Hugo Alexander Sanchez v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
HUGO ALEXANDER SANCHEZ
OPINION BY
v. 	Record No. 2969-01-4 	JUDGE ROSEMARIE ANNUNZIATA
AUGUST 26, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Judge
Jeanne E. Klapps, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Hugo Sanchez was charged with three counts of failing to
stop after an accident, felony hit and run, in violation of Code
§ 46.2-894. 	The jury convicted Sanchez of one of those counts
and fixed his punishment at four years in prison. 	Sanchez now
appeals, contending the trial court erred in 1) refusing to
provide him with additional funds for an expert witness, 2)
denying three motions for mistrials, 3) striking three potential
jurors for cause and 4) denying his motion to exclude evidence
of a prior carjacking. 	Sanchez also contends the evidence was
insufficient to prove his guilt beyond a reasonable doubt. 	For
reasons that follow, we reverse the conviction.

I. 	Background
Hugo Sanchez was tried for felony hit and run and
carjacking in two separate trials. 	Prior to both trials, he
moved in limine to have the trial court order the Commonwealth
not to refer to the carjacking during the hit-and-run trial.
The trial court denied the motion.
During the trial on the hit-and-run charge, the
Commonwealth's evidence showed that at 5:50 a.m. on November 23,
1999, Helen Unangst was seized at gunpoint by Hugo Sanchez in
the parking lot of her Vienna apartment and forced to surrender
the keys to her car. 	Sanchez then got into Unangst's green 2000
Honda Accord and drove away. 	Unangst later identified her car
as one towed in by the police because it had been in a "wreck."
Two days later, on the evening of November 25, 1999, Sandra
Contrevas drove her boyfriend, Rodrigo Omar Ramirez-Villatoro,
and his friend, Johnny Rigaberto Cerrato-Marquez, to a party at
an apartment complex in Maryland. 	Contrevas waited briefly
outside in the car while the men went in to "check out" the
party and determine if they wanted to stay. 	While she waited,
Contrevas saw two Hispanic men come out of the apartment
complex, walk by her car, get into a new green Honda Accord
parked behind her car, and drive past her. 	The men appeared to
be 23 or 24 years old. 	Contrevas identified Hugo Sanchez as the
driver of the Honda. 	Cerrato-Marquez and Ramirez-Villatoro
decided to stay at the party, and Contrevas went home without
- 2 -

them. 	She never heard from Ramirez-Villatoro or saw him alive
again.
Cerrato-Marquez testified that he had "like one" beer
before he arrived at the party, but had not smoked marijuana.
He saw Sanchez at the party at approximately 10:00 p.m. and
remembered that Sanchez was drinking. 	Ramirez-Villatoro and
Cerrato-Marquez were also drinking at the party.
Sanchez later left the party in a vehicle, together with
Cerrato-Marquez, Sanchez's brother, Victor Sanchez, decedent
Rodrigo Omar Ramirez-Villatoro, and decedent Jose Israel
Ramirez-Alvarez.1 At trial, Cerrato-Marquez identified Sanchez
as the driver of the vehicle. 	The men drove to a liquor store,
where three of the passengers bought beer.
Cerrato-Marquez testified that, with Sanchez still driving,
the men left the liquor store, drinking beer and smoking
marijuana in the car. 	Cerrato-Marquez was sitting directly
behind Sanchez, on the left side of the rear passenger seat.
Cerrato-Marquez described the moments before the accident and
said he believed someone was following them: 	"I recall just
like screaming, you know, they're following us, and people are
screaming, you know, like shut-up and everything. 	And then what
1 Cerrato-Marquez testified there were six people in the
car; however, he named only five passengers and the record
indicates only five.
- 3 -

happened, we got a curve and the car just fly. 	I just remember
the impact, you know, boom-boom."
Cerrato-Marquez remembered hearing voices after the
accident saying "he's dead, he's dead." 	He also recalled people
pulling him out of the car and putting him down on "something."
He later woke between four and five o'clock in the morning,
alone "in just bushes of this creek," thinking someone had
beaten him and left him there. 	He saw no one at the car, and he
did not notice the bodies remaining inside the car. 	He walked
to a gas station and called his mother and a cab to take him
home. 	A gas station employee, Mitra Dalil, testified that
Cerrato-Marquez had a small amount of blood on his hand and
forehead when he came into the station.
Donald Lee, a Virginia State Police Motorist Assistant,
found the car at approximately 11:30 a.m. on Friday, November
26, 1999. 	His dispatcher had told him to go to the location "to
check for debris in the road." 	There was no evidence presented
at trial that Lee responded to the site as the result of an
accident report. 	He found the car stopped on the other side of
a guardrail on the Dulles Connector Road. 	When Lee looked over
the guardrail, he saw two people inside the car who appeared to
be dead.
Virginia State Trooper Anthony Conte arrived on the scene
shortly after Lee and found the two dead bodies in the car.
They were later identified as Jose Israel Ramirez-Alvarez and
- 4 -

Rodrigo Omar Ramirez-Villatoro. 	Ramirez-Alvarez was seated in
the front passenger seat, and Ramirez-Villatoro was seated in
the back seat.
Forensic technicians found a shoe impression on the inside
of the driver's side of the front window. 	The impression was
consistent with a right shoe belonging to Sanchez, in outsole
design, approximate size, and wear. 	However, the laboratory
could not definitively identify Sanchez's shoe as the shoe that
had left the impression.
DNA analysis of bloodstain samples taken from the car
revealed that Sanchez's blood was found on the inside of the
driver's door. 	Stains of Cerrato-Marquez's blood were found on
the guardrail and steering wheel airbag. 	A mixture of
Cerrato-Marquez's blood and the blood of an unidentified
individual were found on the front left headrest and seat.
To refute the Commonwealth's evidence that he was the
driver of the car, Sanchez offered the alibi testimony of Israel
Montilla and Rosily Sanchez. 	Both men testified that, on
November 25, 1999, they drove into Washington, D.C. between
10:40 p.m. and 11:00 p.m. and picked up Sanchez. 	Montilla and
Rosily Sanchez stated that the three men then went to a party at
Montilla's apartment in Prince George's County, Maryland, where
they stayed until approximately 2:15 a.m. 	Rosily Sanchez stated
that he then drove Sanchez home.
- 5 -

Several months prior to trial, Sanchez moved the court for
funds to employ a DNA expert witness and a DNA expert
investigator in order to evaluate the Commonwealth's DNA
evidence and the processes by which it was developed. 	The trial
court granted Sanchez $3,000 to engage DNA consultants as he saw
fit.
Before the trials began, Sanchez moved the court for
additional funds to pay for his expert witness to testify at
trial, stating the expert witness' pretrial evaluations had
depleted the previously allotted funds, that the expert would
need no more than one-half day to present his testimony, and
that his court appearance fee would be $250 per hour or a
maximum of $1,750 per day. 	The reasonableness of the expert
witness' expected fees was not contested.
Counsel represented to the court that the testimony would
be material to the defense. 	However, he initially declined to
reveal the substance of the expected testimony unless permitted
to do so in an ex parte proceeding, which the Commonwealth
opposed. 	The court denied the motion, stating, "I'm not
inclined to have the motion to be made ex parte. 	So unless
there's something further, the Court is going to deny your
motion for additional funds." 	Defense counsel responded to the
court's denial of Sanchez's motion by stating that the expert
would testify that there were errors in the way the DNA
- 6 -

procedures were followed and, therefore, that the DNA results
would be challenged. 	Sanchez offered the following proffer:
[W]e . . . [had the expert] go over the
[DNA] documents from the state laboratory.
There are approximately four or five inches
worth of documents that he has reviewed. 	In
that documentation, he has noticed that
there were errors in the way that the DNA
procedures were followed, that there were
errors in the way the examination was done,
which could have had a significant impact in
the results of the DNA.
So therefore the DNA results that the
Commonwealth is going to put forth as being
scientifically valid could be questioned,
will be questioned, to an extent by our
expert witness and therefore the
Commonwealth's only other evidence, other
than the DNA which we submit would not be
credible, would be testimony of one witness.
So it is certainly material for the defense
as to whether Mr. Sanchez was in that car
for those reasons.
The trial court denied Sanchez's motion. 	Sanchez was
convicted of failing to stop after an accident, in violation of
Code § 46.2-894, and was sentenced to serve four years in
prison. 	This appeal followed.
II. 	Denial of Motion for Additional Funds For Expert Witness
On appeal, Sanchez contends the trial court erred in
refusing his request for additional funds for his expert witness
on the ground that he established a particularized need for the
funds. 	We agree.
- 7 -

The United States Supreme Court established an indigent
defendant's right to the assistance of an expert at the state's
expense in Ake v. Oklahoma, 470 U.S. 68 (1985). 	Citing the Due
Process Clause of the Fourteenth Amendment, the Court reasoned:
Meaningful access to justice has been the
consistent theme of these cases. 	We
recognized long ago that mere access to the
courthouse doors does not by itself assure a
proper functioning of the adversary process,
and that a criminal trial is fundamentally
unfair if the State proceeds against an
indigent defendant without making certain
that he has access to the raw materials
integral to the building of an effective
defense. 	Thus, while the Court has not held
that a State must purchase for the indigent
defendant all the assistance that his
wealthier counterpart might buy, it has
often reaffirmed that fundamental fairness
entitles indigent defendants to "an adequate
opportunity to present their claims fairly
within the adversary system." 	To implement
this principle, we have focused on
identifying the "basic tools of an adequate
defense or appeal," and we have required
that such tools be provided to those
defendants who cannot afford to pay for
them.
Id. at 77 (internal citations omitted).
The Court in Ake applied a three-part test to determine
whether the defendant in that case should have been provided the
services of a state-funded psychiatrist to assist with the
insanity defense he raised: 	1) the defendant's private interest
in diminishing the risk of erroneous conviction; 2) the state's
economic considerations, and 3) the risk of error if the case
were to proceed in the absence of the requested assistance.
- 8 -

Id. at 78. 	"When the defendant is able to make . . . a
threshold showing to the trial court [that the issue for which
he seeks expert assistance] is likely to be a significant factor
in his defense" and that he will be prejudiced were the request
to be denied, due process requires the appointment of an expert
at state expense. 	Id. at 82-83.
The Virginia Supreme Court applied Ake in Husske v.
Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996), and defined
its parameters, stating that neither the decision in Ake nor due
process confers the right to receive "[a]ll assistance that a
non-indigent defendant may purchase." 	Id. at 211, 476 S.E.2d at
925. 	All that is due, constitutionally, is that an indigent
defendant not be denied "'an adequate opportunity to present
. . . claims fairly within the adversary system.'" 	Id. (quoting
Ross v. Moffitt, 417 U.S. 600, 612 (1974)).
To warrant the appointment of an expert, the Husske Court
also noted that "the indigent defendant . . . must show a
particularized need." 	Id. at 212, 476 S.E.2d at 925. 	The
showing required "'is a flexible one and must be determined on a
case-by-case basis.'" 	Id. at 212, 476 S.E.2d at 925-26 (quoting
State v. Mills, 420 S.E.2d 114, 117-19 (N.C. 1992)). 	"Whether a
defendant has made the requisite showing of a particularized
need lies within the discretion of the trial court." 	Lenz v.
Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305 (2001)
(citing Husske, 252 Va. at 212-13, 476 S.E.2d at 926); accord
- 9 -

Hoverter v. Commonwealth, 23 Va. App. 454, 466, 477 S.E.2d 771,
776 (1996).
Numerous Virginia appellate cases address the question of
whether a "particularized need" has been established by an
indigent defendant. 	None of the cases establishes a bright-line
test for what constitutes a "particularized need." 	It is in the
context of facts found insufficient to satisfy the Ake test that
the meaning of the phrase, "particularized need," emerges.
Citing Caldwell v. Mississippi, 472 U.S. 320 (1985), for
example, the Court in Husske rejected what it described as
"'little more than undeveloped assertions that the requested
assistance would be beneficial,'" as insufficient to establish
the requisite need. 	Husske, 252 Va. at 210, 476 S.E.2d at 926
(quoting Caldwell, 472 U.S. at 323 n.1) (emphasis added). 	In
Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), the
Court found the claim that "'a particular service might be of
benefit,'" was insufficient to establish that "'the [requested]
service is constitutionally required.'" 	Id. at 478, 331 S.E.2d
at 430 (quoting Ross, 417 U.S. at 616) (emphasis added). 	In
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), a
case decided the same day as Husske, the Court found that the
defendant's request for the appointment of a forensic
pathologist to rebut the medical examiner's testimony about the
rape victim's injuries did not articulate a particularized need
because it amounted to, at best "a hope or suspicion that
- 10 -

favorable evidence [that the victim's injuries did not
necessarily result from force] may be procured." 	Id. at 171,
477 S.E.2d at 276 (emphasis added). 	In Hoverter, the defendant
predicated his request for an appointed expert on the need "to
determine if psychological or mental health mitigation evidence
exists," and if so, "to aid him in the development and
presentation of such evidence for the sentencing proceeding."
Hoverter, 23 Va. App. at 466, 477 S.E.2d at 776 (emphasis
added). 	The Court affirmed the trial court's finding that a
particularized need was not established, noting that Hoverter
had made no showing that he suffered from mental illness. 	Id.
at 467, 477 S.E.2d at 777. 	In short, the indigent defendant's
need for an appointed expert at state expense has to be more
than hypothetical; the court must be able to conclude that
expert assistance relates to an issue which is likely to be
material to the defense.
Inherent in this Court's review of whether a defendant has
articulated a particularized need for the assistance of an
expert is the question of possible prejudice to the defense were
the request to be denied. 	In Hoverter, for example, the
defendant showed no prejudice resulted from the non-appointment
of an expert to give testimony on prison conditions. 	Other
evidence on the issue had already been admitted, and the Court
found Hoverter failed to show why this other evidence did not
adequately address the question. 	Id. at 466, 477 S.E.2d at 776;
- 11 -

see also Ake, 470 U.S. at 78 (finding that a high risk of error
exists if the case were to proceed in the absence of the
requested assistance); Lenz, 261 Va. at 462, 544 S.E.2d at 305
(finding that, because the expert testimony defendant proffered
was available from other witnesses, he suffered no prejudice and
the trial was not fundamentally unfair).
In the case at bar, we find that Sanchez articulated a
particularized need for additional funds to permit his expert to
testify at trial and that the trial court abused its discretion
in denying his motion. 	Sanchez proffered that the defense
expert had found errors in the "way that the DNA procedures were
followed, that there were errors in the way the examination was
done, which could have had a significant impact in the results
of the DNA."
The validity of the DNA evidence was material to Sanchez's
defense. 	The trial court's initial appointment of a DNA expert
at state expense to assist Sanchez in evaluating the test
results produced by the Commonwealth's DNA expert reflects that
materiality, and the record confirms it. 	The Commonwealth's DNA
results implicated Sanchez as the driver of the car,
constituting significant physical evidence that directly linked
Sanchez to the driver's seat.
Sanchez's ability to challenge the validity of the
Commonwealth's DNA results was truncated by the trial court's
- 12 -

denial of the additional funds that Sanchez sought. 	Sanchez
proffered that the results would be challenged based on his
expert's conclusions that there were errors in the manner in
which the Commonwealth's DNA expert followed testing procedures.
At trial, the Commonwealth's expert testified that he followed a
"simple method" of DNA analysis and described the method in
detail in support of his conclusions. 	Because Sanchez had no
witness available to challenge the validity of the
Commonwealth's evidence, the Commonwealth's expert's testimony
was unrebutted, a prejudicial disadvantage foreseen by the Ake
Court. 	Ake, 470 U.S. at 77 ("Without . . . the expert's
assistance, the defendant cannot offer a well-informed expert's
opposing view, and thereby loses a significant opportunity to
raise in the jurors' minds questions about the State's proof
. . . ."). 	Here, Sanchez was "unable because of poverty to
parry by his own witnesses the thrusts of those against him."
Reilly v. Barry, 166 N.E. 165, 167 (N.Y. 1929). 	As a result, he
could not fully present a defense against the Commonwealth's DNA
evidence that tended to establish that he was the driver of the
vehicle involved in the hit-and-run offense.
In summary, we find that the trial court erroneously denied
Sanchez's motion for additional funds to permit his expert to
testify at trial and that the denial of the requested funds
prejudiced Sanchez and his ability to mount a proper defense to
- 13 -

the hit-and-run charge. 	See Lenz, 261 Va. at 462, 544 S.E.2d at
305.
We now turn to whether the trial court's denial of
additional funds for an expert witness was harmless error.
Although the issue of harmless error in the Ake context has not
specifically been addressed in Virginia, the Fourth Circuit
determined that the denial of expert assistance in violation of
Ake is trial error subject to harmless error analysis. 	Tuggle
v. Netherland, 79 F.3d 1386, 1392 (4th Cir. 1996).
In Tuggle, the court noted that, "Errors amenable to
harmless-error review are trial errors." 	Id. 	"Trial error
'occur[s] during the presentation of the case to the jury, and
is amenable to harmless-error analysis because it may . . . be
quantitatively assessed in the context of other evidence
presented in order to determine [the effect it had on the
trial]." 	Brecht v. Abramson, 507 U.S. 619, 629 (1993) (quoting
Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).2
The error identified in this case is a trial error and
subject to harmless error analysis. 	On direct appeal, the
2 Trial errors may be contrasted with structural errors,
such as the deprivation of the right to counsel, trial by a
biased judge, the unlawful exclusion of members of the
defendant's race from a grand jury, and the denial of the right
to a public trial. 	Fulminante, 499 U.S. at 309-10. 	Unlike
trial errors, structural errors are not amenable to harmless
error analysis because they "'infect the entire trial process.'"
Tuggle, 79 F.3d at 1391 (quoting Brecht, 507 U.S. at 630).
Thus, assessing the impact of structural errors on the trial is
impossible. 	Id.
- 14 -

harmless error standard for constitutional error is whether the
error "was harmless beyond a reasonable doubt." 	Chapman v.
California, 386 U.S. 18, 24 (1967). 	Under that standard, a
constitutional error may not be declared harmless if there is a
"reasonable possibility" that the "error contributed to the
verdict." 	Tuggle, 79 F.3d at 1392.
Applying this standard to the case at bar, we find the
trial court's error in denying Sanchez's request for additional
funds for a DNA expert was reversible error. 	Sanchez sought
expert testimony to challenge the Commonwealth's DNA evidence
that implicated him as the driver of the Honda Accord at the
time of the hit-and-run accident. 	Indeed, the bloodstain found
on the inside of the driver's door was significant physical
evidence directly linking Sanchez to the driver's seat. 	The
trial court's denial of additional funds for an expert deprived
Sanchez of the opportunity to use a rebuttal expert to challenge
the DNA analysis procedures followed by the Commonwealth's
witness. 	Such rebuttal evidence could be crucial in a case that
otherwise rested on the testimony of only one witness who
identified Sanchez as the driver at the time of the accident and
whose competence or credibility was subject to challenge.3
3 Although two other witnesses, Sandra Contrevas and Helen
Unangst, identified Sanchez as the driver of the car at some
point prior to the accident, Johnny Rigaberto Cerrato-Marquez
was the sole witness who testified that Sanchez was the driver
at the time of the accident.
- 15 -

Because we find the circumstances create a "reasonable
possibility" that the "error contributed to the verdict,"
Tuggle, 79 F.3d at 1392, we find the error was not harmless
"beyond a reasonable doubt." 	Chapman, 386 U.S. at 24.
Accordingly, we reverse the trial court's decision to deny
Sanchez additional funds for an expert witness.
III. 	Sufficiency of the Evidence
Although we reverse Sanchez's conviction, the
constitutional principles which preclude placing an individual's
freedom in jeopardy twice require us to address Sanchez's claim
that the evidence was insufficient to sustain his conviction.
See Parsons v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d
810, 812-13 (2000); see also Burks v. United States, 437 U.S. 1,
18 (1978) (finding that a full sufficiency analysis is required
to satisfy the mandate of the Double Jeopardy Clause of the
federal Constitution); Timbers v. Commonwealth, 28 Va. App. 187,
201-02, 503 S.E.2d 233, 240 (1998) (addressing appellant's
sufficiency of the evidence claim, after reversing on a Miranda
violation, to comport with double jeopardy principles).
In reviewing a sufficiency claim on appeal, we "consider
the evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Commonwealth[,]"
the party prevailing below. 	Derr v. Commonwealth, 242 Va. 413,
424, 410 S.E.2d 662, 668 (1991). 	The trial court's judgment
must be affirmed "unless plainly wrong[,]" Phan v. Commonwealth,
- 16 -

258 Va. 506, 511, 521 S.E.2d 282, 284 (1999), and an appellate
court "'should not overrule it and substitute its own judgment,
even if its opinion might differ from [the trial court's].'"
Id. (quoting George v. Commonwealth, 242 Va. 264, 278, 411
S.E.2d 12, 20 (1991)).
It is within the province of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from the facts presented. 	Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
Witness credibility determinations shall only be disturbed on
appeal if the testimony is "inherently incredible, or so
contrary to human experience so as to render it unworthy of
belief." 	Fisher v. Commonwealth, 228 Va. 296, 299-300, 321
S.E.2d 202, 204 (1984). 	To convict Sanchez, the Commonwealth
was required to prove, beyond a reasonable doubt, that Sanchez
1) was the driver of a vehicle he knew was involved in an
accident causing personal injury, 2) knew or should have known
that a person was injured, and 3) that he failed to (a) stop
immediately as close to the accident as possible, (b) render all
reasonably necessary assistance to any person injured, or (c)
report his name, address, driver's license number and vehicle
registration number to the police or the person injured. 	Code
§ 46.2-894. 	We find the evidence presented by the Commonwealth
was sufficient to prove those elements beyond a reasonable
doubt.
- 17 -

The evidence supports the jury's conclusion that Sanchez
was driving the car when it was involved in the accident.
Cerrato-Marquez identified him as the driver of the car in the
period before the accident. 	The jury could also consider
evidence that Contrevas identified Sanchez as the driver earlier
in the evening and that Unangst identified Sanchez as the
individual who carjacked her Honda Accord two days before the
accident. 	The trier of fact was free to accept and credit the
testimony of these witnesses and was free to reject the alibi
testimony of Sanchez's brother and friend. 	Moreover, DNA
evidence established that blood found on the inside panel of the
driver's side door came from Sanchez.
Sanchez also contends that the evidence does not support
the conclusion that he failed to fulfill the duties imposed on
him by Code § 46.2-894 as the driver of a vehicle involved in an
accident in which someone had been killed or injured. 	We
disagree with this contention.
The evidence in the record shows that Sanchez neither
rendered reasonable assistance to Cerrato-Marquez, who was
clearly injured, nor came to the aid of Ramirez-Alvarez and
Ramirez-Villatoro, who lay dead or dying in the car. 	Indeed,
Cerrato-Marquez regained consciousness, lying in the bushes
beside a creek, so dazed and disoriented that he thought someone
had robbed and beaten him. 	The jury could reasonably infer that
Sanchez did not report the accident or call for assistance
- 18 -

because, although it occurred between 2:00 and 4:00 a.m., the
vehicle and the fatalities were not discovered until 11:30 that
morning. 	Donald Lee, the Virginia State Police Motorist
Assistant, responded not to an accident report but to a report
from his dispatcher to check debris in the road; he discovered
the Honda Accord on the other side of the guardrail on the
Dulles Connector Road. 	No evidence established that the arrival
of police on the scene was in response to an accident report.
Accordingly, we find the evidence sufficient beyond a
reasonable doubt to convict Sanchez and that reversal and remand
to the trial court for further proceedings are not in violation
of double jeopardy principles.
IV. 	Evidence of the Carjacking
Sanchez also contends that the trial court erred in denying
his motion in limine that the Commonwealth not reveal to the
jury his participation in the carjacking of the car involved in
the accident.4 Because the issue may arise again at trial on
remand, we address the question and find no error.
4 Sanchez moved the trial court in limine to direct the
Commonwealth not to seek to admit or refer to: 	1) his prior
criminal record, unless used to impeach him, 2) any statements
regarding his prior incarceration, 3) any allegations of his
drug use or abuse, 4) the existence of any juvenile convictions
or findings of delinquency, and 5) prior bad acts, including the
alleged carjacking. 	The Commonwealth did not object to motions
1-4, and they were granted. 	The motion in limine regarding
prior bad acts, specifically evidence of the carjacking, is the
only motion at issue on appeal.
- 19 -

The legal principles governing the issue are well settled.
Evidence of other crimes or bad acts is inadmissible if it is
offered to show that the defendant is likely to have committed
the crime charged. 	Kirkpatrick v. Commonwealth, 211 Va. 269,
272, 79 S.E.2d 802, 805 (1970). 	However, such evidence is
admissible if it tends to prove any element of the offense
charged, although it also tends to show that the defendant is
guilty of another crime. 	Woodfin v. Commonwealth, 236 Va. 89,
95, 372 S.E.2d 377, 380-81 (1988). 	In addition, evidence of
other crimes may be admitted to establish the perpetrator's
identity, Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d
609, 617 (1990), to show motive or intent, establish knowledge,
negate mistake or accidence, establish modus operandi or to show
common scheme or plan. 	Lockhart v. Commonwealth, 18 Va. App.
254, 259, 443 S.E.2d 428, 429 (1994). 	Evidence of this nature
will be permitted only when its probative value outweighs any
incidental prejudice to the defendant. 	Woodfin, 236 Va. at 95,
372 S.E.2d at 380-81. 	The trial court is vested with the
discretion to determine whether the evidence of prior bad acts
has probative value that outweighs the prejudice to the accused.
Spencer, 240 Va. at 90, 393 S.E.2d at 617.
[T]he general rule . . . must sometimes
yield to society's interest in the
truth-finding process, and numerous
exceptions allow evidence of prior
misconduct [w]henever the legitimate
probative value outweighs the incidental
prejudice to the accused. 	For this reason,
- 20 -

rather than stating the rule as an
exclusionary rule with numerous exceptions,
it may be more helpful to phrase [it] in
terms of relevance.
Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443
S.E.2d 440, 443 (1994) (en banc) (citations and
quotations omitted).
In the instant case, the evidence sought to be admitted
establishes that two days and a few hours before the accident,
Sanchez was identified as the person who carjacked the car
involved in the hit-and-run offense. 	The victim, Helen Unangst,
identified him as the perpetrator, and the testimony of Sandra
Contrevas, established that a few hours before the accident,
Sanchez was driving the carjacked car. 	Sanchez's involvement in
the carjacking tends to prove his identity as the driver at the
time of the accident and relates to an essential element of the
crime with which he was charged. 	The evidence also tends to
establish a motive for not reporting the accident as required by
law, since such a report would have incriminated Sanchez in the
carjacking.
Sanchez claims he was prejudiced by the admission of the
carjacking evidence because the jury may have inferred his guilt
on the hit-and-run charge from the fact that he was also being
tried for carjacking. 	However, when the relevance of prior acts
evidence sought to be admitted is clear, the admission into
evidence of even serious crimes may not be unduly prejudicial.
- 21 -

See, e.g., Satcher v. Commonwealth, 244 Va. 220, 230-31, 421
S.E.2d 821, 828 (1992) (finding that, in capital murder, rape,
and related crimes trial, evidence of prior assault, robbery,
and attempted rape in same general location was properly
admitted to show motive, intent, and common scheme or plan);
Stockton v. Commonwealth, 227 Va. 124, 143, 314 S.E.2d 371, 383
(1984) (finding that, in capital murder trial, it was proper to
admit evidence of subsequent murder committed to silence
eyewitness to murder being tried), rev'd on other grounds, 852
F.2d 740 (4th Cir. 1998); Robbins v. Commonwealth, 31 Va. App.
218, 223-24, 522 S.E.2d 394, 396 (1999) (finding that, in trial
for breaking and entering with intent to commit assault,
evidence of prior abduction and severe beating of same victim
was properly admitted to show intent); Tomlinson v.
Commonwealth, 8 Va. App. 218, 224, 380 S.E.2d 26, 30 (1989)
(finding that, in trial for shooting into occupied dwelling,
evidence of later shooting into a different dwelling the same
evening was properly admitted to show intent or scheme). 	We
find the probative value of the carjacking evidence outweighs
any possible prejudice to Sanchez as a result of its admission.
Furthermore, the jury was properly instructed not to
consider the carjacking evidence as general evidence of
Sanchez's guilt. 	Such instructions minimize any incidental,
undue prejudice. 	Robbins, 31 Va. App. at 224, 522 S.E.2d at
397.
- 22 -

In summary, we find the trial court did not err in
admitting evidence that Sanchez was identified as the
perpetrator of a prior carjacking offense.
V. 	Conclusion
We find that the trial court erred in refusing to grant
Sanchez additional funds for his expert witness to testify at
trial. 	Sanchez established a particularized need for the
services, and the failure to allot him the funds adversely
affected his ability to rebut and challenge the Commonwealth's
evidence. 	We further find the evidence was sufficient to
establish Sanchez's guilt on the charge of felony hit and run
beyond a reasonable doubt and that Sanchez's retrial on the same
charge will not violate double jeopardy principles. 	Finally, we
find the trial court properly admitted evidence of Sanchez's
prior carjacking because it tended to prove his identity as the
driver in the hit-and-run accident and that its probative value
outweighed any prejudicial effect on Sanchez. 	Because we also
find that the denial of Sanchez's motion for additional funds
for his expert witness constituted error that was not harmless
beyond a reasonable doubt, we reverse his conviction and remand
- 23 -

the matter to the trial court for further proceedings if the
Commonwealth be so disposed.5
Reversed and remanded.
5 Because we reverse on other grounds, we do not address the
issues Sanchez raises on appeal that will not arise on retrial.
- 24 -