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Ferrell v. Commonwealth12/11/1990
(7th Cir. 1989): 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". Rather, it is sufficient if the other crimes bear "a singular strong resemblance to
the pattern of the offense charged." 884 F.2d at 1021 (quoting United States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)). That test is met where the other incidents are "sufficiently idiosyncratic to permit an inference of pattern for purposes of proof," id., thus tending to establish the probability of a common perpetrator.
Ultimately, the question whether to admit evidence of other crimes involves the same considerations as any other circumstantial evidence. "Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is relevant, and if otherwise admissible, should be admitted." Harrell v. Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773 (1987) (citation omitted). "Other crimes" evidence bearing sufficient marks of similarity to the case on trial to establish the probability of a common perpetrator is, therefore, usually relevant. The question remains, however, whether it is "otherwise admissible." That question requires the trial court to weigh its probative value against its prejudicial effect. "Whenever the legitimate probative value outweighs the incidental prejudice to the accused, evidence of prior offenses, if otherwise competent, is admissible." Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
The responsibility for balancing the competing consideration of probative value and prejudice rests in the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal in the absence of a clear abuse. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).
The other crimes presented to the jury in the present case were not carbon copies of the crimes on trial. Nevertheless, the similarities between the offenses, particularly the indications of a common modus operandi and the scientific evidence that the defendant was the common criminal agent, strongly support the trial court's ruling. Although there was undoubtedly a prejudicial effect upon the defendant, we cannot say that the trial court abused its discretion in ruling that the prejudicial effect was outweighed by the probative value
of that evidence.
240 Va. at 89-90, 393 S.E.2d at 616-17 (footnote omitted); see also Cheng, 240 Va. at 34, 393 S.E.2d at 603.
The evidence presented in support of the indictments here discloses remarkably similar and continuing acts by appellant. All the offenses occurred in the City of Chesapeake between November 9, 1985 and December 29, 1985. On December 4, 1985, appellant stole the Cadillac which he was driving in Maryland when he was apprehended. The stolen vehicle was filled with the fruits of the four break-in charges, as well as items other which were automotive oriented. Connecting and similar facts found in this record are that appellant broke to enter; he concentrated on industries whose businesses were sales and services, three of the four being engaged in the automobile business; from each of the automobile dealers a car was taken; he stole automobiles and sets of keys to other automobiles; he stole dealer license tags and metal li
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