Turner v. Commonwealth

Present: Carrico, C.J., Lacy, Keenan, Koontz, and Kinser, JJ.,
Poff and Stephenson, Senior Justices

RONNEY EARL TURNER

v. Record No. 992005 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 21, 2000
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the trial court erred

in permitting the Commonwealth to present evidence of other

crimes committed by a defendant more than 13 years before the

crimes charged in this prosecution.

Ronney Earl Turner was indicted by a grand jury on charges

including abduction with intent to defile, carjacking in

violation of Code § 18.2-58.1, forcible sodomy, aggravated

sexual battery, two counts of rape, and attempted robbery. He

was tried by a jury in the Circuit Court of the City of Virginia

Beach, and was found guilty of these offenses. The jury fixed

his punishment at separate terms of life imprisonment on each of

the rape, abduction with the intent to defile, forcible sodomy,

and carjacking offenses. The jury also set his punishment at 20

years' imprisonment for sexual battery and ten years'

imprisonment for attempted robbery. The trial court sentenced

Turner in accordance with the jury verdicts.
 Before trial, Turner filed a motion in limine to prevent

the Commonwealth from introducing evidence that he had raped and

abducted two other women in 1984. Turner argued that the prior

crimes were too remote in time and were factually different from

the pending charges, which were alleged to have occurred in

1998, rendering the prior offenses irrelevant. Turner also

asserted that the prejudicial effect of this evidence would

outweigh its probative value.

At a hearing on the motion in limine, the Commonwealth

proffered the substance of the proposed testimony and evidence

that Turner had been incarcerated from 1986 to 1996 as a result

of the prior crimes. The trial court denied Turner's motion,

based on the court's conclusion that there was a "close

similarity" between the prior crimes and the pending charges.

The trial court further stated that the "time factor is

minimized by the fact that the defendant . . . was actually

incarcerated for a majority of the time that had passed in

between the alleged offense[s] here and the prior acts."

Turner filed a petition for appeal in the Court of Appeals

challenging the trial court's admission of the evidence of other

crimes. The Court of Appeals denied Turner's petition for

appeal, concluding that the trial court did not abuse its

discretion in admitting the challenged evidence. Turner v.

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Commonwealth, Record No. 0495-99-1 (August 3, 1999). We awarded

Turner an appeal limited to this same issue.

We will state the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party below.

Hussen v. Commonwealth, 257 Va. 93, 94, 511 S.E.2d 106, 106

cert. denied, ___ U.S. ___, 119 S.Ct. 1792 (1999). On February

13, 1998, the victim, a 17-year-old high school student, was

employed at the Pembroke Shopping Mall in Virginia Beach. The

victim left work that evening about 9:00 p.m. and walked across

the parking lot to the van that she had driven to work. As she

was in the process of placing her belongings inside the van,

Turner jumped on her back, cupped her mouth with his hand, and

placed a "shining" object to her head that she thought was a

gun. Turner told her to "shut up" or he would shoot her.

Turner directed the victim to crouch on the van floor

between the two front seats and to look down at the floor.

Turner then took the victim's van keys and drove the van for

five or ten minutes to an unknown location. After Turner

stopped the van, he covered the victim's face with a sweatshirt.

He asked her whether she had a boyfriend, what her name was, and

where she lived. After directing the victim to remove some of

her clothing and threatening to kill her if she resisted, Turner

directed her to move to the van's back seat, where he "fondled"

her vagina, raped her twice, and orally sodomized her. He then

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"squirted something" on the victim's vagina and directed her "to

rub it in."

After raping the victim, Turner apologized and said that it

was "something he had to do before he went to Texas." Turner

asked the victim if she had any money and examined the contents

of her purse, moving her driver's license from its usual

location. Afterward, he drove the van again for a few minutes,

during which time the victim remained on the van floor with the

sweatshirt covering her face. Upon stopping the van, Turner

told the victim that he was going to leave her van key outside

the van near the left front tire. He directed the victim to

count to 100 before attempting to retrieve the key or he would

shoot her. The victim eventually found the key near the front

tire of the van, drove to her boyfriend's house, and reported

the crimes to the police. During the entire time that Turner

was in the van, the victim either had her face to the van floor

or had the sweatshirt over her eyes and, thus, was not able to

see Turner.

The victim was examined at a hospital later that night,

where vaginal swab samples were taken. David A. Pomposini, a

forensic scientist at the Virginia Division of Forensic Science

laboratory in Norfolk, testified that he found spermatozoa in

seminal fluid on the vaginal swabs, and that he isolated DNA

from the spermatozoa for analysis. Pomposini submitted the

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results of his analysis to the Commonwealth's DNA data bank in

Richmond. Of the 10,938 DNA profiles on record in the data

bank, one profile matched the DNA from the spermatozoa on the

vaginal swabs. This matching profile belonged to Turner, who is

an African-American.

Pomposini testified that he also analyzed DNA from a blood

sample taken from Turner after he became a suspect in the

present offenses. Pomposini stated that he analyzed the profile

of five "genetic loci" on the DNA from the vaginal swab and

concluded that the profile matched the DNA from Turner's blood

sample. Pomposini further stated that the probability of

randomly selecting an individual in the Black population with

the same DNA profile was about one in one hundred million.

The Commonwealth also presented the testimony of the

victims in the prior crimes. Each described how she had been

abducted and raped by Turner about 14 years earlier. The first

prior victim testified that between 4:00 and 5:00 p.m. on

September 7, 1984, Turner abducted her just after she entered

her car in the parking lot of Military Circle Mall in Norfolk.

He reached in through her open car window, placed his hand over

her mouth, held either a knife or a gun to the side of her back,

and threatened to kill her if she screamed.

Turner instructed her to slide over to the passenger side

of the front seat and repeatedly told her not to look at him,

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but to keep her head turned. Turner asked her whether she had a

boyfriend, and he demanded to see her driver's license to

determine where she lived so that he could "get" her if she

contacted the police.

Turner drove her in her car to a wooded area, where he

ordered her to remove her pants and get out of the car. He

inserted his finger in her vagina and then raped her. After

raping her, Turner said that he was sorry and then drove her

back to a building near Military Circle Mall. He told her to

keep her head down and to wait for 15 minutes before retrieving

her car key from outside the car. He stated that if she did not

wait the specified time, he "would be around." She eventually

found her key on the ground on the driver's side of her car.

Based on these events, Turner was convicted in 1986 in the

Circuit Court of the City of Norfolk of rape and abduction with

the intent to defile.

The second prior victim testified that about 9:30 p.m. on

December 21, 1984, Turner abducted her from the parking lot of

the Janaf Shopping Center in Norfolk, which is located across

the street from the Military Circle Mall. She had just entered

her car when Turner approached and tapped on her window. After

she rolled down her window a little, Turner asked if she had any

"jumping cables." She replied that she did not and had begun to

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move her car when Turner pointed a gun through the window at her

face.

Turner ordered her not to scream and directed her to slide

over and "[d]uck down" low on the passenger side of the front

seat and to keep her head turned away from him. Turner

repeatedly told her to "[d]uck down" and not look at him as he

drove her to an area behind the shopping center. He asked her

for money and asked where she kept her driver's license. After

looking at her license, Turner stated that since he knew where

she lived, he would kill her if she told anyone what he had

done. He ordered her to remove her panties and performed oral

sodomy on her. He then directed her to move to the car's back

seat, where he raped her. Before leaving, Turner told her that

he would put the car key outside the car, and that she was to

wait a specified period of time before attempting to retrieve

it. Based on these events, Turner was convicted of abduction in

1986 in the Circuit Court of the City of Norfolk.

After the Commonwealth rested its case, Turner presented an

alibi defense in which he testified that he was home with his

former wife, Valerie Shoulders, at the time the crimes were

committed. Valerie Shoulders also testified that she was with

Turner at his home at the time the crimes occurred.

On appeal, Turner argues that the trial court abused

its discretion in allowing the Commonwealth to present

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evidence of the crimes he committed against the prior

victims to prove the identity of the perpetrator of the

crimes for which he was being tried. He contends that

since the prior crimes occurred over 13 years before the

crimes for which he was on trial, the evidence concerning

the prior crimes lacked probative value.

Turner also argues that several factual differences

between the prior crimes and the present offenses rendered

the challenged evidence inadmissible as proof of identity.

He states that the victim in this case is Caucasian and was

17 years old at time she was attacked, while both prior

victims are African-American and were 27 and 29 years old,

respectively, at the time of the offenses against them.

Turner also notes that the crimes against the prior victims

occurred in Norfolk, while the crimes against the victim in

this case occurred in Virginia Beach. Finally, he states

that the first prior victim was abducted during daylight

hours and raped outside her car, while the victim in this

case was abducted at night and raped in the back seat of

her van. We disagree with Turner's arguments.

The standard governing the admission of evidence of other

crimes in the guilt phase of a criminal trial is well

established. Evidence that shows or tends to show that a

defendant has committed a prior crime is generally inadmissible

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to prove the crime charged. Guill v. Commonwealth, 255 Va. 134,

138, 495 S.E.2d 489, 491 (1998); Kirkpatrick v. Commonwealth,

211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). There are several

exceptions to this general rule. One exception is that evidence

of other crimes is admissible to prove a perpetrator's identity

when certain requirements are met. We discussed these

requirements in Chichester v. Commonwealth, 248 Va. 311, 326-27,

448 S.E.2d 638, 649 (1994), cert. denied, 513 U.S. 1166 (1995):

[O]ne of the issues upon which "other crimes" evidence
may be admitted is that of the perpetrator's identity,
or criminal agency, where that has been disputed.
Proof of modus operandi is competent evidence where
there is a disputed issue of identity.

. . . .

[E]vidence of other crimes, to qualify for
admission as proof of modus operandi, need not bear
such an exact resemblance to the crime on trial as to
constitute a "signature." Rather, it is sufficient if
the other crimes bear a "singular strong resemblance
to the pattern of the offense charged." That test is
met where the other incidents are "sufficiently
idiosyncratic to permit an inference of pattern for
purposes of proof," thus tending to establish the
probability of a common perpetrator.

. . . .

If the evidence of other crimes bears sufficient
marks of similarity to the crime charged to establish
that the defendant is probably the common perpetrator,
that evidence is relevant and admissible if its
probative value outweighs its prejudicial effect
. . . . The trial court, in the exercise of its sound
discretion, must decide which of these competing
considerations outweighs the other. Unless that
discretion has been clearly abused, we will affirm the
trial court's decision on this issue.

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Id. (quoting Spencer v. Commonwealth, 240 Va. 78, 89-90, 393

S.E.2d 609, 616-17, cert. denied, 498 U.S. 908 (1990)(citations

omitted)); see also Johnson v. Commonwealth, 259 Va. ___, ___,

___ S.E.2d ___, ___ (2000), decided today; Guill v.

Commonwealth, 255 Va. at 138-39, 495 S.E.2d at 491-92.

Applying this standard, we hold that the trial court did

not abuse its discretion in admitting the testimony of the prior

victims, as well as evidence that Turner was convicted of the

prior crimes. While there were minor factual differences among

the offenses, they shared several sufficiently idiosyncratic

features which, considered as a whole, reflected a pattern in

the prior crimes that bore a singular strong resemblance to the

pattern of the present offenses, thus tending to prove the

probability of a common perpetrator.

In each case, the attacker assaulted his victim in the

parking lot of a shopping center in the late afternoon or

evening hours. The victim in this case was abducted from a

shopping center that is within a 15-minute drive of the shopping

centers where the prior crimes were committed. Each victim was

assaulted when she entered, or was in the process of entering,

her vehicle. The attacker used a weapon in all three cases, and

he threatened to kill each victim if she did not cooperate with

him. The attacker attempted to obtain or obtained each victim's

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name and address, and he handled each victim's driver's license.

In each case, the attacker ordered the victim to avoid looking

at him, obtained the keys to the victim's vehicle, and drove the

victim to a different location.

After raping each victim, the attacker drove each to yet

another location where he ordered each victim to wait a certain

period of time or to count to a certain number before attempting

to leave. The attacker warned each victim that if she left the

vehicle before the designated amount of time had elapsed, he

would know that fact. In each case, the attacker told the

victim he would leave her vehicle keys outside the vehicle,

actually left the keys near the vehicle, and fled from the

vehicle on foot.

We also conclude that the trial court did not abuse its

discretion in concluding that the probative value of this

evidence outweighed its prejudicial effect. First, we disagree

with Turner's contention that the period of time between the

prior crimes and the offenses charged in this case eliminated

the probative value of the evidence of the prior crimes. In

determining whether a prior crime is too remote in time to be

considered by the fact finder, the trial court may consider the

length of time that a defendant has been incarcerated between

the date of the prior crime and the date of the offense charged.

See State v. Davis, 398 S.E.2d 645, 650 (N.C. Ct. App. 1990).

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Turner was incarcerated in 1986 after being convicted of the

prior crimes, which occurred in 1984, and he was imprisoned

without interruption from 1986 until two years before the

present offenses were committed. Thus, since the prior crimes

occurred during the last four years that Turner was not

incarcerated before the date of the present offenses, the prior

crimes were not too remote in time to be considered by the jury.

Second, we disagree with Turner's argument that the

differences among the offenses, such as the race and age of the

victims, and the particular locations where the crimes occurred,

materially affected the probative value of the challenged

evidence. These facts cannot be isolated from the entire record

before the trial court which, considered in its entirety,

supports the court's discretionary determination.

For these reasons, we will affirm the Court of Appeals'

judgment.

Affirmed.

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