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ORTEGA v. COMMONWEALTH (55929)



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


ORTEGA

v.

COMMONWEALTH


MARCH 14, 2000

Record No. 1867-98-4

FRANCISCO ORTEGA

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF
ALEXANDRIA

Donald M. Haddock, Judge

Present: Chief Judge Fitzpatrick, Judge Benton
and Senior Judge Duff

Argued at Alexandria, Virginia

George J. Wooditch (Office of the Public
Defender, on brief), for appellant.

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


OPINION BY JUDGE JAMES W. BENTON, JR.

The trial judge convicted Francisco Ortega of
five counts of burglary and five counts of grand larceny and
acquitted him of burglary while armed. On appeal, Ortega contends
(1) the trial judge erred in admitting evidence of his prior
crimes and (2) the evidence was insufficient to prove beyond a
reasonable doubt his identity as the burglar. For the reasons
that follow, we affirm Ortega’s convictions.

I.

Between January 6 and 20 of 1998, six
burglaries occurred in the Del Ray and Rosemont sections of the
City of Alexandria. Detective Barry Schiftic testified that the
burglaries had numerous similarities. All the burglaries occurred
during the daytime at residences; each residence was extensively
ransacked; similar items, particularly electronic equipment and
jewelry, were stolen from each residence; the burglaries all
occurred within a one-mile radius of one another; each burglary
occurred on a Tuesday or a Wednesday in the morning or early
afternoon; each residence, except one, was entered by force; and
in each residence the burglar took sharp knives from the kitchen
and left them in other rooms. The detective also testified that,
historically, only thirty percent of the burglaries in Alexandria
have been residential, that the ransacking of a residential
burglary site is highly unusual, and that, contrary to the
typical residential burglary, no silverware, silver trays, candle
sticks, or rugs were taken, although those items were present in
most of these residences. He further testified that the moving of
knives from the kitchen to another room was highly unusual and
that one of the knives, which had been stolen from one residence,
was left at another residence.

In addition, the detective testified, over
objection, that he had investigated a series of burglaries in
1994 which involved a strikingly similar pattern. He described
those earlier burglaries as having the following pattern:

Back in 1994 . . . we handled a series of
burglaries . . . , and the same type of items were taken. The
same mode of operation, a person going through the rear of the
home, incorporating the glass or the door. They go in, and these
homes were located in the Del Ray/Rosemont area also.

They occurred during the daylight hours. Entry
was forced. The ransacking was the same. There was more
ransacking, again, with these than I had ever seen before, and
the same types of items were taken, electronic equipment, things
of that kind. . . . [K]nives were left throughout the
houses on these different cases.

In addition, one of the homes burgled in 1994
was also burgled in 1998. The detective also testified that
Ortega was arrested and convicted for the 1994 burglaries.

Carolyn Duncan, who lives in the area where the
burglaries occurred, testified that at noon on January 20, which
was the day the last burglary occurred, she answered a knock at
her door and saw two men. During her testimony, she identified
Ortega as the man who was at her door and asked "if Miranda
was home." When she told him that no such person lived
there, he mentioned a street name. She then directed him to that
street; however, the men walked away in another direction. The
next day, after she learned of the burglary that occurred a block
away, she called the police and described the men to Detective
Schiftic. One day later, the detective showed her a photograph
spread that did not contain Ortega’s photograph. In April,
however, she saw another photographic spread and selected
Ortega’s photograph as the person who was at her door on January
20.

Keith Davis testified that he and Ortega
committed the burglaries. He has known Ortega for almost nine
years and, at the time of the burglaries, they lived together at
Davis’ grandmother’s house. Davis described in detail each of the
five burglaries and the property they took from each house. After
each burglary, they took the property to Davis’ grandmother’s
home.

Charles Clark testified that in January 1998 he
saw Davis and Ortega carrying televisions and jewelry into Davis’
grandmother’s house. In court, he identified some jewelry taken
during one of the burglaries as jewelry he saw in Davis’ and
Ortega’s possession. Clark also testified that in January 1998 he
had seen a jacket that was taken during one of the burglaries and
that at Davis’ request he had pawned some of the stolen items.

The trial judge convicted Ortega of the five
burglaries and the five larcenies. He sentenced Ortega to twenty
years in prison with ten years suspended.

II.

Ortega contends the evidence concerning the
1994 burglaries was inherently prejudicial and served only to
prove criminal propensity. The Commonwealth argues that the
evidence was properly admitted to prove identity.

"Evidence 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).

Although evidence of other crimes is not
admissible when offered merely to show the accused’s propensity
for such crimes or acts, see Kirkpatrick v.
Commonwealth
, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970),
it is admissible 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) (citation omitted).

Thus, evidence of other crimes is allowed when
it tends to prove motive, intent, or knowledge of the defendant.
Among other exceptions, evidence of other crimes also 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 (citations omitted).

When offered to prove identity, the prior crime
does not have to be a "signature" crime; however, it
must show "’a singular strong resemblance to the pattern of
the offense charged.’" Spencer v. Commonwealth, 240
Va. 78, 90, 393 S.E.2d 609, 616 (1990) (citation omitted); see
also Chichester v. Commonwealth, 248 Va. 311, 448
S.E.2d 638 (1994), cert. denied, 513 U.S. 1166
(1995). The identify of the burglar was at issue in this case.

The detective described a series of
similarities among the 1998 burglaries. In addition, his
testimony proved that those same similarities existed between the
1994 and 1998 crimes. Significantly, the evidence proved that in
each burglarized home knives were taken from the kitchen and put
in other rooms. This was a highly unusual circumstance that was
common to each burglary and was "sufficiently idiosyncratic
to admit an inference of pattern for purposes of proof." Spencer,
240 Va. at 90, 393 S.E.2d at 616. From this evidence, the fact
finder could reasonably infer that the same person had committed
both crimes. See id.

Ortega pled guilty to his involvement in the
1994 burglaries, each of which contained "a strong
resemblance to the pattern of the offense charged in this
trial." Id. Thus, evidence in the 1994 crimes was
probative and relevant. We hold, therefore, that the trial judge
did not err in admitting the evidence.

Ortega also argues that the evidence concerning
the 1994 burglaries should not have been admitted because other
persons were known to have been involved in those crimes. The
detective testified that Keith Davis, Carlton Davis, and Ortega
were suspects in the 1994 burglaries. Although Keith and Carlton
Davis were implicated in the prior burglaries, the evidence
proved that Ortega was also a perpetrator in those burglaries.
While the evidence does not definitively establish that Ortega,
rather than one of the Davises, was the person who moved the
knives, Ortega’s presence at both the 1994 and the 1998
burglaries is a sufficient connection between the two sets of
crimes to permit "the fact finder [to] reasonably . . .
infer that the same person committed both crimes." Guill,
255 Va. at 139, 495 S.E.2d at 491. "We cannot say that the
trial court abused its discretion in concluding that the
prejudicial effect of admitting evidence of [Ortega's] involvement in the [1994 burglaries] was outweighed by the
probative value of that evidence." Chichester, 248
Va. at 328, 448 S.E.2d at 649.

III.

When the sufficiency of the evidence is
challenged on appeal, we "review the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Archer v.
Commonwealth
, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). So viewed, the evidence proved that five
burglaries occurred within a fourteen day period and within a
one-mile radius of each other. Clark identified several of the
stolen items and testified that he saw Davis and Ortega with
those items shortly after the burglaries.

Duncan, who lives one block away from the house
where the last burglary occurred, identified Ortega as one of two
men who knocked on her door the day the burglary occurred.
Although Ortega contends that Duncan’s identification of him was
the result of an unduly suggestive procedure, the evidence does
not support his argument.

The factors to consider in determining
reliability are: (1) the witness’ opportunity to view the
criminal at the time of the crime; (2) the witness’ degree of
attention; (3) the accuracy of the witness’ prior description of
the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between
the crime and the confrontation.

Charity v. Commonwealth, 24 Va. App.
258, 262-63, 482 S.E.2d 59, 61 (1997).

Duncan spoke with Ortega for three minutes and
could see him clearly as they spoke. The next day, she described
him to the detective. Two days after the event, Duncan viewed a
group of photographs, which contained a photograph of Ortega’s
brother. Duncan said that the photograph of Ortega’s brother
"looks the most like him"; however, she said he was not
the person she saw. Several months later, when Duncan was shown
another photograph spread containing Ortega’s photograph, she
identified Ortega as the man who came to her door. Because Duncan
apparently recognized similar features in Ortega’s brother and
later identified Ortega, the identifications support rather than
detract from the conclusion that Ortega was in the neighborhood
when the burglary occurred.

Although Duncan initially told the detective
that the man at her door was five feet, ten inches tall, which is
two and one-half inches taller than Ortega, that discrepancy is
not sufficient to undermine her positive identification. The
facts in totality establish the reliability of the
identification. See id.

In addition, Davis testified that he and Ortega
committed the five burglaries. Davis identified the houses and
explained in detail how he and Ortega gained entry, what items
they stole, and how they disposed of them. He explained that
before deciding whether to burglarize a house, they would knock
on the door to determine whether the residents were at home. That
conduct was consistent with Duncan’s testimony.

The evidence also proved that property taken
during the 1998 burglaries was found at Davis’ residence and in a
pawn shop. After Ortega’s arrest, no burglaries occurred
involving a similar pattern.

Although Davis’ testimony must be considered
with caution because he is also implicated in the crimes, given
the other corroborating evidence, his testimony was sufficiently
reliable to prove Ortega’s guilt. See Allard v.
Commonwealth
, 24 Va. App. 57, 63, 480 S.E.2d 139, 142 (1997)
(noting that sufficient evidence corroborated the codefendant’s
testimony to prove the defendant was present at the scene of the
crime). Indeed, a defendant "may be convicted upon the
uncorroborated testimony of an accomplice." Johnson v.
Commonwealth
, 224 Va. 525, 527, 298 S.E.2d 99, 101 (1982).

Accordingly, the evidence was sufficient to
prove beyond a reasonable doubt that Ortega was guilty of the
five burglaries and the five grand larcenies. We affirm the
convictions.

Affirmed.

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