                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


EDWARD THOMAS RESIO
                                       MEMORANDUM OPINION * BY
v.       Record No. 0963-97-3    CHIEF JUDGE JOHANNA L. FITZPATRICK
                                            JUNE 2, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                       James W. Haley, Jr., Judge
             Elwood Earl Sanders, Jr., Director
             Capital/Appellate Services (Public Defender
             Commission, on briefs), for appellant.

             Kathleen B. Martin, Assistant Attorney
             General (Richard Cullen, Attorney General, on
             brief), for appellee.



     Edward Thomas Resio (appellant) was convicted in a jury

trial of breaking and entering with the intent to rape in

violation of Code § 18.2-90 and abduction with the intent to

defile in violation of Code § 18.2-48.    He contends the trial

court erred in admitting evidence of his prior convictions for

burglary and rape.    For the following reasons, we reverse the

convictions.

                                  I.

     Appellant was charged with burglary, abduction with the

intent to defile, and attempted rape.    Appellant filed a pretrial

motion to exclude evidence of his prior convictions for burglary

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and rape in August 1978 and a statement made by him to police on

November 16, 1995 when they executed a search warrant related to

the charged crimes.    After hearing argument, the trial court

stated, "[o]n that basis, it's simply too prejudicial."    However,

the trial court found that "[b]ased on Commonwealth v. Spencer

and Commonwealth v. Chichester, and the facts I've heard today

. . . the evidence of prior rape and the statement made by the

defendant during execution of the search warrant are both

admissible and the motion in limine is accordingly denied."
     We view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.     See Smith v. Commonwealth, 26 Va. App. 620,

496 S.E.2d 117 (1998).    At trial, the victim of the charged

offenses, Dorothy Chinn, testified that on November 14, 1995, at

approximately 6:00 p.m., she was walking from her kitchen to her

bathroom when she saw a man wearing a mask and a camouflage

outfit standing in the hallway of her home.    He grabbed Ms. Chinn

by her arms and pulled her into her bedroom.    When she screamed,

he told her to "be quiet," but did not put his hand over her

mouth.   Ms. Chinn continued to fight her attacker, and, after she

kicked him in the groin, the man left the bedroom and went out

the front door.   Ms. Chinn was seventy-four years old at the time

of the attack.

     Detectives Dave Wood and William F. Bowler testified that

the attacker gained entry into the Chinn home through a bedroom



                                   2
window at the back of the house.       By climbing the railing around

the house he was able to remove the window screen and enter.       The

detectives also found a boot print in the bedroom near the

window, which forensic analysis indicated was consistent with

appellant's boot.   Additionally, fibers and hair discovered in

Ms. Chinn's bedding and clothing were found to be consistent with

appellant's clothing and hair.   None of Ms. Chinn's jewelry,

which was visible on the hallway table, had been taken.      Ms.

Chinn told the police that the attacker's voice sounded like "the

Resio boy."   Although appellant lived across the street from Ms.

Chinn and they had a friendly relationship, she had not seen him

for about a year.   Bowler testified that on November 16, 1995,

when police executed the search warrant at appellant's home,

appellant became angry and "said he knew why [the police] were

there, that it was because of his past."      This statement was part

of the evidence ruled admissible at the hearing on appellant's

pretrial motion.
     Margaret Brooks, the victim of appellant's prior crimes,

also testified at trial.   Ms. Brooks stated that on August 25,

1978, she was sixty years old and lived alone.      When she retired

for the evening at 11:00 p.m., appellant was standing in the

bedroom.   Appellant had a t-shirt pulled over his head, but Ms.

Brooks could see his face.   Appellant grabbed Ms. Brooks around

the shoulders, pushed her toward the bed, threw her on it, and

told her to keep quiet, but he did not put his hand over her




                                   3
mouth.    After he raped her, he left by way of the front door.

     Upon investigation it was discovered that appellant had

gained entry to Ms. Brooks' house by climbing a small rail fence

to a low roof and slashing a window screen in a rear bathroom

window.   None of Ms. Brooks' possessions were taken.   Appellant

is Ms. Brooks' husband's great-great-nephew and lived within one

hundred yards of her residence at the time of the attack.    Ms.

Brooks had not seen appellant for at least a year before the

attack.   At his trial in June 1979, appellant pled guilty to

burglary and rape, and was sentenced to twenty years in prison.

He was released from prison in November 1989.
     The jury in the instant case convicted appellant of breaking

and entering with the intent to rape and abduction with the

intent to defile. 1   The trial court sentenced him to twelve years

in prison for burglary and thirty years for the abduction.

                                 II.

     Appellant contends the trial court erred in admitting

evidence of his prior convictions for burglary and rape as proof

of his intent during the charged offenses.    He argues evidence of

the prior crimes lacked probative value to show intent to rape

because the circumstances of the prior crimes were not related to

or connected with the crimes charged.    We agree.

     Whether evidence is admissible falls within the broad

     1
      The trial court granted appellant's motion to strike the
attempted rape charge.




                                  4
discretion of the trial court, and the court's ruling will not be

disturbed on appeal absent a clear abuse of discretion.      See

Miller v. Commonwealth, 15 Va. App. 301, 304, 422 S.E.2d 795, 797

(1992), aff'd, 246 Va. 336, 437 S.E.2d 411 (1993).    "Evidence of

other crimes or bad acts is inadmissible if it is offered merely

to show that the defendant is likely to have committed the crime

charged."   Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d

114, 127, cert. denied, 117 S. Ct. 222 (1996).     The purpose of

this rule is to prevent undue prejudice to a defendant who has a

prior criminal record and to ensure him a fair trial.      See

Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899

(1985).

     However,
          "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."


Hewston v. Commonwealth, 18 Va. App. 409, 412, 444 S.E.2d 267,

268 (1994) (quoting Spencer v. Commonwealth, 240 Va. 78, 89, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990)).     "[E]vidence

of other crimes or other bad acts is admissible when relevant to

prove a material fact or element of the offense.    For example,

'such evidence is permissible in cases where the motive, intent

or knowledge of the accused is involved.'"   Jennings v.

Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755, aff'd en
banc, 21 Va. App. 328, 464 S.E.2d 179 (1995) (citation omitted).




                                 5
 Intent must be proven as a matter of fact where it is an element

of the offense and may be shown by the appellant's actions.     See

Jennings, 20 Va. App. at 17, 454 S.E.2d at 756.

     The Supreme Court's recent decision in Guill v.

Commonwealth, 255 Va. 134, 495 S.E.2d 489 (1998), controls the

present analysis. 2   In Guill, the Supreme Court found the

defendant's 1985 conviction for breaking and entering with the

intent to rape was unrelated to the 1995 charge of breaking and

entering with the intent to rape.     Because "there was no causal

relation or logical connection between the 1985 offense and the

crime charged," the Supreme Court held that "evidence of the 1985

crime was not probative evidence of the defendant's intent in the

crime charged" and was therefore "inadmissible for purposes of

proving that intent."    Id. at 140, 495 S.E.2d at 492-93.

     In the instant case, no evidence suggested that the prior

crime was causally related to or logically connected with the

crime charged.   While the jury could reasonably infer from her

     2
      In Guill, decided after the briefs were submitted, the
Commonwealth introduced evidence of a 1985 burglary and attempted
rape which it argued was sufficiently similar to the charged
burglary to show the defendant's intent was to rape. See Guill
v. Commonwealth, 255 Va. 134, 495 S.E.2d 489 (1998). The trial
court found the circumstances of the prior crime sufficiently
similar to the charged offense and admitted the evidence. The
Supreme Court reversed, noting several factual differences and
holding that "evidence of the 1985 crime was inadmissible . . .
because that offense was not idiosyncratic in relation to the
facts of the present offense. As such, the evidence lacked a
logical relationship to the offenses charged and, thus, was
irrelevant and showed only the defendant's propensity to commit
the crime charged." Id. at 141, 495 S.E.2d at 493.




                                  6
testimony that appellant had the intent to rape Ms. Chinn, the

evidence was also consistent with assault.    Under the Guill

analysis, introduction of appellant's rape conviction as evidence

that he intended rape in the charged offenses was an

impermissible use of prior crimes evidence.




                                7
                                III.

       Additionally, appellant challenges the use of the evidence

of his prior crimes for the purpose of showing his identity as

the criminal agent in the charged offenses.    He contends the

similarities between the two crimes do not show a "singular

strong resemblance" so as to establish identity.    Again, we

agree.

       "[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."     Spencer, 240 Va. at 89,

393 S.E.2d at 616.   The prior crime does not have to be a

"signature" crime but must show "'a singular strong resemblance

to the pattern of the offense charged.'"     Id. at 90, 393 S.E.2d

at 616 (citation omitted).   "[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."    Guill, 255 Va. at 138-39, 495 S.E.2d at

491.

       After excluding the prior crimes evidence for the purpose of

proving intent, the Guill Court considered whether the evidence

was admissible under "any other exception to the general rule

barring admission of 'other crimes' evidence."     Id. at 141, 495

S.E.2d at 493 (citation omitted). The Supreme Court noted that
          when the identity of a perpetrator is at
          issue, evidence of another crime may be
          admitted to prove the actor's identity if the


                                  8
            prior crime bears "a singular strong
            resemblance to the pattern of the offense
            charged" and is sufficiently idiosyncratic in
            relation to that offense to permit an
            inference of a pattern for proof purposes.


Id. (citing Spencer, 240 Va. at 90, 393 S.E.2d at 616).     Although

the defendant's identity was not disputed in Guill, the Supreme

Court assumed without deciding that the same test was applicable

where the identity of the perpetrator was not at issue.     In the

instant case, the identity of the intruder is at issue and the
Spencer test applies, because Ms. Chinn could only identify her

attacker's voice but not his face.    Consequently, the application

in Guill of the Spencer test controls the instant identity

analysis.

     The Guill Court noted that there were significant factual

differences between the 1985 crime and the charged offense:
          [I]n the 1985 crime, the defendant entered a
          house through a rear door and proceeded to an
          upstairs bedroom occupied by two girls, ages
          15 and 16. Here, the defendant used a ladder
          to crawl through a ground floor bathroom
          window after punching holes in the window
          screen. He then walked into the ground floor
          bedroom of two girls who were five and seven
          years of age.
               In the 1985 crime, the defendant got
          into the girls' bed and kissed and attempted
          to rape one of them. Here, there is no
          evidence that the defendant got into the
          girls' bed or touched either girl in any
          manner. Instead the evidence only shows that
          the defendant "got up" before he left the
          girls' room.
               Although the defendant threatened the
          girls' father in this case, he threatened the
          witness in the 1985 crime. Moreover, we note
          that conduct of this nature unfortunately is
          common, rather than idiosyncratic, in this
          type of crime.


                                  9
Guill, 255 Va. at 141, 495 S.E.2d at 493.      The Supreme Court

concluded "[b]ased on the above factual differences, evidence of

the 1985 crime was inadmissible under a Spencer analysis because

that offense was not idiosyncratic in relation to the facts of

the present offense."    Id.

     In the instant case, the age and circumstances of the

victim, the means of entry, the method of attack, and the failure

to take property were all similarities between the prior crimes

and the charged offenses.      However, Sheriff Mitchell Coffey and

Detective William Bowler acknowledged that many of those

similarities were not idiosyncratic but in fact are typical of

these types of crimes.
     Additionally, substantial differences distinguish the two

crimes.   The victim of the charged offenses described her

attacker's disguise as a camouflage outfit and a mask, while Ms.

Brooks testified that in his prior crime appellant wore blue

jeans and merely pulled a t-shirt over his head without covering

his face.   Also, the instant crimes occurred at 6:00 in the

evening, while the prior crimes took place at 11:00 at night.

Finally, the instant victim suffered assault, but not rape, while

Ms. Brooks was raped.

     Under these facts, we cannot hold that appellant's prior

crimes bear "'a singular strong resemblance to the pattern of the

offense charged' and [are] sufficiently idiosyncratic . . . to

permit an inference of a pattern for proof purposes."      Guill, 255




                                   10
Va. at 141, 495 S.E.2d at 493 (quoting Spencer, 240 Va. at 90,

393 S.E.2d at 616).   Therefore, the trial court erred in

admitting evidence of appellant's prior crimes for the purpose of

proving his identity.

     For the foregoing reasons, the convictions are reversed and

the case is remanded for further proceedings if the Commonwealth

be so advised.

                                         Reversed and remanded.




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