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Record No. 2587-98-1

Present: Judges Willis, Lemons[1] and Frank

Argued at Chesapeake, Virginia





James A. Cales, Jr., Judge


Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.

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

Elton Manning Jackson (appellant) appeals his
conviction, by a jury, of first degree murder. On appeal, he
contends the trial court erred in: 1) allowing three witnesses to
testify regarding their sexual encounters with him; 2) overruling
his motion to exclude a portion of the statement he made to
police regarding his sexual encounter with Kevin Benton; and 3)
allowing a witness to testify about the statement Andre Smith
made to the witness. We disagree and, therefore, affirm the trial
court’s judgment.


On July 22, 1996, the body of Andre Smith was
found at approximately 8:35 a.m. The medical examiner testified
the victim had been dead at least 18 to 24 hours, but no longer
than 48 hours. The cause of death was ligature strangulation.

Arnold Smith, a friend of the victim,
testified, over appellant’s objection, that between 2:30 a.m. and
3:00 a.m. on July 21, 1996, the victim said he was going to go
"past" appellant’s house to get some money. Kim Nurney
also testified, without objection, that at around 2:30 a.m. on
July 21, 1996, the victim told her he was leaving to go get some
money and would be back in fifteen minutes. Nurney waited for the
victim, but he never returned.

On July 23, 1996, during a canvas of the
victim’s neighborhood, police officers came in contact with
appellant. Appellant told the police he did not know the victim,
but recognized his picture from television reports. Detective
Ronald Young testified appellant appeared jittery and would not
make good eye contact with the police.

Appellant was arrested on May 6, 1997, and gave
a videotaped statement to Detective Whitehurst of the Chesapeake
Police Department. During this videotaped statement, he stated
the victim had visited his home some time in the evening on July
20, 1996, and the two of them "had a good time."
Whitehurst also questioned appellant about a sexual encounter he
had with Kevin Benton. Specifically, Whitehurst asked appellant
if he played a game with Benton where he tied up Benton.

At trial, appellant testified he engaged in
anal sex with the victim on July 20, 1996. Appellant said he gave
the victim twenty dollars, and the victim left around 10:00 p.m.

Kevin Benton testified about a sexual encounter
he had with appellant in the early morning hours of December 11,
1996. Appellant picked Benton up in the Ocean View area of
Norfolk, and Benton testified they went to appellant’s house.
Once they arrived at appellant’s house, Benton, who was high on
crack cocaine, went into the bedroom with appellant. Appellant
promised to give Benton seventy-five dollars if he would allow
appellant to tie his hands behind his back and massage him.
Benton stripped to his boxer shorts and lay on his stomach on the
bed while appellant tied his hands behind his back with a
necktie. After a few moments, during which appellant was out of
Benton’s sight, Benton noticed appellant approaching from behind.
Appellant tried to lift a leather strap over Benton’s head.
Benton turned away, kicked appellant, and untied the necktie
around his hands. Later that morning, appellant paid Benton
nineteen dollars and some change. Appellant then drove Benton to
a meeting with Benton’s probation officer. Appellant testified he
engaged in consensual sex with Benton, but denied any acts of

Tommy Anderson testified he and appellant
agreed to exchange sex for money in May 1995. Anderson testified
he went to appellant’s house, took off his clothes, and lay on
the bed. Anderson agreed to let appellant rub lotion between his
closed legs. At this point, appellant became rough and held
Anderson down by placing his forearm in the back of Anderson’s
neck, but he stopped when Anderson threatened to scream. Then,
appellant agreed to drive Anderson to his next destination, but,
while in the car, he hit Anderson in the face. Appellant
threatened to kill Anderson if he tried to escape. Appellant
drove Anderson to the approximate area where the victim’s body
was found. He ordered Anderson to get out and place his hands on
the vehicle. With his hands on the vehicle, Anderson turned and
saw appellant approaching him from behind with a strap in his
hand. Anderson kicked appellant and fled the area. During his
testimony, appellant denied ever having a sexual encounter with

Willie C. Swimpson, Jr., lived with appellant
during the summer of 1995. Swimpson testified he engaged in
sexual relations with appellant for money during that time. On
one occasion, appellant took Swimpson to a secluded area and
Swimpson agreed to allow appellant to put lotion between his legs
while having sex with him. Swimpson glanced around while he
waited for appellant to retrieve the lotion and noticed appellant
approaching him from behind with a strap in his hand. Swimpson
thought appellant was going to put the strap around his head and
twist it. Swimpson escaped through the woods on foot. Appellant
testified Swimpson fabricated this story because their consensual
sexual relationship had ended on bad terms after he caught
Swimpson stealing from him.

A bloodstain found on appellant’s mattress
matched the DNA of the victim. Appellant’s DNA matched the DNA in
semen that was swabbed from the victim’s anus.

Appellant was convicted on August 21, 1998 of
murder in the first degree. He was sentenced to life imprisonment
on October 27, 1998.


Appellant contends the trial court erred in
allowing Benton, Anderson, and Swimpson to testify about their
sexual encounters with him, during which each said appellant
tried to strangle him.

Generally, evidence of other offenses should be
excluded if offered merely to show that the accused is a person
likely to commit the crime charged. But there are important
exceptions to that rule. Evidence of other crimes is admissible
if it tends to prove any fact in issue, even though it also tends
to show the defendant guilty of another crime.

Spencer v. Commonwealth, 240 Va. 78, 89,
393 S.E.2d 609, 616 (1990) (citations omitted).

"[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." Id. (citations

In Spencer, the Supreme Court explained
the standard of proof for the modus operandi

[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.

Ultimately, the question whether to admit
evidence of other crimes involves the same considerations as any
other circumstantial evidence. "Every fact, however remote
or insignificant, that tends to establish the probability or
improbability of a fact in issue, is relevant, and if otherwise
admissible, should be admitted." "Other crimes"
evidence bearing sufficient marks of similarity to the case on
trial to establish the probability of a common perpetrator is,
therefore, usually relevant. The question remains, however,
whether it is "otherwise admissible." That question
requires the trial court to weigh its probative value against its
prejudicial effect. "Whenever the legitimate probative value
outweighs the incidental prejudice to the accused, evidence of
prior offenses, if otherwise competent, is admissible."

The responsibility for balancing the competing
considerations of probative value and prejudice rests in the
sound discretion of the trial court. The exercise of that
discretion will not be disturbed on appeal in the absence of a
clear abuse.

Id. at 90, 393 S.E.2d at 616-17
(citations omitted).

Appellant contends the differences between his
encounters with Benton, Anderson, and Swimpson and his encounter
with the victim were not sufficient to show a modus operandi.
He argues Benton, Anderson, and Swimpson agreed to have sex with
him for money, but there was no evidence he paid the victim to
have sex with him. He argues Benton and Anderson testified, that
before taking them back to his house, he picked them up in his
car while cruising the streets. He contends there was no evidence
that he picked up the victim while driving in his car. He argues
that Swimpson testified appellant attempted to strangle Swimpson
in his car, not in his bed, where the Commonwealth contends
appellant strangled the victim. Benton testified he allowed
appellant to tie him up prior to the attempted strangulation, but
the medical examiner testified there was no evidence of tie marks
or ligature marks on the victim’s wrists or ankles. Appellant
also argues there was no evidence he engaged in anal intercourse
with Benton, Anderson, or Swimpson. However, the autopsy of the
victim indicated appellant penetrated the victim’s anus. Anderson
and Swimpson both testified appellant wanted to use lotion on
their legs, and the medical examiner testified there was no
evidence of lotion on the victim’s body. Benton, Anderson, and
Swimpson each testified he physically resisted appellant when
appellant attempted to strangle him. Anderson testified appellant
punched him in the face. Appellant notes there were no signs of
resistance or defensive wounds found on the victim’s body.
Benton, Anderson, and Swimpson each testified appellant used a
thick, leathery strap. According to the medical examiner, the
victim was strangled with a thin cord.

Despite the differences discussed by appellant,
we find there are significant similarities between appellant’s
encounters with Benton, Anderson, and Swimpson and his encounter
with the victim. First, all of the men, including the victim,
engaged in consensual homosexual sex with appellant. Benton,
Anderson, and Swimpson all stated they were using drugs at the
time of their encounters with appellant. The victim’s post-mortem
toxicology report indicated cocaine was present in his body.
Despite appellant’s assertion that he did not pay the victim to
have sex with him, the victim told Arnold Smith and Nurney he
needed money, then he had sex with appellant, and appellant gave
him twenty dollars. Finally, appellant engaged in rough sex with
Benton, Anderson, and Swimpson. Benton stated he was face down on
the bed with his hands tied behind his back when appellant put a
strap over his head from behind. Anderson said appellant started
getting rough during their encounter and appellant pinned him
down on the bed by the back of the neck. Later, appellant came at
Anderson with a strap or rope. Swimpson stated that during a
sexual encounter with appellant, appellant tried to put a leather
strap around his neck. The victim clearly had engaged in sexual
intercourse with appellant and was strangled from behind with a
thin cord.

We find appellant’s encounters with Benton,
Anderson, and Swimpson and the circumstances surrounding the
victim’s death to be "sufficiently idiosyncratic and similar
to each other to support an inference of a pattern of operation
and the probability of [a] common [perpetrator]." Chichester
v. Commonwealth
, 248 Va. 311, 328, 448 S.E.2d 638, 649
(1994). Furthermore, we find the trial court did not abuse its
discretion in concluding the prejudicial effect of Benton’s,
Anderson’s, and Swimpson’s testimony was outweighed by the
probative value of the evidence.

Appellant next contends the trial court erred
in admitting the portion of his May 6, 1997 statement to police
that related to his sexual encounter with Benton.

The Commonwealth argues appellant is
procedurally barred from raising this issue on appeal because,
pursuant to Rule 5A:18, he did not state a specific basis for his
objection. We disagree and address the issue on the merits.

In his brief, appellant only argues that the
portion of his statement to the police regarding his relationship
with Benton is inadmissible for the "same reasons [as] all
of Benton’s testimony." As discussed above, Benton’s
testimony was admissible to prove modus operandi.

"The admission of evidence is left to the
sound discretion of the trial court and will be disturbed on
appeal only upon a showing of abuse of discretion." Langhorne
v. Commonwealth
, 13 Va. App. 97, 106, 409 S.E.2d 476, 482
(1991) (citing Blain v. Commonwealth, 7 Va. App. 10, 16,
371 S.E.2d 838, 842 (1988) (citation omitted)).

"Evidence is relevant if it has any
logical tendency to prove an issue in a case." Goins v.
, 251 Va. 442, 461, 470 S.E.2d 114, 127 (1996)
(citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d
820, 823 (1986)).

In this case, appellant’s statement to the
police regarding his relationship with Benton was relevant
because it corroborated Benton’s admissible testimony. Therefore,
we find the trial court did not abuse its discretion in admitting
appellant’s statement into evidence.

Finally, appellant contends the trial court
erred in allowing Arnold Smith to testify about the victim’s
statement that he was going to appellant’s house.

The trial court ruled Smith’s testimony was
hearsay, but ruled it was admissible, over appellant’s objection,
to show the victim’s state of mind. The Commonwealth argued the
victim’s state of mind was relevant because it corroborated the
Commonwealth’s contention that he went to appellant’s house.

Assuming, without deciding, the statement was
hearsay, it was harmless error for the trial court to admit the

A nonconstitutional error is harmless if
"it plainly appears from the record and the evidence given
at trial that the error did not affect the verdict."
"An error does not affect a verdict if a reviewing court can
conclude, without usurping the jury’s fact finding function, that
had the error not occurred, the verdict would have been the

Scott v. Commonwealth, 18 Va. App. 692,
695, 446 S.E.2d 619, 620 (1994) (quoting Lavinder v.
, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911
(1991) (en banc)).

From Smith’s testimony, the trier of fact could
conclude the victim knew where appellant’s house was located and
the victim planned to go "past" appellant’s house to
get money. Smith did not testify as to the time the victim left
because he left prior to the victim’s leaving. Nurney established
the victim left at 2:30 a.m. and did not return. The victim told
Nurney he was going to get some money and would return in fifteen
minutes. Nurney’s testimony did not indicate the victim knew
appellant or was going to appellant’s home.

Substantively, the inadmissible hearsay adds
nothing to the evidence already before the trier of fact.
Appellant admitted he and the victim had sex at his home on the
evening of July 20, 1996. From appellant’s testimony, the trier
of fact could infer the victim knew where appellant’s home was
located. Therefore, we find, had the hearsay not been admitted,
the verdict would have been the same.

For these reasons, we affirm the judgment of
the trial court.



[1] Justice Lemons participated in
the hearing and decision of this case prior to his investiture as
a Justice of the Supreme Court of Virginia.

[2] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for