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TURNER v. COMMONWEALTH (59200)



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TURNER

v.

COMMONWEALTH


April 21, 2000

Record No. 992005

RONNEY EARL TURNER

v.

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Lacy, Keenan, Koontz,
and Kinser, JJ., Poff and Stephenson, Senior Justices


OPINION BY JUSTICE BARBARA MILANO KEENAN

In this appeal, we consider whether the trial
court erred in permitting the Commonwealth to present evidence of
other crimes committed by a defendant more than 13 years before
the crimes charged in this prosecution.

Ronney Earl Turner was indicted by a grand jury
on charges including abduction with intent to defile, carjacking
in violation of Code ? 18.2-58.1, forcible sodomy,
aggravated sexual battery, two counts of rape, and attempted
robbery. He was tried by a jury in the Circuit Court of the City
of Virginia Beach, and was found guilty of these offenses. The
jury fixed his punishment at separate terms of life imprisonment
on each of the rape, abduction with the intent to defile,
forcible sodomy, and carjacking offenses. The jury also set his
punishment at 20 years’ imprisonment for sexual battery and ten
years’ imprisonment for attempted robbery. The trial court
sentenced Turner in accordance with the jury verdicts.

Before trial, Turner filed a motion in limine
to prevent the Commonwealth from introducing evidence that he had
raped and abducted two other women in 1984. Turner argued that
the prior crimes were too remote in time and were factually
different from the pending charges, which were alleged to have
occurred in 1998, rendering the prior offenses irrelevant. Turner
also asserted that the prejudicial effect of this evidence would
outweigh its probative value.

At a hearing on the motion in limine, the
Commonwealth proffered the substance of the proposed testimony
and evidence that Turner had been incarcerated from 1986 to 1996
as a result of the prior crimes. The trial court denied Turner’s
motion, based on the court’s conclusion that there was a
"close similarity" between the prior crimes and the
pending charges. The trial court further stated that the
"time factor is minimized by the fact that the defendant
. . . was actually incarcerated for a majority of the
time that had passed in between the alleged offense[s] here and
the prior acts."

Turner filed a petition for appeal in the Court
of Appeals challenging the trial court’s admission of the
evidence of other crimes. The Court of Appeals denied Turner’s
petition for appeal, concluding that the trial court did not
abuse its discretion in admitting the challenged evidence. Turner
v. Commonwealth
, Record No. 0495-99-1 (August 3, 1999). We
awarded Turner an appeal limited to this same issue.

We will state the evidence presented at trial
in the light most favorable to the Commonwealth, the prevailing
party below. Hussen v. Commonwealth, 257 Va. 93, 94, 511
S.E.2d 106, 106 cert. denied, ___ U.S. ___, 119 S.Ct. 1792
(1999). On February 13, 1998, the victim, a 17-year-old high
school student, was employed at the Pembroke Shopping Mall in
Virginia Beach. The victim left work that evening about
9:00 p.m. and walked across the parking lot to the van that she
had driven to work. As she was in the process of placing her
belongings inside the van, Turner jumped on her back, cupped her
mouth with his hand, and placed a "shining" object to
her head that she thought was a gun. Turner told her to
"shut up" or he would shoot her.

Turner directed the victim to crouch on
the van floor between the two front seats and to look down at the
floor. Turner then took the victim’s van keys and drove the van
for five or ten minutes to an unknown location. After Turner
stopped the van, he covered the victim’s face with a
sweatshirt. He asked her whether she had a boyfriend, what her
name was, and where she lived. After directing the victim to
remove some of her clothing and threatening to kill her if she
resisted, Turner directed her to move to the van’s back seat,
where he "fondled" her vagina, raped her twice, and
orally sodomized her. He then "squirted something" on
the victim’s vagina and directed her "to rub it
in."

After raping the victim, Turner apologized and
said that it was "something he had to do before he went to
Texas." Turner asked the victim if she had any money
and examined the contents of her purse, moving her driver’s
license from its usual location. Afterward, he drove the van
again for a few minutes, during which time the victim remained
on the van floor with the sweatshirt covering her face. Upon
stopping the van, Turner told the victim that he was going
to leave her van key outside the van near the left front tire. He
directed the victim to count to 100 before attempting to
retrieve the key or he would shoot her. The victim eventually
found the key near the front tire of the van, drove to her
boyfriend’s house, and reported the crimes to the police. During
the entire time that Turner was in the van, the victim either
had her face to the van floor or had the sweatshirt over her eyes
and, thus, was not able to see Turner.

The victim was examined at a hospital
later that night, where vaginal swab samples were taken. David A.
Pomposini, a forensic scientist at the Virginia Division of
Forensic Science laboratory in Norfolk, testified that he found
spermatozoa in seminal fluid on the vaginal swabs, and that he
isolated DNA from the spermatozoa for analysis. Pomposini
submitted the results of his analysis to the Commonwealth’s DNA
data bank in Richmond. Of the 10,938 DNA profiles on record in
the data bank, one profile matched the DNA from the spermatozoa
on the vaginal swabs. This matching profile belonged to Turner,
who is an African-American.

Pomposini testified that he also analyzed DNA
from a blood sample taken from Turner after he became a suspect
in the present offenses. Pomposini stated that he analyzed the
profile of five "genetic loci" on the DNA from the
vaginal swab and concluded that the profile matched the DNA from
Turner’s blood sample. Pomposini further stated that the
probability of randomly selecting an individual in the Black
population with the same DNA profile was about one in one hundred
million.

The Commonwealth also presented the testimony
of the victims in the prior crimes. Each described how she had
been abducted and raped by Turner about 14 years earlier. The
first prior victim testified that between 4:00 and 5:00
p.m. on September 7, 1984, Turner abducted her just after she
entered her car in the parking lot of Military Circle Mall in
Norfolk. He reached in through her open car window, placed his
hand over her mouth, held either a knife or a gun to the side of
her back, and threatened to kill her if she screamed.

Turner instructed her to slide over to the
passenger side of the front seat and repeatedly told her not to
look at him, but to keep her head turned. Turner asked her
whether she had a boyfriend, and he demanded to see her driver’s
license to determine where she lived so that he could
"get" her if she contacted the police.

Turner drove her in her car to a wooded area,
where he ordered her to remove her pants and get out of the car.
He inserted his finger in her vagina and then raped her. After
raping her, Turner said that he was sorry and then drove her back
to a building near Military Circle Mall. He told her to keep her
head down and to wait for 15 minutes before retrieving her car
key from outside the car. He stated that if she did not wait the
specified time, he "would be around." She eventually
found her key on the ground on the driver’s side of her car.
Based on these events, Turner was convicted in 1986 in the
Circuit Court of the City of Norfolk of rape and abduction with
the intent to defile.

The second prior victim testified that
about 9:30 p.m. on December 21, 1984, Turner abducted her from
the parking lot of the Janaf Shopping Center in Norfolk, which is
located across the street from the Military Circle Mall. She had
just entered her car when Turner approached and tapped on her
window. After she rolled down her window a little, Turner asked
if she had any "jumping cables." She replied that she
did not and had begun to move her car when Turner pointed a gun
through the window at her face.

Turner ordered her not to scream and directed
her to slide over and "[d]uck down" low on the
passenger side of the front seat and to keep her head turned away
from him. Turner repeatedly told her to "[d]uck down"
and not look at him as he drove her to an area behind the
shopping center. He asked her for money and asked where she kept
her driver’s license. After looking at her license, Turner stated
that since he knew where she lived, he would kill her if she told
anyone what he had done. He ordered her to remove her panties and
performed oral sodomy on her. He then directed her to move to the
car’s back seat, where he raped her. Before leaving, Turner told
her that he would put the car key outside the car, and that she
was to wait a specified period of time before attempting to
retrieve it. Based on these events, Turner was convicted of
abduction in 1986 in the Circuit Court of the City of Norfolk.

After the Commonwealth rested its case, Turner
presented an alibi defense in which he testified that he was home
with his former wife, Valerie Shoulders, at the time the crimes
were committed. Valerie Shoulders also testified that she was
with Turner at his home at the time the crimes occurred.

On appeal, Turner argues that the trial court
abused its discretion in allowing the Commonwealth to present
evidence of the crimes he committed against the prior victims to
prove the identity of the perpetrator of the crimes for which he
was being tried. He contends that since the prior crimes occurred
over 13 years before the crimes for which he was on trial, the
evidence concerning the prior crimes lacked probative value.

Turner also argues that several factual
differences between the prior crimes and the present offenses
rendered the challenged evidence inadmissible as proof of
identity. He states that the victim in this case is
Caucasian and was 17 years old at time she was attacked, while
both prior victims are African-American and were 27 and 29
years old, respectively, at the time of the offenses against
them. Turner also notes that the crimes against the prior victims
occurred in Norfolk, while the crimes against the victim in this
case occurred in Virginia Beach. Finally, he states that
the first prior victim was abducted during daylight hours
and raped outside her car, while the victim in this case was
abducted at night and raped in the back seat of her van. We
disagree with Turner’s arguments.

The standard governing the admission of
evidence of other crimes in the guilt phase of a criminal trial
is well established. Evidence that shows or tends to show that a
defendant has committed a prior crime is generally inadmissible
to prove the crime charged. Guill v. Commonwealth, 255 Va.
134, 138, 495 S.E.2d 489, 491 (1998); Kirkpatrick v.
Commonwealth
, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).
There are several exceptions to this general rule. One exception
is that evidence of other crimes is admissible to prove a
perpetrator’s identity when certain requirements are met. We
discussed these requirements in Chichester v. Commonwealth,
248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994), cert. denied,
513 U.S. 1166 (1995):

[O]ne of the issues upon which "other
crimes" evidence may be admitted is that of the
perpetrator’s identity, or criminal agency, where that has been
disputed. Proof of modus operandi is competent evidence
where there is a disputed issue of identity.

. . . .

[E]vidence of other crimes, to qualify for
admission as proof of modus operandi, need not bear such
an exact resemblance to the crime on trial as to constitute a
"signature." Rather, it is sufficient if the other
crimes bear a "singular strong resemblance to the pattern of
the offense charged." That test is met where the other
incidents are "sufficiently idiosyncratic to permit an
inference of pattern for purposes of proof," thus tending to
establish the probability of a common perpetrator.

. . . .

If the evidence of other crimes bears
sufficient marks of similarity to the crime charged to establish
that the defendant is probably the common perpetrator, that
evidence is relevant and admissible if its probative value
outweighs its prejudicial effect . . . . The trial
court, in the exercise of its sound discretion, must decide which
of these competing considerations outweighs the other. Unless
that discretion has been clearly abused, we will affirm the trial
court’s decision on this issue.

Id. (quoting Spencer v. Commonwealth,
240 Va. 78, 89-90, 393 S.E.2d 609, 616-17, cert. denied,
498 U.S. 908 (1990)(citations omitted)); see also Johnson
v. Commonwealth
, 259 Va. ___, ___, ___ S.E.2d ___, ___
(2000), decided today; Guill v. Commonwealth, 255 Va. at
138-39, 495 S.E.2d at 491-92.

Applying this standard, we hold that the trial
court did not abuse its discretion in admitting the testimony of
the prior victims, as well as evidence that Turner was convicted
of the prior crimes. While there were minor factual differences
among the offenses, they shared several sufficiently
idiosyncratic features which, considered as a whole, reflected a
pattern in the prior crimes that bore a singular strong
resemblance to the pattern of the present offenses, thus tending
to prove the probability of a common perpetrator.

In each case, the attacker assaulted his victim
in the parking lot of a shopping center in the late afternoon or
evening hours. The victim in this case was abducted from a
shopping center that is within a 15-minute drive of the shopping
centers where the prior crimes were committed. Each victim was
assaulted when she entered, or was in the process of entering,
her vehicle. The attacker used a weapon in all three cases, and
he threatened to kill each victim if she did not cooperate with
him. The attacker attempted to obtain or obtained each victim’s
name and address, and he handled each victim’s driver’s license.
In each case, the attacker ordered the victim to avoid looking at
him, obtained the keys to the victim’s vehicle, and drove the
victim to a different location.

After raping each victim, the attacker drove
each to yet another location where he ordered each victim to wait
a certain period of time or to count to a certain number before
attempting to leave. The attacker warned each victim that if she
left the vehicle before the designated amount of time had
elapsed, he would know that fact. In each case, the attacker told
the victim he would leave her vehicle keys outside the vehicle,
actually left the keys near the vehicle, and fled from the
vehicle on foot.

We also conclude that the trial court did not
abuse its discretion in concluding that the probative value of
this evidence outweighed its prejudicial effect. First, we
disagree with Turner’s contention that the period of time between
the prior crimes and the offenses charged in this case eliminated
the probative value of the evidence of the prior crimes. In
determining whether a prior crime is too remote in time to be
considered by the fact finder, the trial court may consider the
length of time that a defendant has been incarcerated between the
date of the prior crime and the date of the offense charged. See
State v. Davis, 398 S.E.2d 645, 650 (N.C. Ct. App. 1990).
Turner was incarcerated in 1986 after being convicted of the
prior crimes, which occurred in 1984, and he was imprisoned
without interruption from 1986 until two years before the present
offenses were committed. Thus, since the prior crimes occurred
during the last four years that Turner was not incarcerated
before the date of the present offenses, the prior crimes were
not too remote in time to be considered by the jury.

Second, we disagree with Turner’s argument that
the differences among the offenses, such as the race and age of
the victims, and the particular locations where the crimes
occurred, materially affected the probative value of the
challenged evidence. These facts cannot be isolated from the
entire record before the trial court which, considered in its
entirety, supports the court’s discretionary determination.

For these reasons, we will affirm the Court of
Appeals’ judgment.

Affirmed.

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