COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
JOSEPH C. BONEY
OPINION BY
v. Record No. 0591-98-2 JUDGE RICHARD S. BRAY
JUNE 1, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
James F. D’Alton, Jr., Judge Designate
Jerry E. Waldrop (C. Gilbert Hudson, Jr., on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Joseph C. Boney (defendant) was convicted by a jury of
burglary, first-degree murder, malicious wounding, and related
firearms offenses. Defendant complains on appeal that the trial
court erroneously admitted evidence of prior offenses and
related misconduct. 1 We agree and reverse the convictions.
In accordance with well established principles, we review
the record on appeal in the light most favorable to the
Commonwealth. See Archer v. Commonwealth, 26 Va. App. 1, 11,
492 S.E.2d 826, 831 (1997).
1
Because we reverse on this issue, we decline to address
the remaining assignments of error raised on appeal.
Defendant and his wife, Anita Boney, were married in 1989,
and four children were born to their union. In October, 1996,
Mrs. Boney separated from defendant, relocating with the
children to a rental house in Emporia. 2 Although defendant
remained in the former marital home, Mrs. Boney “saw him all the
time, just about every day.” Defendant “would come to any
window at the house that he could look into to see what [she]
was doing,” “come by and see the children,” and sometimes “park
his car outside [Mrs. Boney’s house] and sleep in the car.”
During the week preceding the instant offenses, defendant asked
Mrs. Boney “what James Ricks [the murder victim] was doing at
[her] house,” and threatened, “don’t ever let me catch James at
your house or I’m going to kill him.”
In the late evening of December 21, 1996, Mrs. Boney
arrived home from work and “saw [defendant] pulling away from
[her] driveway.” Defendant soon returned, however, “knocked on
the door,” and was told by Mrs. Boney that “he could [not] come
in.” Defendant inquired, “where was the children?” Mrs. Boney
answered that “they were at [her] mother’s house,” and he drove
away. Within minutes, defendant appeared at Mrs. Boney’s
bedroom window, again questioned her about the children, and,
once more, left the area.
2
Mrs. Boney was the sole tenant on the lease agreement, and
the landlord stipulated that defendant did not reside with her.
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Shortly after midnight, defendant returned to the window
and observed Mrs. Boney in bed with a man, later identified as
Ricks, apparently “making love.” Defendant recalled that he
immediately entered the house through the rear door, “seen two
peoples jump off the bed, no clothes or nothing” but, “that’s
all [he] remember[ed] right there.” Mrs. Boney testified that
she and Ricks “were talking” in the bed, following sexual
intercourse, and “heard . . . the screen door crack . . . [and]
a very loud, kicking, banging noise” as defendant “broke through
the door.” The couple “jump[ed] out of bed,” naked, and Ricks
fled through the living room and “out the front door” with
defendant in pursuit, shouting “go ahead you m---- f----- and
run, I’m going to get you.” Mrs. Boney “heard some shots,” and
Ricks was found nearby, dead from gunshot wounds inflicted by
the defendant.
Moments later, Mrs. Boney saw defendant approaching the
kitchen window. Fearful, she began “pushing the back door,”
previously damaged by defendant, “to keep him from coming into
the house.” However, defendant soon overpowered Mrs. Boney and
entered the home, holding a gun “in an upward motion.” Once
inside, defendant turned toward Mrs. Boney, declared, “I told
you if . . . I ever saw you with anybody else I would get you
too,” and shot her. Defendant watched Mrs. Boney “fall down
between the kitchen table and the back door [and] walked away.”
Wounded, Mrs. Boney “crept out of the back door . . . to [her]
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neighbor’s house,” summoned police, and defendant was arrested
at the scene.
During a hearing on several pretrial motions, the
Commonwealth urged the court to permit evidence at trial of
defendant’s “prior bad acts and conduct relating to” Mrs. Boney,
“to prove his motive, . . . intent and . . . conduct and
feeling” toward her. Despite repeated references by the
prosecutor to “assaults,” “similar incident[s],” and “other
threats,” crimes and prior bad acts of the defendant “involving”
Mrs. Boney, dating to 1986, the hearing record provides few
details of such misconduct. Nevertheless, over defendant’s
objection, the court ruled that “in light of . . . the history
between the parties,” it would allow evidence of assaults by
defendant that resulted from “incidents” in 1992 and 1993.
At trial, Mrs. Boney initially testified that “quite a few
times” she had been “in a situation with [defendant] and a gun,”
later recalling an “incident” in 1993 which “involved”
defendant, a man identified only as Larry Fields, and “a gun.”
She was unsure of any offenses committed by defendant, but
“kn[ew] that he stayed in jail for awhile.” After defendant
stipulated “that he was convicted of an assault and battery on
Larry Fields,” the court noted that, “[t]he fact that there was
a conviction is in evidence.” Mrs. Boney also vaguely alluded
to an “incident” in 1992 between defendant and herself.
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The court instructed the jury, “You may consider evidence
that the defendant committed offenses other than the offense for
which he is on trial only as evidence of the defendant’s motive
and intent in connection with the offense for which he is on
trial and for no other purpose.” The court also instructed the
jury on both first and second-degree murder, but denied
defendant jury instructions on manslaughter and unlawful
wounding. Defendant was convicted of first-degree murder,
malicious wounding, breaking and entering with the intent to
commit a felony while armed with a deadly weapon, and related
firearm offenses, the subject crimes. He now appeals, arguing
that the court erroneously admitted evidence of the prior
misconduct and assault conviction.
It is well established that evidence tending to show that
defendant committed a prior crime is generally inadmissible.
See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970); Burley v. Commonwealth, 29 Va. App. 140,
144, 510 S.E.2d 265, 267 (1999). Such evidence invites
confusion of the issues and unfair surprise and suggests
criminal propensity, circumstances that compromise the
fact-finding process and the presumption of innocence, to the
distinct prejudice of an accused. See Wilkins v. Commonwealth,
18 Va. App. 293, 297, 443 S.E.2d 440, 443 (1994) (en banc); see
also Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489,
491 (1998). However, “the ‘general rule . . . must sometimes
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yield to society’s interest in . . . truth-finding . . .,’ and
numerous exceptions allow evidence of prior misconduct
‘[w]henever the legitimate probative value outweighs the
incidental prejudice to the accused.’” Wilkins, 18 Va. App. at
297, 443 S.E.2d at 443.
Thus,
[e]vidence that tends to establish a fact at
issue is relevant and material and,
therefore, admissible, if its probative
value is not outweighed by any prejudicial
effect. Despite the prejudice “inherent” in
proof that the accused has committed other
crimes, this rule is no different when such
evidence is offered to establish knowledge
or intent, provided there exists a “relation
or connection” between the prior misconduct
and the facts in issue which sufficiently
establishes relevancy and materiality.
Id. at 297-98, 443 S.E.2d at 443.
Accordingly, “[e]vidence of ‘other crimes’ is relevant and
admissible if it tends to prove any element of the offense
charged,” including the intent of the accused. Guill, 255 Va.
at 138, 495 S.E.2d at 491 (citation omitted). However, the
admissibility of evidence to establish intent requires “‘a
causal relation or logical or natural connection between the two
acts, or they . . . form parts of one transaction,’” with
sufficient probative value to overcome the incidental prejudice
to the accused. Id. at 139-40, 495 S.E.2d at 491-92.
Here, the evidence before the jury through Mrs. Boney’s
testimony disclosed only that defendant had been convicted in
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1993 for an assault upon Larry Fields, a man unrelated to the
instant prosecution, which involved “a gun.” Nothing in the
trial record established any nexus between Fields, defendant,
Mrs. Boney, or the murder victim, Ricks. Similarly, Mrs. Boney
was permitted to mention an unexplained “incident” between
defendant and herself in 1992. Clearly, absent evidence that
established a rational relationship between such conduct and the
instant offenses, Mrs. Boney’s testimony was not probative of
defendant’s motive or intent in shooting either Ricks or herself
and, therefore, was without proper evidentiary value.
Nevertheless, the testimony suggested that defendant had
previously been “involved” with guns, an unrelated violent
encounter with another man, and other “situations” with Mrs.
Boney, all irrelevant to the instant prosecution but highly
prejudicial to defendant. Thus, the court erroneously admitted
the testimony into evidence.
Contrary to the Commonwealth’s argument, the court’s
instruction that the jury consider other “offenses . . . only as
evidence of . . . defendant’s motive and intent in connection
with the offense . . . on trial” does not cure the error. The
jury was exposed to inadmissible evidence, unworthy of
consideration in any issue at trial. The instruction limiting
the utility of such evidence expressly approved improper
consideration by the jury, albeit for a restricted purpose. A
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jury cannot be presumed at once to follow a direction to
consider improper evidence and remain unaffected by its content.
We likewise find no merit in the Commonwealth’s argument
that the error was harmless. “[U]nless ‘it plainly appears from
the record and the evidence given at the trial that’ the error
did not affect the verdict,” we must reverse the conviction.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc) (citing Code § 8.01-678). “An error
does not affect a verdict if a reviewing court can conclude,
without usurping the jury’s fact finding function, that, had the
error not occurred, the verdict would have been the same.” Id.
“The effect of an error on a verdict varies widely [and] . . .
[e]ach case must, therefore, be analyzed individually . . . .”
Id. at 1009, 407 S.E.2d at 913.
The jury convicted defendant of first-degree murder and
malicious wounding, offenses that require proof of malice beyond
a reasonable doubt, and recommended sentences of life and
fifteen years, respectively. Mrs. Boney was permitted to
improperly reference prior “incidents” involving defendant and
“guns,” including a specific conviction for assault arising from
an unrelated encounter years earlier. Under such circumstances,
we are unable to conclude that the record “plainly” demonstrates
convictions and sentences free from the influence of
inadmissible evidence.
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Accordingly, we reverse the convictions and remand the
matters to the trial court for a new trial, consistent with this
opinion, if the Commonwealth be so advised.
Reversed and remanded.
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