Panel clarifies prior bad act evidence balancing test

Affirming a defendant’s conviction for armed robbery and related crimes, the Court of Appeals of Virginia has clarified that 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 defendant claimed that evidence from prior robberies should have been excluded because its prejudicial effect outweighed its probative value. But the trial court instructed the jury to only consider that evidence for identification, premeditation and modus operandi purposes.

Judge Stuart A. Raphael said the difference in balancing tests between Rule 2:403 and 2:404 merely “makes it easier for a party to introduce relevant evidence generally than to introduce relevant prior-bad-act evidence.”

“The fact that the trial court gave a limiting instruction further supports our conclusion that the court did not abuse its discretion by admitting evidence of the two prior robberies to show that [the defendant] was the masked gunman in the Charles City robbery,” the judge said.

Joined by Senior Judge Jean Harrison Clements and Judge Doris Henderson Causey, Raphael affirmed the convictions in Williams v. Commonwealth (VLW 025-7-248).

Attorneys involved with this case did not respond to requests for comment.

Armed robberies

Following three armed robberies by a masked gunman at Dollar General stores within a 10-day span, the last of which resulted in the gunman shooting a police officer, Yahsim Tremaine Williams was arrested and charged with multiple crimes committed during the third robbery.

Whereas 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 commonwealth also introduced location data, text messages and photographs from Williams’s cellphone which linked him to the robbery, as well as physical evidence from Williams’s home. Eighteen witnesses testified at trial.

Having been instructed to limit its consideration of the prior bad acts evidence, the jury found Williams guilty of all crimes charged and imposed three life sentences plus eight years for firearms convictions. Williams appealed.

Incidental prejudice

Virginia Rules of Evidence 2:403 and 2:404 “impose different standards for determining when to exclude probative evidence based on its prejudicial effect,” Raphael said. “Rule 2:403 is the general standard governing the admissibility of relevant evidence.”

Under Rule 2:403, relevant evidence is admissible unless the probative value of the evidence is substantially outweighed either by the danger of unfair prejudice, or its likelihood of confusing or misleading the trier of fact.

On the other hand, 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,’” the judge explained.

However, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as 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),” Raphael pointed out.

“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,’” he said.

For more than 40 years, our Supreme Court has held that the ‘incidental prejudice’ standard applies when weighing the probative value of prior-bad act evidence against its prejudice.

— Judge Stuart A. Raphael

Raphael noted that the “difference in balancing tests makes it easier for a party to introduce relevant evidence generally than to introduce relevant prior-bad-act evidence.”

Accordingly, the judge said “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.”

That difference reflected long-standing Virginia precedent which predated the Virginia Rules of Evidence.

“For more than 40 years, our Supreme Court has held that the ‘incidental prejudice’ standard applies when weighing the probative value of prior-bad act evidence against its prejudice,” Raphael wrote, looking to Lewis v. Commonwealth.

“Although the ‘incidental prejudice’ standard first appeared in Lewis, our Supreme Court has repeated it many time since, including most recently in Commonwealth v. Carolino,” the judge said, adding that Rule 2:404(b) codified that test in 2012.

Meanwhile, the balancing test in Rule 2:404(b) differs from the test applied by federal courts under Federal Rule of Evidence 404, which does not mention which test applies.

“In 1985, Professor Imwinkelried warned that because Federal Rule 404(b) had no balancing test, courts would likely borrow the ‘substantially outweighs’ standard from Federal Rule 403, a move that he said would ‘turn[] the common-law rules upside down,’” Raphael said.

But the U.S. Supreme Court did not heed the professor’s call to amend Rule 404, holding in Huddleston v. United States that evidence which is otherwise admissible under Rule 404 was subject to the “substantially outweighs” analysis under Rule 403.

“‘As a consequence, Virginia’s rule, as written, makes the introduction of other crimes evidence more difficult than it is under the federal rules,’” the judge noted.

Mostly faithful

Virginia’s Court of Appeals has applied the “incidental prejudice” standard required by Rule 2:404(b) and “also explicitly recognized that the ‘substantially outweighs’ standard is ‘marginally stricter than the balancing test for prejudice used to evaluate the admission of relevant evidence generally,’” Raphael pointed out, quoting Drexel v. Commonwealth.

“Still, a couple of our published cases have failed to differentiate between the two tests, suggesting incorrectly that the ‘substantially outweighs’ standard in Rule 2:403(b) supplies the balancing test required by Rule 2:404(b),” the judge lamented.

“Some of our nonprecendential opinions have made the same mistake,” he wrote. “We clarify here that Rules 2:403(a) and 2:404(b) provide distinct balancing tests. Courts and practitioners alike should be careful to distinguish them in line with binding Supreme Court precedent and the text of the rules themselves,” Raphael advised.

Ample evidence

The panel rejected Williams’s suggestion that the evidence of the prior robberies was inadmissible because he was neither convicted of those crimes, nor was it proven that he was the robber.

“Both the United States Supreme Court and our Supreme Court have held that the admissibility of prior bad acts does not require proof beyond a reasonable doubt that the defendant committed them,” Raphael said, citing Prieto v. Commonwealth.

Instead, trials courts must examine all the evidence in the case to decide whether the jury could reasonably find that the prior act took place.

Although the prior-bad acts test was easier to satisfy under Rule 2:404 than 2:403, the panel found no abuse of discretion in the trial court’s conclusion that the probative value of that evidence here outweighed the incidental prejudice.

“Given that all incriminating evidence ‘is prejudicial to an accused,’ the fact that prejudice results does not ‘justify automatic exclusion,’” Raphael held.

“When, as here, ‘a course of criminal conduct … consists[s] of a series of related crimes, the perpetrator has no right to have the evidence “sanitized” so as to deny the jury knowledge of all but the immediate crime for which he is on trial,’” the judge explained.

Furthermore, Raphael quoted Brooks v. Commonwealth to say that “‘[t]he danger of unfair prejudice can … be mitigated by an instruction to the jury that limits their consideration of other crimes evidence to its proper purposes and application to each offense charged.’”

Whereas Virginia courts presume that juries heed instructions, the judge found the trial court’s limiting instruction supported the conclusion that there was no abuse of discretion in admitting evidence of the two prior robberies to show that Williams was the masked gunman here.

Agreeing with the commonwealth that there was ample circumstantial evidence that Williams possessed it during the robberies, the panel also rejected Williams’ argument that the cellphone evidence was unnecessary to the disposition of the case and highly prejudicial.

Finally, the panel found that the commonwealth “produced a mountain of circumstantial evidence to prove that Williams was the masked gunman at the Dollar General store in Charles City.”

“All of that evidence, considered in its entirety, sufficed to exclude the hypothesis that someone other than Williams committed the crimes at the Charles City store,” Raphael wrote, adding that there was also ample evidence that Williams intended to kill the deputy.