                      COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


ISRAEL MUSA SHAW
                                              MEMORANDUM OPINION * BY
v.   Record No. 0357-98-2                      JUDGE ROBERT P. FRANK
                                                   JULY 20, 1999
COMMONWEALTH OF VIRGINIA


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

          Matthew P. Geary (Goodwin, Sutton, DuVal &
          Geary, on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Israel Musa Shaw (appellant) appeals his conviction after a

jury trial of abduction and using a firearm during the

commission of a felony (abduction).     On appeal, he challenges

the trial judge’s denial of his motion for a mistrial and the

trial judge’s denial of his request for a cautionary

instruction.   We conclude that the trial court erred and reverse

the convictions and remand for a new trial.

                            I.   BACKGROUND

     According to well-settled principles of appellate review,

we recite the facts in the light most favorable to the

Commonwealth, the prevailing party below.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On December 10, 1997, appellant was convicted of abducting

Alyssa Meyer and using a firearm during the commission of the

abduction.

     Meyer drove into the parking lot of her apartment building

on September 14, 1997 at 11:00 p.m.     She removed some groceries

from the trunk of her car and walked towards the apartment

building.    A man, later identified as Duane Washington, came up

behind her.   When she turned around, he had a gun to her head.

The man demanded her keys, forced her to walk back to her

vehicle, made her open the trunk and told her to get inside.

She hesitated, and then saw appellant approach.    Meyer testified

that appellant told her that she “better get in the car.”      The

first man, Washington, took her identification and keys.       Then,

she struggled as someone attempted to push her into the trunk of

her car.    She was able to break free and run.   As she was

running, she was tackled from behind, and, then, was struck in

the forehead with the gun.   She was able to escape a second time

and screamed for help.   Someone inside the apartment building

came out onto a balcony and yelled at the men.    Appellant and

Washington ran away.

     Officer Kenneth Coleman testified that he received a radio

call regarding the abduction and stopped appellant a mile to a

mile and one-half from the apartment building because he matched

Meyer’s description of one of the suspects.    Meyer’s description

to police was that the suspect was wearing a gray shirt with

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“USA” and a flag on it.   Appellant was wearing such a shirt.

Officer Coleman testified that appellant was out of breath,

breathing heavily, and nervous when he stopped appellant on the

street.   Appellant agreed to return to the scene with Officer

Coleman, and, there, Meyer identified him as one of the men

involved in the abduction.

     On direct examination, Duane Washington, a witness for the

Commonwealth, testified that he pled guilty to robbery,

abduction and two counts of use of a firearm during the

commission of a felony.   He stated that the Commonwealth had

made no promises to him in exchange for his testimony.    He

testified that he and appellant were best friends and that

appellant was with his cousin, Lamont, and another friend,

Cartwright, on the night of September 14, 1997.    Appellant and

his cousin had some guns that night, and appellant said he

wanted to rob someone.    Washington gave appellant a mask, and

the four men went to Meyer’s apartment building.   They were

there for twenty-five to thirty minutes.   When no one would do

anything, Washington took the mask and ran up behind Meyer.

     Washington grabbed Meyer.    Appellant then came out with the

gun and told her to get in the trunk of her car.   Meyer got

scared, and when appellant put the gun down, she ran.

Washington testified that Meyer was never hit with the gun.

Appellant’s cousin, Lamont, cut Meyer off as she was trying to



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run away, and appellant then hit her a couple of times.

Washington admitted to hitting her once.

     On cross-examination, Washington was asked about two

charges against him that had been dropped:

          [DEFENSE COUNSEL]: Didn’t you just come in
          here a couple of hours ago and he [the
          prosecutor] dropped a couple of charges
          against you in return for your plea of
          guilty; do you remember that?

     The Commonwealth’s attorney then said, before Washington

could respond to defense counsel’s question and in the presence

of the jury, “They were dropped for the defendant [appellant]

also, Judge.”

     Defense counsel moved for a mistrial.   The trial judge told

defense counsel to move on and overruled the motion.

     Washington then testified that the charges had not been

dropped, and the following exchange occurred:

          [DEFENSE COUNSEL]: They weren’t dropped?
          So, if he [the prosecutor] just said that
          they were he is lying now, too?

          [TRIAL JUDGE]:   He didn’t say that, Mr.
          Geary.

     Defense counsel again asked Washington whether the charges

were dropped.

          [TRIAL JUDGE]: Wait a minute, Mr. Geary.
          Let’s get the whole fact out. Two charges
          were dropped against him [Washington] and
          two charges were dropped against him
          [appellant], which were identical. Don’t
          play games.



                               - 4 -
     Defense counsel again asked Washington about the charges

being dropped.

             [WASHINGTON]: Well, it was said, I mean,
             but I haven’t seen any papers. But, he told
             me that two charges were dropped against me
             and two charges were dropped against him
             [appellant] that way both of us have the
             same charges.

     At the conclusion of the evidence, the defense renewed its

motion for a mistrial and motion to strike.    Both motions were

denied.   The defense also requested a cautionary instruction

regarding the Commonwealth’s attorney’s statement about the

charges against appellant that were dropped, and the Court

denied the request.

     Appellant was acquitted of robbery and use of a firearm

during the commission of a robbery, but he was convicted of

abduction and use of a firearm during the commission of an

abduction.

                            II.   ANALYSIS

     Appellant’s first assignment of error is that the trial

court erroneously denied his motions for a mistrial that arose

because of the prosecutor’s statement in front of the jury

regarding the two charges against appellant that were dropped.

We agree with appellant.

     “A trial court exercises its discretion when it determines

whether it should grant a motion for a mistrial.    Whether

improper evidence is so prejudicial as to require a mistrial is


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a question of fact to be resolved by the trial court in each

particular case.”    Beavers v. Commonwealth, 245 Va. 268, 280,

427 S.E.2d 411, 420 (1993) (citing Lewis v. Commonwealth, 211

Va. 80, 83, 175 S.E.2d 236, 238 (1970)).   Therefore, “[u]nless

[the appellate court] can say that the trial court’s resolution

of that question was wrong as a matter of law, it will not

disturb the decision on appeal.”    Id. (citing Spencer v.

Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990)).

However, “[w]hen the evidence is so prejudicial that it

‘probably remained on the minds of the jury and influenced their

verdict,’ . . . the judgment will be reversed on appeal.”     Id.

(citing Asbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d

239, 241-42 (1970)).

     Evidence of other crimes or bad acts of an accused are

generally inadmissible in a criminal prosecution.     See

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970).    “The purpose of this rule is to prevent confusion

of offenses, unfair surprise to the defendant and a suggestion

of ‘criminal propensity,’ thus preserving the ‘presumption of

innocence.’”    Crump v. Commonwealth, 13 Va. App. 286, 289, 411

S.E.2d 238, 240 (1991) (citing Lewis v. Commonwealth, 225 Va.

497, 502, 303 S.E.2d 890, 893 (1983); Sutphin v. Commonwealth, 1

Va. App. 241, 245-46, 337 S.E.2d 897, 899 (1985)).

     Courts have recognized exceptions to the general rule

excluding evidence of other crimes or bad acts.     See Sutphin, 1

                                - 6 -
Va. App. at 245, 337 S.E.2d at 899.    The threshold requirement

for admissibility of evidence of other offenses is relevancy to

an issue or element in the present case.    See id. (citing

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805).    “[T]he test is

whether ‘the legitimate probative value outweighs the incidental

prejudice to the accused.’”   Hawks v. Commonwealth, 228 Va. 244,

247, 321 S.E.2d 650, 652 (1984) (quoting Lewis, 225 Va. at 502,

303 S.E.2d at 893).   We have held that evidence of other crimes

is admissible

          (1) to prove motive to commit the crime
          charged; (2) to establish guilty knowledge
          or to negate good faith; (3) to negate the
          possibility of mistake or accident;(4) to
          show the conduct and feeling of the accused
          toward his victim, or to establish their
          prior relations; (5) to prove opportunity;
          (6) to prove identity of the accused as the
          one who committed the crime where the prior
          criminal acts are so distinctive as to
          indicate a modus operandi; or (7) to
          demonstrate a common scheme or plan where
          the other crime or crimes constitute a part
          of a general scheme of which the crime
          charged is a part.

Sutphin, 1 Va. App. at 245-46, 337 S.E.2d at 899.

     The prosecutor’s statement does not come within any of the

exceptions to the general rule recognized by this Court.      The

statement was not relevant to proving an element or issue in the

present case, and it was prejudicial in that it informed the

jury that appellant originally was charged with additional

offenses related to the incident for which he was being tried.

Further, the statement created an association of guilt between

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appellant and Washington.    Washington admitted that he pled

guilty to the offenses for which appellant was being tried, but

after the prosecutor’s statement, the jury received the

additional information that appellant and Washington were

treated in the same manner by the Commonwealth in that both were

charged with identical offenses and both had identical charges

dropped.   Such information may have created an association of

guilt in the minds of the jurors.

     We hold, therefore, that the trial court committed error in

refusing to grant appellant’s motion for a mistrial because the

prosecutor’s statement was not relevant and was prejudicial to

appellant’s defense.

     The Commonwealth argues that any error committed by the

trial court in overruling the motion for a mistrial was harmless

and did not result in prejudice to the appellant.   We disagree.

“When 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,”

non-constitutional error is harmless.   Code § 8.01-678.   If

error at trial has affected the verdict, then “a fair trial on

the merits and substantial justice” have not been reached.      See

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc).    “An error does not affect a verdict

if a reviewing court can conclude, without usurping the jury’s

fact finding function, that, had the error not occurred, the

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verdict would have been the same.”       Id.   In Lavinder, we

explained that “in order to determine if it plainly appears that

the error did not affect the verdict, 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.

at 1007, 407 S.E.2d at 912.   The first step in determining

whether an error may have affected a verdict is to determine

whether the trial court gave a curative instruction.        See id.

If the trial court did give a curative instruction, the jury is

presumed to have followed such instruction unless the record

indicates otherwise.   See id.   If a curative instruction was not

given, the presumption is that the error was prejudicial

“‘unless it plainly appears that it could not have affected the

result.’”   Id. (quoting Caldwell v. Commonwealth, 221 Va. 291,

296, 269 S.E.2d 811, 814 (1980)).

     At trial, the court did not give a curative instruction.

Thus, we begin with the presumption that the prosecutor’s

statement was prejudicial.    We cannot say, as a matter of law,

that the prosecutor’s statement did not affect the outcome of

appellant’s trial.   As we discussed above, the prosecutor’s

statement provided the jury with information about other

offenses committed by appellant and may have created an

association of guilt between appellant and Washington.

Therefore, we hold that the denial of the motion for a mistrial

was not harmless error.

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      The Commonwealth further argues that appellant waived any

objection to the prosecutor’s statement because Washington later

testified during cross-examination that the two charges were

dropped against appellant.   The Commonwealth correctly cites

Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638

(1970), for the rule that an accused, who unsuccessfully objects

to evidence he considers improper, waives the objection if he

introduces evidence of the same character on his own behalf.

However, the rule from Saunders must be understood in

conjunction with this Court’s holding in McGill v. Commonwealth,

10 Va. App. 237, 391 S.E.2d 597 (1990).   In McGill, we held that

the defendant’s attempt to rebut evidence of other crimes did

not constitute waiver of his objection to such evidence.    See

id. at 244, 391 S.E.2d at 601.   This Court distinguished

evidence elicited on cross-examination and during rebuttal from

evidence actually introduced on a defendant’s own behalf.    See

id.   Therefore, the Saunders rule does not apply to

cross-examination.

      Washington’s answers were in response to questions during

the defense’s cross-examination, and, therefore, appellant did

not waive his objection to the prosecutor’s statement.

      Appellant’s second assignment of error is the trial judge’s

refusal to grant a cautionary instruction regarding the

prosecutor’s statement about the dropped charges against

appellant.   We find this assignment without merit.

                              - 10 -
     A motion for a mistrial or a cautionary instruction must be

timely made in order to preserve the issue for appeal even if an

objection to the prosecutor’s alleged improper comments was

properly made and overruled.      See Cheng v. Commonwealth, 240 Va.

26, 38, 393 S.E.2d 599, 605-06 (1990).     “This requirement

affords the trial court the opportunity to provide cautionary

instructions when appropriate to correct the alleged error.”

Beavers, 245 Va. at 279, 427 S.E.2d at 419.

     Appellant did not request a cautionary instruction at the

time the prosecutor interjected with the statement regarding the

dropped charges.   Instead, appellant waited to request the

instruction at the conclusion of all the evidence, and the trial

court did not have the opportunity to instruct the jury at the

time the error occurred.    We find that appellant’s request for

an instruction was not timely made, and, therefore, the trial

judge’s denial of the instruction at the conclusion of the

evidence was not error.

                           III.   CONCLUSION

     For these reasons, we hold that the trial court committed

error when it refused to grant appellant’s motion for a

mistrial.   The prosecutor’s statement was prejudicial in that it

introduced information about other offenses committed by the

appellant which were not relevant to proving the offenses for

which appellant was being tried.      The trial court, however, did

not commit error in refusing appellant’s request for a

                                  - 11 -
cautionary instruction at the conclusion of all of the evidence

as such request was not timely made.

                                        Reversed and remanded.




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