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Ferrell v. Commonwealth12/11/1990
jury in separate trials. The Commonwealth, if consolidation had not been ordered, would have been required twice to secure the presence of a material out-of-state witness.
On the other hand, the defendant has not shown that the consolidation confounded him in his defense or adversely affected his substantive rights. Nor has he shown that trial of the consolidated indictments confused the jury.
Id. at 553, 186 S.E.2d at 76. Factually, Fincher and the case before us bear a strong resemblance. There is nothing indicated by this record that appellant's defense to either charge would have been altered in any respect if he had been granted separate trials. As in Fincher, the offenses arose out of a series of related and connected events; most of the same evidence would have been submitted to the jury by both the Commonwealth and defense in separate trials; and if severance had been ordered the Commonwealth would have been required on at least four different dates to secure the presence of an out-of-state witness, former Officer Bond, who was at the time of trial in private business in Maryland. As noted in Fincher, appellant has not shown that consolidation confounded him in his defense, confused the jury or adversely affected his substantive rights.
Citing Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897 (1985), and Cook v. Commonwealth, 7 Va. App. 225, 372 S.E.2d 780 (1988), appellant further contends that Rule 3A:6(b) bars consolidation because the record fails to show that the properly admitted evidence proves that his acts constituted "parts of a common scheme or plan." We disagree. Several Court of Appeals cases, including Godwin, have rigidly applied the "signature" theory of Sutphin. The signature theory, insofar as it requires that the crimes be "carbon copies" of each other, was rejected by the Supreme Court of Virginia in Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609 (1990). In Spencer, the Court said "evidence of other crimes, to qualify for admission as proof of modus operandi, need not bear such an exact resemblance to the crime on trial as to constitute a 'signature'... it is sufficient if the other crimes bear 'a singular strong resemblance to the pattern of the offense charged.'" Id. at 90, 393 S.E.2d at 616. The question of the circumstances
justifying the admission of evidence concerning other crimes has been a troubling one. Id. at 89, 393 S.E.2d at 616. While the oft repeated general rule is that evidence of other crimes is inadmissible because of the probable prejudice to the defendant, there are a number of well recognized exceptions to that general rule. In fact, it has been said, "that there are so many exceptions to the rule that it is difficult to determine which is more extensive -- the rule or its acknowledged exceptions." 29 Am. Jur. 2d Evidence § 321 (1967); see also Evans v. Commonwealth, 222 Va. 766, 773, 284 S.E.2d 816, 820 (1981), cert. denied, 455 U.S. 1038 (1982).
One of these exceptions may be illustrated by the case before us. In Virginia, upon proof of breaking and entering and a theft of goods, if the evidence warrants an inference that the breaking and entering and the theft were committed at the same time by the same person as a part of the same transaction, the exclusive possession of stolen goods shortly thereafter gives rise to an inference that the possessor is gui
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