Gary Wayne Desper v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
GARY WAYNE DESPER
MEMORANDUM OPINION * BY
v. Record No. 2538-95-3 CHIEF JUDGE NORMAN K. MOON
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Michael Gamble, Judge
Joseph A. Sanzone (Joseph A. Sanzone
Associates, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gary Wayne Desper appeals his conviction of damaging or
defacing property in violation of Code § 18.2-137. Appellant
argues that the trial court committed reversible error by
improperly admitting evidence of an alleged prior bad act of
appellant. We disagree, and find that the trial court did not
err in admitting evidence of appellant's alleged prior bad act
because it was relevant to prove prior relations and motive.
In mid to late June, 1995, Virginia Dalton, the owner of Cut
Loose, a beauty salon, discussed with Gay Charlton the
possibility of Charlton coming to work for Dalton. Subsequently,
Dalton told a number of people that Charlton would be working at
the salon.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On the evening of July 4, 1995, appellant was observed with
a spray can outside of Dalton's store. He was bending down near
the door spray painting the building. A teal green Chevy S-10
truck, similar to appellant's vehicle, was in the salon's parking
lot. The eyewitness later identified appellant in a photo
lineup.
The following day, Dalton discovered the words "Gay" and
"Nails by Gay" spray painted on the windows of her shop. On July
9, 1995, the police went to appellant's home and inquired about
the incident. Appellant denied committing the crime but said
that he had learned of the event from his mother. The police had
not informed appellant's mother of the vandalism. Appellant
could not remember his whereabouts at the time of the crime.
The trial court permitted introduction of evidence that in
the fall of 1994 appellant pulled his S-10 truck next to
Charlton's car. He got down beside Charlton's car, and after
appellant departed, Charlton's car had been "keyed."
Appellant argues that his conviction must be reversed
because the trial court erred in permitting introduction of the
prior vandalism to Charlton's car. "Evidence of other
independent acts of an accused is inadmissible if relevant only
to show a probability that the accused committed the crime for
which he is on trial because he is a person of bad or criminal
character." Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337
S.E.2d 897, 899 (1985). However, such evidence is admissible
when it is "relevant to an issue or element in the present case."
- 2 -
Id. "[I]f such evidence tends to prove any of the relevant
facts of the offense charged and is otherwise admissible, it will
not be excluded merely because it also shows him to be guilty of
another crime." Williams v. Commonwealth, 203 Va. 837, 841, 127
S.E.2d 423, 426 (1962).
Accordingly, we have held that evidence of prior bad acts
may be properly admitted to prove, among other things, prior bad
relations of parties, Scott v. Commonwealth, 228 Va. 519, 527,
323 S.E.2d 572, 577 (1984), and a defendant's motive, Freeman v.
Commonwealth, 223 Va. 301, 313-14, 288 S.E.2d 461, 468 (1982).
"Even where another crime is not inextricably linked with the
offense at trial, it may nevertheless be proved if it shows the
conduct and feeling of the accused towards his victim, his motive
. . . or any other relevant element of the offense on trial."
Scott, 228 Va. at 526-27, 323 S.E.2d at 577.
When admitting evidence that the appellant had keyed
Charlton's car, the trial court instructed the jury that:
The only reason you should consider this
testimony is for the conduct and the feelings
of the accused towards Gay Charlton. This
prior event does not prove or should not be
considered as proof of the charge in this
case that has been alleged to occur on July
4, 1995, but merely to show his conducts
[sic] and feelings toward Ms. Charlton.
The trial court did not err in finding that the keying of
Charlton's car could serve to demonstrate the nature of
appellant's relationship with Charlton and his feelings toward
her. Appellant's hostility toward Charlton was relevant on these
- 3 -
facts, where the alleged crime clearly demonstrated a similar
hostility. The evidence corroborated the identification of
appellant as the vandal.
Further, the trial court, although it did not do so, could
have permitted evidence of the event as it demonstrates
appellant's motive for an otherwise inexplicable crime. The
prior bad act is probative of appellant's motive, and serves to
suggest that his intent in committing the present crime was a
desire to harm Charlton. The fact that the trial court rejected
motive as a basis for admission of the prior bad act does not
preclude our consideration of motive as a proper basis for its
admission. "[W]e will not reverse the trial court's ruling when,
as here, the correct result has been reached, although the court
may have assigned the wrong reason for its ruling." Frye v.
Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 280 (1986).
In sum, we find that the trial court acted within its
discretion in finding that the probative value outweighed the
incidental prejudice of the prior bad act, see Miller v.
Commonwealth, 15 Va. App. 301, 305, 422 S.E.2d 795, 797 (1992),
aff'd, 246 Va. 336, 437 S.E.2d 411 (1993), as the prior bad act
evidence proved appellant's ill will toward Charlton which was a
motive for his hostile act.
Appellant also argues that the evidence of the prior bad act
should not have been admitted because the evidence was too remote
as it occurred eight months prior. Remoteness of a prior bad act
is one factor to be considered by the trial court; however,
- 4 -
evidence of prior bad acts should not be withheld "solely on the
basis of remoteness unless the expanse of time has truly
obliterated all probative value." Lafon v. Commonwealth, 17 Va.
App. 411, 419, 438 S.E.2d 279, 284 (1993).
A period of eight months does not render evidence of the
prior bad act per se irrelevant. See, e.g., Collins v.
Commonwealth, 226 Va. 223, 229-30, 307 S.E.2d 884, 888 (1983)
(finding that testimony about other criminal activity "eight
months or more" from the crime charged was not "too remote");
Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981)
(finding evidence of other bad acts committed a year and a half
before was still relevant). Thus, the trial court did not err in
concluding that the fact that the prior bad act was committed
eight months earlier did not sufficiently eradicate the probative
value of the incident to warrant its exclusion.
Accordingly, we affirm.
Affirmed.
- 5 -