove identity

of defendant in rape and capital murder case because crimes bore

“strong resemblance” to one another, including that defendant

knew all three black female victims, did not force entry into

their dwellings, used steak knives obtained from victims’

dwellings in attacks, and asked for glass of water or drank from

glass in each dwelling); Turner, 259 Va. at 651-53, 529 S.E.2d

at 790-92 (evidence of previous rapes and abductions admissible

to prove defendant’s identity when common idiosyncratic features

included that defendant approached victims in shopping centers

as they entered vehicles, asked for victims’ names and

addresses, ordered victims to look away from him, used weapon

and threatened to kill victims, took car keys from each victim,

and drove each victim away from scene where crimes committed);

Spencer, 240 Va. at 81, 87-91, 393 S.E.2d at 611, 615-17

(evidence of “strikingly similar” offenses admissible to prove

identity of defendant when common characteristics of offenses

included entering bedrooms of victims through window, selecting

victims who were caucasian women with similar body structures,

committing offenses on weekends while on leave from half-way

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house, and employing same type of strangulation for each

victim).

In contrast, the term “common plan” describes crimes that

are related to one another for the purpose of accomplishing a

particular goal. See e.g., Powell v. Commonwealth, 267 Va. 107,

118, 140-41, 590 S.E.2d 537, 544, 557-58 (2004) (court did not

err in admitting evidence of later rape and attempted murder to

show identity and motive of defendant when letter written by

defendant acknowledged his intent to rape and kill both victims,

who were siblings); Collins v. Commonwealth, 226 Va. 223, 228-

32, 307 S.E.2d 884, 888-90 (1983) (court did not err in

admitting testimony of defendant’s former prostitute employees

because testimony showed defendant’s intent to hire employees

for purpose of operating prostitution business). The terms

“common scheme” and “common plan,” however, are not mutually

exclusive and a series of crimes may exhibit both a “common

scheme” and a “common plan.” See e.g., Satcher, 244 Va. at 229-

30, 421 S.E.2d at 827 (holding that similar crimes against two

women in same location along bike path within 30 minutes of each

other constituted parts of common scheme or plan to commit rape

and robbery under Rule 3A:6(b)).

We disagree with the Court of Appeals’ conclusion that the

similarities in the present offenses sufficiently established

the existence of a “common scheme.” See Scott, 48 Va. App. at

14
413-15, 632 S.E.2d at 17-18. The Commonwealth proved only that

during a period of about four months in the same large city,

various individuals who were alone outside their homes were

robbed during the late evening hours, and that the robber

displayed a gun, usually threatening the victims with harm or

actually striking them, and demanded from the victims money,

credit cards and, in some cases, their PINs.

This evidence demonstrated only a general similarity of

manner in which the crimes were committed and failed to

establish that the crimes shared idiosyncratic features

permitting an inference of a pattern of criminal activity

committed by the same person. The fact that the robber in five

of the present offenses demanded a PIN for the stolen credit

cards was not an idiosyncratic feature, because it is common

knowledge in our consumer society that such a number must be

provided before making a cash withdrawal from an automated

machine.

The absence of idiosyncratic features in the present record

leaves a record showing only separate crimes of the same type

that share features that are likely similar to numerous other

robbery offenses. Notably, the present record does not indicate

the relative location of each robbery to the other robberies

committed, and thus fails to show that the robberies were

committed in any particular neighborhood or area of this large

15
city. The record also fails to show that a weapon of the same

description was used in the commission of the crimes, that the

robber made unusual threatening remarks, or that the robber

chose victims only of a certain gender or age group. We cite

these various factors, not as requirements of a “common scheme,”

but merely to illustrate that the possible range of

idiosyncratic features that may establish a “common scheme” is

very broad, and that no such idiosyncratic features were common

incidents of all the present offenses.2

We further note that the Court of Appeals did not address

whether the offenses pending against Scott constituted part of a

“common plan.” However, because the Commonwealth argues that

the offenses were part of a “common scheme or plan,” we also

consider whether the evidence demonstrated the existence of a

“common plan.” We conclude that the evidence did not establish

the existence of such a plan. As we have observed, the evidence

showed only the commission of nine robberies and other related

offenses bearing a general similarity to one another. Moreover,

the evidence completely lacked any proof that the offenses were

related to one another for the purpose of accomplishing a

particular goal.

2
As we have already indicated, while the victims in four of
the robberies identified Scott as their assailant, the victims
in the other five robberies were unable to do so.

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 Accordingly, we hold that because the Commonwealth failed

to establish that the offenses pending against Scott constituted

parts of a “common scheme or plan,” within the meaning of Rule

3A:6(b), the Court of Appeals erred in approving the circuit

court’s discretionary decision ordering a single trial under the

provisions of Rule 3A:10(c). Also, having concluded that the

Commonwealth failed to establish a required element of Rule

3A:10(c), namely, compliance with Rule 3A:6(b), we do not reach

the separate issue under Rule 3A:10(c) whether justice required

separate trials.

For these reasons, we will reverse the judgment of the

Court of Appeals affirming Scott’s convictions, and will remand

the case to the Court of Appeals with direction that the case be

remanded to the circuit court for new trials if the Commonwealth

be so advised.

Reversed and remanded.

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