                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia


KURVYN DARNELL MINOR
                                           MEMORANDUM OPINION ∗ BY
v.   Record No. 3105-01-2                   JUDGE LARRY G. ELDER
                                              DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HANOVER COUNTY
                     John Richard Alderman, Judge

            J. Overton Harris (J. Overton Harris, P.C.,
            on brief), for appellant.

            Michael T. Judge, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


     Kurvyn Darnell Minor (appellant) appeals from his jury

trial convictions for three counts of abduction, two counts each

of rape, oral sodomy, and robbery, and one count each of anal

sodomy, credit card theft and use of a firearm in the commission

of an abduction.    The convictions arose out of events which

involved three different victims and occurred on three different

dates.    Appellant admitted his sexual contact with the women to

authorities but claimed the contact was consensual.       On appeal,

appellant contends the trial court erroneously denied his motion

for three separate trials based on the offenses alleged against

each victim.    Under the facts of this case, we agree that the

     ∗
         Pursuant to Code § 17.1-413, this opinion is not
refusal to sever was reversible error.      Therefore, we reverse

and remand for new trials.

                                  I.

                              BACKGROUND

                                  A.

                             THE OFFENSES

     The offenses involved three separate incidents and victims

and occurred in the late evening to early morning hours of

April 2-3, April 12-13 and September 29-30, 2000.     In each

instance, appellant approached a female pedestrian within the

same one-and-one-half mile radius on the North Side of Richmond

and offered her a ride in the vehicle he was driving.     The

victims were all between twenty-five and forty years old and of

the same race.    In each instance, appellant mentioned something

about his alleged employment and spoke of traveling to Ashland.

The first two victims entered his car willingly when he offered

each a ride, and he abducted the third at knife-point when she

refused his offer of a ride.

     In each instance, appellant drove on Interstate 95 to the

same exit and took the victim to the same secluded area of

Hanover County.   He took the first two victims to a church and

the third victim into some woods about a mile away from the

church.   In all three instances, appellant possessed or wore a

condom and used a weapon in an effort to force the victim to


designated for publication.
                               - 2 -
engage in anal intercourse and other sexual acts.    He used a gun

in the first two attacks and a knife in the third.   Other

evidence established that a gun had been seized from appellant

in a traffic stop on May 19, 2000, after the first two attacks

and before the third, in which appellant displayed only a knife.

     The first victim escaped before appellant forced her to

engage in any sexual acts.

     In the second attack, the victim escaped after appellant

raped her and forced her to perform oral sodomy on him.

Appellant grabbed her purse as she ran from his car, and he

attempted unsuccessfully to use her ATM card at two different

banks within blocks of his residence.   DNA evidence recovered

from sperm left on the second victim established the sperm was

210 million times more likely to have come from appellant than

from an unknown member of appellant's race.

     In the third attack, appellant raped the victim, forced her

to engage in oral and anal sodomy, and robbed her before leaving

her in the woods.

                               B.

               APPELLANT'S ARREST AND QUESTIONING

     During interrogation after being advised of his Miranda

rights, appellant identified photographs of the first two

victims, saying that they were "prostitutes he had been with."

He admitted driving them both to Ashland and dropping them off.

Appellant also admitted knowing the third victim, saying she,
                             - 3 -
too, was a prostitute.   He said he had sex with the third victim

in Richmond and then drove her to Ashland at her request

"because she wanted to perform more prostitution at the truck

stop in Ashland."

                                  C.

                         THE MOTION TO SEVER

     Appellant was indicted for the instant offenses and moved

to sever so that only the offenses relating to a particular

victim would be tried together.    He argued as follows:

          It does not appear that the offenses charged
          [in the three groups of indictments] are
          connected in their commission with each
          other or that there is a common element of
          substantial importance in their commission
          and, therefore, these three groups of
          indictments involving different dates depend
          for their proof on different [sets] of
          facts. The evidence admissible on one group
          of indictments pertaining to an individual
          alleged victim is not admissible on either
          of the other groups of indictments involving
          different alleged victims and the effect of
          evidence pertaining to one alleged victim
          being introduced in a trial involving other
          alleged victims will be to unreasonably and
          unfairly prejudice [appellant] and would be
          in violation of the due process clause of
          the Fourteenth Amendment . . . . Limiting
          instructions . . . would be insufficient to
          overcome such prejudice.

     At the hearing on the motion, appellant's counsel argued

the evidence of the other offenses was inadmissible "to

establish signature."    He explained there was no identification

issue because "in [appellant's] statement he's acknowledged that

he's had [sexual intercourse] with all three women.   The issue's
                               - 4 -
going to be whether it was consensual or whether it was as the

Commonwealth alleges."   The Commonwealth conceded appellant's

counsel's statement

          is accurate; we don't have an ID problem in
          this case. We've got strong ID, however,
          they say that it was appropriate in . . .
          Satcher [v. Commonwealth, 244 Va. 220, 421
          S.E.2d 821 (1992),] which was two rapes that
          were similar in location, similar in modus
          operandi, similar to the facts, etcetera,
          and that'll be developed through direct
          examination. And then importantly in
          Farrell [v. Commonwealth, 11 Va. App. 380,
          399 S.E.2d 614 (1990)], the reason for the
          Commonwealth's argument for the joinder is
          to show that [appellant's] modus operandi
          was the same, and they've said in Farrell
          that that's appropriate.

The Commonwealth then offered testimony from two sheriff's

department employees who investigated the offenses.

     After hearing the testimony, the court ordered the parties

to submit memoranda on the severance issue, which they did.   The

trial court then denied the motion to sever without further

explanation.

                                II.

                             ANALYSIS

     Rule 3A:10(c) provides "[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."    This

rule provides the "trial court [with] limited discretion to
                              - 5 -
order an accused to be tried for more than one offense at the

same time."    Godwin v. Commonwealth, 6 Va. App. 118, 121, 367

S.E.2d 520, 521 (1988). 1

     Where an accused does not consent to having the charges

tried together, the trial court may "not try them together

unless the offenses [meet] the criteria of Rule 3A:6(b) and

justice [does] not require separate trials."     Id. at 121, 367

S.E.2d at 522.   "Justice requires separate trials where the

evidence of one of the crimes is not admissible in the trial of

the other.    The efficiency promoted by joinder of offenses does

not outweigh the harm caused by the introduction of inadmissible

evidence of another crime."    Id. at 123, 367 S.E.2d at 522

(citation omitted).   We need not consider whether the offenses

meet the criteria of Rule 3A:6(b) 2 because we hold that justice

required separate trials under the facts of this case.

     Evidence of other crimes committed by an accused usually is

incompetent and inadmissible to prove the accused committed or

likely committed the particular crime charged.     Kirkpatrick v.

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


     1
       Godwin was decided under Rule 3A:10(b). Rule 3A:10 was
amended January 1, 1994, and former subsection (b) was
redesignated as subsection (c). The amendment effected no
substantive change in the part of the rule at issue in this
case.
     2
       To meet the requirements of Rule 3A:6(b), the offenses
must be "based [(1)] on the same act or transaction, or [(2)] on
two or more acts or transactions that [(a)] are connected or
[(b)] constitute parts of a common scheme or plan."
                             - 6 -
This rule "is deeply rooted in Virginia common law," Tucker v.

Commonwealth, 17 Va. App. 520, 522, 438 S.E.2d 492, 493 (1993),

and exists to prevent "confusion of offenses . . . 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) (citations omitted).     Other

crimes evidence may be admissible under limited circumstances if

it is offered "(1) to prove any element of the offense charged,

(2) to show the motive, intent, or knowledge of the accused, (3)

to show the conduct and feeling of the accused toward his or her

victim, or (4) to show premeditation or malice."      Shifflett v.

Commonwealth, 29 Va. App. 521, 529, 513 S.E.2d 440, 444 (1999).

Evidence of another crime or crimes to show modus operandi may

be admissible to prove not only the identity of a crime's

perpetrator but also, "by inference, the accused's intent,

motive, malice, premeditation, or the accused's feelings toward

the victim."   Id. at 530-31, 513 S.E.2d at 444-45.

     However, even where evidence is relevant to prove one of

these issues or elements, it is admissible only if its probative

value outweighs its prejudicial effect.   Ragland v.

Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993).

Determining whether the probative value of the evidence

outweighs its prejudicial effect is within the discretion of the

trial court and may be reversed only for an abuse of that


                              - 7 -
discretion.   See, e.g., Coe v. Commonwealth, 231 Va. 83, 87, 340

S.E.2d 820, 823 (1986).

     The Commonwealth argues that evidence of the offense

against each victim would be admissible at trial for the

offenses against each of the other victims because it shows

"modus operandi, motive, intent, identity, opportunity,

relationship to the victims, absence of mistake or accident and

interconnection of the offenses."     However, the only one of

these elements which was properly and genuinely in issue in

appellant's trial was the intent with which he acted.     Appellant

admitted having sexual contact with all three victims but

claimed it was consensual.

     As we previously have noted, where evidence of other crimes

is relevant to prove an issue or element which is "genuinely

uncontested, any nominal probative value will be easily

outweighed by the danger of prejudice."     Blaylock v.

Commonwealth, 26 Va. App. 579, 592, 496 S.E.2d 97, 103 (1998)

(in sexual battery case in which defendant denied incident and

presented alibi evidence, holding "issue of intent was not

genuinely in dispute" and that "admission of child pornography

and [pornographic] story on the issue of [Blaylock's] intent

[was] an abuse of discretion").   Thus, evidence of a common

modus operandi, although often highly probative on the issue of

the identity of a common perpetrator, see, e.g., Shifflett, 29

Va. App. at 530-31, 513 S.E.2d at 444-45, was of little
                              - 8 -
probative value here because appellant admitted the sexual

contacts.   The Commonwealth agreed in argument on the severance

motion that "we don't have an ID problem in this case.    We've

got strong ID."   Thus, any probative value the other crimes

evidence had on the issue of identity was easily outweighed by

the prejudice likely to result from the testimony of each of the

other victims that appellant sexually assaulted her.     See, e.g.,

Blaylock, 26 Va. App. at 592, 496 S.E.2d at 103.

     Although proof of a common modus operandi may be probative

of other elements of an offense, see Shifflett, 29 Va. App. at

530-31, 513 S.E.2d at 444-45, assuming the evidence here is

sufficient to prove a common modus operandi, it is inadmissible

to prove appellant's intent, the only issue in genuine dispute.

We reached just such a conclusion in Foster v. Commonwealth, 5

Va. App. 316, 318, 362 S.E.2d 745, 746 (1987), in which the

defendant, charged with rape and robbery, denied the robbery and

claimed the intercourse was consensual.   In Foster, we relied on

the decision of the Fourth Circuit Court of Appeals in Lovely v.

United States, 169 F.2d 386 (4th Cir. 1948).   See also United

States v. Tate, 715 F.2d 864, 865-66 (4th Cir. 1983) (referring

to Lovely as "our leading case" for the principle that

"[e]vidence of other crimes or wrongs is not admissible" to

prove criminal propensity).

     In Lovely, the defendant admitted to being with the victim

on the night of the alleged rape, but he denied having
                              - 9 -
intercourse with her.   169 F.2d at 388.    Over the defendant's

objection, the prosecution was allowed to introduce the

testimony of another woman that the defendant had raped her

under similar circumstances "fifteen days prior to the alleged

rape on the prosecutrix, and to go into the circumstances as

fully as though that case were on trial."     Id.

     Ruling in Lovely that the admission of such evidence was

error, the Court reasoned as follows:

          [T]he only question was whether [the
          defendant] had had carnal knowledge of [the
          alleged victim] forcibly and against her
          will. The fact, if it was a fact, that he
          had ravished another woman some weeks
          before, threw no light whatever on that
          question. It showed merely that he was a
          bad man, likely to commit that sort of
          crime; and this is precisely what the
          prosecution is not allowed to show in a
          criminal case. . . .

              *     *      *     *      *      *     *

               The rule which forbids the introduction
          of evidence of other offenses having no
          reasonable tendency to prove the crime
          charged, except in so far as they may
          establish a criminal tendency on the part of
          the accused, is not a mere technical rule of
          law. It arises out of the fundamental
          demand for justice and fairness which lies
          at the basis of our jurisprudence. If such
          evidence were allowed, . . . persons accused
          of crime would be greatly prejudiced before
          juries and would be otherwise embarrassed in
          presenting their defenses on the issues
          really on trial. In the case at bar for
          instance, . . . [the] accused was called
          upon to defend another charge of rape, while
          his hands were full defending the charge
          contained in the indictment, and the jury
          was necessarily given the impression . . .
                               - 10 -
           that he was a bad man who had been guilty of
           other crimes and who might well be convicted
           on that account. . . .

Id. at 388-89; see Foster, 5 Va. App. at 320-22, 362 S.E.2d at

747-48.

     In adopting this reasoning from Lovely in Foster, we noted

that "'the majority of jurisdictions and the better reasoned

decisions'" follow the Lovely approach.   Foster, 5 Va. App. at

321, 362 S.E.2d at 748 (quoting State v. Irving, 601 P.2d 954,

957 (Wash. Ct. App. 1979)).   Thus, we concluded in Foster that

           the fact that [another alleged victim of the
           accused] had been attacked nine days after
           the offenses under indictment had no bearing
           as to whether [the victim of the rape for
           which the accused was then on trial]
           consented to the intercourse. [Such
           evidence] merely showed that [the accused]
           had a propensity to commit this type of
           crime[, which] is precisely what the
           prosecution is not allowed to show in a
           criminal case.

Id. at 320, 362 S.E.2d at 747.

     Here, under the reasoning of Lovely and Foster, we conclude

the testimony of each victim also was inadmissible at the trial

for the offenses allegedly committed against each of the other

victims.   Neither the number of alleged victims nor the strength

of similarities between or among the offenses has any bearing on

the admissibility of evidence of other offenses where, as here,

the only issue genuinely in dispute is whether the acts were

consensual or forcible.   Accordingly, the court's decision to

allow appellant to be tried jointly for the groups of offenses
                              - 11 -
against each victim was an abuse of discretion and constituted

reversible error.

     The holding in Satcher v. Commonwealth, 244 Va. 220, 421

S.E.2d 821 (1992), cited by the Commonwealth at trial, does not

support a different result.     Satcher involved two rapes followed

by robberies which "occurred within a few yards and about

one-half hour of each other.    Both victims were forcibly removed

from the [same] bicycle path at a location concealed behind [a]

'sound barrier wall'" and were "brutally beaten and partially

disrobed."     Id. at 229, 421 S.E.2d at 827.   Finally, both

victims' purses were stolen and "were found in approximately the

same location, with only money missing from both."      Id.

Although significant evidence proved Satcher was the perpetrator

in both instances, Satcher took the stand and denied any

involvement in the offenses, squarely placing the element of the

perpetrator's identity in issue.     Id. at 229, 251-52, 421 S.E.2d

at 827, 840.    Further, the intent of the perpetrator was not at

issue.   As the Supreme Court noted, "[t]he criminal intent of

the assailant--to commit rape and robbery--was the same in both

situations."     Id. at 229, 421 S.E.2d at 827.

     In appellant's case, by contrast, the reverse was true--

identity was genuinely not in issue, and appellant's intent was

the disputed element.    As set out above, the other crimes

evidence was not admissible to prove the victim's absence of

consent and appellant's intent to commit rape.      Compare Foster,
                                - 12 -
5 Va. App. at 320, 362 S.E.2d at 747 (holding evidence of

another alleged rape was inadmissible propensity evidence where

only contested issue was whether alleged victim consented), with

Spencer v. Commonwealth, 240 Va. 78, 87-91, 393 S.E.2d 609,

615-17 (1990) (upholding admission of evidence of other

rape-murders where identity of perpetrator was disputed);

Yellardy v. Commonwealth, 38 Va. App. 19, 24-26, 561 S.E.2d 739,

742-43 (2002) (holding two robbery charges were properly tried

together where "identical methods used to commit the two

robberies tend[ed] to prove the identity of [the accused] as the

person who committed both offenses" and "also tend[ed] to prove

that the confrontation was a robbery rather than a homosexual

encounter[], which [the accused] contended at trial").

     For these reasons, we reverse appellant's convictions and

remand for further proceedings consistent with this opinion.

                                           Reversed and remanded.




                             - 13 -
