                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia


JOSEPH ANTHONY ROBBINS, SR.
                                                OPINION BY
v.   Record No. 2189-98-4               JUDGE ROSEMARIE ANNUNZIATA
                                             DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                 Carleton Penn, Judge Designate

          Dayton F. Slater, Jr. (Dayton F. Slater,
          Jr., Ltd., on brief), for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Joseph Anthony Robbins, Sr. ("appellant") appeals his

conviction for breaking and entering with intent to commit

assault and battery.   He argues that the circuit court erred in

admitting evidence of his abduction and assault of the victim,

Nate Tilly, two days prior to the date of the offense for which

appellant was convicted.    We find no error and affirm.

                                FACTS

     Upon review, the evidence and all reasonable inferences

which may be drawn from it are viewed in the light most

favorable to the Commonwealth, the party prevailing below.     See

Reynolds v. Commonwealth, 30 Va. App. 153, 156, 515 S.E.2d 808,

809-10 (1999).
        In mid-October, 1997, relations between appellant and Nate

Tilly began to deteriorate.    On an unidentified evening in the

middle of the month, appellant discovered Tilly outside the

bedroom window of appellant's son, Joe Robbins, Jr. ("Joe").

Tilly was attempting to persuade Joe to sell drugs on Tilly's

behalf.    Appellant ordered Tilly off his property, and Tilly

responded by telling appellant that he "did not know who he was

messing with."    Subsequently, at some time prior to October 28,

appellant discovered that someone had broken into his home, and

he suspected Tilly.    On October 28, 1997, appellant and Joe

found Tilly parked by the side of a highway because of a flat

tire.    Appellant parked nearby, approached Tilly, produced a

knife, and ordered Tilly into appellant's car.    As appellant

drove from the scene with Tilly in the car, Joe held a seat belt

around Tilly's neck, and appellant stabbed Tilly in the leg and

threatened him.    Subsequently, appellant stopped the car, pulled

Tilly out, and began to beat him with a wooden bat.    Tilly

managed to escape from appellant and run to a nearby house,

where he called for help.

        This series of confrontations and violence culminated on

October 30, when appellant found a gasoline-filled "Molotov

cocktail" lying directly in front of the door to his house,

caught in a Halloween decoration on the porch.    Suspecting Tilly

of attempting to firebomb his home, appellant and Joe drove to


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the home of Jason Marsten, where they believed they might find

Tilly.   Appellant and Joe knocked on the door and demanded to

know if Tilly was inside.    After making threatening remarks to

the Marstens and two other individuals present, appellant and

Joe returned to their car.    They returned almost at once,

however, and appellant, armed with a billy club, kicked in the

front door while Joe attempted unsuccessfully to kick in the

back door.    Seeing that Tilly was not present, appellant again

returned to his car, and he and Joe left the scene.

     On April 13, 1998, appellant was indicted on a charge of

breaking and entering Marsten's home with intent to commit

assault and battery.    At the jury trial of the charge, the court

admitted, over appellant's objection, evidence that Tilly was

abducted and beaten on October 28, and photographs of the wounds

Tilly sustained to corroborate the incident.    The evidence was

admitted for the purpose of establishing appellant's intent to

administer another beating to Tilly on October 30.    In

conjunction with the admission of the evidence, the court

instructed the jury, inter alia, to

             consider this evidence not for the purpose
             of punishment or guilt or innocence of the
             events [of October 28, 1997], but only for
             the purpose of determining what intent there
             was, if any, to commit assault and battery
             on [October 30, 1997].

     Appellant was convicted in the Circuit Court of Loudoun

County on October 16, 1998.    He contends on appeal that the

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admission of Tilly's testimony relating to the events of October

28, 1997, and of the photographs of Tilly's wounds, was improper

"prior bad acts evidence" and constituted reversible error.    We

disagree.

     Under established Virginia law, "'evidence implicating an

accused in other crimes unrelated to the charged offense is

inadmissible because it may confuse the issues being tried and

cause undue prejudice to the defendant.'"   Shifflett v.

Commonwealth, 29 Va. App. 521, 529, 513 S.E.2d 440, 444 (1999)

(quoting Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d

489, 491 (1998)).   Evidence of such other crimes may be

admitted, however, if relevant 1) to prove any element of the

offense charged; 2) to show the motive, intent, or knowledge of

the accused; 3) to show the conduct and feeling of the accused

toward his victim; or 4) to show premeditation or malice.     See

id. (citing Satcher v. Commonwealth, 244 Va. 220, 230, 421

S.E.2d 821, 828 (1992)).   Thus, because such evidence is

admissible for the enumerated purposes despite the general

prohibition against prior crimes evidence, it may be excluded

only if the prejudicial effect of the evidence outweighs its

probative value, a determination within the trial court's sound

discretion.   See Goins v. Commonwealth, 251 Va. 442, 461-62, 470

S.E.2d 114, 127, cert. denied, 519 U.S. 887 (1996); Wilkins v.




                               - 4 -
Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 443 (1994)

(en banc).

        In the present case, the challenged evidence includes

Tilly's testimony concerning the events of October 28, 1997, and

the photographs of the wounds he sustained on that date.     The

evidence was clearly probative of appellant's intent to

physically harm Tilly when he forced his way into the Marsten

home.    Their relationship had become heated and mutually

assaultive, and on the date in question, appellant forcibly

entered the Marsten home in response to his belief that Tilly

had thrown a "Molotov cocktail" at his house.

        The Commonwealth's proof of appellant's intent was founded

on circumstantial evidence.     See Herrel v. Commonwealth, 28

Va. App. 579, 586, 507 S.E.2d 633, 637 (1998) ("Intent may, and

usually must, be proven by circumstantial evidence."); Long v.

Commonwealth 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989)

(intent may be shown by a person's conduct and statements).      As

such, the Commonwealth had the burden to exclude every

reasonable hypothesis of innocence, see Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993), a

burden it sought to meet by the admission of the challenged

evidence.    The evidence was clearly probative.   In the absence

of the prior crimes evidence, the Commonwealth's proof may not

have fully addressed the reasonable hypothesis of innocence


                                 - 5 -
suggested by the evidence, to-wit, that appellant armed himself

with the club in self-defense and not with the intent to assault

Tilly upon entering the Marsten house.

     Evidence that enhances the likelihood of a guilty verdict

cannot be deemed, on that sole ground, unduly prejudicial to the

defendant.   See Barefoot v. Estelle, 463 U.S. 880, 905-06

(1983); Jennings v. Commonwealth, 21 Va. App. 328, 464 S.E.2d

179 (1995) (en banc).    In the present case, while the severity

of the prior assault on Tilly arguably may have been prejudicial

to appellant's case, the prejudice was not undue.      See Barefoot,

463 U.S. at 905-06.    The jury was "entitled to all relevant and

connected facts . . . even [those that] may show the defendant

guilty of other offenses."    Scott v. Commonwealth, 228 Va. 519,

526-27, 323 S.E.2d 572, 576 (1984); see also Evans v.

Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268, 272 (1975)

(evidence of prior beatings of victim by accused admitted to

prove murder by showing intent to do serious bodily harm,

defendant's feelings toward victim, and to establish the events

leading up to the victim's death).      Finally, any incidental

undue prejudice was diminished and minimized by the court's

instruction that the jury was to consider the evidence only on

the issue of intent.    See LeVasseur v. Commonwealth, 225 Va.

564, 589, 304 S.E.2d 644, 657 (1983); Rodriguez v. Commonwealth,

18 Va. App. 277, 282, 443 S.E.2d 419, 423 (1994).     In sum, we


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find that any incidental prejudice inherent in the evidence of

prior crimes was outweighed by its probative value. 1

     For the foregoing reasons, we affirm the conviction.

                                                        Affirmed.




     1
       Appellant also premises his claim of prejudice on
"surprise," claiming that he had an alibi defense to the prior
crimes charges and was unprepared to address the introduction of
such evidence at the trial of the instant offense. He further
claims that because he was subsequently found not guilty of the
prior offenses, evidence of those offenses should not have been
admitted. Neither claim has merit. The former claim was not
preserved in the lower court, as appellant failed either to
object on these grounds or ask for a continuance to subpoena his
alibi witnesses and otherwise prepare to meet the Commonwealth's
evidence of prior crimes. See Doan v. Commonwealth, 15 Va. App.
87, 94, 422 S.E.2d 398, 401 (1992); Harward v. Commonwealth, 5
Va. App. 468, 473, 364 S.E.2d 511, 513 (1988). The resolution
of the second claim is controlled by Taylor v. Commonwealth, 186
Va. 587, 593, 43 S.E.2d 906, 909 (1947). In Taylor, the Supreme
Court upheld the admission of testimony concerning a criminal
defendant's prior crime, even though the defendant had already
been tried and acquitted of the prior act.


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