                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia


MAYS TATE, JR.
                                            MEMORANDUM OPINION * BY
v.           Record No. 1774-95-2            JUDGE LARRY G. ELDER
                                                JUNE 25, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
                   Timothy J. Hauler, Judge Designate
             Scott Goodman for appellant.

             Leah A. Darron, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.


     Mays Tate, Jr. (appellant) appeals his convictions for

capital murder, first degree murder, second degree murder, three

counts of use of a firearm in the commission of the murders,

breaking and entering while armed with a deadly weapon, and grand

larceny of an automobile.    Appellant contends (1) that the trial

court erred in allowing the Commonwealth to introduce evidence

that he was wanted for "violent crimes against people" in two

other counties at the time of the instant offenses, and (2) that

the evidence failed to support his convictions.      We hold that the

trial court erred in allowing the Commonwealth to introduce too

many details about the other crimes that appellant allegedly

committed.    We therefore reverse appellant's convictions and

remand for further proceedings if the Commonwealth be so advised.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                I.

     On May 31, 1992, the dead bodies of Clarence Stinson, Eva

Roberta Stinson, and Gloria Stinson, who lived together in a

house in rural Buckingham County, were discovered at their

residence.   In an upstairs bedroom, a dresser drawer had been

removed and its contents dumped on the bed.    The police located a

pocketbook near the bodies outside and found money still inside

of it.   Witnesses testified that appellant possessed hundreds of

dollars in cash on May 30, 1992.     Evidence showed that appellant

knew that Clarence Stinson kept up to $1,300 on his person and in

his house when he lived with appellant's grandmother in 1990.
     Appellant's brother, Jeffrey Tate, testified that in May

1992, he paid appellant close to $400 for work appellant had done

for him.   Appellant's brother, Wilson Tate, testified that on May

24, 1992, he gave appellant $300 to $500 to use for his move to

Montana to be with his father and for payment for a car appellant

sold to Wilson Tate.

     Although a bloody footprint linked appellant to the crime

scene, no evidence linked appellant to any firearms used in the

murders, the Commonwealth did not prove the whereabouts of the

specific murder weapons, and no testimony placed appellant at the

Stinson house.

     Over appellant's strenuous objections during pretrial

hearings, Deputy Donnie Michael of the Greene County Sheriff's

Office testified that on May 22, 1992, he was investigating




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appellant in relation to "a crime of violence committed against a

person" in Greene County.    Michael testified that he had been

told that appellant had "fled the state."      Also over objection,

Investigator David Carter of the Culpeper Police Department

testified that three "crimes of violence" had been committed

against individuals in Culpeper County on May 9, 18, and 22,

1992.    Carter stated that he was looking for appellant in

connection with these crimes but that appellant "had fled" the

jurisdiction.
        The trial court cautioned the jury that it could not

consider the officers' testimony as evidence of appellant's

guilt.    Instead, the trial court admitted the testimony to show

appellant's possible motive for the killings, namely, that

appellant was on the run and looking for money to flee the area.

                                  II.

        Appellant asserts that the Commonwealth's other crimes

evidence was not probative in proving his motive.      Appellant also

contends that if the other crimes evidence was probative, the

trial court should not have allowed the Commonwealth's witnesses

to testify specifically that appellant had committed "crimes of

violence against another person."       Instead the trial court should

have allowed witnesses to testify only that appellant had been

"involved in criminal altercations."      Agreeing with appellant's

second assertion, we hold that the trial court abused its

discretion in not excluding this detail of the evidence.       See




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Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204 (1967).

     "The rule excluding other crimes evidence is deeply rooted

in Virginia common law."    Tucker v. Commonwealth, 17 Va. App.

520, 522, 438 S.E.2d 492, 493 (1993).   Evidence of other

independent acts, including criminal acts, is generally

inadmissible unless offered to prove "motive, intent, plan, or

scheme, or any other relevant element of the offense on trial."

Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 577

(1984)(emphasis added).    Evidence that implicates an accused in

other crimes unrelated to the offense for which the accused is

being tried is inadmissible because it creates confusion of

issues, causes unfair surprise, and causes undue prejudice.
Boggs v. Commonwealth, 199 Va. 478, 488, 100 S.E.2d 766, 773

(1957).   Thus, unless evidence of other crimes is relevant to

prove a material fact, and its relevance outweighs its

prejudicial effect, the evidence is inadmissible.   "The

responsibility for balancing these competing considerations is

largely within the sound discretion of the trial judge."    Coe v.

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).

     The fact that appellant's alleged prior crimes were violent

crimes against individuals was irrelevant and had considerable

tendency to prejudice the jury against appellant.    See Henderson

v. Commonwealth, 5 Va. App. 125, 127, 360 S.E.2d 876, 878 (1987).

The trial court should not have allowed testimony to include the

detail that the alleged prior crimes involved violence against



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individuals, as this detail was more prejudicial than probative.

The Commonwealth, for example, adequately could have shown

appellant's motive to steal the Stinson's money by simply

eliciting testimony that appellant was under suspicion for

committing "serious" crimes in other counties and was on the run

from authorities in those counties.

     The Commonwealth asserts that no error could have arisen

because the trial court gave a cautionary instruction to the jury

on this issue.   We are aware that a "jury is presumed to have

followed a trial court's limiting or cautionary instruction."

Jennings v. Commonwealth, 20 Va. App. 9, 19, 454 S.E.2d 752, 756,

aff'd en banc, 21 Va. App. 328, 464 S.E.2d 179 (1995).    However,

in this case, the instruction erroneously permitted the jury to

consider overly-prejudicial evidence and did not cure the error

of having admitted this evidence.     See LaForce v. Commonwealth,

14 Va. App. 588, 590, 419 S.E.2d 261, 262 (1992); Powell v.

Commonwealth, 13 Va. App. 17, 27-28, 409 S.E.2d 622, 628-29

(1991).

     Furthermore, because it does not plainly appear that

appellant had a fair trial on the merits, the trial court's error

was not harmless.   Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991)(en banc); Code § 8.01-678.      We

do not agree with the Commonwealth "that, excluding the disputed

testimony, the other evidence against [appellant] is so

overwhelming that any error in the admission of the testimony is




                                -5-
rendered harmless."   Cartera v. Commonwealth, 219 Va. 516, 519,

248 S.E.2d 784, 786 (1978).   "While the other evidence amply

supports the jury's verdicts, the disputed testimony may well

have affected the jury's decision."   Id.; see Hanson v.

Commonwealth, 14 Va. App. 173, 176, 416 S.E.2d 14, 16 (1992).

     Accordingly, we reverse appellant's convictions and remand

for further proceedings if the Commonwealth be so advised.

                                            Reversed and remanded.




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