Scates v. Commonwealth

Present: 	All the Justices
DAVID MICHAEL SCATES
v. 	Record No. 010091 	OPINION BY JUSTICE DONALD W. LEMONS
November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court erred
in admitting evidence of other crimes committed by the
defendant in this prosecution for a particular burglary and
larceny.
I. Facts and Proceedings Below
David Michael Scates (“Scates”) was indicted for
feloniously and unlawfully taking, stealing, and carrying away
United States currency and/or property, having a value of
$200.00 or more, belonging to Susan Shepard (“Shepard”), in
violation of Code § 18.2-95. 	Scates was also indicted for
feloniously and unlawfully breaking and entering in the
daytime, the dwelling house of Shepard, with the intent to
commit a felony therein, in violation of Code § 18.2-91.
Scates was tried and convicted for both offenses by a jury in
the Circuit Court for the City of Richmond. 	The jury fixed
punishment at three years imprisonment on the grand larceny
offense and six years on the breaking and entering offense,
and the trial court imposed both sentences.

We state the evidence at trial in the light most
favorable to the Commonwealth, the prevailing party below.
Roach v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101,
cert. denied, 519 U.S. 951 (1996). 	Maggie Galliot
(“Galliot”), Shepard’s roommate, testified that on March 2,
1998, she was at home alone in her bedroom. 	She left the
apartment door unlocked because she was expecting her
boyfriend and he did not have a key.
Galliot heard a knock on the door and did not answer it
because she thought it was her boyfriend, who would usually
knock and then enter the apartment. 	She heard someone walking
around the apartment and realized it was not her boyfriend
when she heard the person enter Shepard’s room. 	Galliot heard
the door to the bathroom open and then heard the person leave
the apartment. 	She never saw the intruder. 	Shepard arrived
home later that day and Galliot informed her of what happened.
At that time, neither woman noticed that anything was missing
from the apartment.
Police subsequently contacted Shepard because they
believed they had recovered a ring she owned. 	Shepard later
identified her ring and other pieces of jewelry, which were
found during a police search of a room belonging to Scates.
Police also found a number of credit cards during their
search of Scates’ room. 	Immediately prior to trial, the
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parties discussed with the trial court the admissibility of a
statement made by Scates to Detective Robert Click (“Detective
Click”), “that in order to go into homes, [Scates] would take
credit cards, [and] jam them into a door.” 	The Commonwealth
maintained that this testimony was admissible because the
credit cards were “an instrument of [Scates’] scheme of
breaking into homes.”
Scates argued that the statement regarding the use of
credit cards to gain access to homes was irrelevant because no
forced entry occurred in this case. 	Additionally, Scates
argued that such evidence would be highly prejudicial. 	In a
pre-trial ruling the trial court stated, “I will not allow
evidence about other crimes.”
Despite the pre-trial ruling, the Commonwealth was
permitted, over the defendant’s objection, to elicit from
Detective Click testimony that Scates told him, “that in order
to go into homes, he would take the credit cards, jam them
into a door. . . [u]se the credit cards, jam [one] into the
lock of the door, and wiggle it around until the door itself
came open.” 	On cross-examination, Detective Click
acknowledged that Scates’ statement about using the credit
cards for entry into homes “didn’t pertain to this case, the
burglary, alleged burglary at Ms. Shepard’s home . . . .”
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Additionally, at trial the Commonwealth was permitted,
over the defendant’s objection, to elicit testimony from
Sergeant Burton Walker about the condition of certain
laminated cards found in Scates’ room. 	Walker testified,
“[m]ost of them are chewed up on the end. 	On each there are
gashes and gouges. 	Some of them are cracked. 	Most of the
laminated cards appear to be bent. 	This driver’s license is
separated and broken at the end.”
The Court of Appeals denied Scates’ petition for appeal,
stating that, “Click’s testimony concerning appellant’s
admitted use of the credit cards addressed appellant’s general
scheme of breaking into and entering residences, an offense
with which appellant was charged in the present case.
Accordingly, the trial judge did not abuse her discretion in
admitting the evidence.”
II. Analysis
Scates argues on appeal that the trial court erred in
admitting the detective’s statement about Scates’ use of
credit cards to break into homes and in admitting evidence
concerning the condition of cards found in his room. 	Scates
asserts that the Commonwealth failed to demonstrate the
relevance of the evidence to the offenses charged; therefore,
he contends that the evidence served only to demonstrate his
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propensity to commit the type of crimes for which he stood
charged and should not have been admitted.
We have previously stated:
The general rule is well established that
in a criminal prosecution, proof which shows or
tends to show that the accused is guilty of the
commission of other crimes and offenses at
other times, even though they are of the same
nature as the one charged in the indictment, is
incompetent and inadmissible for the purpose of
showing the commission of the particular crime
charged. 	It is also well established that
evidence of other offenses should be excluded
if offered merely for the purpose of showing
that the accused was likely to commit the crime
charged in the indictment. 	However, the
exceptions to the general rule are equally as
well established. 	Evidence of other offenses
is admitted if it shows the conduct and feeling
of the accused toward his victim, if it
establishes their prior relations, or if it
tends to prove any relevant element of the
offense charged. 	Such evidence is permissible
in cases where the motive, intent or knowledge
of the accused is involved, or where the
evidence is connected with or leads up to the
offense for which the accused is on trial.
Also, testimony of other crimes is admissible
where the other crimes constitute a part of the
general scheme of which the crime charged is a
part. 	Frequently it is impossible to give a
connected statement showing the crime charged
without incidental reference to such
contemporaneous and similar crimes and where
there is only such incidental disclosure of
other offenses.
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). 	Additionally, admission of evidence of other
crimes is subject to the further requirement that the
probative value of the evidence must outweigh any incidental
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prejudice to the defendant. 	Guill v. Commonwealth, 255 Va.
134, 139, 495 S.E.2d 489, 491-92 (1998).
Although we have recognized numerous circumstances where
“other crimes” evidence is admissible, we confine our analysis
in this case to the reasons offered by the prosecutor at trial
and the additional justification utilized by the Court of
Appeals. 	At trial, the prosecutor argued that the credit card
evidence showed “an instrument of [Scates’] scheme of breaking
into homes.” 	The Court of Appeals agreed with the
Commonwealth and added a separate analytical basis for the
admissibility of this evidence, quoting Scott v. Commonwealth,
228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984), holding that,
“[a]n accused is not entitled ‘to have the evidence
“sanitized” so as to deny the jury knowledge of all but the
immediate crime for which he is on trial.’ ” 	Scates v.
Commonwealth, Rec. No. 1115-00-2, November 3, 2000, Slip Op.
at 6. 	The trial court and the Court of Appeals erred in
permitting the introduction of this evidence for either
reason.
We have previously held that “evidence of similar acts is
admissible to show a common scheme, design, or plan where
there is ‘such a concurrence of common features that the
various acts are naturally to be explained as caused by a
general plan of which they are the individual
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manifestations.’ ” 	McWhorter v. Commonwealth, 191 Va. 857,
870-71, 63 S.E.2d 20, 26 (1951)(citations omitted). 	See also
Satcher v. Commonwealth, 244 Va. 220, 230-31, 421 S.E.2d 821,
827-28 (1992), cert. denied, 507 U.S. 933 (1993). 	Here, there
is no “concurrence of common features” that proves a “common
scheme, design, or plan.” 	The only evidence of entry into the
apartment is that the door was unlocked and the person who
unlawfully entered did so by using the door knob. 	There is no
evidence that access to this apartment was gained by utilizing
a credit card.
The Court of Appeals’ additional justification for the
admission of the credit card evidence cites our opinion in
Scott. 	The Scott case involved a course of criminal conduct
which was continuous and interwoven consisting of a series of
related crimes. 	In Scott, the defendant argued that evidence
of transporting the victim to Tennessee and raping her there
was “other crimes” evidence inadmissible in his Virginia
prosecution for abduction with intent to defile. 	As we noted,
“[e]vidence of such connected criminal conduct is often
relevant to show motive, method, and intent.” 	Id. at 527, 323
S.E.2d at 577. 	When the course of criminal conduct is
continuous and interwoven, “[t]he fact-finder is entitled to
all of the relevant and connected facts, including those which
followed the commission of the crime on trial, as well as
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those which preceded it; even though they may show the
defendant guilty of other offenses.” 	Id. at 526-27, 323
S.E.2d at 577. 	However, continuous and interwoven conduct is
not present in the case before us.
Finally, contrary to the Commonwealth’s assertion,
Detective Click’s testimony combined with Sergeant Walker’s
testimony clearly referenced other crimes. 	Scates’ statement
that, “in order to go into homes, he would take the credit
cards [and] jam them into a door” did not refer to a particular
offense, but suggested multiple other offenses. 	Evidence of
mutilated credit cards further supported the statement. 	Under
the facts of this case, the evidence was not in support of an
asserted “common scheme, design, or plan” or “continuous and
interwoven criminal conduct.”
III. Conclusion
For the foregoing reasons we hold that the Court of
Appeals and the trial court erred in approving the admission
of evidence of other crimes in this case. 	The order of the
Court of Appeals affirming Scates’ convictions will be
reversed. 	The case will be remanded to the Court of Appeals
with direction that it be remanded to the circuit court for a
new trial if the Commonwealth be so advised.
Reversed and remanded.
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