COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
STEPHEN JAMES PURVIS
OPINION BY
v. Record No. 2878-98-1 JUDGE LARRY G. ELDER
JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Fabio Crichigno (Office of the Public
Defender, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General; H.
Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee.
Stephen James Purvis (appellant) appeals from his bench
trial convictions for two counts of statutory burglary and one
count of petit larceny. On appeal, he contends that the trial
court erroneously denied his motion to sever unrelated offenses
for trial under Rule 3A:10 and that this refusal constituted
reversible error. We agree that the refusal to sever was error
but hold that the error was harmless. Therefore, we affirm
appellant's convictions.
I.
FACTS
On July 6, 1998, a Virginia Beach grand jury charged
appellant, in multiple counts of the same indictment, with one
count of statutory burglary occurring in September 1997 and one
count each of statutory burglary and grand larceny occurring in
November 1997. All counts were set for trial on September 14,
1998.
On the morning of trial, appellant moved to sever the
September 1997 burglary charge from the November 1997 burglary
and grand larceny charges. He argued that two months had passed
between the offenses, that they involved different witnesses and
different evidence, and that joinder would cause "overwhelming
prejudice" to appellant. The trial court commented that
appellant's argument would "be more reasonable" if a jury were
involved and said, "We do this all the time in . . . bench
trials." He then gave appellant's counsel thirty minutes to
"get [the court] compelling argument or case law why [the court]
should sever this."
When court reconvened about an hour later, appellant cited
to the court Godwin v. Commonwealth, 6 Va. App. 118, 367 S.E.2d
520 (1988), arguing that its holding required severance in
appellant's case. The trial court observed that Godwin involved
a jury trial rather than a bench trial, and when appellant's
counsel and the prosecutor said the only other cases they found
requiring severance also involved jury trials, the trial court
denied appellant's motion for severance.
The substantive evidence offered at trial established that
on September 21, 1997, Patricia Corey discovered that the office
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of her employer, Veda, Incorporated, a government contractor,
had been broken into. Her locked filing cabinet had been forced
open with a screwdriver or crowbar, but nothing was missing. In
an adjoining suite, she discovered that a locked cash box had
been broken into and $90 to $100 removed from it.
On November 17, 1997, Shelly Smith Flood discovered that
the office of her employer, dentist Theodore R. Smith, Jr., had
been broken into. The front door had been damaged and was ajar,
and the cash box was out of place. Missing was an envelope,
addressed to Dr. Smith, that contained five 100-stamp rolls of
first-class postage stamps.
On November 18, 1997, Detective R. J. Mlinscek questioned
appellant about a series of larcenies and eventually arrested
him at the request of a neighboring jurisdiction. Pursuant to
that arrest, Mlinscek inventoried appellant's car, in which he
found a crowbar, a screwdriver, and the envelope containing
postage stamps and addressed to Dr. Theodore Smith which had
been taken from Smith's office. Officer H. W. Holmes took
appellant's fingerprints. At Detective Mlincsek's request,
Holmes compared appellant's fingerprints to the prints obtained
from Patricia Corey's damaged filing cabinet and determined that
they matched.
At the conclusion of the Commonwealth's evidence, appellant
moved to strike the September 1997 burglary charge and argued
the motion, which the trial court denied. Appellant then made a
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separate motion to strike the November 1997 burglary and larceny
charges. 1 In arguing the motion to the trial court, appellant
emphasized that the November 1997 burglary charge was "separate"
from the September 1997 burglary and referred to them as "two
distinct cases." The trial court also denied the second motion.
Appellant offered no evidence and renewed his motions to strike,
which were again denied. Both appellant's counsel and the
prosecutor then made closing arguments, and the trial court
found appellant guilty of both burglary counts and petit
larceny.
II.
ANALYSIS
A.
JOINDER OF OFFENSES FOR TRIAL
Rule 3A:10(c) provides that "[t]he 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) or (ii) the
accused and the Commonwealth's attorney consent thereto." Rule
3A:10(c) (emphasis added). This rule provides the "trial court
[with] limited discretion to order an accused to be tried for
more than one offense at the same time." Godwin v.
1
The Commonwealth agreed that the evidence did not prove
the value of the stamps exceeded $200 and conceded that the
grand larceny charge should be reduced to petit larceny.
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Commonwealth, 6 Va. App. 118, 121, 367 S.E.2d 520, 521 (1988). 2
Where an accused does not consent to having the charges tried
together, the trial court may "not try them together unless the
offenses [meet] the criteria of Rule 3A:6(b) and justice [does]
not require separate trials." Id. at 121, 367 S.E.2d at 522.
To meet the requirements of Rule 3A:6(b), the offenses must
be "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." Whether the trial is a jury trial or a
bench trial is irrelevant to the question of whether the
offenses meet the criteria of Rule 3A:6(b).
In appellant's case, the trial court did not specifically
discuss the requirements of Rules 3A:10(c) or 3A:6(b), and it
appears to have made its decision based solely on the fact that
no jury was involved. Appellant represented that the offenses
involved "two different dwellings and/or businesses," "two
remote places in time" almost two months apart, as well as
different witnesses and different evidence. The Commonwealth
made no argument to the contrary, either at trial or on appeal,
and the trial court made no finding to the contrary.
Nevertheless, we examine whether the offenses fall into any of
2
Godwin was decided under Rule 3A:10(b). Rule 3A:10 was
amended January 1, 1994, and former subsection (b) was
redesignated as subsection (c). The amendment effected no
substantive change in the part of the rule at issue in this
case.
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the three categories listed in Rule 3A:6(b) -- whether they were
"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."
Two offenses do not meet the "same act or transaction"
requirement if "each [offense] was a separate act which occurred
at a different time and place." Godwin, 6 Va. App. at 122, 367
S.E.2d at 522 (two robberies). Because the two burglaries for
which appellant was indicted were separate acts which occurred
at different places almost two months apart, they do not
constitute the "same act or transaction."
Two offenses do not "arise out of 'two or more acts or
transactions that are connected'" if "[t]hey occur[] on
different days, at different places, and no evidence link[s] or
connect[s]" one offense with the other. Id. In Godwin, we held
that two robberies of two different Flowers Bakery stores within
five days and three and one-half miles of each other, where
"[t]he method of each offense was similar, but not unusual," did
not meet this test. Id. at 120, 122, 367 S.E.2d at 521, 522.
In appellant's case, the burglaries were of two different
types of businesses -- a government contractor's office and a
dentist's office -- and occurred almost two months apart.
Although both involved movement of the business's cash box, the
perpetrator took different items in each instance -- cash in one
and postage stamps in the other. Both burglaries may have
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involved the use of a crowbar, but one involved prying open a
locked filing cabinet and a cash box while the other involved
opening an office door. Here, as in Godwin, any similarities in
the methods employed in each burglary were "not unusual," and
the transactions were not "connected" within the meaning of Rule
3A:6(b).
Thus, the burglaries met the requirements for joinder only
if they "constitute[d] parts of a common scheme or plan." The
evidence does not support a finding that they did.
A "common plan" exists when the
"relationship among offenses . . . is
dependent upon the existence of a plan that
ties the offenses together and demonstrates
that the objective of each offense was to
contribute to the achievement of a goal not
attainable by the commission of any of the
individual offenses." A conspiracy
involving more than one offense is a typical
example of offenses involving a common plan.
Offenses using a "common plan," however,
should be "distinguished from similar
character offenses (where the offenses
merely duplicate each other)."
Id. at 122-23, 367 S.E.2d at 522 (citations omitted); see also
Ferrell v. Commonwealth, 11 Va. App. 380, 389-90, 399 S.E.2d
614, 619 (1990) (in upholding joinder of offenses for trial
under Rule 3A:6(b), noting that offenses "'need not bear . . .
an exact resemblance'" but must "'"bear a singular strong
resemblance"' . . . , thus tending to establish the probability
of a common perpetrator") (quoting United States v. Hudson, 884
F.2d 1016, 1021 (7th Cir. 1989) (citation omitted)).
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Here, as in Godwin, "there was no evidence of conspiracy or
other common plan underlying the two [offenses]." Godwin, 6 Va.
App. at 123, 367 S.E.2d at 522. Any factual similarities in the
two offenses "did not show the existence of a plan tying the
offenses together," and any conclusion that the factual
similarities permitted a finding that "[the offenses] were
committed by the same persons as part of a plan [would be]
speculative." Id.; see also Satcher v. Commonwealth, 244 Va.
220, 230 n.6, 421 S.E.2d 821, 828 n.6 (1992) (holding that case
involving two attempted rapes and robberies, which occurred
within a few yards and one-half hour of each other and involved
forcible removal of the victims from a bicycle path,
"constituted parts of a common scheme or plan" and was
distinguishable from Godwin, in which "the two robberies in
issue occurred five days and three and one-half miles apart and
'no evidence linked or connected the one robbery with the
other'") (citation omitted).
Because the two burglaries did not meet the requirements of
Rule 3A:6(b), 3 joinder of the burglaries for trial was improper
under Rule 3A:10(c). Therefore, we hold that the trial court
erred in denying appellant's severance motion.
3
Appellant challenges only the joinder of the offenses for
trial and does not challenge the inclusion of multiple counts in
the indictment itself.
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B.
HARMLESS ERROR
Although the trial court erred, the error does not
necessarily require reversal. See, e.g., Charity v.
Commonwealth, 24 Va. App. 258, 264-65, 482 S.E.2d 59, 62 (1997).
Rule 3A:2(a) provides specifically that "[e]rrors, defects,
irregularities or variances that do not affect substantive
rights shall not constitute reversible error." See Foster v.
Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988).
Because appellant alleges only a violation of Rule 3A:10, we
apply the standard for determining whether non-constitutional
error is harmless.
Non-constitutional error is harmless "[w]hen it plainly
appears from the record and evidence given at trial that the
parties have had a fair trial on the merits and substantial
justice has been reached." Code § 8.01-678; see Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc). To determine whether an error is harmless, we "must
review the record and the evidence and evaluate the effect the
error may have had on how the finder of fact resolved the
contested issues." Lavinder, 12 Va. App. at 1007, 407 S.E.2d at
912.
Ordinarily, error in refusing to sever offenses is harmless
if evidence related to each of the counts would have been
admissible in a separate trial of any of the other counts. See
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Hackney v. Commonwealth, 28 Va. App. 288, 292-96, 504 S.E.2d
385, 388-90 (1998) (en banc) (acknowledging general principle
but holding policy requires that knowingly erroneous decision
not to sever remains harmful and, therefore, reversible error if
the only thing that renders the other conviction admissible is
defendant's subsequent decision to testify); cf. Foster, 6 Va.
App. at 323, 369 S.E.2d at 694 (holding that misjoinder of
offenses in indictment would not constitute a "substantive"
error requiring reversal if evidence of each count would be
admissible in separate trial of other count); Godwin, 6 Va. App.
at 123, 367 S.E.2d at 522 (holding that "justice does not
require separate trials" under merits analysis of Rule 3A:10(c)
where evidence satisfies this same admissibility test).
Conversely, such error may not be harmless if evidence
related to each of the counts would have been inadmissible in a
separate trial of any of the other counts. This is so because,
in a jury trial, "the introduction of inadmissible evidence of
another crime . . . 'confuses one offense with the other, . . .
and, by showing that the accused has a criminal propensity,
tends to reverse his presumption of innocence.'" Godwin, 6 Va.
App. at 123, 367 S.E.2d at 522 (quoting Lewis v. Commonwealth,
225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)). However, "in a
bench trial, the trial judge is presumed to disregard
prejudicial or inadmissible evidence, and this presumption will
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control in the absence of clear evidence to the contrary." 4 Hall
v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462
(1992) (en banc) (citation omitted).
We recently held that "[t]he harmless error doctrine should
not be used prospectively by a trial court as a basis to
disregard an established rule of law." Hackney, 28 Va. App. at
269, 504 S.E.2d at 389. In Hackney, we refused to apply
harmless error analysis to a jury conviction where our prior
decisions rendered erroneous the decision of the trial court not
to sever charges for possession of a firearm by a convicted
felon from other related charges. See id. at 293-96, 504 S.E.2d
at 388-89. We did so because the trial court implicitly
acknowledged its awareness of the relevant legal rule and that
its refusal to sever was error but "surmis[ed] that [the
accused] might testify and place his credibility and character
at issue, thereby rendering harmless its erroneous decision not
to sever." Id. at 295, 504 S.E.2d at 389. Compare id. with
Charity, 24 Va. App. at 264-67, 482 S.E.2d at 62-63 (applying
4
Further supporting the reliability of this principle is
the fact that, although joinder of two unrelated offenses in the
same bench trial may constitute error under the Rules, no
statute, rule or common law principle prevents the same judge
from trying the same defendant, in immediate succession, for
multiple unrelated charges, each of which would be inadmissible
at the trial of the other charges. Holding that one judge's
trying multiple unrelated offenses in a bench trial
presumptively constitutes reversible error while holding that
the same judge's trying the same offenses separately but in
rapid succession presumptively is not error would be to exalt
form over substance.
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harmless error doctrine where record contained no indication,
other than representations of defense counsel, that court knew
its refusal to allow counsel to voir dire prospective jurors
directly rather than through court violated Code § 8.01-358 and
holding that error was rendered harmless because trial court
asked jurors all questions proffered by defense counsel).
Therefore, we hold that the erroneous refusal to sever
offenses is harmless in a bench trial absent clear evidence that
the trial court (1) considered inadmissible evidence in
convicting the accused of the charged offenses, see Hall, 14 Va.
App. at 902, 421 S.E.2d at 462, or (2) used the "harmless error
doctrine . . . prospectively . . . as a basis to disregard an
established rule of law," Hackney, 28 Va. App. at 269, 504
S.E.2d at 389. Upon a thorough review of the record under this
standard, we hold "that the parties have had a fair trial on the
merits and substantial justice has been reached." Code
§ 8.01-678.
First, no evidence suggests that the trial court considered
inadmissible evidence in convicting appellant of either of the
two burglaries. The evidence regarding each offense was brief.
Appellant's counsel argued the evidence of each offense
separately, and he specifically asked the trial court to
"separate" the evidence and consider the burglary counts as "two
distinct cases." Finally, the trial court made no statements to
indicate that it considered evidence of one burglary in
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convicting appellant of the other burglary, and on appeal,
appellant poses no challenge to the sufficiency of the evidence
to support each conviction. Therefore, we apply the presumption
that the trial court considered only admissible evidence in
convicting appellant of each offense.
Furthermore, the record contains no indication that the
trial court used a harmless error analysis prospectively as a
basis for denying appellant's motion to sever under Rule 3A:10.
The trial court specifically observed, "We do this all the time
in . . . bench trials," and gave no indication that it believed
such a practice violated the rules of court. In short, the
trial court simply erred as a matter of law in believing that
trying the cases before a judge rather than a jury made joinder
lawful. Therefore, we conclude that the trial court's actions
did not violate the policy set out in Hackney.
For these reasons, we hold that the trial court erred in
refusing appellant's motion to sever but that the resulting
error was harmless under the facts of this case. Therefore, we
affirm appellant's convictions.
Affirmed.
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