COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Senior Judge Willis 

MICHAEL J. VANHOOK 

 OPINION BY 

v. Record No. 1018-02-1 JUDGE ROBERT P. FRANK 

 MARCH 25, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 (Lyn M. Simmons, on brief), for appellant. 

Appellant submitting on brief. 

 (Jerry W. Kilgore, Attorney General; Leah A. 

Darron, Assistant Attorney General, on 

brief), for appellee. Appellee submitting on 

brief. 

 Michael J. Vanhook (appellant) was convicted in a bench 

trial of possession of cocaine, in violation of Code § 18.2-250, 

possession of a firearm while in possession of cocaine, in 

violation of Code § 18.2-308.4, and possession of a firearm by a 

convicted felon, in violation of Code § 18.2-308.2. On appeal, 

he contends the trial court erred in trying all three 

indictments together. For the reasons stated, we affirm the 

judgments of the trial court. 
BACKGROUND1

 Appellant was indicted for the three offenses stated above, 

which all arose out of an incident on April 5, 2001 in the City 

of Newport News. A bench trial was set. Appellant filed a 

Motion for Separate Trials, contending his prior criminal felony 

record, "while admissible as an element" of one charge, was 

"irrelevant and prejudicial" to his trial for the possession of 

cocaine and possession of a firearm while in possession of 

cocaine. 

 The trial court conducted a hearing and denied the motion 

for severance. The court acknowledged that, if appellant were 

tried by a jury, severance would be mandatory. However, the 

court distinguished a jury trial from a bench trial. The trial 

court found he was "perfectly capable of separating all the 

charges." The bench trial proceeded, and the trial court found 

appellant guilty of all charges. 

ANALYSIS 

 Appellant contends the trial court erred in refusing to 

sever the felon in possession of a firearm indictment from the 

other two charges.2 We disagree. 

 1

 We do not recite the facts of the offenses because those 

facts are not relevant to this analysis. 

2

 In his brief, appellant also contends the evidence was not 

sufficient to convict. We did not grant an appeal on this 

issue, therefore, we do not address sufficiency. See Code 

§ 17.1-407(D); Rules 5A:12(c) & 5A:15. 

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 Rule 3A:10(c) states: 

The court may direct that an accused be 

tried at one time for all offenses then 

pending against him, if justice does not 

require separate trials and (i) the offenses 

meet the requirements of Rule 3A:6(b)3 or 

(ii) the accused and the Commonwealth's 

attorney consent thereto. 

"'Whether different offenses should be tried separately is a 

matter that rests within the sound discretion of a trial court. 

Thus, a trial court's ruling on the matter will not be reversed 

absent a showing that the court abused it[s] discretion.'" 

Ferrell v. Commonwealth, 11 Va. App. 380, 386, 399 S.E.2d 614, 

617 (1990) (citing Cheng v. Commonwealth, 240 Va. 26, 33-34, 393 

S.E.2d 599, 603 (1990)) (citations omitted). 

 Whether a trial court abused its discretion in refusing to 

sever charges in a bench trial is a matter of first impression. 

Our previous jurisprudence has addressed only severance of a 

felon in possession of a firearm offense in the context of a 

jury trial. 

 In Hackney v. Commonwealth, this Court explained: 

It is well settled that justice requires 

separate trials under Rule 3A:10(c) "where 

 3

 Rule 3A:6(b), which addresses joinder of offenses, states: 

Two or more offenses, any of which may be a 

felony or misdemeanor, may be charged in 

separate counts of an indictment or 

information if the offenses are based on the 

same act or transaction, or on two or more 

acts or transactions that are connected or 

constitute parts of a common scheme or plan. 

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evidence of one crime is not admissible in 

the trial of the others." Long v. 

Commonwealth, 20 Va. App. 223, 226-27, 456 

S.E.2d 138, 139 (1995); Johnson v. 

Commonwealth, 20 Va. App. 49, 56, 455 S.E.2d 

261, 265 (1995). 

Generally, evidence that a defendant has 

committed crimes other than the offense for 

which he is being tried is highly 

prejudicial and inadmissible. See Lewis v. 

Commonwealth, 225 Va. 497, 502, 303 S.E.2d 

890, 892-93 (1983) (noting that admission 

into evidence of felony conviction tends to 

adversely affect the defendant's presumption 

of innocence because it unfairly prejudices 

him before the jury). Such evidence 

confuses the issues before the jury and 

tends to prejudice the defendant in the 

minds of the jury by showing his or her 

depravity and criminal propensity. Fleenor 

v. Commonwealth, 200 Va. 270, 275, 105 

S.E.2d 160, 163 (1958). This rule is not 

without exception. 

28 Va. App. 288, 293, 504 S.E.2d 385, 388 (1998) (en banc). 

 Additionally, in Johnson v. Commonwealth, we said, in the 

context of a jury trial: 

To prove the charge of possession of a 

firearm after being convicted of a felony, 

the Commonwealth was required to prove that 

Johnson was a convicted felon. Thus, with 

respect to that charge, the trial court was 

obliged to receive evidence of Johnson's 

prior criminal record. However, that 

evidence bore no relevance and had no 

probative value with respect to the charges 

relating to possession of cocaine. With 

respect to those charges, it served merely 

the purpose of prejudicing Johnson in the 

eyes of the jury, by suggesting to their 

minds that he had a criminal propensity. 

20 Va. App. 49, 56, 455 S.E.2d 261, 265 (1995). 

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 Underpinning the Hackney and Johnson analysis is the concept 

that, absent well-established exceptions, a defendant's prior 

crimes are inadmissible because that evidence will unfairly bias 

a jury's perception of a defendant. This Court used the same 

analysis in Long v. Commonwealth. 

When the jury hears that a defendant has 

been convicted of a felony, a fact not 

probative of an element of the offense being 

tried, the evidence has a tendency to 

prejudice the defendant in the minds of the 

jurors. The admission of a felony 

conviction is suggestive of the defendant's 

criminal propensity and tends to adversely 

affect his presumption of innocence. 

20 Va. App. 223, 227, 456 S.E.2d 138, 139 (1995). 

Hackney, Johnson, and Long do not address severance in a 

bench trial context. These cases specifically discuss jury

perceptions, although some statements in the cases may suggest a 

broader applicability. Appellant claims, analytically, a bench 

and a jury trial are not different. We disagree. 

 Traditionally, courts have drawn a substantial distinction 

between trial judges and jurors. Judges are presumed capable of 

distinguishing "the evidence in one case with that in another," 

while jurors are given no such presumption. Mason v. 

Commonwealth, 219 Va. 1091, 1097-98, 254 S.E.2d 116, 120 (1979); 

Dove v. Peyton, 343 F.2d 210, 214 (4th Cir. 1965). This Court 

has explained why this presumption is applied only in bench 

trials: 

"A judge, unlike a juror, is uniquely suited 

by training, experience and judicial 

discipline to disregard potentially 

prejudicial comments and to separate, during 

the mental process of adjudication, the 

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admissible from the inadmissible, even 

though he has heard both." Eckhart v. 

Commonwealth, 222 Va. 213, 216, 279 S.E.2d 

155, 157 (1981). Consequently, we presume 

that a trial judge disregards prejudicial or 

inadmissible evidence. Hall v. 

Commonwealth, 14 Va. App. 892, 902, 421 

S.E.2d 455, 462 (1992) (en banc). Finally, 

"this presumption will control in the 

absence of clear evidence to the contrary." 

[No citation.] 

Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305 

(1993). 

 This Court underscored this distinction in Johnson v. 

Commonwealth, 12 Va. App. 391, 404 S.E.2d 384 (1991). Johnson 

argued "jury verdicts [should] be set aside and a new trial 

ordered because the sentencing judge read the intake officer's 

file, which contained an inculpatory statement not admissible at 

the sentencing hearing." Id. at 396, 404 S.E.2d at 386. In that 

case, we rejected Johnson's argument equating a trial court with 

a jury, noting that a judge can "'disregard potentially 

prejudicial comments.'" Id. at 397, 404 S.E.2d at 387 (citing 

Smith v. Commonwealth, 239 Va. 243, 268, 389 S.E.2d 871, 884-85 

(1990)). Appellant's contention that the trial court, as the 

fact finder in this particular case, was prejudiced by knowing 

appellant was a convicted felon is belied by our jurisprudence. 

 On a daily basis, trial courts hear evidence admissible for 

one purpose yet inadmissible for another purpose. See, e.g., 

Manetta v. Commonwealth, 231 Va. 123, 127-29, 340 S.E.2d 828, 

830-31 (1986) (explaining statements that are inadmissible as 

hearsay in one context may be admissible for other purposes). 

Trial courts regularly listen to proffered evidence to determine 

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whether that evidence is admissible. Nonetheless, the courts 

consider the evidence only in its permissible context. For 

example, if the trial court excludes evidence, then, 

presumptively, the judge does not consider the rejected evidence 

when ruling on the case. See Piatt v. Piatt, 27 Va. App. 426, 

436, 499 S.E.2d 567, 572 (1998) (where the judge read a greeting 

card to determine if it contained hearsay before sustaining the 

objection, "[t]he trial court is presumed to have excluded 

inadmissible evidence from its consideration, and wife has 

offered nothing to rebut this presumption"). 

 The trial court in this case specifically said he was 

"perfectly capable of separating all of the charges." As in 

Overton v. Commonwealth, 260 Va. 599, 604, 539 S.E.2d 421, 424 

(2000), "we are unwilling to disregard the court's unequivocal 

statement" that it would consider the charges separately. 

Nothing in this record rebuts the presumption that the trial 

court considered only the evidence relevant to each offense when 

reaching its decisions. See Cole, 16 Va. App. at 116, 428 S.E.2d 

at 305 (noting a court is presumed to "disregard[] prejudicial or 

inadmissible evidence" absent "'clear evidence to the 

contrary'"). 

 Justice did not require separate trials in this case. 

Finding the trial court did not abuse its discretion in denying 

the motion for severance, we affirm. 

Affirmed.

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