Jennings v. Commonwealth

BARROW, Judge,

dissenting.

Admitting evidence of the defendant’s prior criminal misconduct into evidence conflicts with the decisions of this court in Jones v. Commonwealth, 18 Va.App. 329, 443 S.E.2d 820 (1994), and Wilson v. Commonwealth, 16 Va.App. 213, 429 S.E.2d 229, aff'd en banc, 17 Va.App. 248, 436 S.E.2d 193 (1993). Consequently, I dissent from the majority’s decision.

While in counseling, the defendant admitted to his counselor that, in 1969 and 1985, he had committed acts of sodomy on four minors. From this evidence, the trial court allowed the jury to infer that when Jennings abducted the teenage boy in this case, he did so with an intent to sodomize him.

Even though evidence of a prior crime suggests to a jury that an accused has a propensity to commit such a crime and is more likely to have committed a later similar crime, the law of Virginia generally prohibits the introduction of such evidence. Jones v. Commonwealth, 18 Va.App. at 331-32, 443 S.E.2d at 821. Such evidence is excluded, not because the inference is irrational, but because of the risk that the jury might give the evidence more weight than it should receive, unduly prejudicing the defendant.

In Jones and Wilson, we held that prior sales of cocaine were inadmissible to prove that cocaine later possessed by the accused was possessed with the intent to sell it. In Jones, we *20noted that to be admissible, evidence of a prior similar crime “must be closely related in time and nature to the charged offense so that the fact finder could reasonably infer that the later act follows from or was related to the former.” Jones, 18 Va.App. at 332, 443 S.E.2d at 821.

What we said in Jones and Wilson applies equally to this case. If a prior, unrelated sale of cocaine is inadmissible to prove an accused’s intent regarding a later possession of cocaine, a prior, unrelated act of sodomy should be inadmissible to prove an accused’s intent regarding a later abduction. Had the defendant been charged with abducting an adult female, an act of rape committed twenty years before would not have been admissible to prove that the accused abducted the victim with an intent to rape her. See Williams v. Commonwealth, 203 Va. 837, 127 S.E.2d 423 (1962) (evidence of prior assault by defendant against victim inadmissible to prove deliberation or premeditation in the commission of a murder months after the assault prosecution); Day v. Commonwealth, 196 Va. 907, 86 S.E.2d 23 (1955) (evidence that defendant chased a woman shortly before he was alleged to have raped another woman was inadmissible to establish intent to molest women and was of “doubtful” probative value as to identity); Curtis v. Commonwealth, 3 Va.App. 636, 352 S.E.2d 536 (1987) (evidence of prior rapes which were “so unusual and distinctive as to act as a signature” was admissible to prove identity of defendant as perpetrator in a rape case with “overwhelming similarities”).

The only factor distinguishing this case from Jones and Wilson, is the nature of the crime. Perhaps, sodomy is a crime which is so likely to be repeated that little or no risk of undue prejudice arises from admitting evidence of a prior act of sodomy to prove that an accused later committed such an act. If social science supports such a conclusion, the legislature is better able than we to adopt such a rule of evidence.

For these reasons, I would hold that the evidence of the defendant’s prior acts of sodomy was inadmissible. Because this evidence may have affected the verdict, I would reverse *21the defendant’s convictions and remand the matter for a retrial.