                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and McClanahan
Argued at Chesapeake, Virginia


DERREAK LAMONTE McMILLIAN
                                                               MEMORANDUM OPINION * BY
v.      Record No. 0455-10-1                                    JUDGE ROBERT P. FRANK
                                                                    MARCH 1, 2011
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                               V. Thomas Forehand, Jr., Judge

                  (Jo Anne Spencer; Jo Anne Spencer, P.L.C., on brief), for appellant.
                  Appellant submitting on brief.

                  Donald E. Jeffrey, III, Senior Assistant Attorney General
                  (Kenneth T. Cuccinelli, Attorney General, on brief), for appellee.


        Derreak Lamonte McMillian, appellant, was convicted, in a jury trial, of murder in violation

of Code § 18.2-32, use of a firearm in commission of a felony in violation of Code § 18.2-53.1, and

grand larceny in violation of Code § 18.2-95. On appeal appellant contends the trial court abused its

discretion in admitting evidence of prior crimes to establish appellant’s identity as the perpetrator of

the current offenses. Finding no error, we affirm the three convictions.

                                           BACKGROUND

        Under settled principles, we review the evidence in the light most favorable to the

Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That

principle requires us to “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d

755, 759 (1980) (emphasis and citation omitted).

        On January 7, 2007, as C.D. was traveling on Interstate 664, he observed a dump truck he

recognized as belonging to a friend. Suspecting that the truck was stolen, C.D. followed the

truck and eventually confronted the driver after they both pulled into a truck stop. Following a

brief conversation, the driver shot C.D. four times, killing him. The truck then drove away. No

one at the scene was able to identify the shooter.

        That same evening, Officer Jennifer Goolsby of the Chesapeake Police Department

received and responded to a call regarding a stolen dump truck. She spotted the truck and

followed it for a short distance before activating her emergency lights. The truck accelerated and

turned abruptly onto a set of railroad tracks, traveling for approximately one quarter of a mile.

Officer Goolsby could not follow the truck in her police vehicle, so she “called it in.” She then

noticed the truck was engulfed in flames. Appellant was eventually arrested for the instant

offenses. 1

        At trial, the Commonwealth introduced evidence that appellant stole tractor-trailers from

locations in Portsmouth on June 10, 2001, June 12, 2001, August 15, 2001, and November 7,

2006. Evidence also showed that appellant attempted to steal a tractor-trailer from a Portsmouth

lot on August 15, 2001 and stole another tractor-trailer from a Chesapeake location on October 6,

2006. Police recovered this stolen truck after it crashed into a fence. Appellant was originally

charged with destruction of property in connection with the larceny, but the property damage

charge was eventually dismissed. Finally, the Commonwealth presented evidence that again on

October 6, 2006, appellant and Cortez Williams stole a tractor-trailer from Chesapeake and


        1
          Because appellant does not challenge the sufficiency of the evidence on appeal, we need
not recite all the facts leading to appellant’s arrest and conviction.

                                                -2-
drove to Raleigh, North Carolina where they abandoned the vehicle. Williams testified at this

trial that upon arriving in Raleigh, appellant set fire to the vehicle by igniting the interior seats

with a lighter.

        Appellant testified at his trial. He denied stealing the dump truck and denied shooting

C.D. He testified he “love[s] 18-wheelers” and has not driven a dump truck since he was twelve

years old because “they don’t fit [his] taste.” “I like tractor trailers,” he stated. He then

acknowledged that he stole the trucks from Portsmouth and Chesapeake earlier referred to by the

Commonwealth:

                  Q.    Okay. In fact, [tractor trailers are] the only type of vehicle
                        you have ever stolen?

                  A.    Basically.

                  Q.    All right. And you don’t deny to the members of the jury
                        that the convictions from Portsmouth and Chesapeake that
                        they have heard about, you did?

                  A.    Yes.

                  Q.    And you stole those trucks?

                  A.    Yes.

                  Q.    You were joyriding?

                  A.    Yes.

        However, appellant denied stealing the tractor-trailer from Chesapeake with Cortez

Williams, driving it to Raleigh, and setting it on fire.

        The jury convicted appellant of all three charges, and this appeal follows.

                                             ANALYSIS

        Appellant’s sole contention on appeal is that the trial court erred in allowing the

Commonwealth to introduce evidence of appellant’s prior criminal conduct. The

Commonwealth responds that because appellant disputes his identity as the perpetrator, the prior


                                                  -3-
offenses are admissible as an exception to the general rule prohibiting admissibility of such

evidence because they show a pattern of “modus operandi” establishing appellant’s identity. In

the alternative, reasons the Commonwealth, appellant waived any objections to admissibility

because he introduced the same evidence he is seeking to exclude during his own testimony.

        ‘“The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.”’ Twine v.

Commonwealth, 48 Va. App. 224, 230-31, 629 S.E.2d 714, 718 (2006) (quoting Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

        While evidence of “other crimes” is generally inadmissible to prove that the accused is

guilty of the crime charged, such evidence “is admissible if it tends to prove any fact in issue,

even though it also tends to show the defendant guilty of another crime.” Spencer v.

Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990). It is well established that “one of

the issues upon which ‘other crimes’ evidence may be admitted is that of the perpetrator’s

identity, or criminal agency . . . .” Id. (citations omitted).

                [E]vidence 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.” That test is met where the other
                incidents are “sufficiently idiosyncratic to permit an inference of
                pattern for purposes of proof,” thus tending to establish the
                probability of a common perpetrator.

Id. at 90, 393 S.E.2d at 616 (citations omitted). Once that test is met, the trial court, in its sound

discretion, weighs the probative value of the evidence against its incidental prejudice to the

defendant . . . .” Id. at 90, 393 S.E.2d at 617.




                                                   -4-
                                              Waiver

       We agree with the Commonwealth that appellant waived any objections to the prior

crimes evidence, with the exception of the property damage incident and the second October 6,

2006 incident involving Cortez Williams. 2

       Waiver occurs when the objecting party “has elicited evidence dealing with the same

subject as part of his own case-in-chief.” Pettus v. Gottfried, 269 Va. 69, 79, 606 S.E.2d 819,

825 (2005). When this occurs, an appellate court ‘“cannot reverse for alleged error.”’ Bynum v.

Commonwealth, 28 Va. App. 451, 459, 506 S.E.2d 30, 34 (1998) (quoting Hubbard v.

Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992)). “Some courts so hold because the

error is harmless, and others because the subsequent introduction of the same evidence is a

waiver of the objection. Whether it be placed upon one ground or the other, the result is the

same.” New York Life Ins. Co. v. Taliaferro, 95 Va. 522, 523, 28 S.E. 879, 879 (1898).

       Appellant testified at his trial and admitted to stealing trucks from Portsmouth and

Chesapeake. We note that he was asked specifically about the vehicles referenced earlier by the

Commonwealth and he acknowledged his complicity in those crimes. Because appellant

introduced evidence of “the same character” during his case-in-chief, Bynum, 28 Va. App. at

459, 506 S.E.2d at 34, he necessarily waived any objection to the Commonwealth’s introduction

of the same evidence of stealing tractor-trailers on June 10, 2001, June 12, 2001, August 15,

2001, October 6, 2006, and November 7, 2006, as well as his attempt to steal a tractor-trailer on

August 15, 2001. Appellant denied any involvement in the theft and subsequent arson of the

stolen truck on October 6, 2006, and we therefore conclude that he did not waive his objection to

the introduction of that testimony. Additionally, appellant did not address the destruction of


       2
         Specifically, appellant waived his objection to the admissibility of the evidence, as well
as his objection as to whether the probative value of the evidence, if admissible, outweighed its
prejudicial value.
                                                -5-
property incident involving the damaged fence, so we conclude he did not waive his objection to

the introduction of that evidence.

                                      October 6, 2006 Offense

       The only remaining issues for our consideration are whether the prior crimes committed

with Cortez Williams on October 6, 2006 and the property damage evidence were sufficiently

similar to the current offense to be admissible as identification evidence, and if so, did its

probative value outweigh its prejudicial value? 3

       Regarding the evidence involving Cortez Williams, we conclude that although the two

crimes were not identical, the similarities between appellant’s prior grand larceny and the instant

offense are sufficiently idiosyncratic to justify admission of the challenged “other crimes”

evidence. Both crimes involve stealing a large commercial vehicle located in Chesapeake, and in

both cases appellant set fire to the truck immediately before abandoning it. Setting fire to a

vehicle is a deliberate, unique act unassociated with the usual practice of stealing vehicles.

Because of the uncommon similarities of the two crimes, the evidence tended to show that the

same individual committed both.

       We further believe that the probative value of Cortez Williams’ testimony was not

outweighed by its incidental prejudicial impact on appellant.

       “In determining whether evidence should be admitted, the trial court must apply a

balancing test in assessing the probative value of the evidence and its prejudicial effect.”


       3
         The Commonwealth contends appellant waived the idiosyncratic argument because it
was not sufficiently stated in his assignment of error. We read appellant’s assignment of error to
contain two components: 1) the trial court erred in admitting evidence that was not idiosyncratic
enough to show modus operandi, and 2) the evidence was more prejudicial than probative.
Because we find appellant’s assignment of error adequately raises both issues pursuant to Rule
5A:20(c), we will address both contentions. See Winston v. Commonwealth, 51 Va. App. 74,
82, 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in
his questions presented (now assignments of error), the Court would not address it on appeal).

                                                 -6-
Dandridge v. Marshall, 267 Va. 591, 596, 594 S.E.2d 578, 581 (2004). “Relevant evidence may

be excluded only if the prejudicial effect of the evidence outweighs its probative value.” Goins

v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127 (1996). This determination is left to

the sound discretion of the trial court and will be reversed on appeal only upon a showing of an

abuse of discretion. Lombard v. Rohrbaugh, 262 Va. 484, 492, 551 S.E.2d 349, 353 (2001).

               In a sense, all “evidence tending to prove guilt is prejudicial” — at
               least from the point of view of the person standing trial. Powell v.
               Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537, 558 (2004).
               Virginia law, however, intervenes only when the alleged prejudice
               tends to inflame irrational emotions or leads to illegitimate
               inferences. And even then, it becomes a matter of degree. . . . We
               generally defer to trial judges on this subject because they, unlike
               us, participate first person in the evidentiary process and acquire
               competencies on the subject that we can rarely duplicate merely by
               reading briefs and transcripts.

Thomas v. Commonwealth, 44 Va. App. 741, 757-58, 607 S.E.2d 738, 746 (other citations

omitted), adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

       Here, the trial court implicitly found the probative value of the North Carolina offense

outweighed any potential prejudice. It must be remembered the jury heard appellant admit to

five grand larcenies of tractor-trailers from Chesapeake and Portsmouth. The only additional

information revealed to the jury was that appellant burned the vehicle in North Carolina. We

cannot say the trial court abused its discretion in admitting the evidence of appellant’s conduct in

North Carolina. The fact that appellant burned the vehicle was relevant, did not “inflame

irrational emotions,” nor did it lead to “illegitimate inferences.”

       Because appellant disputed his identity as the perpetrator of the instant offenses, we

conclude the Commonwealth was entitled to offer evidence of the preceding October 6, 2006

crimes for purposes of linking appellant to the current offenses. We hold the trial court did not

abuse its discretion in allowing Cortez Williams’ testimony, and in balancing the probative value

of Williams’ testimony relative to any prejudicial impact on appellant.
                                                 -7-
                                            Harmless Error

        To the extent that the property damage evidence can be considered a prior bad act, we

find the error, if any, to be harmless.

        When deciding whether non-constitutional error is harmless in the context of a criminal

proceeding, we must apply Code § 8.01-678 that states in pertinent part:

                When it plainly appears from the record and the evidence given at
                the trial that the parties have had a fair trial on the merits and
                substantial justice has been reached, no judgment shall be arrested
                or reversed . . . [f]or any . . . defect, imperfection, or omission in
                the record, or for any error committed on the trial.

        The Virginia Supreme Court stated in Clay v. Commonwealth, 262 Va. 253, 259, 546

S.E.2d 728, 731 (2001), “[i]n a criminal case, it is implicit that, in order to determine whether

there has been ‘a fair trial on the merits’ and whether ‘substantial justice has been reached,’ a

reviewing court must decide whether the alleged error substantially influenced the jury. If it did

not, the error is harmless.” The Clay Court adopted the following test for non-constitutional

harmless error that was applied by the United States Supreme Court in Kotteakos v. United

States, 328 U.S. 750 (1946):

                “If, when all is said and done, the conviction is sure that the error
                did not influence the jury, or had but slight effect, the verdict and
                the judgment should stand . . . . But if one cannot say, with fair
                assurance, after pondering all that happened without stripping the
                erroneous action from the whole, that the judgment was not
                substantially swayed by the error, it is impossible to conclude that
                substantial rights were not affected. . . . If so, or if one is left in
                grave doubt, the conviction cannot stand.”

Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos, 328 U.S. at 764-65).

        We first note that the evidence of the damaged fence was inextricably linked to the first

October 6, 2006 larceny because it demonstrated how police discovered and investigated the

theft in which appellant admitted his involvement. As previously stated, the jury heard evidence

of six prior grand larcenies, one attempted grand larceny, and one incident where appellant set

                                                  -8-
fire to a stolen truck in North Carolina. Given the substantial evidence of prior bad acts, we find

that evidence of the damaged fence did not substantially influence the jury and its admission was

therefore harmless.

                                         CONCLUSION

       For the foregoing reasons, we find the trial court did not err in admitting evidence of

prior crimes to establish appellant’s identity. Accordingly, appellant’s convictions are affirmed.

                                                                                    Affirmed.




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