COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
EDWARD THOMAS RESIO
MEMORANDUM OPINION * BY
v. Record No. 0963-97-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Edward Thomas Resio (appellant) was convicted in a jury
trial of breaking and entering with the intent to rape in
violation of Code § 18.2-90 and abduction with the intent to
defile in violation of Code § 18.2-48. He contends the trial
court erred in admitting evidence of his prior convictions for
burglary and rape. For the following reasons, we reverse the
convictions.
I.
Appellant was charged with burglary, abduction with the
intent to defile, and attempted rape. Appellant filed a pretrial
motion to exclude evidence of his prior convictions for burglary
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and rape in August 1978 and a statement made by him to police on
November 16, 1995 when they executed a search warrant related to
the charged crimes. After hearing argument, the trial court
stated, "[o]n that basis, it's simply too prejudicial." However,
the trial court found that "[b]ased on Commonwealth v. Spencer
and Commonwealth v. Chichester, and the facts I've heard today
. . . the evidence of prior rape and the statement made by the
defendant during execution of the search warrant are both
admissible and the motion in limine is accordingly denied."
We view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Smith v. Commonwealth, 26 Va. App. 620,
496 S.E.2d 117 (1998). At trial, the victim of the charged
offenses, Dorothy Chinn, testified that on November 14, 1995, at
approximately 6:00 p.m., she was walking from her kitchen to her
bathroom when she saw a man wearing a mask and a camouflage
outfit standing in the hallway of her home. He grabbed Ms. Chinn
by her arms and pulled her into her bedroom. When she screamed,
he told her to "be quiet," but did not put his hand over her
mouth. Ms. Chinn continued to fight her attacker, and, after she
kicked him in the groin, the man left the bedroom and went out
the front door. Ms. Chinn was seventy-four years old at the time
of the attack.
Detectives Dave Wood and William F. Bowler testified that
the attacker gained entry into the Chinn home through a bedroom
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window at the back of the house. By climbing the railing around
the house he was able to remove the window screen and enter. The
detectives also found a boot print in the bedroom near the
window, which forensic analysis indicated was consistent with
appellant's boot. Additionally, fibers and hair discovered in
Ms. Chinn's bedding and clothing were found to be consistent with
appellant's clothing and hair. None of Ms. Chinn's jewelry,
which was visible on the hallway table, had been taken. Ms.
Chinn told the police that the attacker's voice sounded like "the
Resio boy." Although appellant lived across the street from Ms.
Chinn and they had a friendly relationship, she had not seen him
for about a year. Bowler testified that on November 16, 1995,
when police executed the search warrant at appellant's home,
appellant became angry and "said he knew why [the police] were
there, that it was because of his past." This statement was part
of the evidence ruled admissible at the hearing on appellant's
pretrial motion.
Margaret Brooks, the victim of appellant's prior crimes,
also testified at trial. Ms. Brooks stated that on August 25,
1978, she was sixty years old and lived alone. When she retired
for the evening at 11:00 p.m., appellant was standing in the
bedroom. Appellant had a t-shirt pulled over his head, but Ms.
Brooks could see his face. Appellant grabbed Ms. Brooks around
the shoulders, pushed her toward the bed, threw her on it, and
told her to keep quiet, but he did not put his hand over her
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mouth. After he raped her, he left by way of the front door.
Upon investigation it was discovered that appellant had
gained entry to Ms. Brooks' house by climbing a small rail fence
to a low roof and slashing a window screen in a rear bathroom
window. None of Ms. Brooks' possessions were taken. Appellant
is Ms. Brooks' husband's great-great-nephew and lived within one
hundred yards of her residence at the time of the attack. Ms.
Brooks had not seen appellant for at least a year before the
attack. At his trial in June 1979, appellant pled guilty to
burglary and rape, and was sentenced to twenty years in prison.
He was released from prison in November 1989.
The jury in the instant case convicted appellant of breaking
and entering with the intent to rape and abduction with the
intent to defile. 1 The trial court sentenced him to twelve years
in prison for burglary and thirty years for the abduction.
II.
Appellant contends the trial court erred in admitting
evidence of his prior convictions for burglary and rape as proof
of his intent during the charged offenses. He argues evidence of
the prior crimes lacked probative value to show intent to rape
because the circumstances of the prior crimes were not related to
or connected with the crimes charged. We agree.
Whether evidence is admissible falls within the broad
1
The trial court granted appellant's motion to strike the
attempted rape charge.
4
discretion of the trial court, and the court's ruling will not be
disturbed on appeal absent a clear abuse of discretion. See
Miller v. Commonwealth, 15 Va. App. 301, 304, 422 S.E.2d 795, 797
(1992), aff'd, 246 Va. 336, 437 S.E.2d 411 (1993). "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." Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d
114, 127, cert. denied, 117 S. Ct. 222 (1996). The purpose of
this rule is to prevent undue prejudice to a defendant who has a
prior criminal record and to ensure him a fair trial. See
Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899
(1985).
However,
"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."
Hewston v. Commonwealth, 18 Va. App. 409, 412, 444 S.E.2d 267,
268 (1994) (quoting Spencer v. Commonwealth, 240 Va. 78, 89, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990)). "[E]vidence
of other crimes or other bad acts is admissible when relevant to
prove a material fact or element of the offense. For example,
'such evidence is permissible in cases where the motive, intent
or knowledge of the accused is involved.'" Jennings v.
Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755, aff'd en
banc, 21 Va. App. 328, 464 S.E.2d 179 (1995) (citation omitted).
5
Intent must be proven as a matter of fact where it is an element
of the offense and may be shown by the appellant's actions. See
Jennings, 20 Va. App. at 17, 454 S.E.2d at 756.
The Supreme Court's recent decision in Guill v.
Commonwealth, 255 Va. 134, 495 S.E.2d 489 (1998), controls the
present analysis. 2 In Guill, the Supreme Court found the
defendant's 1985 conviction for breaking and entering with the
intent to rape was unrelated to the 1995 charge of breaking and
entering with the intent to rape. Because "there was no causal
relation or logical connection between the 1985 offense and the
crime charged," the Supreme Court held that "evidence of the 1985
crime was not probative evidence of the defendant's intent in the
crime charged" and was therefore "inadmissible for purposes of
proving that intent." Id. at 140, 495 S.E.2d at 492-93.
In the instant case, no evidence suggested that the prior
crime was causally related to or logically connected with the
crime charged. While the jury could reasonably infer from her
2
In Guill, decided after the briefs were submitted, the
Commonwealth introduced evidence of a 1985 burglary and attempted
rape which it argued was sufficiently similar to the charged
burglary to show the defendant's intent was to rape. See Guill
v. Commonwealth, 255 Va. 134, 495 S.E.2d 489 (1998). The trial
court found the circumstances of the prior crime sufficiently
similar to the charged offense and admitted the evidence. The
Supreme Court reversed, noting several factual differences and
holding that "evidence of the 1985 crime was inadmissible . . .
because that offense was not idiosyncratic in relation to the
facts of the present offense. As such, the evidence lacked a
logical relationship to the offenses charged and, thus, was
irrelevant and showed only the defendant's propensity to commit
the crime charged." Id. at 141, 495 S.E.2d at 493.
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testimony that appellant had the intent to rape Ms. Chinn, the
evidence was also consistent with assault. Under the Guill
analysis, introduction of appellant's rape conviction as evidence
that he intended rape in the charged offenses was an
impermissible use of prior crimes evidence.
7
III.
Additionally, appellant challenges the use of the evidence
of his prior crimes for the purpose of showing his identity as
the criminal agent in the charged offenses. He contends the
similarities between the two crimes do not show a "singular
strong resemblance" so as to establish identity. Again, we
agree.
"[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." Spencer, 240 Va. at 89,
393 S.E.2d at 616. The prior crime does not have to be a
"signature" crime but must show "'a singular strong resemblance
to the pattern of the offense charged.'" Id. at 90, 393 S.E.2d
at 616 (citation omitted). "[E]vidence of other crimes . . . is
allowed if relevant to show the perpetrator's identity when some
aspects of the prior crime are so distinctive or idiosyncratic
that the fact finder reasonably could infer that the same person
committed both crimes." Guill, 255 Va. at 138-39, 495 S.E.2d at
491.
After excluding the prior crimes evidence for the purpose of
proving intent, the Guill Court considered whether the evidence
was admissible under "any other exception to the general rule
barring admission of 'other crimes' evidence." Id. at 141, 495
S.E.2d at 493 (citation omitted). The Supreme Court noted that
when the identity of a perpetrator is at
issue, evidence of another crime may be
admitted to prove the actor's identity if the
8
prior crime bears "a singular strong
resemblance to the pattern of the offense
charged" and is sufficiently idiosyncratic in
relation to that offense to permit an
inference of a pattern for proof purposes.
Id. (citing Spencer, 240 Va. at 90, 393 S.E.2d at 616). Although
the defendant's identity was not disputed in Guill, the Supreme
Court assumed without deciding that the same test was applicable
where the identity of the perpetrator was not at issue. In the
instant case, the identity of the intruder is at issue and the
Spencer test applies, because Ms. Chinn could only identify her
attacker's voice but not his face. Consequently, the application
in Guill of the Spencer test controls the instant identity
analysis.
The Guill Court noted that there were significant factual
differences between the 1985 crime and the charged offense:
[I]n the 1985 crime, the defendant entered a
house through a rear door and proceeded to an
upstairs bedroom occupied by two girls, ages
15 and 16. Here, the defendant used a ladder
to crawl through a ground floor bathroom
window after punching holes in the window
screen. He then walked into the ground floor
bedroom of two girls who were five and seven
years of age.
In the 1985 crime, the defendant got
into the girls' bed and kissed and attempted
to rape one of them. Here, there is no
evidence that the defendant got into the
girls' bed or touched either girl in any
manner. Instead the evidence only shows that
the defendant "got up" before he left the
girls' room.
Although the defendant threatened the
girls' father in this case, he threatened the
witness in the 1985 crime. Moreover, we note
that conduct of this nature unfortunately is
common, rather than idiosyncratic, in this
type of crime.
9
Guill, 255 Va. at 141, 495 S.E.2d at 493. The Supreme Court
concluded "[b]ased on the above factual differences, evidence of
the 1985 crime was inadmissible under a Spencer analysis because
that offense was not idiosyncratic in relation to the facts of
the present offense." Id.
In the instant case, the age and circumstances of the
victim, the means of entry, the method of attack, and the failure
to take property were all similarities between the prior crimes
and the charged offenses. However, Sheriff Mitchell Coffey and
Detective William Bowler acknowledged that many of those
similarities were not idiosyncratic but in fact are typical of
these types of crimes.
Additionally, substantial differences distinguish the two
crimes. The victim of the charged offenses described her
attacker's disguise as a camouflage outfit and a mask, while Ms.
Brooks testified that in his prior crime appellant wore blue
jeans and merely pulled a t-shirt over his head without covering
his face. Also, the instant crimes occurred at 6:00 in the
evening, while the prior crimes took place at 11:00 at night.
Finally, the instant victim suffered assault, but not rape, while
Ms. Brooks was raped.
Under these facts, we cannot hold that appellant's prior
crimes bear "'a singular strong resemblance to the pattern of the
offense charged' and [are] sufficiently idiosyncratic . . . to
permit an inference of a pattern for proof purposes." Guill, 255
10
Va. at 141, 495 S.E.2d at 493 (quoting Spencer, 240 Va. at 90,
393 S.E.2d at 616). Therefore, the trial court erred in
admitting evidence of appellant's prior crimes for the purpose of
proving his identity.
For the foregoing reasons, the convictions are reversed and
the case is remanded for further proceedings if the Commonwealth
be so advised.
Reversed and remanded.
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