                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Senior Judge Willis
Argued at Chesapeake, Virginia


FELIPE LAYUG, III
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2332-05-1                                     JUDGE LARRY G. ELDER
                                                                   OCTOBER 2, 2007
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                 Joseph A. Leafe, Judge

                 James P. Normile, IV (Zoby & Broccoletti, P.C., on brief), for
                 appellant.

                 Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Felipe Layug, III (appellant) appeals from his jury trial convictions for carjacking,

statutory burglary, attempted robbery, robbery, four counts of abduction, and eight counts of

using a firearm in the commission of a felony. On appeal, he contends the court abused its

discretion in admitting evidence related to the subsequent killing of his accomplice, a crime

appellant did not commit but that apparently occurred while appellant and the accomplice

attempted a different robbery in another city a few hours later. We hold the trial court did not

abuse its discretion by admitting the evidence of the accomplice’s subsequent killing because

appellant challenged the Commonwealth’s identification of him as one of the perpetrators of the

charged offenses, the evidence of the accomplice’s death tended to prove appellant’s identity as a

perpetrator of the charged offenses, and the challenged evidence was more probative than

prejudicial. Thus, we affirm appellant’s convictions.

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                       I. BACKGROUND

       The evidence supported a finding that appellant and an accomplice, Anthony Hawkins,

committed the charged crimes in Norfolk shortly after 10:00 p.m. on July 26, 2004. They fled

the scene in a Chrysler Sebring taken from the possession of one of the victims. Shortly before

midnight in the City of Newport News, appellant and Hawkins were involved in a shooting while

traveling in the stolen Sebring, perhaps while attempting to commit an additional robbery.

Hawkins apparently was shot in the course of that attempted robbery and died from his wounds.

       Prior to appellant’s trial in Norfolk for the instant offenses, he moved to exclude any

evidence “pertaining to the alleged murder [in Newport News] of Anthony Hawkins,” including

“gruesome pictures” of Hawkins. He argued it was other crimes evidence for which no

recognized exception applied or, even if an exception did apply, that the evidence of the murder

was more prejudicial than probative. Appellant did not expressly contest the admission of

evidence that he and Hawkins may have been engaged in another attempted robbery when the

fatal shooting of Hawkins occurred. The Commonwealth responded that the evidence that

Hawkins was shot in Newport News, which resulted in smears of Hawkins’s blood being

deposited in the Sebring, was admissible to prove Hawkins and appellant were in recent

possession of the Sebring, which in turn was probative of appellant’s guilt for the carjacking of

the Sebring and the related home invasion robbery in Norfolk. The trial court agreed and denied

the motion.

       In a subsequent jury trial in which the Commonwealth introduced evidence relating to

both the Norfolk and Newport News events, the jury found appellant guilty of all charged

offenses that occurred in Norfolk. The trial court accepted the jury’s recommendation of the

minimum sentence for each offense and, additionally, suspended a portion of those sentences.




                                               -2-
                                         II. ANALYSIS1

       “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.” Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The abuse-of-discretion

standard applies to the admissibility of “photographs of [a] victim’s body or wounds,” even

autopsy photographs, as long as the photographs “are relevant and material . . . [and] not unduly

inflammatory.” Edwards v. Commonwealth, 10 Va. App. 140, 142, 390 S.E.2d 204, 205 (1990).

       Evidence of other crimes committed by an accused usually is incompetent and

inadmissible to prove the accused likely committed the particular crime charged. Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). This rule exists to prevent

“confusion of offenses . . . and a suggestion of ‘criminal propensity,’ thus preserving the

‘presumption of innocence.’” Crump v. Commonwealth, 13 Va. App. 286, 289, 411 S.E.2d 238,

240 (1991) (citations omitted). These principles apply not only to other crimes but to any

“independent acts” likely to confuse the jury. Id. (emphasis added). We need not analyze in this

case the precise limits of the “independent acts” that may be subject to these principles because,

assuming without deciding the killing of appellant’s accomplice by an unknown third party falls


       1
          The Commonwealth contends any error in admitting evidence of Hawkins’s murder was
harmless. Appellant’s only argument on brief, contends the Commonwealth, is that the jury’s
knowledge of Hawkins’s murder adversely affected its decision regarding his sentence. As the
Commonwealth accurately points out, however, the jury recommended sentencing appellant to
the mandatory minimum term for each conviction. Thus, the record contains no indication that
admission of evidence about Hawkins’s murder had any adverse effect on appellant’s sentences.
         Nevertheless, appellant’s brief also challenges the impact of the evidence at issue on his
ability to “receive[] . . . a fair trial.” Appellant’s concession on brief that the record contained
sufficient evidence to convict him without the questioned testimony and evidence does not
amount to a concession that the admission of the evidence, if erroneous, was harmless in the guilt
phase. See, e.g., Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000)
(en banc) (noting in context of constitutional error that “‘harmless error analysis . . . [is not]
simply a sufficiency of the evidence analysis’” (quoting Hooker v. Commonwealth, 14 Va. App.
454, 457-58, 418 S.E.2d 343, 345 (1992))). Thus, we consider on the merits whether the
admission of the challenged evidence in the guilt phase constituted error.
                                                    -3-
into this category of potentially prejudicial “independent acts,” we conclude, infra, that

admission of evidence of the killing did not constitute reversible error on these facts. 2

       Other crimes or “independent acts” evidence may be admissible under limited

circumstances, for example, “to prove any element of the offense charged [or] to show the

motive, intent, or knowledge of the accused.” Shifflett v. Commonwealth, 29 Va. App. 521, 529,

513 S.E.2d 440, 444 (1999).

               Where a course of criminal conduct is continuous and interwoven
               . . . , the perpetrator has no right to have the evidence “sanitized”
               so as to deny the jury knowledge of all but the immediate crime for
               which he is on trial. The fact-finder is entitled to all of the relevant
               and connected facts, including those which followed the
               commission of the crime on trial, . . . even though they may show
               the defendant guilty of other offenses.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984) (emphasis added).

However, even where evidence is relevant to prove one of these issues, it is admissible only if

the trial court, exercising its discretion, determines the probative value of the evidence outweighs

any prejudicial effect. E.g. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).

       Where evidence of other crimes or “independent acts” is relevant to prove an element that

is “genuinely uncontested, any nominal probative value will be easily outweighed by the danger

of prejudice.” Blaylock v. Commonwealth, 26 Va. App. 579, 592, 496 S.E.2d 97, 103 (1998).

However, where an issue or element is contested, “the Commonwealth [is] not obliged to have




       2
          Appellant did not object to the testimony at trial that Newport News police “identified
multiple witnesses to an attempted robbery scenario.” His only preserved objection was his
pre-trial motion to exclude evidence of Hawkins’s murder, which he described as “gruesome
pictures, a lineup for a murder suspect and other related evidence of [the] murder.” Appellant
objected when the Commonwealth, in opening, referred to appellant’s and Hawkins’s driving to
Newport News and deciding they were going to commit a robbery there. However, after stating
that he objected, appellant’s counsel approached the bench for a side-bar conference that was not
transcribed, and the court overruled the objection without elaboration.

                                                -4-
faith that the [fact finder] [will] be satisfied with any particular one or more of the items of

proof.” Pittman v. Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 694, 696 (1993).

       Where a particular piece of evidence is admissible for one purpose but not another, a

limiting instruction may be appropriate to minimize the risk of prejudice, and the jury is

presumed to have followed such an instruction, absent clear evidence to the contrary. Burley v.

Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265, 269 (1999); see also Powell v.

Commonwealth, 13 Va. App. 17, 27-28, 409 S.E.2d 622, 628-29 (1991) (noting exception for

evidence so prejudicial that jury cannot be expected to follow limiting instruction). However,

where a defendant does not request a cautionary instruction and the Commonwealth does not rely

on the evidence for an improper purpose, the issue has been waived, and we need not consider

whether the trial court erred in failing to give a cautionary instruction. See McLean v.

Commonwealth, 32 Va. App. 200, 216 n.1, 527 S.E.2d 443, 451 n.1 (2000).

       Here, the evidence that Hawkins was shot and died in Newport News, obtained as a result

of three telephone calls to Newport News police, was highly relevant to prove appellant and

Hawkins were the perpetrators of the Norfolk offenses, including the carjacking. The first call,

received less than two hours after the Norfolk offenses, concerned shots fired in an apparent

“attempted robbery scenario” in Newport News and a man seen picking a body up out of the

road and fleeing the scene with the body in a car resembling the Chrysler Sebring carjacked in

Norfolk. The second call concerned a body found several miles away from the scene of the

attempted Newport News robbery shortly thereafter and later identified as Hawkins. The third

concerned an abandoned Chrysler Sebring, found in Newport News about twenty-four hours

after the shooting, which contained the rental agreement bearing the name of one of the Norfolk

abduction victims and was determined to be the carjacked vehicle. The car was also later

determined, via DNA evidence, to have Hawkins’s blood spattered throughout the interior.

                                                 -5-
       This DNA evidence definitively linked Hawkins to the carjacked vehicle and, coupled

with testimony from a witness who knew appellant and Hawkins personally and testified they

were traveling together immediately before and after the shooting in a car that closely resembled

the carjacked Sebring, this DNA evidence also linked appellant to the carjacked vehicle. As a

result of this link, two victims of the Norfolk offenses were able to identify Hawkins and

appellant as the perpetrators of those offenses. Thus, the evidence of Hawkins’s shooting in

Newport News was highly probative of appellant’s identity as one of the perpetrators of the

Norfolk offenses, an element challenged by appellant throughout his trial.

       Further, the record supports a finding that the probative value of this evidence

outweighed any claim of prejudice. The Commonwealth introduced a single photograph of

Hawkins taken during his subsequent autopsy rather than at the scene of his murder. The

photograph depicted only Hawkins’s face and head, which was necessary to allow the

Commonwealth’s witnesses to identify Hawkins for the purpose of linking him and appellant to

the charged offenses. Although the photograph shows what appears to be a bullet wound in

Hawkins’s forehead, the wound also appears to have been cleaned before the photograph was

taken, and the photograph shows only a small amount of blood. No evidence in the record

indicates appellant was the person who shot Hawkins, and the Commonwealth made no

argument to that effect. The Commonwealth also did not attempt to use evidence that Hawkins’s

death might have occurred during the attempted commission of another robbery to argue

improperly that appellant had a propensity to commit such crimes.

       To the extent the Commonwealth may have suggested in argument that appellant was

indirectly responsible for Hawkins’s death based on his and Hawkins’s joint participation in a

two-man “crime wave” that started in Norfolk and ended in Newport News “after five victims

and one dead person later,” the record contains no indication that appellant contemporaneously

                                               -6-
objected to these comments on the grounds alleged on appeal.3 Although appellant moved prior

to trial to exclude all evidence related to Hawkins’s death, the trial court, as previously

discussed, did not abuse its discretion in admitting this evidence as probative of the identity of

appellant as one of the perpetrators. Further, the record contains no indication that appellant

objected to what it now terms the Commonwealth’s repeated references to Hawkins as a “dead

person” or “the deceased.” Assuming appellant would have been entitled, in his trial for the

offenses against the four Norfolk victims, to an instruction cautioning the jury not to consider

any responsibility they might feel appellant had in Hawkins’s death in Newport News, appellant

made no contemporaneous request for a cautionary instruction. Thus, he failed to preserve such

a claim for appeal. In any event, the Commonwealth’s repeated statements to the jury that

appellant was not on trial for any of the events that occurred in Newport News served much the

same purpose.

                                                 III.

       For these reasons, we hold the trial court did not abuse its discretion in admitting the

challenged evidence of the killing of appellant’s accomplice. Thus, we affirm the convictions.

                                                                                      Affirmed.




       3
           See supra note 2.
                                                -7-
