                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


TIMOTHY LEON JONES
                                           MEMORANDUM OPINION ∗ BY
v.   Record No. 0367-01-2                 JUDGE SAM W. COLEMAN III
                                                JUNE 25, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

            John A. Rockecharlie (Bowen, Bryant,
            Champlin & Carr, on brief), for appellant.

            John H. McLees, Jr., Senior Assistant
            Attorney General (Randolph A. Beales,
            Attorney General, on brief), for appellee.


     Timothy Leon Jones, appellant, appeals his convictions of

second-degree murder, in violation of Code § 18.2-32, robbery,

in violation of Code § 18.2-58, and two counts of use of a

firearm in the commission of felonies, in violation of Code

§ 18.2-53.1. Appellant raises three issues on appeal:       (1)

whether the trial court abused its discretion by commenting to

the jury on the strength of the Commonwealth's evidence; (2)

whether the trial court abused its discretion by allowing the

Commonwealth to present evidence of other crimes; and (3)

whether the Commonwealth proved appellant's guilt beyond a

reasonable doubt.

     ∗
         Pursuant to Code § 17.1-413, this opinion is not
     We find that the trial court improperly commented to the

jury on the quality and sufficiency of the Commonwealth's

evidence to prove a robbery.    Accordingly, we reverse the

convictions of robbery and use of a firearm in the commission of

robbery and remand those matters to the circuit court for

retrial if the Commonwealth be so advised.    We further find that

the trial court did not err by allowing the introduction of

evidence of other crimes committed by Jones.    Furthermore, we

find the evidence sufficient to support Jones' convictions for

second-degree murder and use of a firearm in the commission of

murder, and we affirm those convictions.

                              BACKGROUND

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

"The credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995).   "In its role of judging witness credibility, the

fact finder is entitled to disbelieve the self-serving testimony

of the accused and to conclude that the accused is lying to

conceal his guilt."   Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998).     The trier of fact is not


designated for publication.

                                - 2 -
required to accept a party's evidence in its entirety, Barrett v.

Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986), but

is free to believe and disbelieve in part or in whole the

testimony of any witness,    Rollston v. Commonwealth, 11 Va. App.

535, 547, 399 S.E.2d 823, 830 (1991).

     In this light, the evidence showed that on May 13, 2000,

Keith Harris loaned appellant a .22 caliber handgun.   Later

Harris saw appellant point the weapon at a man named "Pops," who

had approached appellant to buy drugs, and demand money from

"Pops."   "Pops" gave appellant his money and walked off without

having purchased drugs.   Harris also testified he was selling

drugs that day and at approximately 4:30 a.m., on May 14,

Annabelle Tafolla approached him to buy crack cocaine.   Because

Harris only had imitation crack cocaine, he directed her to

appellant.   Harris heard appellant tell Tafolla to "give [him]

the fucking money" while appellant pointed the same gun at her.

When Tafolla did not immediately comply, appellant shot at her.

Tafolla began to run but then she stopped and turned and gave

appellant her money.   She collapsed in the street a short

distance away, where she died from multiple gunshot wounds from a

.22 caliber handgun.
     As to the other crimes evidence, James Yellardy testified

that on the evening of May 13, appellant came to his home, and

asked for money.   Yellardy replied he did not have any money.

Appellant left, but returned later that night and pointed a gun

at him and demanded money.   Yellardy still claimed not to have

any money, and appellant's girlfriend, Adeline Coleman, convinced

appellant to leave without further incident.

                                - 3 -
       Coleman testified and corroborated Yellardy's account of the

incident involving Yellardy.   She also recounted that thereafter

she and appellant went to her home and smoked crack cocaine and

drank beer.    Appellant wanted more crack cocaine and told Coleman

he was going to look for some, although he only had seven

dollars.    A few minutes after appellant left, Coleman followed

him.   She saw appellant, Harris and Tafolla together. It appeared

that appellant and Tafolla were arguing and that Tafolla would

not give appellant money.   Coleman then saw appellant hit Tafolla

and Tafolla fell to the ground.    Although she heard gunshots, she

did not see who had or was firing the gun.
       Coleman ran back to her home.    Shortly thereafter, appellant

arrived at Coleman's home and asked her to get him out of the

neighborhood. Coleman arranged for her daughter Yolanda to give

them a ride.   Yolanda drove them to another neighborhood in

Richmond.   On the way there appellant told Coleman's other

daughter when she returned home to look under Coleman's bed for

something hidden there.    When the daughter returned home she

found between the mattresses a handgun, which later was

determined to be the murder weapon.

       At trial, appellant testified that it was Harris who had the

weapon and shot Tafolla.    Appellant claimed Harris came to

Coleman's house and hid the gun.   Appellant testified the

witnesses, including himself, were afraid of Harris, which

explained why the Commonwealth's witnesses had testified

untruthfully at trial and why appellant had lied to his attorney

in claiming an alibi.



                                - 4 -
     During jury deliberations, the jury inquired whether

appellant could be convicted of robbery when the jurors did not

recall any evidence of appellant taking any money from Tafolla.

The trial judge responded there was "ample evidence as to that

point, if you believe it.    If you don't believe it then there is

no evidence heard.    But, if you believe it then there is ample

evidence."    Soon thereafter the jury returned with guilty

verdicts on all counts, including the charges of robbery and use

of a firearm in the commission of robbery.    The robbery verdict

form reflected at some point the jury had filled out the "not

guilty" verdict but had changed it to a "guilty" verdict.

                               ANALYSIS

                           Judge's Comments

     "[I]n the trial of a criminal case it is of great

importance that the court leave to the jury, exclusively, the

consideration of the facts."     Johnson v. Commonwealth, 193 Va.

502, 505, 69 S.E.2d 340, 341 (1952).

             The high official position of the trial
             judge in a criminal case gives great weight,
             with the jury, to his words and conduct, and
             it is incumbent upon him to guard against
             any manifestation of his opinion either upon
             the weight of the evidence or the
             credibility of the witnesses. "All
             expressions of opinions, or comments, or
             remarks, upon the evidence, which have a
             tendency to intimate the bias of the court
             with respect to the character or weight of
             the testimony, particularly in criminal
             cases, are watched with extreme jealousy and
             generally considered as invasions of the
             province of the jury." He should preside
             with impartiality and "not express or



                                 - 5 -
          intimate an opinion as to the credibility of
          a witness or as to controverted facts."

Mazer v. Commonwealth, 142 Va. 649, 653-54, 128 S.E. 514, 515

(1925) (citations omitted).

          "It is well, too, to remember that in
          Virginia, it is the duty of the trial judge
          to interpret and to apply the law; but it is
          the peculiar duty of the jury to evaluate
          the evidence. A judge must not express or
          indicate by word or deed, an opinion as to
          the credibility of a witness or as to the
          weight or quality of the evidence. Any
          question or act of the judge which may have
          a tendency to indicate his thought or belief
          with respect to the character of the
          evidence is improper, and should be
          avoided."

Holober v. Commonwealth, 191 Va. 826, 840, 62 S.E.2d 816, 822

(1951) (citation omitted).

     The foreperson indicated the jury did not recall any

evidence of a taking by appellant of currency or anything else

from Annabelle Tafolla.   In response, the trial judge reiterated

the jury's right and duty to assess the credibility of the

witnesses by telling them that they were entitled to determine

what evidence to believe or disbelieve.   The trial judge did not

instruct the jury that they were to rely on their recollection

of the evidence.   The trial judge did not provide them an

opportunity to review the evidence or the record.   Instead, the

judge stated unequivocally that "ample" evidence of a taking

existed, if they chose to believe it.   The judge's response told

the jury what the judge's assessment was of the quality and


                               - 6 -
weight of proof as to an essential element of the robbery and

firearm charge at the time the jury was deliberating on the

charges.    By so doing, the judge invaded the province of the

jury.

        We cannot say that the judge's comments to the jury that

"ample" evidence existed to prove an essential element of two of

the charged offenses was harmless error.    Moreover, on the

record, it appears that the judge's comments directly affected

the jury's deliberation and may have caused them to change their

verdict.

        The jury's verdict form of "not guilty," at some point in

time, had been signed by the foreman, but when returned to the

court the "guilty" verdict form was signed.      It appears,

therefore, the judge's comments in response to the jury's

question influenced the jury's deliberations and deprived

appellant of a fair trial on the robbery and firearm issue.

Such error is not harmless.    Accordingly, we reverse and remand

the judgments of conviction for robbery and use of a firearm in

the commission of robbery.

                         Other Crimes Evidence

        "As a rule, evidence of other criminal conduct is

inadmissible . . . . However, evidence of other criminal conduct

is admissible if it tends to prove any relevant element of an

offense charged.    The exceptions allow the evidence to be

considered when it tends to prove method, intent, identity, or

                                 - 7 -
criminal agency."   Burley v. Commonwealth, 29 Va. App. 140, 144,

510 S.E.2d 265, 267 (1999) (citations omitted).   Further,

evidence of other crimes may be admissible to connect a

defendant to a murder weapon.    Id. at 145, 510 S.E.2d at 146;

see also Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377

(1988); Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539

(1984).   Evidence of other criminal acts is also admissible

"where the evidence is connected with or leads up to the offense

for which the accused is on trial . . . [and] where the other

crimes constitute a part of the general scheme of which the

crime charged is a part."   Kirkpatrick v. Commonwealth, 211 Va.

269, 272, 176 S.E.2d 802, 805 (1970).

     Appellant initially filed notice that he intended to

present evidence of an alibi.   At trial, appellant abandoned his

alibi defense and claimed he was present at Tafolla's murder,

but it was Harris who had the gun and shot Tafolla.   The

Commonwealth was charged with the duty to prove the essential

element that appellant was the criminal agent who committed the

murder and used a firearm to commit the murder.

     The Commonwealth's evidence showed that, hours before the

murder, appellant attempted to rob James Yellardy and did rob

"Pops" of money, at gunpoint with Harris' gun.    The evidence of

these other offenses committed by appellant within hours of the

charged offense are relevant in several respects.   First, the

evidence of the repeated robberies committed by appellant within

                                - 8 -
hours of the charged murder proved appellant's general scheme or

plan to rob people at gunpoint of their money to enable

appellant to buy drugs.   The evidence tends to prove both motive

and identity which are admissible to show that the appellant

rather than some other person committed the offenses.    The other

crimes evidence was highly probative to prove that appellant

rather than Harris committed the crimes and to establish how and

when appellant came into possession of Harris' handgun.   The

witnesses identified the murder weapon as the same gun used in

the other robberies committed by the appellant hours before the

murder.   Thus, the other crimes evidence also was relevant to

place the murder weapon in appellant's hands, despite his denial

that he killed Tafolla.   In summary, the evidence was relevant

and admissible to prove motive, criminal agency, appellant's

general scheme or plan of which the robbery and murder of

Tafolla were a part, and to prove that appellant possessed the

murder weapon shortly before he killed Tafolla.   The probative

value of the evidence outweighed any prejudice to appellant.

Therefore, the trial court did not err by allowing the

introduction of evidence concerning other crimes.

                    Sufficiency of the Evidence

     Appellant asserts the evidence was not sufficient to

support the murder and use of a firearm in the commission of

murder convictions because the testimony of the Commonwealth's

witnesses was incredible.   "The conclusions of the fact finder on

                               - 9 -
issues of witness credibility 'may only be disturbed on appeal if

this Court finds that [the] [witnesses'] . . . testimony was

"inherently incredible, or so contrary to human experience as to

render it unworthy of belief."'"    Moyer v. Commonwealth, 33 Va.

App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc) (citation

omitted).   The testimony of the Commonwealth's witnesses was not

inherently incredible, nor was their testimony contrary to human

experience.   Basically, all of the witnesses testified that

appellant was attempting to obtain money from various people

during a one-day period in order to buy drugs by threatening them

with a .22 caliber handgun that he borrowed from Harris.     On the

occasion that he threatened Tafolla, whom he knew had money

because she was there to purchase drugs, appellant shot her when

she refused to part with her money.      In particular, Harris

testified he saw appellant point Harris' gun at Tafolla and

demand her money.   Harris testified that Tafolla gave appellant

her money after he began shooting her.     Tafolla subsequently died

from the gunshot wounds.   The evidence was sufficient to support

the convictions of second-degree murder and use of a firearm in

the commission of murder and was not inherently incredible or

contrary to human experience.    Although we are reversing and

remanding the robbery and use of a firearm in the commission of

robbery convictions, we address appellant's appeal of the

sufficiency of the evidence as to those charges.     For reasons

similar to the above discussion, we hold that the proof of the

offenses was supported by testimony that is sufficient, if

believed by the jury, to prove the offenses beyond a reasonable

doubt.

                                - 10 -
     Accordingly, we affirm the convictions for second-degree

murder and use of a firearm in the commission of murder.   We

reverse the convictions for robbery and use of a firearm in the

commission of robbery and remand for a new trial if the

Commonwealth be so advised.

                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




                              - 11 -
Benton, J., concurring, in part, and dissenting, in part.

     I join in the parts of the opinion styled Background and

Judge's Comment and, therefore, I concur in reversing the

convictions for robbery and use of a firearm in commission of the

robbery.    I do not join in the part of the opinion styled Other

Crimes Evidence.    The sole disputed issue at trial was whether

Leon Jones or Keith Harris robbed and killed Annabelle Tafolla

after she sought to purchase cocaine from Harris.   Based upon

Harris' testimony, the Commonwealth contended Jones was the

perpetrator of the robbery and murder.   Jones testified, however,

that Harris was the perpetrator.   For the reasons that follow, I

would reverse the murder conviction and remand it also for a new

trial.
     In the Commonwealth's case-in-chief, Harris testified he

sold illegal drugs, had been convicted of ten felonies, and often

carried guns.   Harris also testified that on May 13, 2000, the

day before the charged murder and robbery, he owned and possessed

the .22 caliber handgun, which was used to murder Tafolla.    When

asked if he knew Jones, Harris testified that he had "seen

[Jones] before" and had sold drugs to Jones.   Harris also

testified that, on May 13 he gave his .22 caliber handgun to

Jones.   He did not testify that he sold the gun to Jones and did

not explain the circumstances in which he gave Jones the gun.      He

also did not testify that Jones did not return the gun to him on

the 13th.

     Over defense counsel's objection, Harris was permitted to

testify he was with Jones on May 13 when Jones robbed a man using

the gun.    Over objection, James Yellardy also was permitted to

                               - 12 -
testify that at another occasion on May 13 Jones entered his

house, put a gun to his head, and demanded money.      He testified

that Jones left without obtaining any money because a friend

intervened.   Yellardy did not describe the gun Jones used.     The

friend who intervened testified that the revolver looked like the

gun she was shown at trial.

     Harris further testified that on May 14 Tafolla approached

him and asked him to sell her cocaine.    Although he sells

cocaine, Harris testified that he only had imitation cocaine and

decided not to sell it to her.   He admitted he "was planning [to

rip her off]," but testified that, instead, he referred her to

Jones who was standing next to him.    Harris testified that Jones

demanded money from Tafolla and then shot her.       Harris provided

the only testimony that Tafolla was robbed, that Jones was the

murderer, and that Jones, not Harris, used Harris' gun to rob and

kill Tafolla.
     The Commonwealth argued at trial that the evidence of the

robbery and attempted robbery on May 13 was offered to establish

a modus operandi, which would prove the identity of Jones as the
killer.   The trial judge agreed and permitted the evidence.     On

appeal, the Commonwealth argues that "the prior robbery and

attempted robbery . . . [were] closely and strongly related to

the crimes on trial, and had a strong logical tendency to prove

that it was [Jones] who murdered [the woman], and that he did so

because he found it necessary in order to rob her."      The majority

holds that the evidence was admissible to prove identity, a

common scheme or plan, and motive.     I disagree.




                              - 13 -
     The general rule regarding the use of "other crimes"

evidence is well established.

              Evidence that shows or tends to show a
           defendant has committed a prior crime
           generally is inadmissible to prove the crime
           charged. Such 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.

           *       *     *       *       *     *      *

           Further, the admission of such "other
           crimes" evidence is prohibited when its only
           purpose is to show that the defendant has a
           propensity to commit crimes or a particular
           type of crime and, therefore, probably
           committed the offense for which he is being
           tried.

Guill v. Commonwealth, 255 Va. 134, 138-39, 495 S.E.2d 489,

491-92 (1998).

     Positing merely that the evidence was offered to prove

identity is an insufficient basis to satisfy the test of

admissibility.   "[E]vidence of other crimes . . . is allowed if

relevant to show the perpetrator's identity when some aspects of

the prior crime are so distinctive or idiosyncratic that the fact

finder reasonably could infer that the same person committed both

crimes."   Id. at 139, 495 S.E.2d at 491.    Here, the evidence

raises no suggestion of distinctive or idiosyncratic patterns of

robbery.   Thus, the trial judge erred in admitting the evidence

for that reason.

     The majority also posits that the evidence establishes a

common scheme or plan.   No evidence established, however, that

the attempted robbery and robbery, which the Commonwealth alleged


                                - 14 -
occurred the previous day, were linked to a scheme to rob or

shoot Tafolla on May 14.    Those other crimes were unconnected to

the robbery of Tafolla and were not necessary to prove the

circumstances surrounding the robbery and murder.

     In addition, this evidence of a prior robbery and attempted

robbery had no tendency to prove motive.     The Commonwealth's own

evidence proved the motive for the murder was the robbery that

was contemporaneous with it.    No evidence tended to prove the

robberies the Commonwealth alleges occurred the previous day were

the motive for either the robbery or the murder on May 14.
     The allegation that the evidence was offered to prove

identity, a common scheme or plan, and motive camouflages its

real vice.    At its core, this evidence was offered to suggest to

the jury that Jones, not Harris, had a propensity to rob and

that, therefore, the jury should use that factor in deciding to

believe Harris and not Jones.    Indeed, the prosecutor argued to

the jury, "one of the most important things for you to judge is

who is telling the truth and who is telling a lie in this case."

Specifically, the prosecutor argued:

             [Harris] told you the truth. He gave the
             gun to [Jones] earlier. The gun went from
             there to robbing [one man], to robbing
             [another man], to robbing and killing [the
             woman who sought to buy drugs].

     The principle is well established that "it is improper to

use evidence that a defendant has committed another crime when it

has 'no connection with the one under investigation . . .

[because those] other acts of criminality . . . are not legally

relevant and should not be [used] to prejudice the defendant or

to create a probability of guilt.'"      Id. at 140, 495 S.E.2d at

                                - 15 -
492 (citation omitted).    The evidence proved both men had the gun

on May 13.   The prosecutor used the evidence of robberies to

argue, however, that proof that Jones committed a robbery and an

attempted robbery the previous day was the basis for the jury to

conclude that Jones must have killed Tafolla in this instance

because the Commonwealth's evidence proved Jones, and not Harris,

had a pattern of committing robberies.

     The prejudicial effect of presenting this evidence to the

jury outweighed any probative value.    The Commonwealth's own

evidence proved the motive for the murder was the robbery that

was contemporaneous with it.   Harris testified that Jones used

Harris' gun to rob and kill Tafolla.    Thus, without the improper

evidence of the alleged robbery and attempted robbery, the

Commonwealth had evidence from which the jury could have

concluded that Jones shot Tafolla in order to obtain money.
     Unlike the circumstances in Burley v. Commonwealth, 29 Va.

App. 140, 146-47, 510 S.E.2d 265, 268 (1999), the evidence of the

other crimes did not "inextricably" link the gun to Jones during

the shooting of Tafolla.   The evidence proved two people, Harris

and Jones, had the gun the day before the murder.   Harris owned

the gun on the previous day and testified that he gave Jones the

gun on May 13.   Harris also admitted he was present for the

purpose of selling drugs when Tafolla was shot.   Because both

Harris and Jones were present when Tafolla was murdered, proof

that Jones had possession of the gun on May 13 did nothing more

than tend to prove Jones had a propensity to rob.   Evidence of

"criminal propensity . . . , is inadmissible because it confuses

one offense with another, unfairly surprises the defendant with a

                               - 16 -
charge he is unprepared to meet, and tends to reverse his

presumption of innocence of the crime on trial."   Meadows v.

Commonwealth, 9 Va. App. 243, 246, 385 S.E.2d 906, 908 (1989).

     In addition, proof that suggested by inference that Jones

was a person inclined to commit robberies (and that Harris, the

Commonwealth's witness, was not) tended to distract the jury and

sway the jury toward giving greater credit to Harris' testimony

because "of collateral facts or those incapable of affording any

reasonable . . . inference on the matter in issue."     Boggs v.
Commonwealth, 199 Va. 478, 486, 100 S.E.2d 776, 772 (1957).

Harris was a drug dealer whom Tafolla initially approached.     He

owned the murder weapon, "hang[s] out with guns a lot," and has

been convicted of ten felonies.   Only Harris testified that

Tafolla was robbed.   This evidence of other robberies was offered

to deflect the jury from Harris' patently transparent testimony

that he referred the woman to Jones for a drug transaction

because Harris, who had in his possession imitation cocaine to

sell, was too nice to sell Tafolla imitation cocaine.    By

allowing this evidence of other crimes, the judge put Jones in

the position of defending "other misconduct and other crimes

. . . for which he was not then on trial."   Id. at 488, 100

S.E.2d at 773.   I would hold that this evidence violates the

fundamental principle that "the legitimate probative value of

[other crimes] evidence must exceed the incidental prejudice

caused the defendant."   Guill, 255 Va. at 139, 495 S.E.2d at 492.

     In short, the evidence proved Tafolla was killed by a bullet

from Harris' gun.   Only Harris testified that Jones robbed and

killed her.   Jones testified that Harris robbed and killed her.


                              - 17 -
The Commonwealth sought to have the jury resolve this credibility

dispute and conclude that Jones, not Harris, must have been the

killer because Harris testified the woman was robbed by Jones,

who the Commonwealth alleged was an accomplished robber.   The

evidence proved only propensity conduct and was impermissibly

offered for that purpose.

     For these reasons, I would reverse both convictions and

remand for a new trial.




                             - 18 -
