FROM THE CIRCUIT COURT OF CAMPBELL COUNTY. J. Michael Gamble, Judge.
Joseph A. Sanzone (Joseph A. Sanzone Associates, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon,
Judges Elder and Bray.
MEMORANDUM OPINION [*]
NORMAN K. MOON
Gary Wayne Desper appeals his conviction of damaging or defacing property in violation of Code § 18.2-137. Appellant argues that the trial court committed reversible error by improperly admitting evidence of an alleged prior bad act of appellant. We disagree, and find that the trial court did not err in admitting evidence of appellant's alleged prior bad act because it was relevant to prove prior relations and motive.
In mid to late June, 1995, Virginia Dalton, the owner of Cut Loose, a beauty salon, discussed with Gay Charlton the possibility of Charlton coming to work for Dalton. Subsequently, Dalton told a number of people that Charlton would be working at the salon. On the evening of July 4, 1995, appellant was observed with a spray can outside of Dalton's store. He was bending down near the door spray painting the building. A teal green Chevy S-10 truck, similar to appellant's vehicle, was in the salon's parking lot. The eyewitness later identified appellant in a photo lineup.
The following day, Dalton discovered the words " Gay" and " Nails by Gay" spray painted on the windows of her shop. On July 9, 1995, the police went to appellant's home and inquired about the incident. Appellant denied committing the crime but said that he had learned of the event from his mother. The police had not informed appellant's mother of the vandalism. Appellant could not remember his whereabouts at the time of the crime.
The trial court permitted introduction of evidence that in the fall of 1994 appellant pulled his S-10 truck next to Charlton's car. He got down beside Charlton's car, and after appellant departed, Charlton's car had been " keyed."
Appellant argues that his conviction must be reversed because the trial court erred in permitting introduction of the prior vandalism to Charlton's car. " Evidence of other independent acts of an accused is inadmissible if relevant only to show a probability that the accused committed the crime for which he is on trial because he is a person of bad or criminal character." Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985). However, such evidence is admissible when it is " relevant to an issue or element in the present case." Id. " If such evidence tends to prove any of the relevant facts of the offense charged and is otherwise admissible, it will not be excluded merely because it also shows him to be guilty of another crime." Williams v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).
Accordingly, we have held that evidence of prior bad acts may be properly admitted to prove, among other things, prior bad relations of parties, Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 577 (1984), and a defendant's motive, Freeman v. Commonwealth, 223 Va. 301, 313-14, 288 S.E.2d 461, 468 (1982). " Even where another crime is not inextricably linked with the offense at trial, it may nevertheless be proved if it shows the conduct and feeling of the accused towards his victim, his motive . . . or any other relevant element of the offense on trial." Scott, 228 Va. at 526-27, 323 S.E.2d at 577.
When admitting evidence that the appellant had keyed Charlton's car, the trial court instructed the jury that:
The only reason you should consider this testimony is for the conduct and the feelings of the accused towards Gay Charlton. This prior event does not prove or should not be considered as proof of the charge in this case that has been alleged to occur on July 4, 1995, but merely to show his conducts [sic] and feelings toward Ms. Charlton.
The trial court did not err in finding that the keying of Charlton's car could serve to demonstrate the nature of appellant's relationship with Charlton and his feelings toward her. Appellant's hostility toward Charlton was relevant on these facts, where the alleged crime clearly demonstrated a similar ...