                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Malveaux and Senior Judge Frank
            Argued at Hampton, Virginia
PUBLISHED




            SHANNON SHAMAR COUSETT
                                                                               OPINION BY
            v.     Record No. 0967-18-1                                 JUDGE ROBERT J. HUMPHREYS
                                                                             NOVEMBER 5, 2019
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                          Steven C. Frucci, Judge1

                           Annette Miller, Senior Trial Attorney (Office of the Public Defender,
                           on brief), for appellant.

                           Mason Williams, Assistant Attorney General (Mark R. Herring,
                           Attorney General; Kelsey M. Bulger, Assistant Attorney General, on
                           brief), for appellee.


                   On February 6, 2017, appellant Shannon Shamar Cousett (“Cousett”) was indicted in the

            Circuit Court of the City of Virginia Beach (“circuit court”) on the following charges: one count

            of rape of T.H., in violation of Code § 18.2-61; one count of abduction of I.P., in violation of

            Code § 18.2-47; burglary with the intent to commit larceny/assault/battery, in violation of Code

            § 18.2-91; and burglary with the intent to commit rape/robbery/murder, in violation of Code

            § 18.2-90. Cousett was also charged with assault and battery, in violation of Code § 18.2-57.

            The Commonwealth alleged that Cousett committed all offenses on or about August 6, 2016.

            Before trial, Cousett moved to sever the charges, arguing that the charges involving T.H. should




                   1
                     Judge Frucci presided over the trial of this case and signed the final order. Judge
            Stephen C. Mahan presided over the hearing on the Cousett’s motion to sever the offenses for
            separate trials.
be severed from those charges involving I.P. The circuit court, however, denied Cousett’s

motion.

        After a bench trial on December 5, 2017, the circuit court found Cousett guilty of all

charges. The circuit court later sentenced Cousett to a total of fifty years and 365 days of

incarceration, with ten years suspended. On appeal, Cousett argues that the circuit court “erred

in not severing the [I.P.] and [T.H.] offenses inasmuch as the Commonwealth did not prove,

under Rule 3A:10(c) of the Rules of the Supreme Court of Virginia, that (1) justice did not

require separate trials; and (2) that the offenses met one of the criteria as set out in Rule 3A:6.”

                                        I. BACKGROUND

        On August 6, 2016, at approximately 9:30 p.m., T.H. woke up “to a man [she] did not

know inside of [her] in [her] bed.” T.H. clarified that her characterization of the incident meant

that the unknown man forced his penis inside her vagina. T.H. described the man as a “[t]all

African-American” man with a “black do-rag on his head.” After waking up to the assault, T.H.

screamed, yelled, and chased the man out of her apartment. As T.H. chased the man, T.H. saw

him grab a white bag by the front door of the apartment. T.H. later observed that she was

missing fifty dollars, a money order, and a beer from her refrigerator. T.H. was unable to

identify her assailant.

        Approximately ten minutes before the assault took place, T.H.’s neighbor, N.B., observed

a black male standing on the stairs of the apartment complex, wearing all-black clothing and a

black “do-rag.” He also described that the black male was carrying a white “book bag.” A few

minutes later, N.B. witnessed the same black male walk out of T.H.’s apartment building at a fast

pace and followed by T.H. According to N.B., T.H. “started breaking down into tears” and

stated, “I woke up and he was next to me.” N.B. later identified the black male as Cousett, both

in a photo lineup and at Cousett’s trial. Detective Jeffrey Michael Oglesby (“Detective

                                                 -2-
Oglesby”) of the Virginia Beach Police Department administered the photo array to N.B. the

night of the assault on T.H.

       Approximately two hours after the assault on T.H., and within half a mile of T.H.’s

apartment, Cousett entered I.P.’s apartment. At the time, I.P. was sitting on her sofa, and her

front door was unlocked. I.P. described Cousett as “a little bit over average height,”

African-American, and in his mid-to-late forties or early fifties. I.P. also stated that Cousett was

wearing dark clothing and had a “cream colored bag slung over his . . . right shoulder.” I.P.

described that after Cousett entered her apartment, Cousett “latche[d] the door closed and he

turn[ed] around and [said] shh to [her].” I.P. subsequently ran to the door to unlatch it. Cousett

repeatedly punched I.P. on the right side of her head, “four to six” times, until I.P. was able to

unlatch the door. When I.P. twisted the door handle to open it, Cousett pushed the door open and

ran out of the apartment. I.P. was unable to identify Cousett in a photo lineup, but she identified

Cousett as her assailant at Cousett’s preliminary hearing and trial.

       Canvassing the area of the two incidents later that night, Officer William Patrick Ahern,

Jr. (“Officer Ahern”), of the Virginia Beach Police Department discovered a white “drawstring”

bag on a bench in the “convention center area,” approximately a quarter of a mile from I.P.’s

apartment. After Officer Daley of the Virginia Beach Police Department arrived on the scene,

Officer Ahern observed a cell phone, money, and Cousett’s identification card inside of the bag.

Additionally, Officer Ahern observed two red spots on the outside of the bag that he believed to

be blood stains.

       On February 6, 2017, a grand jury indicted Cousett on multiple charges stemming from

the night of August 6, 2016. Regarding the incident involving T.H., the grand jury charged

Cousett with one count of rape of T.H. and burglary with the intent to commit

rape/robbery/murder. Regarding the incident involving I.P., the grand jury charged Cousett with

                                                -3-
one count of abduction and burglary with the intent to commit larceny/assault/battery. Cousett

was also charged with one count of assault and battery against I.P.

       Before trial, Cousett moved to sever the charges involving T.H. from those involving

I.P.2 On May 22, 2017, following a hearing, the circuit court denied Cousett’s motion.3 Cousett

subsequently pleaded not guilty to all charges against him.

       A bench trial took place on December 5, 2017. There, the Commonwealth called eight

witnesses, including T.H., N.B., I.P., Officer Ahern, and Detective Oglesby. Cynthia James

(“James”), a security officer at the Virginia Beach Convention Center, also testified for the

Commonwealth. James worked the night shift from approximately midnight to 8:00 a.m. James

testified that sometime during the night of August 6, 2016, she witnessed two Virginia Beach

police officers retrieve a white bag from a bench outside of the convention center. James also

testified that later that same night, an African-American male, around “forty-ish” with a bald

head and dark clothing, rang the convention center’s doorbell. James explained that the man

asked her “if [she] seen [sic] his white bag” or “if any of [her] guards saw the bag.”

       Officer Ryan Daniel Coon (“Officer Coon”) of the Virginia Beach Police Department

testified at the trial about a consensual encounter with Cousett a few days prior to the attacks on

T.H. and I.P. Specifically, Officer Coon testified that on August 3, 2016, at approximately

3:45 a.m. he spoke with Cousett behind a closed business. The consensual encounter took place



       2
        Although the Commonwealth filed a written response to Cousett’s motion for
severance, Cousett never filed a written motion to sever.
       3
          After denying Cousett’s motion to sever, the circuit court noted that it would be willing
to revisit the motion if Cousett was “successful in a pretrial motion or a motion in limine of some
type in excluding that evidence that you were hoping at some point to exclude.” Cousett,
however, never filed any pretrial motions seeking to limit the circuit court’s consideration of any
evidence. Therefore, to the extent that Cousett now argues that the evidence adduced at trial
would not have been admissible in separate trials, consideration of that argument is barred
pursuant to Rule 5A:18.
                                               -4-
in the vicinity of where the crimes against T.H. and I.P. occurred a few days later. Officer Coon

described Cousett as wearing a black t-shirt, a tan hat, and khaki shorts. Officer Coon also noted

that Cousett was carrying a “white bag.” Officer Coon, however, neither observed nor had any

interaction with Cousett on August 6, 2016.

       At the conclusion of the Commonwealth’s evidence, Cousett made what the circuit court

recognized as a motion to strike and renewed motion to strike the evidence incorporated into his

closing argument. The circuit court, however, denied Cousett’s motion to strike and found

Cousett guilty of all charges. On May 30, 2018, the circuit court sentenced Cousett to a total of

fifty years and 365 days in prison, with ten years suspended.4 This appeal follows.

                                           II. ANALYSIS

                                       A. Standard of Review

       “The question whether an accused, pursuant to Rule 3A:10(c), can be tried in a single

trial for all offenses then pending against that defendant is a matter resting within a trial court’s

sound discretion.” Commonwealth v. Minor, 267 Va. 166, 172 (2004) (citing Cheng v.

Commonwealth, 240 Va. 26, 33 (1990)). Accordingly, “[t]he circuit court’s decision to join

offenses for trial is reviewed for abuse of discretion.” Walker v. Commonwealth, 289 Va. 410,

415 (2015) (citing Scott v. Commonwealth, 274 Va. 636, 644 (2007)). A lower court’s

interpretation and application of the Rules of the Supreme Court, however, presents a question of

law that we review de novo. See id. (citing LaCava v. Commonwealth, 283 Va. 465, 471

(2012)).




       4
         The circuit court sentenced Cousett to ten years in prison for the abduction charge,
specifically, but suspended all of that sentence.
                                                -5-
                                       B. Joinder of Offenses

       Rule 3A:10(c) states that “[t]he court may direct that an accused be tried at one time for

all offenses then pending against him, if justice does not require separate trials and (i) the

offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s

attorney consent thereto.” Here, because Cousett did not consent to be tried in a single trial for

the charged offenses, “the Commonwealth was required to establish both of the two other

conditions of Rule 3A:10(c), namely, that the offenses satisfied the requirements of Rule

3A:6(b), and that justice did not require separate trials.” Scott, 274 Va. at 644.

       Rule 3A:6(b), in turn, provides that two or more offenses may be joined in a single

indictment “if the offenses are based on the same act or transaction, or on two or more acts or

transactions that are connected or constitute parts of a common scheme or plan.” Notably, “[o]ur

Supreme Court has held that the terms ‘common scheme’ and ‘common plan’ are not

synonymous.” Stickle v. Commonwealth, 68 Va. App. 321, 339 (2017) (some internal quotation

marks omitted) (quoting Scott, 274 Va. at 645). However, neither are they mutually exclusive.

Scott, 274 Va. at 646. In Scott, our Supreme Court defined both terms for the first time. A

common scheme is composed of “crimes that share features idiosyncratic in character, which

permit an inference that each individual offense was committed by the same person or persons as

part of a pattern of criminal activity involving certain identified crimes.” Id. at 645 (citations

omitted). A common plan consists of “crimes that are related to one another for the purpose of

accomplishing a particular goal.” Id. at 646 (citations omitted). Further, our Supreme Court has

stated that “offenses may be considered parts of a common scheme or plan when they are

‘closely connected in time, place, and means of commission,’” all of which supports the use of a

single trial. Walker, 289 Va. at 416 (quoting Satcher v. Commonwealth, 244 Va. 220, 229

(1992)).

                                                 -6-
       While somewhat disjointed, Cousett’s argument proceeds on two fronts. First, Cousett

argues that the circuit court erred in permitting the joinder of his charges because the evidence

did not show “enough” of a common scheme or plan. Second, Cousett argues that justice

required separate trials because the Commonwealth improperly used I.P.’s identification to

bolster the T.H. case. More specifically, Cousett relies upon T.H.’s inability to identify her

assailant to argue that the Commonwealth utilized I.P.’s identification “to taint the [T.H.] case

and provide a nonexistent identification.” Accordingly, Cousett argues that the circuit court’s

failure to sever the charges involving T.H. from those involving I.P. amounted to an abuse of

discretion.

       As a preliminary matter, the Commonwealth contends that “[h]ere, the offenses were

connected, and also constituted a common scheme.” Presumptively, the Commonwealth

intended to suggest that the charged offenses were either “based . . . on two or more acts or

transactions that are connected” or part of a common scheme. See Rule 3A:6(b). The

Commonwealth’s supporting argument and analysis, however, limits the argument to only the

“common scheme” requirement under Rule 3A:6(b). Accordingly, we disregard any argument

by the Commonwealth suggesting that the charges against Cousett resulted from the same acts or

transactions. See Rule 5A:21(d).

       The Commonwealth was required to establish that the charges against Cousett were

“closely connected in time, place, and means of commission.” Walker, 289 Va. at 416 (quoting

Satcher, 244 Va. at 229). Here, we conclude that, while connected in time and place, there were

insufficient commonalities in the “means of commission” to support a common plan. In looking

at the similarities between the actions committed by the perpetrator in both the T.H. and I.P.

cases, there are not enough points of commonality to warrant joinder of the trials. The

Commonwealth’s evidence reflects that Cousett entered I.P.’s apartment, located less than half a

                                                -7-
mile from T.H.’s apartment, approximately two hours after breaking into T.H.’s apartment and

raping her. However, the only evidence presented by the Commonwealth to establish a common

plan was that Cousett entered the residences of two female victims through closed but unlocked

front doors. Beyond those two points of similarity, both the indictments and the evidence reflect

that the nature of the offenses committed during the two incidents are different.

       The purpose of Rule 3A:10(c) is to strike a balance between judicial economy and the

danger of unfair prejudice. See Godwin v. Commonwealth, 6 Va. App. 118, 123 (1988) (“The

efficiency promoted by joinder of offenses does not outweigh the harm caused by the

introduction of inadmissible evidence of another crime.” (emphasis added)). The purpose of a

joint trial is not to bypass the requirement of presenting evidence establishing the identity of the

perpetrator for each offense as may be done with other crimes evidence under Virginia Rule of

Evidence 2:404(b). There is no indication that Cousett entered I.P.’s apartment with the intent to

sexually assault her as was the case with T.H., and he was not charged to that effect. In fact, as

soon as I.P. unlatched the door Cousett ran off the premises.

       The Commonwealth’s argument that the offenses were similar because Cousett entered

the apartments of two women through closed, unlocked front doors is the only commonality in

these incidents and is insufficient to join the offenses for trial because “the methods employed in

each [offense] were ‘not unusual,’ and the transactions were not ‘connected’ within the meaning

of Rule 3A:6(b).” Purvis v. Commonwealth, 31 Va. App. 298, 306 (2000). Thus, these two

similarities in the means of commission between the two incidents are insufficient to tie the

offenses together as a common scheme and the circuit court erred in so holding.

                                         C. Harmless Error

       Although the circuit court’s denial of Cousett’s motion to sever was error, the error does

not necessarily require reversal. See id. at 307. “Errors, defects, irregularities or variances that

                                                -8-
do not affect substantive rights shall not constitute reversible error.” Rule 3A:2(a). Because

Cousett “alleges only a violation of Rule 3A:10, we apply the standard for determining whether

non-constitutional error is harmless.” Purvis, 31 Va. App. at 308.

       “Non-constitutional error is harmless ‘[w]hen it plainly appears from the record and

evidence given at trial that the parties have had a fair trial on the merits and substantial justice

has been reached.” Id. (alteration in original) (quoting Code § 8.01-678). In determining

whether an error is harmless, we “must review the record and the evidence and evaluate the

effect the error may have had on how the finder of fact resolved the contested issues.” Id.

(quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1007 (1991) (en banc)).

       As noted, and emphasized above, the purpose of the rule limiting joinder of trials is to

prevent the harm caused by the introduction of otherwise inadmissible evidence of another crime

and not to bypass the requirement of presenting evidence establishing the identity of the

perpetrator for each offense.

       “Ordinarily, error in refusing to sever offenses is harmless if evidence related to each of

the counts would have been admissible in a separate trial of any of the other counts.” Id.

“Conversely, such error may not be harmless if evidence related to each of the counts would

have been inadmissible in a separate trial of any of the other counts.” Id. This rule recognizes

that “in a jury trial, ‘the introduction of admissible evidence of another crime . . . confuses one

offense with the other, . . . and, by showing that the accused has a criminal propensity, tends to

reverse his presumption of innocence.’” Id. at 308 (alterations in original) (internal quotation

marks omitted) (quoting Godwin, 6 Va. App. at 123).

       “However, ‘in a bench trial, the trial judge is presumed to disregard prejudicial or

inadmissible evidence, and this presumption will control in the absence of clear evidence to the

contrary.’” Id. at 309 (quoting Hall v. Commonwealth, 14 Va. App. 892, 902 (1992) (en banc)).

                                                 -9-
In a bench trial, an erroneous refusal to sever offenses is harmless “absent clear evidence that the

trial court (1) considered inadmissible evidence in convicting the accused of the charged

offenses, or (2) used the ‘harmless error doctrine . . . prospectively . . . as a basis to disregard an

established rule of law.’” Id. at 310 (internal citation omitted) (quoting Hackney v.

Commonwealth, 28 Va. App. 288, 296 (1998) (en banc)).

        Here, it is clear that evidence of the crimes committed against I.P. and I.P.’s

identification of Cousett as her assailant would have been admissible at a separate trial for the

charges involving T.H. Pursuant to Virginia Rule of Evidence 2:404(b), such evidence would

have been admissible to show identity, among other things. That rule provides that although

“evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait

of a person in order to show that the person acted in conformity therewith,” the evidence may be

admitted “if it tends to prove any relevant fact pertaining to the offense charged, such as where it

is relevant to show motive, opportunity, . . . identity, absence of mistake, . . . or . . . a common

scheme or plan.” Va. R. Evid. 2:404(b) (emphasis added); see also Severance v.

Commonwealth, 67 Va. App. 629, 647 (2017). While the method of entering the two apartments

was insufficient to warrant joinder of the offenses as a common scheme, that fact combined with

the evidence that within a two-hour period an African-American male entered the closed and

unlocked front doors of two women, whose apartments were located approximately a quarter of a

mile from each other, while carrying a white bag would have been admissible “other crimes”

evidence of identity had there been separate trials.5 Cousett does not assign error to the


        5
         We recognize that there appears to be an anomalous inconsistency between the Supreme
Court’s Rule 3A:10(c) that limits the consideration of other crimes evidence for the purpose of
joinder and that Court’s precedent permitting the admission of other crimes evidence to establish
various facts in issue that necessarily renders harmless any error in a judgment permitting joinder
where the evidence would be admissible in any event in a separate trial. As discussed above, the
purpose of Rule 3A:10(c) is to strike a balance between judicial economy and the potential for

                                                 - 10 -
sufficiency of the evidence, and this evidence would have been admissible in a separate trial on

the issue of identity for whatever weight the factfinder might choose to give it.

       Thus, in the absence of affirmative evidence to the contrary, we are bound by the

presumption that the circuit court judge, acting as the finder of fact in this case, properly and

separately considered only the evidence relevant to the charges in each case. The erroneous

refusal to sever is therefore harmless unless there is clear evidence on the record that the trial

court either considered inadmissible evidence from T.H.’s case in convicting Cousett in the case

involving I.P. or vice versa. The time, location, and description and other details provided by

I.P. regarding her assault and assailant were relevant and admissible to corroborate the identity of

T.H.’s rapist. After reviewing the record under this standard, we conclude “that the parties have

had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678.

       For these reasons, we hold that although the circuit court erred in refusing Cousett’s

motion to sever, the resulting error was harmless under the facts of this case. Therefore, we

affirm Cousett’s convictions.

                                                                                            Affirmed.




unfair prejudice. Though the purpose of judicial economy without a risk of unfair prejudice
would undoubtedly be served by a joint trial whenever the evidence would be admissible in
separate trials in any event, the plain language of the Rule does not currently allow it. Where the
accused or the Commonwealth’s attorney do not agree to joinder, the express language of Rule
3A:10(c) only permits the joinder of offenses in a single trial where (1) the offenses are based on
the same act or transaction, or on two or more acts or transactions that are connected or
constitute parts of a common scheme or plan, and (2) justice does not require separate trials.
Rule 3A:6(b); Rule 3A:10(c). However, absent affirmative evidence rebutting the presumption
of regularity that trial judges and juries follow the law regarding how “other crimes” evidence
may be properly considered, there is no unfair prejudice if evidence would have otherwise been
admissible and thus any error in joinder is rendered harmless.
                                                 - 11 -
