                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


ELTON MANNING JACKSON
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2587-98-1                 JUDGE ROBERT P. FRANK
                                            SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     James A. Cales, Jr., Judge

           Dianne G. Ringer, Senior Assistant Public
           Defender, for appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Elton Manning Jackson (appellant) appeals his conviction, by

a jury, of first degree murder.   On appeal, he contends the trial

court erred in:   1) allowing three witnesses to testify regarding

their sexual encounters with him; 2) overruling his motion to

exclude a portion of the statement he made to police regarding his

sexual encounter with Kevin Benton; and 3) allowing a witness to

testify about the statement Andre Smith made to the witness.    We

disagree and, therefore, affirm the trial court's judgment.

     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   BACKGROUND

     On July 22, 1996, the body of Andre Smith was found at

approximately 8:35 a.m.   The medical examiner testified the

victim had been dead at least 18 to 24 hours, but no longer than

48 hours.   The cause of death was ligature strangulation.

     Arnold Smith, a friend of the victim, testified, over

appellant's objection, that between 2:30 a.m. and 3:00 a.m. on

July 21, 1996, the victim said he was going to go "past"

appellant's house to get some money.   Kim Nurney also testified,

without objection, that at around 2:30 a.m. on July 21, 1996,

the victim told her he was leaving to go get some money and

would be back in fifteen minutes.   Nurney waited for the victim,

but he never returned.

     On July 23, 1996, during a canvas of the victim's

neighborhood, police officers came in contact with appellant.

Appellant told the police he did not know the victim, but

recognized his picture from television reports.    Detective

Ronald Young testified appellant appeared jittery and would not

make good eye contact with the police.

     Appellant was arrested on May 6, 1997, and gave a

videotaped statement to Detective Whitehurst of the Chesapeake

Police Department.   During this videotaped statement, he stated

the victim had visited his home some time in the evening on July

20, 1996, and the two of them "had a good time."   Whitehurst

also questioned appellant about a sexual encounter he had with

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Kevin Benton.    Specifically, Whitehurst asked appellant if he

played a game with Benton where he tied up Benton.

        At trial, appellant testified he engaged in anal sex with

the victim on July 20, 1996.    Appellant said he gave the victim

twenty dollars, and the victim left around 10:00 p.m.

        Kevin Benton testified about a sexual encounter he had with

appellant in the early morning hours of December 11, 1996.

Appellant picked Benton up in the Ocean View area of Norfolk,

and Benton testified they went to appellant's house.    Once they

arrived at appellant's house, Benton, who was high on crack

cocaine, went into the bedroom with appellant.    Appellant

promised to give Benton seventy-five dollars if he would allow

appellant to tie his hands behind his back and massage him.

Benton stripped to his boxer shorts and lay on his stomach on

the bed while appellant tied his hands behind his back with a

necktie.    After a few moments, during which appellant was out of

Benton's sight, Benton noticed appellant approaching from

behind.    Appellant tried to lift a leather strap over Benton's

head.    Benton turned away, kicked appellant, and untied the

necktie around his hands.    Later that morning, appellant paid

Benton nineteen dollars and some change.    Appellant then drove

Benton to a meeting with Benton's probation officer.    Appellant

testified he engaged in consensual sex with Benton, but denied

any acts of violence.



                                 - 3 -
        Tommy Anderson testified he and appellant agreed to

exchange sex for money in May 1995.      Anderson testified he went

to appellant's house, took off his clothes, and lay on the bed.

Anderson agreed to let appellant rub lotion between his closed

legs.    At this point, appellant became rough and held Anderson

down by placing his forearm in the back of Anderson's neck, but

he stopped when Anderson threatened to scream.     Then, appellant

agreed to drive Anderson to his next destination, but, while in

the car, he hit Anderson in the face.     Appellant threatened to

kill Anderson if he tried to escape.     Appellant drove Anderson

to the approximate area where the victim's body was found.       He

ordered Anderson to get out and place his hands on the vehicle.

With his hands on the vehicle, Anderson turned and saw appellant

approaching him from behind with a strap in his hand.     Anderson

kicked appellant and fled the area.      During his testimony,

appellant denied ever having a sexual encounter with Anderson.

        Willie C. Swimpson, Jr., lived with appellant during the

summer of 1995.    Swimpson testified he engaged in sexual

relations with appellant for money during that time.     On one

occasion, appellant took Swimpson to a secluded area and

Swimpson agreed to allow appellant to put lotion between his

legs while having sex with him.    Swimpson glanced around while

he waited for appellant to retrieve the lotion and noticed

appellant approaching him from behind with a strap in his hand.

Swimpson thought appellant was going to put the strap around his

                                 - 4 -
head and twist it.   Swimpson escaped through the woods on foot.

Appellant testified Swimpson fabricated this story because their

consensual sexual relationship had ended on bad terms after he

caught Swimpson stealing from him.

     A bloodstain found on appellant's mattress matched the DNA

of the victim.   Appellant's DNA matched the DNA in semen that

was swabbed from the victim's anus.

     Appellant was convicted on August 21, 1998 of murder in the

first degree.    He was sentenced to life imprisonment on October

27, 1998.

                            II.    ANALYSIS

     Appellant contends the trial court erred in allowing Benton,

Anderson, and Swimpson to testify about their sexual encounters

with him, during which each said appellant tried to strangle him.

                 Generally, evidence of other offenses
            should be excluded if offered merely to show
            that the accused is a person likely to
            commit the crime charged. But there are
            important exceptions to that rule. Evidence
            of other crimes 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) (citations omitted).

     "[O]ne of the issues upon which 'other crimes' evidence may

be admitted is that of the perpetrator's identity, or criminal

agency, where that has been disputed.         Proof of modus operandi



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is competent evidence where there is a disputed issue of

identity."     Id. (citations omitted).

     In Spencer, the Supreme Court explained the standard of

proof for the modus operandi exception:

             [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.
                  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." "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."
                  The responsibility for balancing the
             competing considerations 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.

Id. at 90, 393 S.E.2d at 616-17 (citations omitted).

                                 - 6 -
     Appellant contends the differences between his encounters

with Benton, Anderson, and Swimpson and his encounter with the

victim were not sufficient to show a modus operandi.     He argues

Benton, Anderson, and Swimpson agreed to have sex with him for

money, but there was no evidence he paid the victim to have sex

with him.    He argues Benton and Anderson testified, that before

taking them back to his house, he picked them up in his car

while cruising the streets.   He contends there was no evidence

that he picked up the victim while driving in his car.     He

argues that Swimpson testified appellant attempted to strangle

Swimpson in his car, not in his bed, where the Commonwealth

contends appellant strangled the victim.   Benton testified he

allowed appellant to tie him up prior to the attempted

strangulation, but the medical examiner testified there was no

evidence of tie marks or ligature marks on the victim's wrists

or ankles.   Appellant also argues there was no evidence he

engaged in anal intercourse with Benton, Anderson, or Swimpson.

However, the autopsy of the victim indicated appellant

penetrated the victim's anus.   Anderson and Swimpson both

testified appellant wanted to use lotion on their legs, and the

medical examiner testified there was no evidence of lotion on

the victim's body.   Benton, Anderson, and Swimpson each

testified he physically resisted appellant when appellant

attempted to strangle him.    Anderson testified appellant punched

him in the face.   Appellant notes there were no signs of

                                - 7 -
resistance or defensive wounds found on the victim's body.

Benton, Anderson, and Swimpson each testified appellant used a

thick, leathery strap.   According to the medical examiner, the

victim was strangled with a thin cord.

     Despite the differences discussed by appellant, we find

there are significant similarities between appellant's

encounters with Benton, Anderson, and Swimpson and his encounter

with the victim.   First, all of the men, including the victim,

engaged in consensual homosexual sex with appellant.    Benton,

Anderson, and Swimpson all stated they were using drugs at the

time of their encounters with appellant.    The victim's

post-mortem toxicology report indicated cocaine was present in

his body.   Despite appellant's assertion that he did not pay the

victim to have sex with him, the victim told Arnold Smith and

Nurney he needed money, then he had sex with appellant, and

appellant gave him twenty dollars.     Finally, appellant engaged

in rough sex with Benton, Anderson, and Swimpson.    Benton stated

he was face down on the bed with his hands tied behind his back

when appellant put a strap over his head from behind.      Anderson

said appellant started getting rough during their encounter and

appellant pinned him down on the bed by the back of the neck.

Later, appellant came at Anderson with a strap or rope.

Swimpson stated that during a sexual encounter with appellant,

appellant tried to put a leather strap around his neck.     The



                               - 8 -
victim clearly had engaged in sexual intercourse with appellant

and was strangled from behind with a thin cord.

     We find appellant's encounters with Benton, Anderson, and

Swimpson and the circumstances surrounding the victim's death to

be "sufficiently idiosyncratic and similar to each other to

support an inference of a pattern of operation and the

probability of [a] common [perpetrator]."   Chichester v.

Commonwealth, 248 Va. 311, 328, 448 S.E.2d 638, 649 (1994).

Furthermore, we find the trial court did not abuse its

discretion in concluding the prejudicial effect of Benton's,

Anderson's, and Swimpson's testimony was outweighed by the

probative value of the evidence.

     Appellant next contends the trial court erred in admitting

the portion of his May 6, 1997 statement to police that related

to his sexual encounter with Benton.

     The Commonwealth argues appellant is procedurally barred

from raising this issue on appeal because, pursuant to Rule

5A:18, he did not state a specific basis for his objection.    We

disagree and address the issue on the merits.

     In his brief, appellant only argues that the portion of his

statement to the police regarding his relationship with Benton

is inadmissible for the "same reasons [as] all of Benton's

testimony."   As discussed above, Benton's testimony was

admissible to prove modus operandi.



                               - 9 -
     "The admission of evidence is left to the sound discretion

of the trial court and will be disturbed on appeal only upon a

showing of abuse of discretion."   Langhorne v. Commonwealth, 13

Va. App. 97, 106, 409 S.E.2d 476, 482 (1991) (citing Blain v.

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

(citation omitted)).

     "Evidence is relevant if it has any logical tendency to

prove an issue in a case."   Goins v. Commonwealth, 251 Va. 442,

461, 470 S.E.2d 114, 127 (1996) (citing Coe v. Commonwealth, 231

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

     In this case, appellant's statement to the police regarding

his relationship with Benton was relevant because it

corroborated Benton's admissible testimony.   Therefore, we find

the trial court did not abuse its discretion in admitting

appellant's statement into evidence.

     Finally, appellant contends the trial court erred in

allowing Arnold Smith to testify about the victim's statement

that he was going to appellant's house.

     The trial court ruled Smith's testimony was hearsay, but

ruled it was admissible, over appellant's objection, to show the

victim's state of mind.   The Commonwealth argued the victim's

state of mind was relevant because it corroborated the

Commonwealth's contention that he went to appellant's house.

     Assuming, without deciding, the statement was hearsay, it

was harmless error for the trial court to admit the statement.

                              - 10 -
                  A nonconstitutional error is harmless
             if "it plainly appears from the record and
             the evidence given at trial that the error
             did not affect the verdict." "An error does
             not affect a verdict if a reviewing court
             can conclude, without usurping the jury's
             fact finding function, that had the error
             not occurred, the verdict would have been
             the same."

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991) (en banc)).

        From Smith's testimony, the trier of fact could conclude

the victim knew where appellant's house was located and the

victim planned to go "past" appellant's house to get money.

Smith did not testify as to the time the victim left because he

left prior to the victim's leaving.      Nurney established the

victim left at 2:30 a.m. and did not return.     The victim told

Nurney he was going to get some money and would return in

fifteen minutes.    Nurney's testimony did not indicate the victim

knew appellant or was going to appellant's home.

        Substantively, the inadmissible hearsay adds nothing to the

evidence already before the trier of fact.     Appellant admitted

he and the victim had sex at his home on the evening of July 20,

1996.    From appellant's testimony, the trier of fact could infer

the victim knew where appellant's home was located.     Therefore,

we find, had the hearsay not been admitted, the verdict would

have been the same.



                                - 11 -
     For these reasons, we affirm the judgment of the trial

court.

                                                        Affirmed.




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