COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Elder and Fitzpatrick
Argued at Salem, Virginia
JOHN DAVID DUGAN
MEMORANDUM OPINION * BY
v. Record No. 0184-94-3 JUDGE LARRY G. ELDER
JULY 18, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
G. O. Clemens, Judge
John Gregory, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
John David Dugan (appellant) appeals his conviction for
malicious wounding in violation of Code § 18.2-51. Appellant
contends that the trial court erred in denying his motion in
limine to prevent the Commonwealth from introducing evidence that
appellant allegedly "stabbed" the victim's brother twelve years
earlier. Because the trial court committed no error, we affirm
the conviction.
Viewed in the light most favorable to the Commonwealth, the
facts show that Douglas Hodges (the victim) was at The Inn, a bar
in Roanoke County, on May 21, 1993. After seeing appellant
seated nearby, Hodges asked the bartender whether she knew
appellant and told her that he looked "like the man that stabbed
my brother twelve years ago, but I'm not sure." Minutes later,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant approached Hodges, a brief conversation ensued, and
appellant stabbed Hodges in his left abdomen.
Appellant filed a written motion in limine asking the trial
court to exclude the evidence that Hodges' brother was involved
in an altercation with appellant twelve years ago, in which a
knife was used. At the hearing, appellant orally modified his
motion to exclude only mention of the knife in the altercation.
Appellant conceded that the altercation itself was relevant to
establish the animosity that Hodges had for appellant and was
helpful in establishing his case of self defense. He argued,
however, that evidence that a knife was used in the prior
altercation unduly prejudiced appellant. The trial court denied
appellant's motion and allowed the knife and the prior "stabbing"
incident to be mentioned at trial.
We hold that the trial court did not abuse its discretion in
allowing evidence of the prior "stabbing" to be admitted at
trial. Generally, evidence of crimes or other bad acts committed
by the accused is incompetent and inadmissible to prove the
accused committed or likely committed the particular crime
charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970). However, well-established exceptions to
this rule may apply where the evidence is relevant to show some
element of the crime charged or a material fact or issue; this
relevance must equal or outweigh the prejudice inherent in
proving that the accused committed the other crimes or bad acts.
-2-
See Sutphin v. Commonwealth, 1 Va. App. 241, 245-46, 337 S.E.2d
897, 899 (1985); Spencer v. Commonwealth, 240 Va. 78, 90, 393
S.E.2d 609, 617, cert. denied, 498 U.S. 908 (1990).
In this case, the evidence of the prior "stabbing" incident
was relevant to establish the parties' relations and to
demonstrate their motives and conduct before and during the
altercation. See Boggs v. Commonwealth, 199 Va. 478, 100 S.E.2d
766 (1957). Specifically, the evidence was probative of whether
appellant may have acted in self defense. 1 See Curtis v.
Commonwealth, 13 Va. App. 622, 625, 414 S.E.2d 421, 423 (1992).
Furthermore, we cannot say that the probative value of this
evidence was outweighed by any prejudicial value. See Lewis v.
Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
In any event, appellant waived objection to the
admissibility of the evidence when he conceded to the trial court
that the incident "obviously has to come in." Once the trial
court allowed Hodges' reference to the general incident to be
introduced at trial, it would have been very difficult to remove
any reference to the prior "stabbing" or to substitute other
2
language, thereby sanitizing Hodges' actual statement. See
1
The jury might reasonably have assumed that because
appellant had allegedly stabbed Hodges' brother, and because
Hodges possessed animosity toward appellant, Hodges was acting
out of revenge in attacking appellant.
2
Hodges' statement contained the following words: "That
looks like the fellow that stabbed my brother twelve years ago,
but I'm not sure."
-3-
Ascher v. Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906,
915 (1991)(holding redaction is required only if "the
objectionable portion of the statement [could] easily be
separated" from the remainder of the statement and if the
prejudicial value outweighs the probative value), cert. denied,
__ U.S. __, 113 S. Ct. 190 (1992). The actual language used by
Hodges conveyed more clearly the depth of his feelings than could
have been conveyed by substituted language. In view of
appellant's desire to have the incident admitted, we cannot say
that the trial court abused its discretion by refusing to
sanitize the testimony.
Accordingly, we affirm appellant's conviction.
Affirmed.
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