Guill v. Commonwealth

PRESENT: All the Justices

DWAYNE EDWARD GUILL

v. Record No. 971153 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 9, 1998
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this criminal appeal, the dispositive issue is whether

the trial court erred in admitting evidence of another crime

committed by the defendant for the purpose of proving his intent

to commit the crime charged.
Dwayne Edward Guill was indicted for unlawfully and

feloniously breaking and entering a dwelling house in the

nighttime with the intent to commit murder, rape, or robbery in

violation of Code § 18.2-90. He was tried by the Circuit Court

of Charlotte County, sitting without a jury, and was found guilty

as charged. The trial court sentenced Guill to confinement in

the penitentiary for 20 years, with execution of 5 years

suspended.

We state the evidence taken at trial in the light most

favorable to the Commonwealth, the prevailing party below. Roach

v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert.

denied, 519 U.S. ___, 117 S.Ct. 365 (1996); Graham v.

Commonwealth, 250 Va. 79, 81, 459 S.E.2d 97, 98, cert. denied,

516 U.S. 997 (1995). On May 22, 1995, at about 2:00 a.m., Guill

broke and entered the home of Danny and Donna Crews who were

asleep in their bedroom. The Crews' two daughters, ages five and

seven, were also in the house at the time. The girls shared a

bed in a ground floor bedroom, which was illuminated both by an
outdoor safety light and by a light inside the house.

Mr. Crews testified that he awakened and heard his daughters

talking. When he arose and walked into the kitchen, he saw

Guill, a stranger, backing out of the girls' bedroom. Crews

confronted Guill, stating, "[M]an, what in the hell are you doing

in my house." In response, Guill reached for his back pocket

with his right hand and said, "I'll cut your f_ _ _ing head off."

After the two men looked at each other "for a second or two,"

Guill ran out the back door.
Mr. Crews stated that although there were open ground floor

windows in the living room and the master bedroom, Guill entered

the house by taking a twelve-foot ladder from the basement and

climbing through a bathroom window. The open windows were

located in a portion of the house which was illuminated by

exterior light, while there were no exterior lights in the area

near the bathroom window. In a hallway just outside the

bathroom, Mrs. Crews had left a purse containing $200 in plain

view, as well as her keys.

Over Guill's objection, the Commonwealth called a witness

who stated that, in 1985 when she was 16 years old, Guill broke

and entered the house in which she was sharing an upstairs room

with her 15 year-old female cousin. The witness testified that

she and her cousin were asleep when Guill, a stranger to the two

girls, got into the witness' bed with his shirt off, kissed her,

and attempted to rape her. According to the witness, Guill "told

my cousin that if I [did not] be quiet he was going to kill me."

Three weeks after the incident at the Crews' residence,
Guill was arrested. He made a statement to the police in which

he gave the following explanation. He stated that he stopped at

the Crews' house because his vehicle "ran out of gas." He first

attempted to get some gasoline out of a truck on the Crews'

property and then broke into their house to find keys to open

some locked gas tanks.

Guill also told the police that he entered the house by

using a ladder to go through a bathroom window. Once in the

house, he looked around for keys "and heard the kid wake up."

When he told her to be quiet, she started crying. Guill stated

that, at this point, he "got up and went out of the room and as I

did I met the man." Guill did not testify at the trial.
The trial court found the defendant guilty after ruling that

evidence of the 1985 crime was admissible because it was of "such

. . . a similar nature" to the present offense. The Court of

Appeals affirmed the trial court's judgment in an unpublished

opinion, holding that the 1985 crime and the present offense were

"sufficiently similar to be probative of [the defendant's]

intent," and that the evidence of his prior conduct was

admissible for the "narrow purpose of proving, elucidating, or

explaining [the defendant's] intent."

On appeal to this Court, the defendant argues that evidence

of the 1985 crime was irrelevant because the facts of the present

offense contain no evidence of an intent to commit rape. The

defendant also asserts that the trial court erred in admitting

evidence of the 1985 crime because it was dissimilar to the

present offense.
 In response, the Commonwealth asserts that evidence of the

1985 crime was admissible to prove the defendant's intent in the

crime charged based on his conduct on the prior occasion. We

disagree with the Commonwealth and hold that the Court of Appeals

erred in affirming the trial court's ruling on this issue.

Evidence that shows or tends to show a defendant has

committed a prior crime generally is inadmissible to prove the

crime charged. Woodfin v. Commonwealth, 236 Va. 89, 95, 372

S.E.2d 377, 380 (1988), cert. denied, 490 U.S. 1009 (1989);
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970). Such evidence implicating an accused in other crimes

unrelated to the charged offense is inadmissible because it may

confuse the issues being tried and cause undue prejudice to the

defendant. See Boggs v. Commonwealth, 199 Va. 478, 486, 100

S.E.2d 766, 772 (1957). There are several exceptions to the

general rule excluding this type of evidence.

Evidence of "other crimes" is relevant and admissible if it
tends to prove any element of the offense charged. Kirkpatrick,

211 Va. at 272, 176 S.E.2d at 805. Thus, evidence of other

crimes is allowed when it tends to prove motive, intent, or

knowledge of the defendant. Id. Among other exceptions,

evidence of other crimes also is allowed if relevant to show the

perpetrator's identity when some aspects of the prior crime are

so distinctive or idiosyncratic that the fact finder reasonably

could infer that the same person committed both crimes. Spencer

v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616, cert.

denied, 498 U.S. 908 (1990).
 Admission of evidence under these exceptions, however, is

subject to the further requirement that the legitimate probative

value of the evidence must exceed the incidental prejudice caused

the defendant. Lewis v. Commonwealth, 225 Va. 497, 502, 303

S.E.2d 890, 893 (1983). Further, the admission of such "other

crimes" evidence is prohibited when its only purpose is to show

that the defendant has a propensity to commit crimes or a

particular type of crime and, therefore, probably committed the

offense for which he is being tried. Kirkpatrick, 211 Va. at

272, 176 S.E.2d at 805.

The element of the crime in dispute in the present case is

that of the defendant's intent. Intent is the purpose formed in

a person's mind that may, and often must, be inferred from the

particular facts and circumstances of a case. Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Like

any other element of a crime, intent must be proved as a matter

of fact and may not be the subject of surmise and speculation.
Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345

(1955).

As we stated in Kirkpatrick, 211 Va. at 273, 176 S.E.2d at

805, the leading case on the principles involved here is Walker

v. Commonwealth, 28 Va. (1 Leigh) 574 (1829). There, a defendant

was indicted for larceny of a watch and, at trial, evidence was

admitted that at one time he had stolen a coat. In setting aside

his conviction, we held that this evidence was irrelevant and

inadmissible to prove the defendant's intent in the crime

charged, because the evidence did not have "such necessary
conne[ct]ion with the transaction then before the court as to be

inseparable from it." Id. at 580. We explained that
if the circumstances [of the other event] have no
intimate conne[ct]ion with the main fact; if they
constitute no link in the chain of evidence . . . they
ought to be excluded, because they are irrelevant;
[and] if they denote other guilt, they are not only
irrelevant, but they do injury, because they have a
tendency to [cause] prejudice.

Id. at 577.

In Barber v. Commonwealth, 182 Va. 858, 30 S.E.2d 565

(1944), an appeal of an attempted rape conviction, we again

applied these principles. The trial court had allowed evidence

that the defendant committed an attempted rape on a different

victim for the purpose of showing the defendant's intent in the

crime charged.
We reversed the defendant's conviction, stating that it is

improper to use evidence that a defendant has committed another

crime when it has "no connection with the one under

investigation. Such other acts of criminality . . . are not

legally relevant and should not be [used] to prejudice the

defendant or to create a probability of guilt." Id. at 866, 30

S.E.2d at 568 (internal quotation marks omitted). We explained

that the test for admission of evidence of other crimes is met

when there is "a causal relation or logical and natural

connection between the two acts, or they . . . form parts of one

transaction." Id. at 868, 30 S.E.2d at 569 (internal quotation

marks omitted); see also Day v. Commonwealth, 196 Va. 907, 912-
13, 86 S.E.2d 23, 26 (1955).

We again applied these principles in Donahue v.
Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983). There, the

trial court had allowed evidence of the defendant's prior sale of

phencyclidine (PCP) for the purpose of proving her intent to

distribute PCP and marijuana in the crimes charged. The prior

sale had occurred over one month before her arrest on the crimes

charged. Id. at 149, 300 S.E.2d at 770.

We held that evidence of the prior sale of PCP was

inadmissible to prove the defendant's intent because that

evidence was unrelated to the crime charged and none of the other

exceptions to the general rule barring admission of "other

crimes" evidence was applicable. We also stated that the

prejudicial effect of that evidence required its exclusion. Id.

at 156, 300 S.E.2d at 774; see also Boyd v. Commonwealth, 213 Va.

52, 53, 189 S.E.2d 359, 360 (1972).

Applying these principles to the present case, we hold that

evidence of the 1985 crime was unrelated to the crime charged.

Like the "other crimes" evidence in the above cases, there was no

causal relation or logical connection between the 1985 offense

and the crime charged, nor did the two crimes form parts of one

transaction. See Barber, 182 Va. at 868, 30 S.E.2d at 569; see

also Kirkpatrick, 211 Va. at 273, 176 S.E.2d at 806; Day, 196 Va.

at 912-13, 86 S.E.2d at 26; Walker, 28 Va. (1 Leigh) at 577.

Therefore, evidence of the 1985 crime was not probative evidence

of the defendant's intent in the crime charged and was irrelevant

and inadmissible for purposes of proving that intent. See

Donahue, 225 Va. at 155-56, 300 S.E.2d at 773-74; Kirkpatrick,

211 Va. at 272, 176 S.E.2d at 805; Day, 196 Va. at 912-13, 86
S.E.2d at 26; Barber, 182 Va. at 866-68, 30 S.E.2d at 568-69;

Walker, 28 Va. (1 Leigh) at 577.

We also hold that evidence of the 1985 crime is not

admissible under any other exception to the general rule barring

admission of "other crimes" evidence. Specifically, we hold that

the trial court erred in ruling that the evidence was admissible

because it was of "such a similar nature" to the offense charged.

In Spencer, we held that when the identity of a perpetrator is

at issue, evidence of another crime may be admitted to prove the

actor's identity if the prior crime bears "a singular strong

resemblance to the pattern of the offense charged" and is

sufficiently idiosyncratic in relation to that offense to permit

an inference of a pattern for proof purposes. 240 Va. at 90, 393

S.E.2d at 616 (internal quotation marks omitted).
Assuming, without deciding, that this test is applicable

here when the identity of the perpetrator is known, we hold that

the test is not met. Although a few of the facts in the two

burglaries are similar, the crimes do not have any idiosyncratic

characteristics.

As stated above, in the 1985 crime, the defendant entered a

house through a rear door and proceeded to an upstairs bedroom

occupied by two girls, ages 15 and 16. Here, the defendant used

a ladder to crawl through a ground floor bathroom window after

punching holes in the window screen. He then walked into the

ground floor bedroom of two girls who were five and seven years

of age.

In the 1985 crime, the defendant got into the girls' bed and
kissed and attempted to rape one of them. Here, there is no

evidence that the defendant got into the girls' bed or touched

either girl in any manner. Instead, the evidence shows only that

the defendant "got up" before he left the girls' room.

Although the defendant threatened the girls' father in this

case, he threatened the witness in the 1985 crime. Moreover, we

note that conduct of this nature unfortunately is common, rather

than idiosyncratic, in this type of crime.
Based on the above factual differences, evidence of the 1985

crime was inadmissible under a Spencer analysis because that

offense was not idiosyncratic in relation to the facts of the

present offense. As such, the evidence lacked a logical

relationship to the offense charged and, thus, was irrelevant and

showed only the defendant's propensity to commit the crime

charged. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.

Since this evidence was inadmissible and had no probative value,

we hold that its admission caused undue prejudice to the

defendant. See Donahue v. Commonwealth, 225 Va. at 156, 300

S.E.2d at 774. *

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

judgment and remand the case to the Court with direction that the

matter be remanded to the trial court for a new trial, if the

Commonwealth be so advised, consistent with the principles set

forth in this opinion.

*
Since our holding requires reversal of this case, we do
not reach the defendant's remaining assignment of error
challenging the sufficiency of the evidence.
 Reversed and remanded.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting.

The main issue in this criminal appeal is whether the trial

court erroneously admitted so-called "other crimes" evidence on

the question of the accused's specific intent to commit the

offense charged.

Dwayne Edward Guill was tried by the Circuit Court of

Charlotte County, sitting without a jury, upon an indictment for

unlawfully and feloniously breaking and entering a dwelling house

in the nighttime with the intent to commit murder, rape, or

robbery in violation of Code § 18.2-90. Defendant was found

guilty as charged and was sentenced to confinement in the

penitentiary for 20 years, with execution of 5 years suspended.
Upon review, a panel of the Court of Appeals unanimously

affirmed the conviction in an unpublished opinion. The Court of

Appeals concluded that the trial court correctly admitted

evidence regarding defendant's 1985 conviction for breaking and

entering a dwelling house in the nighttime with the intent to

commit rape, and correctly found the evidence sufficient to

sustain the instant conviction.

The Court awarded defendant this appeal. According to

settled principles of appellate review, I shall summarize the

facts in the light most favorable to the Commonwealth.

On May 22, 1995, Danny Crews, his wife, and their two

daughters, five and seven years of age, resided in the Drakes
Branch area of Charlotte County. On that date, near 2:00 a.m.,

the parents awoke in their ground level bedroom to the sound of

the daughters talking in a separate bedroom, also at ground

level. As the father approached the children's room, the

defendant "was backing out of that bedroom," which was

illuminated by a security light mounted on a pole outside the

home.

The father said to defendant, a stranger, "[M]an, what in

the hell are you doing in my house." According to the father,

defendant "reached for his back pocket with his right hand" and

threatened to cut off the father's head. The two men stood

facing each other "for a second or two." Then defendant "fled

out of the back door," breaking two door locks as he ran.

Defendant left the scene on a motorcycle parked nearby.
Defendant, age 34, was arrested three weeks later. "At

first he denied any involvement in the burglary or break-in and

later on he did admit that he went in the house," according to

the investigating officer.

In a statement to the police, defendant, who did not testify

at trial, claimed that while riding the motorcycle, he "ran out

of gas and that he was in the house looking for keys to the gas

tanks" of trucks parked in the yard of the Crews' home.

Defendant stated he had found "a little" gas but was searching

for more in a locked tank "on the back of a pickup truck."

Defendant further stated he gained access to the home by

using a ladder and crawling through a bathroom window after

cutting the screen. Once inside, he said, "I was looking around
for the keys and heard the kid wake up." Defendant stated that

while he was in the children's room, "I told her to be quiet . .

. And then she started crying." Asked what happened next,

defendant stated: "I got up and went out of the room and as I

did I met the man."

The investigation revealed that, at the time of the

incident, ground floor windows were open that would have allowed

defendant to enter the home without use of a ladder. These

windows, however, were in a portion of the home that was

illuminated by the exterior light, while the area near the

bathroom window was dark.
In addition, a desk and chair in an illuminated hall area

were in the path of one proceeding from the bathroom to the

girls' room. Mrs. Crews' purse containing keys was in the chair,

and $200 in cash "was sticking up out of [the] pocketbook"; it

was not disturbed during the incident. Also, prior to the

incident, the door to the girls' room "was halfway open" and a

light burning in the kitchen shone into their room.

At trial, the prosecution presented, over defendant's

objection, the testimony of a woman who was the victim of a

breaking and entering with intent to commit rape perpetrated by

defendant in June of 1985. That crime occurred during the

nighttime in a Chase City residence when the witness, age 16 at

the time, occupied an upstairs bedroom with her 15-year-old

female cousin.

The defendant, a stranger to the girls, unlawfully entered

the dwelling through a rear door, proceeded past a downstairs
bedroom occupied by an adult, entered the girls' bedroom wearing

only "shorts," got into their bed, kissed one of the girls,

attempted to rape the witness, and left the home when the girls

fought him and screamed for help. According to the witness,

defendant "told my cousin that if I don't be quiet he was going

to kill me." Subsequently, defendant was convicted in

Mecklenburg County of that offense.

In this appeal, defendant contends the Court of Appeals

erred in affirming the action of the trial court in admitting the

evidence of the 1985 crime. I disagree.
Generally, proof showing an accused committed other crimes

at other times is incompetent and inadmissible for the purpose of

establishing commission of the particular crime charged. Woodfin

v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988),

cert. denied, 490 U.S. 1009 (1989); Kirkpatrick v. Commonwealth,

211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Such evidence is

admissible, however, when "it tends to prove any relevant element

of the offense charged," such as when the accused's intent is at

issue. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. Accord

Jennings v. Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755

(1995). Nevertheless, evidence of other crimes is admissible

only when "the legitimate probative value outweighs the

incidental prejudice to the accused." Lewis v. Commonwealth, 225

Va. 497, 502, 303 S.E.2d 890, 893 (1983).

In the present case, under the indictment, the Commonwealth

had the burden to prove beyond a reasonable doubt that defendant

broke and entered the Crews' residence in the nighttime with the
specific intent to commit rape. See Code § 18.2-90; Snyder v.

Commonwealth, 220 Va. 792, 798, 263 S.E.2d 55, 59 (1980).

"Intent is the purpose formed in a person's mind which may, and

often must, be inferred from the facts and circumstances in a

particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252

S.E.2d 313, 314 (1979). This state of mind may be shown by the

offender's acts and conduct. Id.

Here, there is no dispute defendant broke and entered the

Crews' dwelling in the nighttime. The only contested element of

the offense charged is whether defendant's intent, in entering

the home, was to rape either or both of the girls, as opposed to

an intent to procure fuel for his motorcycle, as he claimed. The

question then becomes whether evidence of the 1985 crime was

relevant and tended to prove defendant's specific intent to

commit the crime.
Admissibility of "other crimes" evidence does not

necessarily turn on the proximity of the prior acts to the crime

charged. Indeed, the Court of Appeals has approved the use of

such evidence when the prior conduct was ten and twenty years in

the past. Jennings, 20 Va. App. at 14, 454 S.E.2d at 754.

Also, this Court has rejected the notion that when evidence

of other crimes is offered to prove modus operandi, an exact

resemblance to the crime on trial as to constitute a "signature"

is necessary to qualify such evidence for admission. Rather, the

Court has said it is sufficient if the evidence of other crimes

bears "a singular strong resemblance to the pattern of the

offense charged." Spencer v. Commonwealth, 240 Va. 78, 90, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990) (internal

quotation marks omitted). The Court has explained that the test

for admissibility is met when the prior crime is sufficiently

idiosyncratic to permit an inference of a pattern for proof

purposes. Id. The present case is not a modus operandi case in

which an effort is made to establish the identity of the accused

by showing the probability of a common perpetrator. However, I

perceive no reason why the same test should not apply when, as

here, the perpetrator's identity is known and his intent is in

question.
Here, the evidence of the 1985 crime bears a singular strong

resemblance to the pattern of the offense charged and is

sufficiently distinctive to permit an inference of a pattern of

behavior. For example, in 1985, as here, defendant broke and

entered a residence. In 1985, as here, the crime was committed

in the nighttime. In 1985, as here, the defendant proceeded past

an adult's bedroom en route to a bedroom occupied by young

girls.In 1985, the girls were young, 15 and 16 years of age.

Here, the girls also were young, five and seven years of age.

In 1985, defendant tried to rape one of the girls. Here,

the defendant did something in the bedroom, while he was there an

undetermined period, that required him to "get up" before he left

the room. A reasonable inference from that proven fact is that

defendant sat on the girls' bed in order to molest either or both

of them. Although that proven fact may give rise to other

inferences, such as, that defendant intended to commit an assault

and battery, the Court must accept on appeal the inference that
is most favorable to the Commonwealth.

In 1985, the girls screamed and defendant threatened to kill

one of them. Here, the girls cried and defendant threatened to

kill the father.

Therefore, I would hold that proof of the 1985 crime was

relevant because it tended to establish the defendant's specific

intent. Further, the legitimate probative value of the evidence

outweighs the incidental prejudice to the defendant. "The

responsibility for balancing these competing considerations is

largely within the sound discretion of the trial judge. . . . And

a trial court's discretionary ruling will not be disturbed on

appeal absent a clear abuse of discretion." Coe v. Commonwealth,

231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Hence, the evidence

was admissible, and the Court of Appeals did not err in affirming

the trial court's ruling on that issue.

My analysis of the first issue effectively disposes of the

second. Defendant contends the evidence was insufficient to

convict him of the crime charged. I disagree.

The trial court was entitled to infer that defendant, given

his propensity to commit sexual crimes involving young girls,

entered the home and remained in the girls' bedroom intending,

not to look for keys, but to rape either or both of them.

Defendant's activity was wholly inconsistent with a quest for

fuel.

Defendant observed the girls sleeping as he was standing in

the yard near their illuminated room. At that point in time, he

already had obtained "a little" gasoline, sufficient to enable
him to drive a distance from the scene after he fled the home,

according to the evidence. Nevertheless, according to his story,

he risked entering the home to search for still more fuel. One

wonders why he did not just drive away using the gas he had

found.

After breaking and entering the home through a dark area to

avoid detection, he moved through a lighted hall toward the

girls' room. He passed an open purse containing both keys and

money, with which he readily could have obtained the gas he

allegedly sought. He remained in the girls' room for an

indeterminate period of time and "got up" in order to leave. As

I have said, reasonably to be inferred from all the circumstances

is the conclusion that defendant entered the home with the

specific intent to commit rape.
Consequently, I would hold that the Court of Appeals did not

err, and I would affirm the judgment appealed from.