GUILL v. COMMONWEALTH OF
January 9, 1998
Record No. 971153
DWAYNE EDWARD GUILL
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE COURT OF APPEALS OF VIRGINIA
PRESENT: All the Justices
In this criminal appeal, the dispositive issue is whether the
trial court erred in admitting evidence of another crime
committed by the defendant for the purpose of proving his intent
to commit the crime charged.
Dwayne Edward Guill was indicted for unlawfully and
feloniously breaking and entering a dwelling house in the
nighttime with the intent to commit murder, rape, or robbery in
violation of Code ? 18.2?90.
He was tried by the Circuit Court of Charlotte County, sitting
without a jury, and was found guilty as charged. The trial court
sentenced Guill to confinement in the penitentiary for 20 years,
with execution of 5 years suspended.
We state the evidence taken at trial in the light most
favorable to the Commonwealth, the prevailing party below. Roach
v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert.
denied, 519 U.S. ___, 117 S.Ct. 365 (1996); Graham v.
Commonwealth, 250 Va. 79, 81, 459 S.E.2d 97, 98, cert.
denied, 516 U.S. 997 (1995). On May 22, 1995, at about 2:00
a.m., Guill broke and entered the home of Danny and Donna Crews
who were asleep in their bedroom. The Crews’ two daughters, ages
five and seven, were also in the house at the time. The girls
shared a bed in a ground floor bedroom, which was illuminated
both by an outdoor safety light and by a light inside the house.
Mr. Crews testified that he awakened and heard his daughters
talking. When he arose and walked into the kitchen, he saw Guill,
a stranger, backing out of the girls’ bedroom. Crews confronted
Guill, stating, "[M]an, what in the hell are you doing in my
house." In response, Guill reached for his back pocket with
his right hand and said, "I’ll cut your f_ _ _ing head
off." After the two men looked at each other "for a
second or two," Guill ran out the back door.
Mr. Crews stated that although there were open ground floor
windows in the living room and the master bedroom, Guill entered
the house by taking a twelve-foot ladder from the basement and
climbing through a bathroom window. The open windows were located
in a portion of the house which was illuminated by exterior
light, while there were no exterior lights in the area near the
bathroom window. In a hallway just outside the bathroom, Mrs.
Crews had left a purse containing $200 in plain view, as well as
Over Guill’s objection, the Commonwealth called a witness who
stated that, in 1985 when she was 16 years old, Guill broke and
entered the house in which she was sharing an upstairs room with
her 15 year-old female cousin. The witness testified that she and
her cousin were asleep when Guill, a stranger to the two girls,
got into the witness’ bed with his shirt off, kissed her, and
attempted to rape her. According to the witness, Guill "told
my cousin that if I [did not] be quiet he was going to kill
Three weeks after the incident at the Crews’ residence, Guill
was arrested. He made a statement to the police in which he gave
the following explanation. He stated that he stopped at the
Crews’ house because his vehicle "ran out of gas." He
first attempted to get some gasoline out of a truck on the Crews’
property and then broke into their house to find keys to open
some locked gas tanks.
Guill also told the police that he entered the house by using
a ladder to go through a bathroom window. Once in the house, he
looked around for keys "and heard the kid wake up."
When he told her to be quiet, she started crying. Guill stated
that, at this point, he "got up and went out of the room and
as I did I met the man." Guill did not testify at the trial.
The trial court found the defendant guilty after ruling that
evidence of the 1985 crime was admissible because it was of
"such . . . a similar nature" to the
present offense. The Court of Appeals affirmed the trial court’s
judgment in an unpublished opinion, holding that the 1985 crime
and the present offense were "sufficiently similar to be
probative of [the defendant’s] intent," and that the
evidence of his prior conduct was admissible for the "narrow
purpose of proving, elucidating, or explaining [the defendant’s] intent."
On appeal to this Court, the defendant argues that evidence of
the 1985 crime was irrelevant because the facts of the present
offense contain no evidence of an intent to commit rape. The
defendant also asserts that the trial court erred in admitting
evidence of the 1985 crime because it was dissimilar to the
In response, the Commonwealth asserts that evidence of the
1985 crime was admissible to prove the defendant’s intent in the
crime charged based on his conduct on the prior occasion. We
disagree with the Commonwealth and hold that the Court of Appeals
erred in affirming the trial court’s ruling on this issue.
Evidence that shows or tends to show a defendant has committed
a prior crime generally is inadmissible to prove the crime
charged. Woodfin v. Commonwealth, 236 Va. 89, 95, 372
S.E.2d 377, 380 (1988), cert. denied, 490 U.S. 1009
(1989); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970). Such evidence implicating an accused in
other crimes unrelated to the charged offense is inadmissible
because it may confuse the issues being tried and cause undue
prejudice to the defendant. See Boggs v. Commonwealth,
199 Va. 478, 486, 100 S.E.2d 766, 772 (1957). There are several
exceptions to the general rule excluding this type of evidence.
Evidence of "other crimes" is relevant and
admissible if it tends to prove any element of the offense
charged. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805.
Thus, evidence of other crimes is allowed when it tends to prove
motive, intent, or knowledge of the defendant. Id. 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. Spencer v. Commonwealth, 240 Va. 78, 90, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990).
Admission of evidence under these exceptions, however, is
subject to the further requirement that the legitimate probative
value of the evidence must exceed the incidental prejudice caused
the defendant. Lewis v. Commonwealth, 225 Va. 497, 502,
303 S.E.2d 890, 893 (1983). Further, the admission of such
"other crimes" evidence is prohibited when its only
purpose is to show that the defendant has a propensity to commit
crimes or a particular type of crime and, therefore, probably
committed the offense for which he is being tried. Kirkpatrick,
211 Va. at 272, 176 S.E.2d at 805.
The element of the crime in dispute in the present case is
that of the defendant’s intent. Intent is the purpose formed in a
person’s mind that may, and often must, be inferred from the
particular facts and circumstances of a case. Ridley v.
Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979).
Like any other element of a crime, intent must be proved as a
matter of fact and may not be the subject of surmise and
speculation. Dixon v. Commonwealth, 197 Va. 380, 382, 89
S.E.2d 344, 345 (1955).
As we stated in Kirkpatrick, 211 Va. at 273, 176 S.E.2d
at 805, the leading case on the principles involved here is Walker
v. Commonwealth, 28 Va. (1 Leigh) 574 (1829). There, a
defendant was indicted for larceny of a watch and, at trial,
evidence was admitted that at one time he had stolen a coat. In
setting aside his conviction, we held that this evidence was
irrelevant and inadmissible to prove the defendant’s intent in
the crime charged, because the evidence did not have "such
necessary conne[ct]ion with the transaction then before the court
as to be inseparable from it." Id. at 580. We
if the circumstances [of the other event] have no intimate
conne[ct]ion with the main fact; if they constitute no link
in the chain of evidence . . . they ought to be
excluded, because they are irrelevant; [and] if they denote
other guilt, they are not only irrelevant, but they do
injury, because they have a tendency to [cause] prejudice.
Id. at 577
In Barber v. Commonwealth, 182 Va. 858, 30 S.E.2d 565
(1944), an appeal of an attempted rape conviction, we again
applied these principles. The trial court had allowed evidence
that the defendant committed an attempted rape on a different
victim for the purpose of showing the defendant’s intent in the
We reversed the defendant’s conviction, stating that it is
improper to use evidence that a defendant has committed another
crime when it has "no connection with the one under
investigation. Such other acts of criminality . . . are
not legally relevant and should not be [used] to prejudice the
defendant or to create a probability of guilt." Id.
at 866, 30 S.E.2d at 568 (internal quotation marks omitted). We
explained that the 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." Id. at 868, 30 S.E.2d
at 569 (internal quotation marks omitted); see also
Day v. Commonwealth, 196 Va. 907, 912-13, 86 S.E.2d 23, 26
We again applied these principles in Donahue v.
Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983). There, the
trial court had allowed evidence of the defendant’s prior sale of
phencyclidine (PCP) for the purpose of proving her intent to
distribute PCP and marijuana in the crimes charged. The prior
sale had occurred over one month before her arrest on the crimes
charged. Id. at 149, 300 S.E.2d at 770.
We held that evidence of the prior sale of PCP was
inadmissible to prove the defendant’s intent because that
evidence was unrelated to the crime charged and none of the other
exceptions to the general rule barring admission of "other
crimes" evidence was applicable. We also stated that the
prejudicial effect of that evidence required its exclusion. Id.
at 156, 300 S.E.2d at 774; see also Boyd v.
Commonwealth, 213 Va. 52, 53, 189 S.E.2d 359, 360 (1972).
Applying these principles to the present case, we hold that
evidence of the 1985 crime was unrelated to the crime charged.
Like the "other crimes" evidence in the above cases,
there was no causal relation or logical connection between the
1985 offense and the crime charged, nor did the two crimes form
parts of one transaction. See Barber, 182 Va. at
868, 30 S.E.2d at 569; see also Kirkpatrick,
211 Va. at 273, 176 S.E.2d at 806; Day, 196 Va. at 912-13,
86 S.E.2d at 26; Walker, 28 Va. (1 Leigh) at 577.
Therefore, evidence of the 1985 crime was not probative evidence
of the defendant’s intent in the crime charged and was irrelevant
and inadmissible for purposes of proving that intent. See Donahue,
225 Va. at 155-56, 300 S.E.2d at 773-74; Kirkpatrick, 211
Va. at 272, 176 S.E.2d at 805; Day, 196 Va. at 912-13, 86
S.E.2d at 26; Barber, 182 Va. at 866-68, 30 S.E.2d at
568-69; Walker, 28 Va. (1 Leigh) at 577.
We also hold that evidence of the 1985 crime is not admissible
under any other exception to the general rule barring admission
of "other crimes" evidence. Specifically, we hold that
the trial court erred in ruling that the evidence was admissible
because it was of "such a similar nature" to the
offense charged. In Spencer, we held that when the
identity of a perpetrator is at issue, evidence of another crime
may be admitted to prove the actor’s identity if the prior crime
bears "a singular strong resemblance to the pattern of the
offense charged" and is sufficiently idiosyncratic in
relation to that offense to permit an inference of a pattern for
proof purposes. 240 Va. at 90, 393 S.E.2d at 616 (internal
quotation marks omitted).
Assuming, without deciding, that this test is applicable here
when the identity of the perpetrator is known, we hold that the
test is not met. Although a few of the facts in the two
burglaries are similar, the crimes do not have any idiosyncratic
As stated above, in the 1985 crime, the defendant entered a
house through a rear door and proceeded to an upstairs bedroom
occupied by two girls, ages 15 and 16. Here, the defendant used a
ladder to crawl through a ground floor bathroom window after
punching holes in the window screen. He then walked into the
ground floor bedroom of two girls who were five and seven years
In the 1985 crime, the defendant got into the girls’ bed and
kissed and attempted to rape one of them. Here, there is no
evidence that the defendant got into the girls’ bed or touched
either girl in any manner. Instead, the evidence shows only that
the defendant "got up" before he left the girls’ room.
Although the defendant threatened the girls’ father in this
case, he threatened the witness in the 1985 crime. Moreover, we
note that conduct of this nature unfortunately is common, rather
than idiosyncratic, in this type of crime.
Based on the above factual differences, evidence of the 1985
crime was inadmissible under a Spencer analysis because
that offense was not idiosyncratic in relation to the facts of
the present offense. As such, the evidence lacked a logical
relationship to the offense charged and, thus, was irrelevant and
showed only the defendant’s propensity to commit the crime
charged. See Kirkpatrick, 211 Va. at 272, 176
S.E.2d at 805. Since this evidence was inadmissible and had no
probative value, we hold that its admission caused undue
prejudice to the defendant. See Donahue v. Commonwealth,
225 Va. at 156, 300 S.E.2d at 774.
For these reasons, we will reverse the Court of Appeals’
judgment and remand the case to the Court with direction that the
matter be remanded to the trial court for a new trial, if the
Commonwealth be so advised, consistent with the principles set
forth in this opinion.
Reversed and remanded.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
The main issue in this criminal appeal is whether the trial
court erroneously admitted so-called "other crimes"
evidence on the question of the accused’s specific intent to
commit the offense charged.
Dwayne Edward Guill was tried by the Circuit Court of
Charlotte County, sitting without a jury, upon an indictment for
unlawfully and feloniously breaking and entering a dwelling house
in the nighttime with the intent to commit murder, rape, or
robbery in violation of Code ? 18.2-90.
Defendant was found guilty as charged and was sentenced to
confinement in the penitentiary for 20 years, with execution of 5
Upon review, a panel of the Court of Appeals unanimously
affirmed the conviction in an unpublished opinion. The Court of
Appeals concluded that the trial court correctly admitted
evidence regarding defendant’s 1985 conviction for breaking and
entering a dwelling house in the nighttime with the intent to
commit rape, and correctly found the evidence sufficient to
sustain the instant conviction.
The Court awarded defendant this appeal. According to settled
principles of appellate review, I shall summarize the facts in
the light most favorable to the Commonwealth.
On May 22, 1995, Danny Crews, his wife, and their two
daughters, five and seven years of age, resided in the Drakes
Branch area of Charlotte County. On that date, near 2:00 a.m.,
the parents awoke in their ground level bedroom to the sound of
the daughters talking in a separate bedroom, also at ground
level. As the father approached the children’s room, the
defendant "was backing out of that bedroom," which was
illuminated by a security light mounted on a pole outside the
The father said to defendant, a stranger, "[M]an, what in
the hell are you doing in my house." According to the
father, defendant "reached for his back pocket with his
right hand" and threatened to cut off the father’s head. The
two men stood facing each other "for a second or two."
Then defendant "fled out of the back door," breaking
two door locks as he ran. Defendant left the scene on a
motorcycle parked nearby.
Defendant, age 34, was arrested three weeks later. "At
first he denied any involvement in the burglary or break-in and
later on he did admit that he went in the house," according
to the investigating officer.
In a statement to the police, defendant, who did not testify
at trial, claimed that while riding the motorcycle, he "ran
out of gas and that he was in the house looking for keys to the
gas tanks" of trucks parked in the yard of the Crews’ home.
Defendant stated he had found "a little" gas but was
searching for more in a locked tank "on the back of a pickup
Defendant further stated he gained access to the home by using
a ladder and crawling through a bathroom window after cutting the
screen. Once inside, he said, "I was looking around for the
keys and heard the kid wake up." Defendant stated that while
he was in the children’s room, "I told her to be quiet . . .
And then she started crying." Asked what happened next,
defendant stated: "I got up and went out of the room and as
I did I met the man."
The investigation revealed that, at the time of the incident,
ground floor windows were open that would have allowed defendant
to enter the home without use of a ladder. These windows,
however, were in a portion of the home that was illuminated by
the exterior light, while the area near the bathroom window was
In addition, a desk and chair in an illuminated hall area were
in the path of one proceeding from the bathroom to the girls’
room. Mrs. Crews’ purse containing keys was in the chair, and
$200 in cash "was sticking up out of [the] pocketbook";
it was not disturbed during the incident. Also, prior to the
incident, the door to the girls’ room "was halfway
open" and a light burning in the kitchen shone into their
At trial, the prosecution presented, over defendant’s
objection, the testimony of a woman who was the victim of a
breaking and entering with intent to commit rape perpetrated by
defendant in June of 1985. That crime occurred during the
nighttime in a Chase City residence when the witness, age 16 at
the time, occupied an upstairs bedroom with her 15-year-old
The defendant, a stranger to the girls, unlawfully entered the
dwelling through a rear door, proceeded past a downstairs bedroom
occupied by an adult, entered the girls’ bedroom wearing only
"shorts," got into their bed, kissed one of the girls,
attempted to rape the witness, and left the home when the girls
fought him and screamed for help. According to the witness,
defendant "told my cousin that if I don’t be quiet he was
going to kill me." Subsequently, defendant was convicted in
Mecklenburg County of that offense.
In this appeal, defendant contends the Court of Appeals erred
in affirming the action of the trial court in admitting the
evidence of the 1985 crime. I disagree.
Generally, proof showing an accused committed other crimes at
other times is incompetent and inadmissible for the purpose of
establishing commission of the particular crime charged. Woodfin
v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380
(1988), cert. denied, 490 U.S. 1009 (1989); Kirkpatrick
v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805
(1970). Such evidence is admissible, however, when "it tends
to prove any relevant element of the offense charged," such
as when the accused’s intent is at issue. Kirkpatrick, 211
Va. at 272, 176 S.E.2d at 805. Accord Jennings v. Commonwealth,
20 Va. App. 9, 15, 454 S.E.2d 752, 755 (1995). Nevertheless,
evidence of other crimes is admissible only when "the
legitimate probative value outweighs the incidental prejudice to
the accused." Lewis v. Commonwealth, 225 Va.
497, 502, 303 S.E.2d 890, 893 (1983).
In the present case, under the indictment, the Commonwealth
had the burden to prove beyond a reasonable doubt that defendant
broke and entered the Crews’ residence in the nighttime with the
specific intent to commit rape. See Code ? 18.2-90; Snyder
v. Commonwealth, 220 Va. 792, 798, 263 S.E.2d 55, 59
(1980). "Intent is the purpose formed in a person’s mind
which may, and often must, be inferred from the facts and
circumstances in a particular case." Ridley v. Commonwealth,
219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). This state of mind
may be shown by the offender’s acts and conduct. Id.
Here, there is no dispute defendant broke and entered the
Crews’ dwelling in the nighttime. The only contested element of
the offense charged is whether defendant’s intent, in entering
the home, was to rape either or both of the girls, as opposed to
an intent to procure fuel for his motorcycle, as he claimed. The
question then becomes whether evidence of the 1985 crime was
relevant and tended to prove defendant’s specific intent to
commit the crime.
Admissibility of "other crimes" evidence does not
necessarily turn on the proximity of the prior acts to the crime
charged. Indeed, the Court of Appeals has approved the use of
such evidence when the prior conduct was ten and twenty years in
the past. Jennings, 20 Va. App. at 14, 454 S.E.2d at 754.
Also, this Court has rejected the notion that when evidence of
other crimes is offered to prove modus operandi, an
exact resemblance to the crime on trial as to constitute a
"signature" is necessary to qualify such evidence for
admission. Rather, the Court has said it is sufficient if the
evidence of other crimes bears "a singular strong
resemblance to the pattern of the offense charged." Spencer
v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616, cert.
denied, 498 U.S. 908 (1990) (internal quotation marks
omitted). The Court has explained that the test for admissibility
is met when the prior crime is sufficiently idiosyncratic to
permit an inference of a pattern for proof purposes. Id.
The present case is not a modus operandi case in
which an effort is made to establish the identity of the accused
by showing the probability of a common perpetrator. However, I
perceive no reason why the same test should not apply when, as
here, the perpetrator’s identity is known and his intent is in
Here, the evidence of the 1985 crime bears a singular strong
resemblance to the pattern of the offense charged and is
sufficiently distinctive to permit an inference of a pattern of
behavior. For example, in 1985, as here, defendant broke and
entered a residence. In 1985, as here, the crime was committed in
the nighttime. In 1985, as here, the defendant proceeded past an
adult’s bedroom en route to a bedroom occupied by young girls.In
1985, the girls were young, 15 and 16 years of age. Here, the
girls also were young, five and seven years of age.
In 1985, defendant tried to rape one of the girls. Here, the
defendant did something in the bedroom, while he was there an
undetermined period, that required him to "get up"
before he left the room. A reasonable inference from that proven
fact is that defendant sat on the girls’ bed in order to molest
either or both of them. Although that proven fact may give rise
to other inferences, such as, that defendant intended to commit
an assault and battery, the Court must accept on appeal the
inference that is most favorable to the Commonwealth.
In 1985, the girls screamed and defendant threatened to kill
one of them. Here, the girls cried and defendant threatened to
kill the father.
Therefore, I would hold that proof of the 1985 crime was
relevant because it tended to establish the defendant’s specific
intent. Further, the legitimate probative value of the evidence
outweighs the incidental prejudice to the defendant. "The
responsibility for balancing these competing considerations is
largely within the sound discretion of the trial judge.
. . . And a trial court’s discretionary ruling will not
be disturbed on appeal absent a clear abuse of discretion." Coe
v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823
(1986). Hence, the evidence was admissible, and the Court of
Appeals did not err in affirming the trial court’s ruling on that
My analysis of the first issue effectively disposes of the
second. Defendant contends the evidence was insufficient to
convict him of the crime charged. I disagree.
The trial court was entitled to infer that defendant, given
his propensity to commit sexual crimes involving young girls,
entered the home and remained in the girls’ bedroom intending,
not to look for keys, but to rape either or both of them.
Defendant’s activity was wholly inconsistent with a quest for
Defendant observed the girls sleeping as he was standing in
the yard near their illuminated room. At that point in time, he
already had obtained "a little" gasoline, sufficient to
enable him to drive a distance from the scene after he fled the
home, according to the evidence. Nevertheless, according to his
story, he risked entering the home to search for still more fuel.
One wonders why he did not just drive away using the gas he had
After breaking and entering the home through a dark area to
avoid detection, he moved through a lighted hall toward the
girls’ room. He passed an open purse containing both keys and
money, with which he readily could have obtained the gas he
allegedly sought. He remained in the girls’ room for an
indeterminate period of time and "got up" in order to
leave. As I have said, reasonably to be inferred from all the
circumstances is the conclusion that defendant entered the home
with the specific intent to commit rape.
Consequently, I would hold that the Court of Appeals did not
err, and I would affirm the judgment appealed from.
Since our holding requires reversal of this case, we do not reach
the defendant’s remaining assignment of error challenging the
sufficiency of the evidence.