dissenting.
I agree with the view expressed in the majority opinion that Lewis is not procedurally barred from raising the issue of the sufficiency of the evidence to support the conviction. However, because the other crimes evidence was prejudicial, I would reverse and remand for a new trial.
Absent well established exceptions, evidence that a defendant has committed crimes other than the offense for which he is then being tried is inadmissible. See Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 892-93 (1983); King v. Commonwealth, 217 Va. 912, 914, 234 S.E.2d 67, 69 (1977). To be admissible as an exception, evidence of other offenses must be relevant “(1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of *583mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operands or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.” Sutphin v. Commonwealth, 1 Va. App. 241, 245-46, 337 S.E.2d 897, 900 (1985). The rationale behind the general rule of inadmissibility of evidence of other crimes is that “such evidence confuses one offense with the other, unfairly surprises the defendant with a charge he is unprepared to meet, and, by showing that the [defendant] has a criminal propensity, tends to reverse his presumption of innocence of the crime on trial.” Lewis, 225 Va. at 502, 303 S.E.2d at 893. I dissent from the majority opinion because this case does not fall within the exceptions to the rule barring evidence of other crimes.
This appeal arose from the conviction of Gary Anthony Lewis for the robbery of employees of a pizza restaurant on July 30, 1986. All three employees of the restaurant identified Lewis as the gunman who committed the robbery. None of the employees was able to identify the person who remained outside the store. As a witness for the Commonwealth, Sheppardson testified that he remained outside the restaurant and acted as a lookout while Lewis committed the robbery.
Prior to the testimony of Andre Robinson, one of the employees, defense counsel moved the trial judge to forbid Robinson from making any reference to another robbery (the first robbery) which occurred three weeks prior to the July 30 robbery. Robinson was questioned under oath out of the presence of the jury concerning the historical facts. Following a conference in chambers, the Commonwealth’s Attorney said, “I am going to elicit from . . . Robinson ... the testimony that [Lewis] was involved in the prior robbery.” However, the entire context of the discussion on record suggests that he apparently agreed not to question Robinson concerning the first robbery unless defense counsel raised on cross-examination the question of identification. The trial judge stated that he would rule if, and when, the issue arose during Robinson’s testimony. The trial judge also instructed Robinson not to mention the first robbery unless defense counsel “specifically asked . . . *584. about it.”
Robinson then testified before the jury and identified Lewis as the person who robbed him on July 30. He testified that Lewis was standing across a desk from him in a brightly lit room and was holding a blue rag in an attempt to mask part of his face. On cross-examination, Robinson was asked:
Q: Did you ever pick this man out of any photographs shown to you by the police officers?
A: No.
Q: Do you recall the preliminary hearing when we were in court before, in lower court on this case?
A: Yes.
Q: Do you recall that you testified that you picked this man out of a photo spread?
A: Yes.
Q: But that’s not what you did?
A: No.
He was also questioned concerning Lewis’ appearance on July 30 and the description of the gunman that he gave to the police.
On redirect examination Robinson stated that the person whose picture he picked from the photographic spread participated in the first robbery and that Lewis’ picture was not in that photographic spread. The Commonwealth then asked Robinson: “Now, have you ever seen the defendant on any other occasion prior to July 30th?” Over defense counsel’s objection, Robinson stated that Lewis participated in the first robbery. He then was permitted to testify in detail concerning the circumstances of the first robbery. Defense counsel’s motion for a mistrial was denied.
In Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d 23, 26-27 (1955), our Supreme Court stated the general rule concerning the admissibility of evidence of other offenses:
*585The accepted rule to be derived from the cases is that evidence which shows or tends to show the accused guilty of the commission of other offenses at other times is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense similar to that charged; but if such evidence tends to prove any other relevant fact of the offense charged, and is otherwise admissible, it will not be excluded merely because it also shows him to have been guilty of another crime.
One of the exceptions to the general rule barring evidence of other crimes involves the use of other crimes evidence to prove identity.
Underlying this exception is the probability that a person who performs one act is the person who also performed another distinctively similar act. For this probability to exist the criminal acts must be “so distinctive as to indicate a modus operandi.'’ Mere similarity standing alone is not enough. “Generally, the device used to commit the crime, or the manner in which the crime was committed, must be so unusual and distinctive as to act as a signature.” The crimes must reflect a modus operandi that is so distinctive that it identifies the accused as the person who committed both offenses.
Henderson v. Commonwealth, 5 Va. App. 125, 128, 360 S.E.2d 876, 878 (1987)(citations omitted); see also Sutphin, 1 Va. App. at 246-47, 337 S.E.2d at 900.
In this case the majority opinion does not determine that the evidence of other crimes is “so unusual and distinctive as to act as a signature.” Sutphin, 1 Va. App. at 247, 337 S.E.2d at 900. Rather, it holds that evidence of other crimes may be admitted merely to bolster a witness’ identification of the defendant when the witness’ testimony lacks clarity. I respectfully disagree.
In support of its holding, the majority relies upon Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 (1984), for the proposition that the perpetrator of a crime has no right to have the evidence sanitized to delete references to other crimes. In Scott, the defendant abducted the victim in Virginia and, while still detaining the victim, raped her in Tennessee. The Supreme Court held that evidence of the rape in Tennessee was relevant to “showing *586intent or motive” with respect to the charge of abduction with intent to defile for which Scott was being tried. Id. at 527, 323 S.E.2d at 577. The Court stated that evidence of the rape was “the only way” of proving Scott’s intent, an element of the crime for which Scott was being tried. Id. The Court also observed that evidence of other crimes must be excluded when those crimes “are unrelated to those on trial” and when those crimes “are offered solely for the purpose of showing that the accused was a person of such character as to be a likely perpetrator of the offense charged.” Id.
The circumstances and reasons surrounding the use of “other crimes” evidence in this case are significantly different than those that support the result reached in Scott. Robinson’s alleged confusion could have been explained without reference to the prior robbery. If, in fact, Robinson picked Sheppardson’s picture from the photo spread shown to him after the July 30 robbery because Sheppardson was the only person in the photo spread that he recognized, he could have explained that fact to the jury. The lack of clarity, if any, in his testimony was simply a function of ineffective examination. The Commonwealth could have clarified the perceived confusion and established a basis for Robinson’s ability to identify Lewis without injecting evidence of other crimes. Proof of other crimes was not relevant to an element of the charged offense and certainly was not “the only way” to establish any element of the charged offense. See id. The effect of allowing this evidence of other crimes was to reward the Commonwealth’s lack of diligence on examination of the witness at the cost of prejudice to Lewis. Such a ruling is unprecedented. 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); Sutphin, 1 Va. App. 241, 337 S.E.2d 897 (1985)(evidence of another burglary inadmissible to prove identity of defendant as perpetrator of subsequent, separate burglary because evidence did not establish that method of committing the burglaries was so distinctive as to indicate a modus operand!).
*587Even if we assume that the use of this evidence was permissible as an exception to the general rule, the legitimate probative value does not outweigh the prejudice to the accused. See Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 652 (1984). The majority opinion concludes that evidence of the first robbery was necessary to dispel any confusion raised in the minds of the jury as to why Robinson identified Sheppardson in the photo spread. Robinson’s testimony concerning Lewis’ alleged involvement in the first robbery, however, simply was not probative of why Robinson identified Sheppardson in the photo spread instead of Lewis. Nor was that testimony probative with respect to Robinson’s statement on cross-examination that he had doubt at the preliminary hearing whether Lewis was the robber on July 30. At the time of the preliminary hearing Robinson was able to identify by sight the persons who committed the first robbery, and thus expressed certainty that Lewis was involved in the first robbery. However, despite seeing Lewis at the preliminary hearing, Robinson apparently expressed doubt at that time that Lewis robbed him on July 30. Thus, proof that Lewis was a participant in the first robbery, which occurred prior to the preliminary hearing, could not have tended to make Robinson’s identification of Lewis as the perpetrator of the July 30 robbery any more certain.
Moreover, Robinson testified that he identified Sheppardson as the robber in the July 30 robbery because he was asked to “pick out the person that [he] recognized.” Lewis’ photograph was not in the photographic spread that Robinson viewed. On redirect examination, Robinson’s explanation that he recognized Sheppard-son from a prior robbery served to simply and fully clarify the reason he had identified Sheppardson from the photographic spread. No further clarification was necessary and none ensued from Robinson’s subsequent testimony that Lewis had been involved in the prior robbery as well. Robinson also explained in his testimony that his misstatement at the preliminary hearing occurred because he was confused by the question that was asked. Whatever confusion Robinson may have experienced at the preliminary hearing had an explanation independent of the circumstances surrounding Lewis’ involvement in the first robbery.
Whether evidence is admissible always depends upon its probative value. See Day, 196 Va. at 912-13, 86 S.E.2d at 26-27. The basis for allowing proof of other offenses is that proof of the other *588offenses is probative of contested issues in the case. If the only evidentiary value of another offense is to inferentially prove propensity to commit crimes, as it did in this case, such evidence cannot be admitted. Id. Other than exposing Lewis to the jury as a person who had a propensity to commit crimes, the testimony concerning the first robbery was immaterial.
Not only was the probative value of the testimony lacking, the testimony also was highly prejudicial. As aptly stated in Day:
[The witness’s] detailed testimony constituted no material link in the chain of evidence, and obviously tended to inflame the minds of the jury and prejudice them against the defendant. This testimony amounted to a distinct charge which the defendant was not required to defend and which was not intimately connected and blended with any constituent element of any of the three serious offenses for which he was on trial.
Id. at 915, 86 S.E.2d at 27.
In balancing the probative value of allowing Robinson to explain his ability to identify Lewis against the prejudice of allowing him to assert Lewis’ participation in a robbery for which Lewis has never been charged or convicted, the trial judge should have instructed Robinson to state only that he had seen Lewis in the store on an earlier occasion. That other employees also testified that Lewis was the perpetrator of the July 30 robbery certainly should have struck the “probative value — prejudice” balance in Lewis’ favor. Proof of the earlier robbery was not “the only way” to explain Robinson’s basis for identifying Lewis. Scott, 228 Va. at 527, 323 S.E.2d at 577. In view of the testimony of the other witnesses, the probative value of detailing Lewis’ alleged participation in the first robbery was nonexistent. Yet the harm to Lewis of allowing the jury to infer criminal propensity was incalculable. The prejudice was significant because the jury, which had to determine Lewis’ guilt, also fixed punishment. The evidence of prior offenses not only had the tendency to reverse the presumption of innocence, but it also impermissibly added an aggravating factor for the jury to consider in fixing punishment.
Moreover, the majority misreads the transcript when it asserts that the trial judge prohibited Robinson from elaborating upon *589the details of the first robbery. Robinson was permitted to testify as follows on the Commonwealth’s redirect examination:
Q: On this earlier robbery three weeks prior to July 30th, where were you in the Domino’s Pizza building?
A: I was standing behind the, um, cutting table, which is the second row of counters.
Q: Describe the lighting conditions.
A: We have overhead fluorescent lights there.
Q: How far away from you was the defendant on that occasion?
A: Within two feet.
Q: Did you have an opportunity to view him?
A: Yes.
Q: Did he come into the building with anybody else other than himself?
A: There were two other people accompanied him.
Q: Of the other people that examined him, is that the person that you picked out from the photospread?
A: Yes.
Q: Do you recall what he was wearing on that earlier occasion?
A: Blue jeans and a blue shirt.
Q: Did he put anything over his face or cover his face in any way on that occasion?
A: He had his hand over his face.
Q: Will you demonstrate to the jury how he put his hand over his face on the earlier occasion?
A: Like this.
Q: Did he say any words on that occasion?
A: Said something to the effect, don’t do anything stupid. Give me all the money.
Q: Did he use any of those same words on the offense on July 30th?
A: Yes. Similar.
Q: Did he have a handgun on the earlier incident?
A: Presented his hand inside of a paper bag at the time.
The evidence was irrelevant, prejudicial, and should have been barred. See Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 768, 774 (1983); Eccles v. Commonwealth, 214 Va. 20, 22-23, 197 S.E.2d 332, 333 (1973); Boyd v. Commonwealth, 213 *590Va. 52, 53, 189 S.E.2d 359, 360 (1972); Fleenor v. Commonwealth, 200 Va. 270, 275-76, 105 S.E.2d 160, 164 (1958).
Moreover, I disagree with the majority opinion’s view that defense counsel’s examination of Robinson opened the door for this prejudicial evidence. Defense counsel obviously had to make a difficult decision whether to question Robinson concerning his identification of Lewis. At the preliminary hearing Robinson testified while in Lewis’ presence that he identified him from the photo spread. Moreover, Robinson testified on cross-examination that at the time of the preliminary hearing he had some doubt as to whether Lewis was the person who robbed him July 30. Defense counsel obviously was entitled to bring before the jury Robinson’s doubt, as expressed at the preliminary hearing, whether Lewis in fact was the robber. Defense counsel’s cross-examination did not create a concomitant right in the Commonwealth to prove evidence of other crimes.
The judge declined to rule on defense counsel’s motion prior to Robinson’s testimony. Instead, he stated that he would rule at the appropriate time during the testimony. When called upon to rule during Robinson’s testimony, there was no suggestion that the other crimes evidence was probative of any issue in the case and no evaluation of its potential prejudicial effect. The judge simply stated: “It is proper for the Commonwealth’s Attorney to show that he has seen the witness before and under what circumstances.” Testimony concerning the first robbery could not assist the jury in weighing Robinson’s testimony at the preliminary hearing and would only impermissibly suggest to the jury that Lewis must have been the robber because he committed the first crime.
Finally, Sheppardson, who said that he only acted as a lookout and did not enter the store, testified on direct examination that he, Sheppardson, had a white wash cloth on his face. On cross-examination, however, he corrected his testimony to state that he had a blue wash cloth over his face and that Lewis wore a white cloth over his face. Sheppardson earlier had testified at the preliminary hearing that he, not Lewis, had a blue wash cloth over his face. Both of the other witnesses who were in the store at the time of the robbery testified that the robber wore a blue wash cloth over his face.
*591For these reasons, I would reverse the conviction and remand the case for a new trial.