Criminal: Court clarifies difference between two Rules of Evidence

Virginia Rules of Evidence 2:403 and 2:404 impose different standards for determining when to exclude probative evidence based on its prejudicial effect. The difference in balancing tests makes it easier for a party to introduce relevant evidence generally than to introduce relevant prior-bad-act evidence.

Background

This case involves three armed robberies by a masked gunman at Dollar General stores within a 10-day span. Yahsim Tremaine Williams was charged with and convicted of crimes committed during the third robbery.

The gunman’s identity was the most significant issue in dispute. The Commonwealth offered evidence from the first two robberies to show that Williams was the gunman and that he followed the same pattern each time. The evidence included cellphone location data, text messages and photographs from Williams’s cellphone.

Williams claims that the trial court erred by admitting evidence about the New Kent and Williamsburg robberies and by admitting evidence from his cellphone. He argues that its prejudicial effect outweighed its probative value.

Standard

The evidentiary issues here involve Virginia Rules of Evidence 2:403 and 2:404, which impose different standards for determining when to exclude probative evidence based on its prejudicial effect. Rule 2:403 is the general standard governing the admissibility of relevant evidence. Relevant evidence is admissible unless “the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact.”

Rule 2:404 governs the admissibility of prior-bad-act evidence. It provides (subject to exceptions not applicable here) that “evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith.” Such evidence is admissible, however, “if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.”

Although Rule 2:404(b) also requires the trial court to balance the probative value of the evidence against its potential prejudice, it does not use the “substantially outweighs” standard from Rule 2:403(a). Instead, Rule 2:404(b) permits the introduction of otherwise admissible prior-bad-act evidence only “if the legitimate probative value of such proof outweighs its incidental prejudice.”

The difference in balancing tests makes it easier for a party to introduce relevant evidence generally than to introduce relevant prior-bad-act evidence. Prior-bad-act evidence that is otherwise admissible must be excluded whenever its probative value is merely outweighed by its incidental prejudice; the prejudice need not substantially outweigh the probative value.

Analysis

Given that Williams’s main defense was that he did not rob the Charles City store, the evidence of the two prior robberies was highly probative to show his identity as the robber.

The court rejects Williams’s suggestion that the evidence of the prior robberies was inadmissible because Williams was not convicted of those crimes and it was not proven that he was the robber. Both the United States Supreme Court and the Supreme Court of Virginia have held that the admissibility of prior bad acts does not require proof beyond a reasonable doubt that the defendant committed them.

Although the balancing test to exclude prior-bad-act evidence as prejudicial is easier to satisfy under Rule 2:404 than 2:403, the court finds no abuse of discretion in the trial court’s conclusion that the probative value of that evidence here outweighed the incidental prejudice. The fact that the trial court gave a limiting instruction further supports the conclusion that the court did not abuse its discretion by admitting evidence of the two prior robberies to show that Williams was the masked gunman in the Charles City robbery.

The court also finds no abuse of discretion in the trial court’s determination that the probative value of the phone evidence in showing that Williams was the gunman who committed the crimes at the Charles City store far outweighed the danger of unfair prejudice.

Sufficiency

The Commonwealth produced a mountain of circumstantial evidence to prove that Williams was the masked gunman at the Dollar General store in Charles City. Williams’s challenges to the remaining convictions fare no better.

Affirmed.

Williams v. Commonwealth, Record No. 0545-24-2, Sept. 16, 2025. CAV (Raphael). From the Circuit Court of Charles City County (Bondurant). Charles E. Haden for appellant. Timothy J. Huffstutter, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-248. 20 pp.