COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
MICHAEL J. VANHOOK
OPINION BY
v. Record No. 1018-02-1 JUDGE ROBERT P. FRANK
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
(Lyn M. Simmons, on brief), for appellant.
Appellant submitting on brief.
(Jerry W. Kilgore, Attorney General; Leah A.
Darron, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Michael J. Vanhook (appellant) was convicted in a bench
trial of possession of cocaine, in violation of Code § 18.2-250,
possession of a firearm while in possession of cocaine, in
violation of Code § 18.2-308.4, and possession of a firearm by a
convicted felon, in violation of Code § 18.2-308.2. On appeal,
he contends the trial court erred in trying all three
indictments together. For the reasons stated, we affirm the
judgments of the trial court.
BACKGROUND 1
Appellant was indicted for the three offenses stated above,
which all arose out of an incident on April 5, 2001 in the City
of Newport News. A bench trial was set. Appellant filed a
Motion for Separate Trials, contending his prior criminal felony
record, "while admissible as an element" of one charge, was
"irrelevant and prejudicial" to his trial for the possession of
cocaine and possession of a firearm while in possession of
cocaine.
The trial court conducted a hearing and denied the motion
for severance. The court acknowledged that, if appellant were
tried by a jury, severance would be mandatory. However, the
court distinguished a jury trial from a bench trial. The trial
court found he was "perfectly capable of separating all the
charges." The bench trial proceeded, and the trial court found
appellant guilty of all charges.
ANALYSIS
Appellant contends the trial court erred in refusing to
sever the felon in possession of a firearm indictment from the
other two charges. 2 We disagree.
1
We do not recite the facts of the offenses because those
facts are not relevant to this analysis.
2
In his brief, appellant also contends the evidence was not
sufficient to convict. We did not grant an appeal on this
issue, therefore, we do not address sufficiency. See Code
§ 17.1-407(D); Rules 5A:12(c) & 5A:15.
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Rule 3A:10(c) states:
The court may direct that an accused be
tried at one time 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) 3 or
(ii) the accused and the Commonwealth's
attorney consent thereto.
"'Whether different offenses should be tried separately is a
matter that rests within the sound discretion of a trial court.
Thus, a trial court's ruling on the matter will not be reversed
absent a showing that the court abused it[s] discretion.'"
Ferrell v. Commonwealth, 11 Va. App. 380, 386, 399 S.E.2d 614,
617 (1990) (citing Cheng v. Commonwealth, 240 Va. 26, 33-34, 393
S.E.2d 599, 603 (1990)) (citations omitted).
Whether a trial court abused its discretion in refusing to
sever charges in a bench trial is a matter of first impression.
Our previous jurisprudence has addressed only severance of a
felon in possession of a firearm offense in the context of a
jury trial.
In Hackney v. Commonwealth, this Court explained:
It is well settled that justice requires
separate trials under Rule 3A:10(c) "where
3
Rule 3A:6(b), which addresses joinder of offenses, states:
Two or more offenses, any of which may be a
felony or misdemeanor, may be charged in
separate counts of an indictment or
information 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.
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evidence of one crime is not admissible in
the trial of the others." Long v.
Commonwealth, 20 Va. App. 223, 226-27, 456
S.E.2d 138, 139 (1995); Johnson v.
Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d
261, 265 (1995).
Generally, evidence that a defendant has
committed crimes other than the offense for
which he is being tried is highly
prejudicial and inadmissible. See Lewis v.
Commonwealth, 225 Va. 497, 502, 303 S.E.2d
890, 892-93 (1983) (noting that admission
into evidence of felony conviction tends to
adversely affect the defendant's presumption
of innocence because it unfairly prejudices
him before the jury). Such evidence
confuses the issues before the jury and
tends to prejudice the defendant in the
minds of the jury by showing his or her
depravity and criminal propensity. Fleenor
v. Commonwealth, 200 Va. 270, 275, 105
S.E.2d 160, 163 (1958). This rule is not
without exception.
28 Va. App. 288, 293, 504 S.E.2d 385, 388 (1998) (en banc).
Additionally, in Johnson v. Commonwealth, we said, in the
context of a jury trial:
To prove the charge of possession of a
firearm after being convicted of a felony,
the Commonwealth was required to prove that
Johnson was a convicted felon. Thus, with
respect to that charge, the trial court was
obliged to receive evidence of Johnson's
prior criminal record. However, that
evidence bore no relevance and had no
probative value with respect to the charges
relating to possession of cocaine. With
respect to those charges, it served merely
the purpose of prejudicing Johnson in the
eyes of the jury, by suggesting to their
minds that he had a criminal propensity.
20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995).
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Underpinning the Hackney and Johnson analysis is the concept
that, absent well-established exceptions, a defendant's prior
crimes are inadmissible because that evidence will unfairly bias
a jury's perception of a defendant. This Court used the same
analysis in Long v. Commonwealth.
When the jury hears that a defendant has
been convicted of a felony, a fact not
probative of an element of the offense being
tried, the evidence has a tendency to
prejudice the defendant in the minds of the
jurors. The admission of a felony
conviction is suggestive of the defendant's
criminal propensity and tends to adversely
affect his presumption of innocence.
20 Va. App. 223, 227, 456 S.E.2d 138, 139 (1995).
Hackney, Johnson, and Long do not address severance in a
bench trial context. These cases specifically discuss jury
perceptions, although some statements in the cases may suggest a
broader applicability. Appellant claims, analytically, a bench
and a jury trial are not different. We disagree.
Traditionally, courts have drawn a substantial distinction
between trial judges and jurors. Judges are presumed capable of
distinguishing "the evidence in one case with that in another,"
while jurors are given no such presumption. Mason v.
Commonwealth, 219 Va. 1091, 1097-98, 254 S.E.2d 116, 120 (1979);
Dove v. Peyton, 343 F.2d 210, 214 (4th Cir. 1965). This Court
has explained why this presumption is applied only in bench
trials:
"A judge, unlike a juror, is uniquely suited
by training, experience and judicial
discipline to disregard potentially
prejudicial comments and to separate, during
the mental process of adjudication, the
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admissible from the inadmissible, even
though he has heard both." Eckhart v.
Commonwealth, 222 Va. 213, 216, 279 S.E.2d
155, 157 (1981). Consequently, we presume
that a trial judge disregards prejudicial or
inadmissible evidence. Hall v.
Commonwealth, 14 Va. App. 892, 902, 421
S.E.2d 455, 462 (1992) (en banc). Finally,
"this presumption will control in the
absence of clear evidence to the contrary."
[No citation.]
Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305
(1993).
This Court underscored this distinction in Johnson v.
Commonwealth, 12 Va. App. 391, 404 S.E.2d 384 (1991). Johnson
argued "jury verdicts [should] be set aside and a new trial
ordered because the sentencing judge read the intake officer's
file, which contained an inculpatory statement not admissible at
the sentencing hearing." Id. at 396, 404 S.E.2d at 386. In that
case, we rejected Johnson's argument equating a trial court with
a jury, noting that a judge can "'disregard potentially
prejudicial comments.'" Id. at 397, 404 S.E.2d at 387 (citing
Smith v. Commonwealth, 239 Va. 243, 268, 389 S.E.2d 871, 884-85
(1990)). Appellant's contention that the trial court, as the
fact finder in this particular case, was prejudiced by knowing
appellant was a convicted felon is belied by our jurisprudence.
On a daily basis, trial courts hear evidence admissible for
one purpose yet inadmissible for another purpose. See, e.g.,
Manetta v. Commonwealth, 231 Va. 123, 127-29, 340 S.E.2d 828,
830-31 (1986) (explaining statements that are inadmissible as
hearsay in one context may be admissible for other purposes).
Trial courts regularly listen to proffered evidence to determine
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whether that evidence is admissible. Nonetheless, the courts
consider the evidence only in its permissible context. For
example, if the trial court excludes evidence, then,
presumptively, the judge does not consider the rejected evidence
when ruling on the case. See Piatt v. Piatt, 27 Va. App. 426,
436, 499 S.E.2d 567, 572 (1998) (where the judge read a greeting
card to determine if it contained hearsay before sustaining the
objection, "[t]he trial court is presumed to have excluded
inadmissible evidence from its consideration, and wife has
offered nothing to rebut this presumption").
The trial court in this case specifically said he was
"perfectly capable of separating all of the charges." As in
Overton v. Commonwealth, 260 Va. 599, 604, 539 S.E.2d 421, 424
(2000), "we are unwilling to disregard the court's unequivocal
statement" that it would consider the charges separately.
Nothing in this record rebuts the presumption that the trial
court considered only the evidence relevant to each offense when
reaching its decisions. See Cole, 16 Va. App. at 116, 428 S.E.2d
at 305 (noting a court is presumed to "disregard[] prejudicial or
inadmissible evidence" absent "'clear evidence to the
contrary'").
Justice did not require separate trials in this case.
Finding the trial court did not abuse its discretion in denying
the motion for severance, we affirm.
Affirmed.
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