COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
ELTON MANNING JACKSON
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2587-98-1 JUDGE ROBERT P. FRANK
SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Elton Manning Jackson (appellant) appeals his conviction, by
a jury, of first degree murder. On appeal, he contends the trial
court erred in: 1) allowing three witnesses to testify regarding
their sexual encounters with him; 2) overruling his motion to
exclude a portion of the statement he made to police regarding his
sexual encounter with Kevin Benton; and 3) allowing a witness to
testify about the statement Andre Smith made to the witness. We
disagree and, therefore, affirm the trial court's judgment.
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
On July 22, 1996, the body of Andre Smith was found at
approximately 8:35 a.m. The medical examiner testified the
victim had been dead at least 18 to 24 hours, but no longer than
48 hours. The cause of death was ligature strangulation.
Arnold Smith, a friend of the victim, testified, over
appellant's objection, that between 2:30 a.m. and 3:00 a.m. on
July 21, 1996, the victim said he was going to go "past"
appellant's house to get some money. Kim Nurney also testified,
without objection, that at around 2:30 a.m. on July 21, 1996,
the victim told her he was leaving to go get some money and
would be back in fifteen minutes. Nurney waited for the victim,
but he never returned.
On July 23, 1996, during a canvas of the victim's
neighborhood, police officers came in contact with appellant.
Appellant told the police he did not know the victim, but
recognized his picture from television reports. Detective
Ronald Young testified appellant appeared jittery and would not
make good eye contact with the police.
Appellant was arrested on May 6, 1997, and gave a
videotaped statement to Detective Whitehurst of the Chesapeake
Police Department. During this videotaped statement, he stated
the victim had visited his home some time in the evening on July
20, 1996, and the two of them "had a good time." Whitehurst
also questioned appellant about a sexual encounter he had with
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Kevin Benton. Specifically, Whitehurst asked appellant if he
played a game with Benton where he tied up Benton.
At trial, appellant testified he engaged in anal sex with
the victim on July 20, 1996. Appellant said he gave the victim
twenty dollars, and the victim left around 10:00 p.m.
Kevin Benton testified about a sexual encounter he had with
appellant in the early morning hours of December 11, 1996.
Appellant picked Benton up in the Ocean View area of Norfolk,
and Benton testified they went to appellant's house. Once they
arrived at appellant's house, Benton, who was high on crack
cocaine, went into the bedroom with appellant. Appellant
promised to give Benton seventy-five dollars if he would allow
appellant to tie his hands behind his back and massage him.
Benton stripped to his boxer shorts and lay on his stomach on
the bed while appellant tied his hands behind his back with a
necktie. After a few moments, during which appellant was out of
Benton's sight, Benton noticed appellant approaching from
behind. Appellant tried to lift a leather strap over Benton's
head. Benton turned away, kicked appellant, and untied the
necktie around his hands. Later that morning, appellant paid
Benton nineteen dollars and some change. Appellant then drove
Benton to a meeting with Benton's probation officer. Appellant
testified he engaged in consensual sex with Benton, but denied
any acts of violence.
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Tommy Anderson testified he and appellant agreed to
exchange sex for money in May 1995. Anderson testified he went
to appellant's house, took off his clothes, and lay on the bed.
Anderson agreed to let appellant rub lotion between his closed
legs. At this point, appellant became rough and held Anderson
down by placing his forearm in the back of Anderson's neck, but
he stopped when Anderson threatened to scream. Then, appellant
agreed to drive Anderson to his next destination, but, while in
the car, he hit Anderson in the face. Appellant threatened to
kill Anderson if he tried to escape. Appellant drove Anderson
to the approximate area where the victim's body was found. He
ordered Anderson to get out and place his hands on the vehicle.
With his hands on the vehicle, Anderson turned and saw appellant
approaching him from behind with a strap in his hand. Anderson
kicked appellant and fled the area. During his testimony,
appellant denied ever having a sexual encounter with Anderson.
Willie C. Swimpson, Jr., lived with appellant during the
summer of 1995. Swimpson testified he engaged in sexual
relations with appellant for money during that time. On one
occasion, appellant took Swimpson to a secluded area and
Swimpson agreed to allow appellant to put lotion between his
legs while having sex with him. Swimpson glanced around while
he waited for appellant to retrieve the lotion and noticed
appellant approaching him from behind with a strap in his hand.
Swimpson thought appellant was going to put the strap around his
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head and twist it. Swimpson escaped through the woods on foot.
Appellant testified Swimpson fabricated this story because their
consensual sexual relationship had ended on bad terms after he
caught Swimpson stealing from him.
A bloodstain found on appellant's mattress matched the DNA
of the victim. Appellant's DNA matched the DNA in semen that
was swabbed from the victim's anus.
Appellant was convicted on August 21, 1998 of murder in the
first degree. He was sentenced to life imprisonment on October
27, 1998.
II. ANALYSIS
Appellant contends the trial court erred in allowing Benton,
Anderson, and Swimpson to testify about their sexual encounters
with him, during which each said appellant tried to strangle him.
Generally, evidence of other offenses
should be excluded if offered merely to show
that the accused is a person likely to
commit the crime charged. But there are
important exceptions to that rule. Evidence
of other crimes is admissible if it tends to
prove any fact in issue, even though it also
tends to show the defendant guilty of
another crime.
Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616
(1990) (citations omitted).
"[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
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is competent evidence where there is a disputed issue of
identity." Id. (citations omitted).
In Spencer, the Supreme Court explained the standard of
proof for the modus operandi exception:
[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.
Ultimately, the question whether to
admit evidence of other crimes involves the
same considerations as any other
circumstantial evidence. "Every fact,
however remote or insignificant, that tends
to establish the probability or
improbability of a fact in issue, is
relevant, and if otherwise admissible,
should be admitted." "Other crimes"
evidence bearing sufficient marks of
similarity to the case on trial to establish
the probability of a common perpetrator is,
therefore, usually relevant. The question
remains, however, whether it is "otherwise
admissible." That question requires the
trial court to weigh its probative value
against its prejudicial effect. "Whenever
the legitimate probative value outweighs the
incidental prejudice to the accused,
evidence of prior offenses, if otherwise
competent, is admissible."
The responsibility for balancing the
competing considerations of probative value
and prejudice rests in the sound discretion
of the trial court. The exercise of that
discretion will not be disturbed on appeal
in the absence of a clear abuse.
Id. at 90, 393 S.E.2d at 616-17 (citations omitted).
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Appellant contends the differences between his encounters
with Benton, Anderson, and Swimpson and his encounter with the
victim were not sufficient to show a modus operandi. He argues
Benton, Anderson, and Swimpson agreed to have sex with him for
money, but there was no evidence he paid the victim to have sex
with him. He argues Benton and Anderson testified, that before
taking them back to his house, he picked them up in his car
while cruising the streets. He contends there was no evidence
that he picked up the victim while driving in his car. He
argues that Swimpson testified appellant attempted to strangle
Swimpson in his car, not in his bed, where the Commonwealth
contends appellant strangled the victim. Benton testified he
allowed appellant to tie him up prior to the attempted
strangulation, but the medical examiner testified there was no
evidence of tie marks or ligature marks on the victim's wrists
or ankles. Appellant also argues there was no evidence he
engaged in anal intercourse with Benton, Anderson, or Swimpson.
However, the autopsy of the victim indicated appellant
penetrated the victim's anus. Anderson and Swimpson both
testified appellant wanted to use lotion on their legs, and the
medical examiner testified there was no evidence of lotion on
the victim's body. Benton, Anderson, and Swimpson each
testified he physically resisted appellant when appellant
attempted to strangle him. Anderson testified appellant punched
him in the face. Appellant notes there were no signs of
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resistance or defensive wounds found on the victim's body.
Benton, Anderson, and Swimpson each testified appellant used a
thick, leathery strap. According to the medical examiner, the
victim was strangled with a thin cord.
Despite the differences discussed by appellant, we find
there are significant similarities between appellant's
encounters with Benton, Anderson, and Swimpson and his encounter
with the victim. First, all of the men, including the victim,
engaged in consensual homosexual sex with appellant. Benton,
Anderson, and Swimpson all stated they were using drugs at the
time of their encounters with appellant. The victim's
post-mortem toxicology report indicated cocaine was present in
his body. Despite appellant's assertion that he did not pay the
victim to have sex with him, the victim told Arnold Smith and
Nurney he needed money, then he had sex with appellant, and
appellant gave him twenty dollars. Finally, appellant engaged
in rough sex with Benton, Anderson, and Swimpson. Benton stated
he was face down on the bed with his hands tied behind his back
when appellant put a strap over his head from behind. Anderson
said appellant started getting rough during their encounter and
appellant pinned him down on the bed by the back of the neck.
Later, appellant came at Anderson with a strap or rope.
Swimpson stated that during a sexual encounter with appellant,
appellant tried to put a leather strap around his neck. The
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victim clearly had engaged in sexual intercourse with appellant
and was strangled from behind with a thin cord.
We find appellant's encounters with Benton, Anderson, and
Swimpson and the circumstances surrounding the victim's death to
be "sufficiently idiosyncratic and similar to each other to
support an inference of a pattern of operation and the
probability of [a] common [perpetrator]." Chichester v.
Commonwealth, 248 Va. 311, 328, 448 S.E.2d 638, 649 (1994).
Furthermore, we find the trial court did not abuse its
discretion in concluding the prejudicial effect of Benton's,
Anderson's, and Swimpson's testimony was outweighed by the
probative value of the evidence.
Appellant next contends the trial court erred in admitting
the portion of his May 6, 1997 statement to police that related
to his sexual encounter with Benton.
The Commonwealth argues appellant is procedurally barred
from raising this issue on appeal because, pursuant to Rule
5A:18, he did not state a specific basis for his objection. We
disagree and address the issue on the merits.
In his brief, appellant only argues that the portion of his
statement to the police regarding his relationship with Benton
is inadmissible for the "same reasons [as] all of Benton's
testimony." As discussed above, Benton's testimony was
admissible to prove modus operandi.
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"The admission of evidence is left to the sound discretion
of the trial court and will be disturbed on appeal only upon a
showing of abuse of discretion." Langhorne v. Commonwealth, 13
Va. App. 97, 106, 409 S.E.2d 476, 482 (1991) (citing Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)
(citation omitted)).
"Evidence is relevant if it has any logical tendency to
prove an issue in a case." Goins v. Commonwealth, 251 Va. 442,
461, 470 S.E.2d 114, 127 (1996) (citing Coe v. Commonwealth, 231
Va. 83, 87, 340 S.E.2d 820, 823 (1986)).
In this case, appellant's statement to the police regarding
his relationship with Benton was relevant because it
corroborated Benton's admissible testimony. Therefore, we find
the trial court did not abuse its discretion in admitting
appellant's statement into evidence.
Finally, appellant contends the trial court erred in
allowing Arnold Smith to testify about the victim's statement
that he was going to appellant's house.
The trial court ruled Smith's testimony was hearsay, but
ruled it was admissible, over appellant's objection, to show the
victim's state of mind. The Commonwealth argued the victim's
state of mind was relevant because it corroborated the
Commonwealth's contention that he went to appellant's house.
Assuming, without deciding, the statement was hearsay, it
was harmless error for the trial court to admit the statement.
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A nonconstitutional error is harmless
if "it plainly appears from the record and
the evidence given at trial that the error
did not affect the verdict." "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."
Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620
(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc)).
From Smith's testimony, the trier of fact could conclude
the victim knew where appellant's house was located and the
victim planned to go "past" appellant's house to get money.
Smith did not testify as to the time the victim left because he
left prior to the victim's leaving. Nurney established the
victim left at 2:30 a.m. and did not return. The victim told
Nurney he was going to get some money and would return in
fifteen minutes. Nurney's testimony did not indicate the victim
knew appellant or was going to appellant's home.
Substantively, the inadmissible hearsay adds nothing to the
evidence already before the trier of fact. Appellant admitted
he and the victim had sex at his home on the evening of July 20,
1996. From appellant's testimony, the trier of fact could infer
the victim knew where appellant's home was located. Therefore,
we find, had the hearsay not been admitted, the verdict would
have been the same.
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For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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