Ferrell v. Commonwealth12/11/1990
lty of the breaking and entering. Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935). However, the evidence must reveal that the accused was consciously asserting at least a possessory interest in or exercising dominion over the stolen property. Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). Thus, here proof of knowledge that the goods were stolen is an essential element which must be proved by the prosecution because it relied on the inference to prove guilt of the break-in. Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983). Whenever guilty knowledge is an essential element of the offense charged, evidence is admissible which tends to establish that knowledge, notwithstanding that it proves or tends to prove an offense other than that charged. 29 Am. Jur. 2d Evidence § 323 (1967). In such cases the general rule "must yield to what has come to be known as the 'guilty knowledge exception.'" Id. at 502, 303 S.E.2d at 893. Moreover, "if the evidence of other conduct is connected with the present offense, or tends to prove any element or fact in issue at trial, it should be admitted, whether or not it tends to show the defendant guilty of another crime." Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 577 (1984). Every fact, however remote or insignificant, that tends to establish a probability or improbability (e.g., appellant's defense of lack of knowledge) of a fact in issue is admissible. Spencer, 240 Va. at 90, 393 S.E.2d at 616; see also Brown v. Commonwealth, 226 Va. 56, 61, 307 S.E.2d 239, 242 (1983)
(where the Court held that in a prosecution for stealing clothes from one store it was not error to show that the defendant had in her possession clothing from other stores that had the price and size tickets attached). Here, the evidence admitted at trial was clearly admissible to rebut appellant's denial of knowledge that the property found in his possession and under his control was stolen.
Even where another crime is not inextricably linked with the offense on trial, it may nevertheless be proved if it shows the conduct and feeling of the accused toward his victim, his motive, intent, plan or scheme, or any other relevant element of the offense on trial.
Scott, 228 Va. at 527, 323 S.E.2d at 577.
The test for admissibility of other crimes and, therefore, for determining whether the evidence is sufficient to show acts which constitute parts of a common scheme, plan or modus operandi is fully discussed in Spencer.
The court's use of the "signature" homology was evidently based upon the Court of Appeals' decision in Sutphin v. Commonwealth, 1 Va. App. 241, 246-47, 337 S.E.2d 897, 900 (1985). The term is a useful one if it is understood only in the sense of requiring a distinctive modus operandi, such that the evidence of other crimes so resembles the pattern of the offense charged as to raise the probability of a common perpetrator. However, the term "signature" can also be misunderstood to require that evidence of other crimes may not be admitted unless they are virtual carbon copies of the case on trial. That, in our view, is an unwarranted restriction of the modus operandi exception.
We adopt the standard articulated by the Seventh Circuit in United States v. Hudson, 884 F.2d 1016
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