                    COURT OF APPEALS OF VIRGINIA


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


PAUL ALLEN FRIEDLINE
                                          MEMORANDUM OPINION * BY
v.   Record No. 0113-99-4                  JUDGE CHARLES H. DUFF
                                               APRIL 4, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                   Herman A. Whisenant, Jr., Judge

           John E. Gullette for appellant.

           Marla Graff Decker, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Paul Allen Friedline (appellant) appeals from his

convictions in the Circuit Court of Prince William County for

carjacking, robbery, and using a firearm in the commission of

those two crimes.   Appellant contends the trial court erred when

it admitted evidence pertaining to a burglary and larceny that

occurred the same night and in the same locality as the crimes for

which appellant was convicted.   Finding no error, we affirm the

judgment of the trial court.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                           Background

     Appellant was charged in connection with the March 8, 1998

carjacking of Cindy Loring, and the robbery of Michael Boyer.

During its case-in-chief, the Commonwealth presented evidence

tending to prove appellant's involvement in the March 8, 1998

burglary of Dorothy and Scott Register's residence.   The trial

court overruled appellant's objection to this evidence.

     Dorothy Register testified that she left her residence on

the afternoon of March 6, 1998, and when she returned on March

9, 1998, she discovered that her house had been burglarized.

The perpetrators stole, among other items, seven long guns

(rifles and shotguns), two handguns, a holster, a box of

ammunition, and some cigars.   There was mud all over the

interior of the house, and muddy footprints led from the back of

the house to the Registers' back fence.   There was mud on the

fence bordering the Registers' neighbor's property, and Scott

Register found a pager approximately one foot from the fence.     A

trail of muddy footprints on the sidewalk in front of the

neighbor's house led to a house under construction where some of

the Register's stolen property was subsequently recovered.

     Mrs. Register testified that the only light she left on

when she left the house on March 6 was in the kitchen.    Kevin

Hansen testified that he was on the Register's property at

10:00 a.m. on March 8 and saw no evidence of a burglary, but



                               - 2 -
between 8:00 and 10:00 that evening, he saw a dim light coming

from one of the Register's upstairs windows.

     Cindy Loring testified that on the night of March 8, 1998,

she had stopped her vehicle at a stop sign when two men wearing

"white sheets or something" 1 over their heads ran up to her car.

One of the men, who was armed with a handgun, broke Loring's

driver's side window with the gun and began to hit Loring.

Before pulling Loring from the car and fleeing in the vehicle,

one of the men stuck a hot object on the back of Loring's neck,

leaving a circular-shaped burn.

     Jean Hassan and Michael Boyer testified that around

11:00 p.m. on March 8, 1998, they were robbed by two men armed

with handguns, each of whom was wearing "a hood or mask" over

his head.   The robbers took Boyer's wallet, which contained

sixty dollars.

     Peggy Dixon recalled an incident where appellant and Brian

Calvin came to her house between midnight and 1:00 a.m.    She

stated that it was raining that night and the two men were

covered with mud.   After Dixon's son refused the men's request

for a ride, Calvin made a telephone call from Dixon's house.

     Cheryl Richards testified that Calvin called her sometime

after 11:00 p.m. on March 8, 1998, and asked her for a ride.


     1
       Officer Landu testified that Loring reported that the
culprits had "white pillowcases or sheets or something white
over their faces."


                               - 3 -
She drove to an agreed location where appellant and Calvin

entered the car.    Richards testified that the two men were muddy

and that they told her to "get them out of there."    She drove

them to Washington, D.C., where the two men purchased marijuana.

On the way to Washington, appellant handed a wallet to Calvin,

who threw it out of the car.    The men also discarded their muddy

shoes.

     Upon returning from Washington, appellant and Calvin

directed Richards to drive them to a house under construction,

which appellant and Calvin then entered and exited several

times.    Richards testified that appellant and Calvin argued

about the fact that something they were looking for was not

there.    She noted that appellant was carrying a bag that was

similar in appearance to a pillowcase.

     Richards later dropped off appellant and Calvin at Eric

Stokes' residence.    Upon cleaning the interior of her vehicle,

Richards discovered a holster and a box of ammunition under her

car seats. 2   Calvin subsequently called Richards and told her

that he had left something "hot" in her car.

     Stokes testified that when appellant and Calvin arrived at

his house, they were wet and muddy.     Calvin related to Stokes

how he and appellant had carjacked a woman, and described how he

had broken the woman's car window with his gun.    Calvin also



     2
         Richards testified that she disposed of these items.

                                - 4 -
told Stokes about subsequently robbing a couple. 3   Stokes

indicated that Calvin and appellant told him about stealing guns

and an ammunition box from a house that night.

     Shortly after midnight on March 9, 1998, and approximately

one hour after responding to the Loring carjacking scene,

Officer Landu discovered some of the Registers' stolen property

at the house under construction.    Landu testified that it had

been raining all night and that the property around the house

under construction was extremely muddy.   The Registers' two

handguns, the holster, the ammunition box, and the cigars were

not among the items recovered.

     Detective McClellan testified that the Register house was

approximately two blocks from the house under construction where

the Registers' property was recovered.    The house under

construction was approximately one mile from where Loring was

carjacked.   McClellan stated that Loring's car was recovered a

few minutes' drive from the place the carjacking occurred and

that the Hassan/Boyer robbery scene was approximately four

hundred yards from where the police found Loring's car.       During

the course of his investigation, McClellan attempted to have

Richards identify the house under construction where she drove

appellant and Calvin that night.    Although she was unable to



     3
       Appellant did not object to this testimony.   See Lilly v.
Virginia, 527 U.S. 116 (1999).


                                 - 5 -
identify the exact house, Richards led McClellan to the street

where Landu found the Registers' stolen property in a house.

     Dontae Carter was incarcerated with appellant when

appellant was served with the carjacking and robbery

indictments.   Appellant told Carter about a carjacking he had

committed, about going back to a house to recover some guns that

turned out not to be there, and going to "Eric's" house.

Appellant also related that his accomplice had lost a pager.

                              Analysis

               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. However, such
          evidence is admissible if it tends to prove
          any element of the offense charged, even
          though it also tends to show that the
          defendant is guilty of another crime.

Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127

(1996) (citations omitted).

     Other crimes evidence "is permissible in cases where the

motive, intent or knowledge of the accused is involved, or where

the evidence is connected with or leads up to the offense for

which the accused is on trial."   Kirkpatrick v. Commonwealth,

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

          Where a course of criminal conduct is
          continuous and interwoven, consisting of a
          series of related crimes, 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,

                               - 6 -
          including those which followed the
          commission of the crime on trial, as well as
          those which preceded it; 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); see Rodriguez v. Commonwealth, 249 Va. 203, 206, 454

S.E.2d 725, 727 (1995) (evidence of prior crimes admissible

where they "constitute a part of the general scheme of which the

crime charged is a part").

     "In addressing the admissibility of other crimes evidence

the court must balance the probative value of the evidence of

the other offenses and determine whether it exceeds the

prejudice to the accused.    The court's weighing of these factors

is reviewable only for clear abuse of discretion."     Pavlick v.

Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 923-24

(1998) (en banc).     "'[T]he test for admission of evidence of

other crimes is met when there is "a causal relation or logical

and natural connection between the two acts, or they . . . form

parts of one transaction."'"     Bullock v. Commonwealth, 27 Va.

App. 255, 261, 498 S.E.2d 433, 436 (1998) (quoting Guill v.

Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489 492 (1998)).

     In Bullock, the defendant was charged with a November 21,

1996 robbery, during which the victim was shot.    A witness for

the Commonwealth testified that on December 31, 1996, he

committed a robbery using a sawed-off shotgun that he borrowed

from the defendant.     See id. at 259, 498 S.E.2d at 434-35.     The

                                 - 7 -
witness further testified that he purchased this shotgun from

the defendant on January 6, 1997.    The Commonwealth presented

evidence that police recovered the shotgun after it was thrown

from a car occupied by the witness and the defendant.       The

victim testified that the shotgun looked identical to the weapon

employed against him by the defendant during the November 21,

1996 robbery.     See id. at 259, 498 S.E.2d at 435.

     We held that the probative value of this evidence

outweighed any prejudice suffered by the defendant.      See id. at

263, 498 S.E.2d at 436-37.    The challenged evidence tended to

prove that the defendant, who presented alibi evidence, was the

perpetrator of the robbery and malicious wounding for which he

was charged.     See id. at 262-63, 498 S.E.2d at 436-37.

     In Kirkpatrick, the defendant was charged with aiding and

abetting the May 20, 1968 robbery of a hotel clerk.      See

Kirkpatrick, 211 Va. at 269-70, 176 S.E.2d at 803.     The robber

had committed the crime using a sawed-off shotgun.     The robber

was subsequently apprehended, with the shotgun, in the

defendant's hotel room, but the defendant denied any knowledge

of the robber.     See id. at 270-72, 176 S.E.2d at 804-05.       Over

the defendant's objection, the Commonwealth presented evidence

tending to prove that the defendant stole the shotgun from his

former employer on the afternoon of May 19, 1968.      See id. at

271, 176 S.E.2d at 804.



                                 - 8 -
     The Supreme Court upheld the admission of this evidence,

holding that the evidence was

           "so intimately connected and blended with
           the main facts adduced in evidence, that
           they cannot be departed from with propriety;
           and there is no reason why the criminality
           of such intimate and connected
           circumstances, should exclude them, more
           than other facts apparently innocent." It
           is impossible from a fair reading of the
           evidence in this case to disassociate
           Kirkpatrick from the theft of the gun that
           was used in the robbery.

Id. at 276, 176 S.E.2d at 807-08 (citation omitted).

     The evidence regarding the Register burglary and larceny

tended to prove appellant's involvement in a series of crimes,

all of which occurred within a span of a few hours on the night

of March 8, 1998, and in close physical proximity to one

another.   There was evidence from which the jury could infer

that handguns stolen from the Register household were

subsequently employed in the carjacking and the robbery and that

the circular-shaped burn wound inflicted on Loring was caused by

a lit cigar stolen from the Registers' house.   Additionally, the

robbery and carjacking victims indicated that the perpetrators

had been wearing sheets or pillowcases over their heads, and

Richards testified how she saw appellant carrying a

pillowcase-like bag that night.

     The evidence tending to link these crimes was particularly

relevant because none of the victims was able to identify either

of the perpetrators.   Appellant did not have the right to

                                - 9 -
exclude this evidence merely because it tended to prove that he

was involved in a crime for which he was not being tried.

Accordingly, we hold that the trial court did not err in

concluding that the burglary evidence was probative, and did not

abuse its discretion when it admitted this evidence because its

probative value outweighed its prejudicial effect. 4

     Moreover, even if we assume that the trial court erred by

admitting this evidence, any such error was harmless.    "In

Virginia, non-constitutional error is harmless '[w]hen it

plainly appears from the record and the evidence given at the

trial that the parties have had a fair trial on the merits and

substantial justice has been reached.'"    Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (citation omitted).    The testimony of Stokes and

Carter, coupled with the other non-burglary evidence, was

sufficient to prove beyond a reasonable doubt that appellant and

Calvin perpetrated the carjacking and the robbery.




     4
       Appellant contends on appeal that, in addition to his
general objection, the scope of the burglary evidence presented,
such as the Registers' daughter's reaction to the break-in, and
the photographs of the Register home, exceeded that necessary to
prove the carjacking and the robbery. Other than posing his
general objection to the burglary evidence, appellant did not
object to the relevancy of the evidence cited to in his brief.
Accordingly, he did not preserve this issue for appeal. See
Rule 5A:18.

                                - 10 -
     For the reasons stated above, the judgment of the trial

court is affirmed.

                                                       Affirmed.




                             - 11 -
Benton, J., dissenting.

        Paul Allen Friedline was tried by a jury for the following

offenses which occurred on March 8, 1998:     carjacking, robbery,

use of a firearm in the carjacking and use of a firearm in the

robbery.    Although the trial judge allowed the Commonwealth to

prove facts concerning a burglary, that evidence was not

relevant to any issue at trial, was unduly prejudicial, and

should have been ruled inadmissible.

        The evidence proved that on the night of March 8, 1998, in

Dale City, two men wearing white material over their heads

approached Cindy Loring while she sat in her automobile with a

friend.    Loring testified that it was "raining pretty hard."

One of the men had a gun and broke a window of her automobile.

After hitting Loring, the two men pulled Loring and her friend

out of the automobile and drove away in Loring's automobile.

Loring did not see the faces of the men and could not identify

them.

        At eleven o'clock that same night, Jean Hassan and her

friend, Michael Boyer, were sitting in her automobile when two

men ran to her automobile.    Each man had a handgun and was

wearing a white hood over his head.      The men took Hassan's car

keys and Boyer's wallet and ran away.     Neither Hassan nor Boyer

could identify the robbers.

        After 11:00 p.m., Cheryl Richards responded to a telephone

call from Brian Calvin and drove to Dale City to meet Calvin and

                                - 12 -
Friedline.   When they entered her car, they were "muddy" and

told her to "get them out of there."    Friedline had a white bag

that was "puffed up."   As she drove them to Washington, D.C.,

Friedline gave Calvin several items, including a wallet.     Calvin

threw them out the car window.   Friedline and Calvin also

discarded their muddy shoes out the window.

     Later, Richards drove Friedline and Calvin back to Dale

City and followed their direction to a house under construction.

Both men entered the unfinished house and returned to the car.

They argued because they could not find something for which they

were searching.   Richards then drove them to Eric Stokes'

residence.

     Stokes testified that both men were wet and muddy when they

arrived at his residence and that it was raining.   Stokes

testified without objection that Calvin told him about several

events that occurred that night.   Calvin said he and Friedline

pulled a girl out of the car and took her car.   They then drove

near Charles Street and robbed another woman and a man at

gunpoint.

     An inmate who was confined in jail testified that he met

Friedline in jail after the robberies.   According to him,

Friedline showed him the indictments charging the carjacking and

two armed robberies.    He testified that Friedline admitted

committing those crimes and described to him how "he went upon a



                               - 13 -
car . . . [,] got the girl out of the car . . . [and] they took

the car."

     Over objection, the Commonwealth was permitted to prove

facts concerning a burglary that occurred sometime between

4:00 p.m., Friday, March 6, 1998, and the night of Sunday, March

8, 1998.    The prosecutor proffered that the evidence of this

burglary proved a "common scheme and plan," "opportunity to

commit the crime," "intent," and "identity."    The trial judge

ruled that the burglary evidence was admissible and that "[t]he

weight to be given it will be for the [jury]."

     The evidence concerning the burglary proved that on March

8, an hour after Loring's automobile was taken, the officer

investigating that crime received a report from a resident of

Dale City that "suspicious persons [were] in front of his

house."    The officer went to investigate.   He testified as

follows:

            I had taken a prior burglary report earlier
            that day. We were informed by a citizen
            that there was -- That whole area is under
            construction. There were some houses that
            were under construction at the time in that
            area and local juvenile young adults had
            been hanging out in the houses and possibly
            that were involved with these burglaries.

The officer went into some of the houses that were under

construction and testified that the area was very muddy.    He

found in one of the unfinished houses a large bag full of guns

and other items that he concluded were stolen.    He seized the


                               - 14 -
bag and its contents and recorded them as "found property."     The

police did not then know to whom the property belonged.

     On Monday, March 9, 1998, at 4:00 p.m., Dorothy Register

telephoned the police to report that a burglary had occurred at

her residence.   Register left home at 4:00 p.m. on Friday, March

6, and discovered, when she returned on Monday, March 9, that

someone had broken into her home.   The burglar had tracked mud

throughout the residence and had taken property, including

several rifles and handguns.   Thus, the evidence proved that a

burglary occurred at the Registers' residence after 4:00 p.m.,

March 6, and before the police found the Registers' property

late Sunday night, March 8.    The Registers' residence is near

the houses that were being constructed.

     The trial judge erred in permitting the Commonwealth to

prove facts concerning the burglary because "[e]vidence that

shows or tends to show a defendant has committed a prior crime

generally is inadmissible to prove the crime charged."     Guill v.

Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998).

"This is because such evidence confuses one offense with the

other, unfairly surprises the defendant with a charge he is

unprepared to meet, and, by showing that the [defendant] has a

criminal propensity, tends to reverse his presumption of

innocence of the crime on trial."    Lewis v. Commonwealth, 225

Va. 497, 502, 303 S.E.2d 890, 893 (1983).   Evidence of other

crimes may be admitted as an exception to the general rule only

                               - 15 -
when it is "relevant to an issue or element in the . . . case."

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

899 (1985) (citing Kirkpatrick v. Commonwealth, 211 Va. 269,

272, 176 S.E.2d 802, 805 (1970)).   "Among other exceptions,

evidence 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.

     The only contested issue at Friedline's trial was the

identity of the men who robbed Loring, Hassan, and Boyer.

Indeed, on appeal the Commonwealth notes in its brief that

"identity obviously was an issue . . . [and] it was the only

real issue in the case."   The Commonwealth contends, however,

the evidence concerning the burglary was relevant to prove

identity and proved "the defendant's role as the criminal agent,

by connecting him to the weapons which in turn facilitated the

carjacking and robbery."

     To support an exception to the rule barring evidence of

other crimes, it is not sufficient to assert, as does the

Commonwealth, that identity is an issue and then offer evidence

of other crimes without proving a logical nexus between identity

and the other crimes.   To be admissible as evidence of identity,

the prior crime does not have to be a "signature" crime,

however, it must show "'a singular strong resemblance to the

                              - 16 -
pattern of the offense charged.'"    Spencer v. Commonwealth, 240

Va. 78, 90, 393 S.E.2d 609, 616 (1990) (quoting United States v.

Shackleford, 738 F.2d 776, 783 (7th Cir. 1984)).   The

Commonwealth did not proffer and the evidence did not establish

a similarity or pattern between the carjacking and robbery for

which Friedline was tried and the burglary of the Registers'

residence.   The Commonwealth is asking this Court to assume a

connection between the crimes based on "sheer speculation,

unsupported by the evidence."    Tucker v. Life Ins. Co. of Va.,

228 Va. 55, 62, 321 S.E.2d 78, 82-83 (1984).   No evidence

proved, however, that anything about the burglary and the crimes

for which Friedline was tried was "'sufficiently idiosyncratic

to admit an inference of pattern for purposes of proof,' [and]

thus tend[ed] to establish the probability of a common

perpetrator."   Spencer, 240 Va. at 90, 393 S.E.2d at 616

(citation omitted).

     Moreover, even assuming Friedline placed the Registers'

property in the unfinished house or discovered the property in

the unfinished house after the burglary, those facts do not tend

to prove Friedline's identity as one of the persons who robbed

Loring, Hassan, and Boyer.   No evidence remotely proved that the

guns used in the Loring, Hassan, and Boyer robberies were so

distinctive that they could only have come from the Registers'

residence.   The guns the robbers used were neither described by

the victims nor recovered by the police.   The Commonwealth's

                                - 17 -
theory is based on a speculative assumption that only the person

who committed the burglary of the Registers' residence had

possession of handguns.

     This country is awash with handguns.    It is a rank

speculation to assume that an armed robber must have committed a

burglary where a gun was taken merely because the robbery

occurred near in time and location to the burglary.      "Like any

other element of a crime, [identity] must be proved as a matter

of fact and may not be the subject of surmise and speculation."

Guill, 255 Va. at 139, 495 S.E.2d at 492 (citation omitted).

     To be admissible under the identity exception, prior crimes

evidence must also meet "the further requirement that the

legitimate probative value of the evidence must exceed the

incidental prejudice caused to the defendant."     Id.   Friedline

contends the evidence lacked any probative value and served only

the highly prejudicial purpose of suggesting that he "was likely

to commit the crime charged in the indictment."     Kirkpatrick,

211 Va. at 272, 176 S.E.2d at 805.    I agree.   Although

Friedline's identity was at issue in the case, the evidence of

the burglary at the Registers' residence was not probative of

the identity of the men who robbed Loring of her automobile and

Hassan and Boyer of their property.   Indeed, no physical

evidence proved Friedline was ever in the residence and no one

testified that he was seen in the residence.     Significantly,



                             - 18 -
Friedline has never been tried for or convicted of committing

the burglary.

     The same weekend as the Registers' home was burglarized,

the police received a report of another burglary in the vicinity

of the unfinished houses where the Registers' stolen property

was recovered.   The Commonwealth does not contend Friedline was

involved in the other burglary.    The officer who found the

Registers' property testified that a citizen told him some

"local juvenile young adults had been hanging out in the houses

[under construction] and possibly . . . were involved in the

burglaries."    The officer also testified that the area around

the unfinished houses was muddy.   Thus, the Commonwealth

presented evidence from which the trier of fact could only

speculate about who committed the burglary.   Although

Friedline's friend said that Friedline was wet and muddy when he

entered her car, the evidence failed to prove that the mud in

the Registers' house came from Friedline.   The evidence proved

that it was "raining pretty hard" on at least one day that

weekend and that the Registers' home is near the muddy

construction site where the juveniles, who were suspected of

burglaries, were seen.   Therefore, from this evidence, the trier

of fact could only conclude that anyone walking around in the

area could have tracked mud into the Registers' home.

     The Commonwealth also argues that Friedline "was intimately

connected with . . . a criminal rampage" and "the offenses were

                               - 19 -
part-and-parcel to 'a course of criminal conduct' which was

'continuous and interwoven.'"    In this case, however, evidence

of prior crimes is neither "connected with [nor] leads up to the

offense for which the accused is on trial."     Kirkpatrick, 211

Va. at 272, 176 S.E.2d at 805.    Not only is there no evidence of

a "criminal rampage," the cases upon which the majority opinion

relies to support the theory that the burglary was evidence of a

rampage are distinguishable from the present case.

   In Bullock v. Commonwealth, 27 Va. App. 255, 498 S.E.2d 433

(1998), the evidence proved that after Bullock robbed and shot

the victim using a sawed-off shotgun, he sold the same shotgun

to a friend who testified to that effect at Bullock's trial.

See id. at 259, 498 S.E.2d at 434-35.    Further, the Commonwealth

proved that police recovered the same shotgun after Bullock and

his friend threw it from a vehicle which they occupied.      See id.

at 259, 498 S.E.2d at 435.    Unlike Bullock, no evidence in this

record proved the guns stolen from the Registers' home were used

in the robbery or the carjacking.    In addition, no evidence

proved that Friedline was ever in possession of the Registers'

guns.

        In Kirkpatrick, the evidence proved that a robbery was

committed using a sawed-off shotgun and that the robber was

apprehended in Kirkpatrick's hotel room with the same shotgun in

his possession.     See 211 Va. at 270, 176 S.E.2d at 803.   The

Supreme Court of Virginia affirmed the trial judge's decision to

                                - 20 -
allow the admission of evidence that Kirkpatrick had previously

stolen the shotgun from his former employer.    See id. at 276,

176 S.E.2d at 807-08.    Thus, unlike in Kirkpatrick, no evidence

in this record connected the weapons used in the carjackings or

the robberies with the guns stolen from the Registers.

     To be admissible, a prior crime must be "'so intimately

connected and blended with the main facts adduced in evidence,

that they cannot be departed from with propriety.'"    Id.   The

majority opinion holds that "[t]here was evidence from which the

jury could infer that handguns stolen from the Register

household were subsequently employed in the carjacking and the

robbery and that the circular-shaped burn wound inflicted on

Loring was caused by a lit cigar stolen from the Registers.    I

disagree.   As previously stated, to support such an inference,

it is not enough to prove merely that guns were stolen from the

Registers and that guns were used in the carjacking and robbery.

The guns used in the carjacking and robberies were neither

identified nor recovered by the police.

     Likewise, evidence that cigars were stolen from the

Registers certainly does not support an inference that when

Loring was burned by an unidentified circular object during a

pouring rain, a cigar from the Registers' home caused the burn.

Contrary to the majority opinion's suggestion, no evidence in

this record tends to prove that the burn wound Loring suffered

was caused by a cigar.   Moreover, the further suggestion that,

                               - 21 -
therefore, the cigar was taken from the Registers' residence is

a speculative inference drawn on a speculative inference.

     The trier of fact could only speculate whether Loring was

burned by a cigarette, a cigar, or some other object carried by

one of the robbers during the heavy rainstorm that night.

Likewise, the trier of fact could only speculate about the

origin of the white pillowcase-like bag that Friedline had when

he was in Richards' automobile.   No evidence remotely tends to

prove it came from the Registers' residence.

     Proof of the burglary only served to suggest by innuendo

that Friedline committed the burglary and, thus, had a

propensity to commit crimes.   That evidence had no bearing on

the charged robbery and was unduly prejudicial.   Therefore, I

would reverse the convictions and remand for a new trial.

     I dissent.




                               - 22 -
