COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp ∗
Argued at Alexandria, Virginia
DON WILSON, S/K/A
DONALD CORDELL WILSON
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2255-99-4 JUDGE JAMES E. KULP
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Clark E. Brodersen for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Don Wilson, s/k/a Donald Cordell Wilson (appellant), was
tried and convicted by a jury in the Circuit Court of Arlington
County (trial court) on the charge of abduction. On appeal, he
contends the trial court erred when it admitted evidence regarding
a prior altercation between him and the victim. Finding no error,
we affirm the judgment of the trial court.
∗
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Background
Michelle Robinson met appellant on October 24, 1997, and the
two began dating shortly thereafter. She testified that their
relationship changed following a February 1998 argument during
which, in the presence of Robinson's son D.R., appellant threw a
trash can at her head. 1 The trial court admitted this evidence
over appellant's objection. Robinson was not harmed in the
incident and continued to date appellant, but he was no longer
allowed in her residence.
Around 9:30 p.m. on April 8, 1998, Robinson went to Mary
Savoy's residence on Rolfe Street in Arlington. Sometime that
evening, Robinson's youngest son called from home. He reported
that someone kept calling from the telephone at the front door of
their apartment building. Robinson checked her voice mail and
there were twenty-two messages from appellant, including one in
which appellant threatened Robinson with bodily harm. Later that
night, someone called Savoy's apartment and, disguising his voice
as Robinson's son Michael, asked that Savoy send Robinson outside.
1
In his brief, appellant contends Robinson testified that
appellant threw the trash can at her son. Robinson stated,
however, that appellant "threw a trash can . . . at my head with
my son, which was nine years old, D.R. was with me." She
testified during cross-examination that D.R. was standing next
to her when appellant threw a trash can at her head. There was
no evidence that appellant targeted or struck Robinson's son
with the trash can.
- 2 -
Robinson left Savoy's apartment around 2:45 a.m. and was
walking home when appellant jumped out from behind some bushes.
He accused Robinson of being unfaithful and ordered her to
accompany him. When Robinson refused, appellant grabbed her and
began pushing her toward his car. Robinson ran screaming to a
nearby apartment building and knocked on a door for assistance.
Appellant pursued Robinson and was able to force her into his car.
She escaped, however, and ran toward Cindy Mohammed's apartment
building. She screamed for help and rang doorbells to get
assistance. She grabbed onto a railing when appellant approached,
but appellant was able to pull her away and force her into his
car.
Robinson testified that she escaped once more, but appellant
again forced her into his car. Appellant then drove down Rolfe
Street, where they encountered police officers who had arrived in
response to a report of a man assaulting a woman. When appellant
stopped the car, Robinson fled the vehicle and ran up to Officer
Adams.
Robinson testified that she had fallen and scraped her knees
earlier when appellant was pushing her toward the car. She
further testified that she broke a fingernail while struggling
with appellant. Adams confirmed that Robinson was bleeding from
abrasions on her knees and that one of Robinson's fingernails was
coming off. Robinson denied using any drugs that night and denied
telephoning appellant from Savoy's apartment.
- 3 -
Cindy Mohammed testified that in the early morning hours of
April 9, 1998, she was awakened by a woman screaming for help.
She looked out one of her windows and saw a woman holding onto a
railing from which a man was trying to pull her. The man finally
forced the woman from the railing and threw the woman to the
ground. Mohammed overheard the man tell the woman "be quiet, if
you scream again, I am going to kill you." Mohammed called the
police to report the incident.
Appellant testified that Robinson called him at 2:00 a.m. on
April 9, 1998. He said she admitted using drugs and asked him to
come get her. Appellant stated he refused, but that Robinson
called him an hour later, at which time he agreed to come pick her
up. Appellant denied forcing Robinson into his car and denied
leaving twenty-two messages on her voice mail.
Analysis
Appellant contends the prejudice caused by Robinson's
testimony about the February trash can incident outweighed the
probative value of that evidence. He asserts that the trial court
committed reversible error by admitting this evidence.
Evidence of other crimes or bad acts is
inadmissible if it is offered merely to show
that the defendant is likely to have
committed the crime charged. However, such
evidence is admissible if it tends to prove
any element of the offense charged, even
though it also tends to show that the
defendant is guilty of another crime.
- 4 -
Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127
(1996) (citations omitted). Evidence of a defendant's prior bad
acts is admissible "to show the conduct and feeling of the
accused toward his victim, or to establish their prior
relations." Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337
S.E.2d 897, 899 (1985); see Morse v. Commonwealth, 17 Va. App.
627, 632, 440 S.E.2d 145, 148 (1994) (holding that prior acts of
violence by defendant in demanding sex from the victim were
relevant in proving that the intercourse leading to the marital
sexual assault charge occurred as a result of a threat of
force).
"In addressing the admissibility of other crimes evidence
the court must balance the probative value of the evidence of
the other offenses and determine whether it exceeds the
prejudice to the accused. The court's weighing of these factors
is reviewable only for clear abuse of discretion." Pavlick v.
Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 923-24
(1998) (en banc) (citations omitted). Likewise, whether
evidence of prior bad acts is too remote in time to be relevant
is left to the discretion of the trial court. See Collins v.
Commonwealth, 226 Va. 223, 230, 307 S.E.2d 884, 889 (1983).
The Commonwealth had the burden of proving that appellant
forcibly seized and transported Robinson. See Code § 18.2-47
(defining abduction). The February trash can throwing incident
was relevant because it revealed the nature of the relationship
- 5 -
between appellant and Robinson. This relatively recent incident
tended to prove that appellant would use violence against
Robinson if he was unhappy with her. Accordingly, the trial
court did not abuse its discretion in admitting this evidence. 2
Moreover, given the weight of the evidence against appellant and
the relatively mild nature of the February incident, any error
in admitting the evidence was harmless. See Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc) (holding that non-constitutional error is harmless
when it plainly appears from the record that the defendant had a
fair trial and that substantial justice was reached).
For the reasons stated above, the judgment of the trial court
is affirmed.
Affirmed.
2
Appellant argues that, to be admissible, the prior bad act
must be similar in character to the current offense. We express
no opinion on the merits of this argument, but find that
appellant's assaultive behavior of throwing the trash can was
similar in character to the violence accompanying the abduction.
- 6 -