Commonwealth v. Minor

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 030401 OPINION BY JUSTICE CYNTHIA D. KINSER
January 16, 2004
KURVYN DARNELL MINOR

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether a defendant, who

was indicted for offenses against three victims occurring

on three different dates, should have been granted separate

trials for the offenses allegedly committed against each

victim. We conclude that the trial court abused its

discretion in denying the defendant’s motion to sever the

charges because evidence of the other crimes was not

relevant to the only contested issue, whether each victim

did or did not consent to sexual intercourse. We will

therefore affirm the judgment of the Court of Appeals,

which reversed the trial court’s judgment and the

defendant’s convictions.

PRIOR PROCEEDINGS

The defendant, Kurvyn Darnell Minor, was charged with

14 offenses that arose out of three separate incidents

involving three different victims. First, he was charged

with the April 3, 2000, abduction of C.M. and use of a

firearm in the commission of that felony. Second, he was
charged with the April 13, 2000 abduction, rape, robbery,

oral sodomy, attempted anal sodomy, credit card theft, and

use of a firearm in the commission of a felony, all against

W.S. Third, the defendant was charged with the September

30, 2000, abduction, rape, robbery, oral sodomy, and anal

sodomy of G.C.

Minor filed a motion to sever the charges, asking that

he be tried separately for the offenses related to each

victim. He asserted that evidence admissible in the trial

of the charges involving one victim would not be relevant

to the other offenses involving different victims. The

Commonwealth opposed the defendant’s motion and moved for

joinder of the charges in a single trial. In a memorandum

in support of its motion for joinder, the Commonwealth

stated that, “[i]n the present case, modus operandi,

opportunity, relationship to the victims, absence of

mistake or accident and interconnection of the offenses are

all relevant to the trial of these three cases.” The

Commonwealth also stated that “[t]he place of attack, the

type of victim, the method of transportation, the topics of

conversation and other factors are sufficiently

idiosyncratic to permit an inference of pattern or purpose

for proof showing a common predator or common modus

operandi.”

2
 At a hearing on the parties’ motions, the Commonwealth

admitted that there was no dispute regarding the identity

of the perpetrator in the charged offenses. Despite that

admission, the Commonwealth stated that the evidence of

other crimes was admissible “to show that the defendant’s

modus operandi was the same.” The defendant, however,

suggested that the only contested issue was whether the

victims consented to sexual intercourse. Defense counsel

acknowledged that Minor had admitted, in a statement to the

police, that he knew these women and had contact with them,

including sexual intercourse. Defense counsel then stated,

“I don’t think that it’s going to be the Commonwealth’s

position necessarily that on the issue of whether it was

consensual or not that there was — there’s something so

unique that occurred between the women that [the

Commonwealth] would need to try all the cases on the same

day in order to present that issue.” The Commonwealth did

not disagree with that statement.

The trial court granted the Commonwealth’s motion for

joinder of the indictments for trial, finding that joinder

was proper under Rule 3A:10(c). At trial, Minor did not

testify. The court instructed the jury on the issue of

consent only with regard to the victim identified as W.S.

That instruction stated:

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 Consent by [W.S.] is an absolute bar to a
conviction of rape. However, consent, once
given, may be withdrawn prior to sexual
intercourse. If after consideration of all of
the evidence you have a reasonable doubt as to
whether [W.S.] consented to have intercourse with
the defendant, then you shall find him not
guilty.

The jury convicted Minor of three counts of abduction;

two counts each of rape, oral sodomy, and robbery; and one

count each of anal sodomy, attempted anal sodomy, credit

card theft, and use of a firearm in the commission of

abduction. The jury fixed Minor’s total punishment for

these convictions at two life sentences plus 113 years

imprisonment. The trial court, however, struck the charge

of attempted anal sodomy and reduced the defendant’s

sentence to 108 years plus two life sentences.

Minor appealed the trial court’s judgment to the Court

of Appeals. In an unpublished opinion reversing the

judgment of the trial court, the Court of Appeals held

that, under Rule 3A:10(c), justice required separate trials

because “[n]either 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.”

Minor v. Commonwealth, No. 3105-01-2, slip op. at 11 (Dec.

4
31, 2002). The Commonwealth appeals from the judgment of

the Court of Appeals.

MATERIAL FACTS

The three incidents at issue occurred in the late

evening to early morning hours on the respective dates

alleged in the indictments. Minor approached each

pedestrian victim within the same relative area on the

north side of the City of Richmond and identified himself

as “Kevin Wilkinson” to C.M. and as “Kevin” to W.S. He

offered each one a ride in his vehicle, which C.M. and W.S.

willingly accepted by getting into Minor’s vehicle.

Although G.C. initially accepted Minor’s offer of a ride to

her home, she refused to get into his car when Minor told

her that he wanted to take her to his house. At that

point, Minor pulled out a knife, held it to G.C.’s throat,

made her get into his vehicle, and told her that he was

going to rape her.

After each victim got into his vehicle, whether

willingly or otherwise, Minor drove along Interstate 95,

taking each victim to a secluded area in Hanover County.

Minor took C.M. and W.S. to a location near a church, and

he took G.C. to a wooded area about a mile away from the

same church.

5
 C.M. testified that, as she and Minor traveled to

Hanover County, they discussed “getting together, having

sexual performance or act, and I, you know, didn’t mind at

that particular time.” She further testified that she and

Minor agreed to stop at a gasoline station, where she

purchased a condom using Minor’s money. According to C.M.,

Minor then told her “that he wanted anal sex.” At that

point, C.M. objected, “I said no, that’s okay. I change my

mind. I don’t want to do that.” C.M. testified that

Minor’s “whole tone and attitude just change[d]” then and

“his voice [got] real harsh and nasty.”

When Minor stopped his vehicle near the church, he

took the keys out of the ignition and went back to the

trunk of the vehicle. As he started to reenter the

vehicle, C.M. “jumped out” and went over by the church.

Minor then drove away “real fast” but suddenly stopped,

backed up, and told C.M. that he was not going to leave her

there. He ordered C.M. to get back into the vehicle, but

she refused. Minor pointed an “object out of the car that

look[ed] like a gun,” and C.M. started running behind the

church. As she ran, C.M. heard a sound “[l]ike a

firecracker or a pop.”

When W.S. got in Minor’s car, he offered her $100

“[t]o have some sex.” W.S. agreed and testified that, as

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they were driving along, Minor was “a very nice, very nice

guy.” However, W.S. stated that “all of a sudden on the

interstate, he started getting — attitude start[ed]

changing, . . . he really was getting very forceful

. . . .” According to W.S., Minor forced her to perform

oral sodomy on him while he was driving on the interstate.

Minor stopped his vehicle in the middle of a road near

the church. W.S. testified that they had vaginal sexual

intercourse in the front seat of the vehicle and that she

did so because she was scared. Minor also attempted to

have anal sodomy with W.S. Eventually, Minor drove to

another location where he pulled out a gun and pointed it

at W.S.’s head, telling her not to scream. W.S. then

opened the passenger door, and as she was trying to exit

the vehicle, Minor grabbed her purse, which contained her

identification and a credit card. He then drove away. In

the early morning hours of April 13, 2000, Minor attempted

to use that credit card three times at two different

automatic teller machines.

After Minor made G.C. get into his car, he drove along

Interstate 95 and stopped in a wooded area. According to

G.C., Minor dragged her out of his vehicle with a knife

held to her throat and then took her back to the vehicle

where he started removing her clothes. G.C. testified that

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Minor forced her to engage in acts of vaginal intercourse,

oral sodomy, and anal sodomy, while “poking” her with the

knife or “bang[ing]” her head on the vehicle. Minor drove

off, leaving G.C. in the woods and taking most of her

clothes, her cellular telephone, a pager, and approximately

$40 in cash.

Evidence established that, during a traffic stop in

May 2000, a police officer seized a handgun from Minor.

That seizure took place after the first two incidents at

issue had transpired but before the third one occurred.

ANALYSIS

It is well established in our jurisprudence that

evidence of other offenses is generally not admissible to

prove guilt of the crime for which a defendant is presently

on trial. See Stockton v. Commonwealth, 227 Va. 124, 142,

314 S.E.2d 371, 383 (1984); Moore v. Commonwealth, 222 Va.

72, 76, 278 S.E.2d 822, 824 (1981); Eccles v. Commonwealth,

214 Va. 20, 22, 197 S.E.2d 332, 333 (1973). This is so

because “[s]uch evidence implicating an accused in other

crimes unrelated to the charged offense . . . may confuse

the issues being tried and cause undue prejudice to the

defendant.” Guill v. Commonwealth, 255 Va. 134, 138, 495

S.E.2d 489, 491 (1998). There are, however, some

recognized exceptions to this general principle:

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 “Evidence of other offenses is admitted if
it shows the conduct and feeling of the accused
toward [the] victim . . . or if it tends to prove
any relevant element of the offense charged.
Such evidence is permissible in cases where the
motive, intent or knowledge of the accused is
involved, or where the evidence is connected with
or leads up to the offense for which the accused
is on trial. Also, testimony of other crimes is
admissible where the other crimes constitute a
part of the general scheme of which the crime
charged is a part.”

Satcher v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821,

828 (1992) (quoting Kirkpatrick v. Commonwealth, 211 Va.

269, 272, 176 S.E.2d 802, 805 (1970)); accord Scates v.

Commonwealth, 262 Va. 757, 761, 553 S.E.2d 756, 759 (2001);

Turner v. Commonwealth, 259 Va. 645, 651, 529 S.E.2d 787,

790-91 (2000). For such evidence to be admissible under

one of these exceptions, the legitimate probative value of

the evidence must outweigh its prejudicial effect. Guill,

255 Va. at 139, 495 S.E.2d at 491-92; Satcher, 244 Va. at

231, 421 S.E.2d at 828.

The question whether an accused, pursuant to Rule

3A:10(c), can be tried in a single trial for all offenses

then pending against that defendant is a matter resting

within a trial court’s sound discretion. Cheng v.

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

(citing Fincher v. Commonwealth, 212 Va. 552, 553, 186

S.E.2d 75, 76 (1972); Bryant v. Commonwealth, 189 Va. 310,

9
315, 53 S.E.2d 54, 56 (1949)). Thus, on appeal, a trial

court’s decision to join different offenses for trial will

not be reversed absent a showing that the court abused its

discretion. Cheng, 240 Va. at 33-34, 393 S.E.2d at 603.

The issue in this appeal is whether “justice” required

separate trials under Rule 3A:10(c). To resolve that

issue, we must determine whether evidence showing the

defendant’s rape of one victim was relevant to prove that a

different victim did not consent to sexual intercourse.

The only contested issue identified at the hearing on the

defendant’s motion to sever the charges was whether the

victims consented. Similarly, the Court of Appeals stated

that “the only issue genuinely in dispute [was] whether the
1
acts were consensual or forcible.” Minor, No. 3105-01-2,

slip op. at 11.

Before answering that evidentiary question, we must

clarify one matter with regard to a defendant’s intent to

commit the crime of rape vis-à-vis a victim’s lack of

consent to sexual intercourse. The Commonwealth never

articulated at trial exactly to what relevant issues the

evidence of other crimes pertained. However, the

Commonwealth maintains on appeal that such evidence was

10
admissible to show the defendant’s intent and thus the

victims’ lack of consent to sexual intercourse. In its

argument, the Commonwealth seems to equate those two

issues. For example, the Commonwealth states on brief,

“Simply put, the other crimes evidence here showed the

defendant’s intent, in each instance, to force the victim

to submit to sexual contacts of various sorts, regardless

of the victim’s wishes.” In discussing the decision of the

Court of Appeals in this case, the Commonwealth asserts

that “the Court of Appeals has established a rule of law

that prohibits the introduction of other crimes evidence in

rape cases when the principal issue to be resolved is

whether the sexual act was consensual.” But, in the same

paragraph, the Commonwealth states that the decision in

Moore “clearly holds that other crimes evidence is

admissible on the issue of intent.”

However, a defendant’s intent to commit the crime of

rape is not the same issue as whether a victim consented to

sexual intercourse. Those two issues are distinct and

should not be blurred.

Although proof of rape requires proof of
intent, the required intent is established upon
proof that the accused knowingly and

1
On appeal to this Court, neither party challenged
the scope of the contested issue addressed by the Court of
Appeals.

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 intentionally committed the acts constituting the
elements of rape. The elements of rape . . .
consist of engaging in sexual intercourse with
the victim, against her will, by force, threat,
or intimidation. (Emphasis added.)

Clifton v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d

155, 158 (1996); see also, People v. Mangiaracina, 424

N.E.2d 860, 863 (Ill. App. Ct. 1981) (“[W]hether the

defendant intended to commit the offenses without the

victim’s consent is not relevant, the critical question

being whether the victim did, in fact, consent. This

involves her mental state, not the defendant’s.”);

Commonwealth v. Grant, 464 N.E.2d 33, 36 (Mass. 1984) (the

crime of rape does not require proof that the defendant

harbored a “specific intent that the intercourse be without

consent”); State v. Ayer, 612 A.2d 923, 925 (N.H. 1992)

(Rape is generally considered to be “a general intent,

rather than a specific intent, crime. . . . [T]he general

intent requirement for rape means that ‘no intent is

requisite other than that evidenced by the doing of the

acts constituting the offense.’”) (citations omitted). The

issue of a victim’s consent pertains to the element of rape

requiring proof that sexual intercourse was against the

victim’s will, not to whether a defendant “knowingly and

intentionally committed” the acts constituting rape.

Clifton, 22 Va. App. at 184, 468 S.E.2d at 158.

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 We now turn to the dispositive evidentiary question.

In doing so, we recognize that evidence showing that a

defendant committed similar sexual offenses against an

individual other than the victim in a particular case is,

on occasion, admissible to prove certain contested matters,

such as a defendant’s identity or the attitude of a

defendant toward a victim, provided the probative value of

the evidence outweighs its prejudicial effect. See

Satcher, 244 Va. at 231, 421 S.E.2d at 828. Indeed, if the

evidence of other similar offenses had been offered as

proof on a contested issue about the defendant’s identity

in these offenses, that evidence would likely have been

admissible.

In fact, this Court reached that exact result in

Satcher, a case in which the defendant denied committing

the crimes and identity was an issue. Satcher was

convicted in one trial of the robbery, assault and battery,

and attempted rape of Deborah Abel; and the robbery, rape,

and capital murder of Ann Elizabeth Borghesani. Id. at

225, 421 S.E.2d at 824. We upheld the trial court’s denial

of Satcher’s motion for separate trials. Id. at 229, 421

S.E.2d at 827. We stated that the evidence of the Abel

offenses would have been admissible in a separate trial for

the Borghesani offenses because that evidence established

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Satcher as the assailant in both crimes. Id. at 229-30,

421 S.E.2d at 827; see also Turner, 259 Va. at 651, 529

S.E.2d at 790-91 (evidence of similar offenses involving

different victims was admissible to prove a common

perpetrator); Spencer v. Commonwealth, 240 Va. 78, 89, 393

S.E.2d 609, 616 (1990) (same); Hewston v. Commonwealth, 18

Va. App. 409, 412, 444 S.E.2d 267, 268-69 (1994) (same);

cf. Herron v. Commonwealth, 208 Va. 326, 327-28, 157 S.E.2d

195, 196-97 (1967) (evidence of other incidents of sexual

intercourse with the same victim was admissible to show the

defendant’s disposition with respect to the particular act

charged).

Also, in Moore, a case discussed at length by the

Commonwealth on brief, we approved the admission of

evidence concerning a sexual offense against a third party

but not for the purpose of proving the victim’s lack of

consent. There, the defendant was charged both with

enticing a male child under the age of 14 to enter a house

for the purpose of fondling or feeling the sexual or

genital parts of the child and with the actual fondling of

that child. 222 Va. at 73, 278 S.E.2d at 823. The

challenged testimony concerned the defendant’s subsequent

attempted homosexual act upon the third party, also a teen-

ager. That subsequent offense occurred at the defendant’s

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office when the victim and the third party were both

present. During that encounter, the defendant described

homosexual acts he had performed with other boys, offered

the victim and the third party money to engage in similar

acts with him, pulled down the third party’s pants, told

the victim to hold the third party, and attempted to

perform a sexual act upon the third party. Id. at 75, 278

S.E.2d at 824. Although the evidence involved an offense

against a third party, we noted that it also concerned the

victim and “showed the conduct or attitude of the defendant

toward [the victim], indicated the ongoing nature of their

relationship, and negated the possibility that the

defendant’s touching of [the victim] in the [prior]

incident was accidental or for a purpose misunderstood by

[the victim].” Id. at 77, 278 S.E.2d at 825.

In our view, evidence showing that a defendant raped

one or more individuals other than the victim in the crime

charged is generally not relevant to the question whether

that victim did or did not consent to sexual intercourse

with the defendant. This is so because “[t]he fact that

one woman was raped . . . has no tendency to prove that

another woman did not consent.” Lovely v. United States,

169 F.2d 386, 390 (4th Cir. 1948); accord Foster v.

Commonwealth, 5 Va. App. 316, 320, 362 S.E.2d 745, 747 (Va.

15
Ct. App. 1987); see also Brown v. State, 459 N.E.2d 376,

379 (Ind. 1984) (where the only issue was consent of the

prosecutrix, evidence of prior rapes was not admissible

because the fact that one woman was raped did not tend to

prove that another woman did not consent); State v.

Christensen, 414 N.W.2d 843, 847 (Iowa Ct. App. 1987)

(“[n]either . . . does one woman’s lack of consent to

intercourse with a man imply a different woman’s lack of

consent to intercourse with the same man”); State v.

Hatcher, 372 So.2d 1024, 1034 n.1 (La. 1979) (in a

prosecution for rape where the only issue is consent,

“[t]he lack of consent by other victims is not probative of

lack of consent by the complainant of the charged

offense”); State v. Alsteen, 324 N.W.2d 426, 429-30 (Wis.

1982) (evidence of defendant’s prior acts had no probative

value on the issue of the complainant’s consent because

“[c]onsent is unique to the individual”); cf. Winfield v.

Commonwealth, 225 Va. 211, 218, 301 S.E.2d 15, 19 (1983)

(“there is no logical connection between a woman’s

willingness to submit to the defendant accused of raping

her, and her willingness to share intimacies with another

man with whom she might have had a special relationship”).

As the court in Lovely explained, “evidence of other

similar offenses is held admissible for the purpose of

16
establishing intent in cases of assault with the intent to

commit rape . . . , and evidence of other offenses of like

character is admissible in prosecutions for crime involving

a depraved sexual instinct.” 169 F.2d at 390. However,

the court observed that “the overwhelming weight of

authority is that such evidence is not admissible in

prosecution for rape” for obvious reasons. 2 Id. “Other

attempts to ravish have a tendency to show that an assault

under investigation was made with like intent. Acts

showing a perverted sexual instinct are circumstances which

with other circumstances may have a tendency to connect an

accused with a crime of that character.” Id. But, as

already noted, the issue of consent concerns a victim’s

state of mind and is unique with regard to each individual

victim. 3

2
We recognize that the decision in Lovely predates
the adoption of Fed. R. Evid. 413. However, that rule
states that evidence of a defendant’s commission of similar
sexual offenses is admissible and “may be considered for
its bearing on any matter to which it is relevant.”
(Emphasis added.)
3
The Commonwealth argued on brief that the Court of
Appeals’ reliance on the decision in Lovely was misplaced
because of the later decision of the Fourth Circuit Court
of Appeals in United States v. Beahm, 664 F.2d 414 (4th
Cir. 1981). We do not agree. In Beahm, the court approved
the admission of testimony from two male witnesses, neither
of whom was a victim in the case being tried. That
testimony showed that the defendant had made sexual
advances to them within three years prior to the offenses

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 Based on the specific circumstances presented in this

case, we hold, as did the Court of Appeals, that “the

testimony of each victim . . . was inadmissible at the

trial for the offenses allegedly committed against each of

the other victims.” 4 Minor, No. 3105-01-2, slip op. at 11.

For that reason, we conclude that the trial court abused

its discretion in denying the defendant’s motion to sever

the charges and will therefore affirm the judgment of the

Court of Appeals.

Affirmed.

at issue. The evidence was admissible because the
“defendant was insisting that under the Virginia statute
the burden was on the government to show that defendant’s
acts were performed with lascivious intent and did not
occur by accident.” Id. at 417. The evidence was not
admitted to prove whether the victim consented.
4
As the Court of Appeals noted, it is not necessary
to decide whether the charged offenses satisfied the
requirements of Rule 3A:6(b) because “justice” required
separate trials. Rule 3A:10(c).

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