COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Alston Argued at Richmond, Virginia

DAVID GREY JORDAN, JR. MEMORANDUM OPINION * BY v. Record No. 2689-09-2 JUDGE ROSSIE D. ALSTON, JR.

APRIL 26, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Paul M. Peatross, Jr ., Judge Designate Elizabeth P. Murtagh, Deputy Pub lic Defender (Offi ce of the Public Defender, on brief), for appellant. Josephine F. Whalen, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; John W. Blanton, Assistant Attorney General, on brief), for appellee.
Following a jury trial, David Grey Jordan, Jr. (appellant) wa s convicted of stalking, third or subsequent offense, in vi olation of Code § 18.2-60 .3, and violating a protective order, in violation of Code § 18.2-60.4. Appellant conten ds the trial court erre d by instructing the ju ry that the facts and circumstances relating to a prior charge, which ul timately resulted in a favorable disposition for appellant, could be considered as evidence of a common scheme or plan in the prosecution of the present charge. For the followi ng reasons, we affirm the judgment of the trial court.
I. BACKGROUND 1 In June 2008, the victim filed a complaint ag ainst appellant alleging that he was stalking her in violation of a protective order. In December 2008, appellant was charged with stalking,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 As the parties are familiar w ith the record below, we cite only those fa cts necessary to the disposition of the appeal.- 2 - third or subsequent offense, in violation of Code § 18.2-60.3, and violation of a protective order, in violation of Code § 18.2-60.4. The indictments alleged that appellant’s offenses occurred between March 25, 2008, and July 16, 2008. During the jury trial for the instant offenses, the victim testified that she was employed at a BP gas station in Albemarle County. She stated that she knew appellant because his fiancée had been her manager at the gas station a nd appellant visited his fiancée at work. August 2007 events Over appellant’s objection, the trial court ad mitted the victim’s testimony regarding an event that the victim testifie d occurred in Fluvanna County in August 2007. The victim testified that on August 11, 2007, appellant called her at wo rk and asked her “to meet him somewhere.” The victim told him that she would not meet him and ended the conversation. She said that after leaving work, she observed appellant following her in his car as she drove from her place of employment in Albemarle County to a friend’s ho use in Fluvanna County. She stated that when she reached her friend’s house, appellant r eached through her car window and “yanked [her] clothes off.” The victim further testified that appellant was convicted of “attacking” her in general district court and that ultimately the misdemeanor charge was “dismissed” on appeal to the Fluvanna County Circuit Court. In the instant matter, defense counsel argue d that because the misdemeanor charge was dismissed in the Fluvanna County Ci rcuit Court, the trial court s hould not consider the victim’s testimony regarding August 11, 2007. Defense counsel stated, “We can’t go back and re-litigate that case.” Defense counsel further argued that because the charge was dismissed, the victim’s testimony regarding the Fluvanna County incident was not relevant. In overruling appellant’s objection, the trial court stated, “[T]his is evidence as to w hy [appellant] would know going to the door [in the instant case] would put [the victim] in fear because of what happened- 3 - [previously].” The trial court determined that th e jury in the instant cas e was entitled to hear victim’s testimony regarding the Fluvanna County incident and weigh her credibility for itself. In addition, the victim testified that on August 12, 2007, appellant again followed her while she was driving in Albemarle County. With re gard to this event, th e victim testified that appellant was convicted by the Albemarle Count y Circuit Court for stalking her on August 12, 2007. The trial court admitted into eviden ce the conviction order for the August 12, 2007 offense and a related protective order dated October 23, 2007, which forbade appellant from having contact with the victim for two years. March through July 2008 With regard to the events that occurr ed between March 25, 2008, and July 16, 2008, the victim testified that at approximately 10:00 a.m. on March 25, 2008, she was alone in the house she shared with her aunt when the doorbell ra ng. At the time, she was speaking to her friend, Guy Greene, on the telephone. The victim looke d out through an upstairs hall window and saw a Ferguson Enterprises pickup truck. 2 Because she was not expecting any visitors or deliveries, she decided not to answer the door. The person continued to ring the doo rbell and “bang” on the front door “for awhile [sic].” When the individua l turned to leave, she saw that it was appellant. The victim testified that after appellant came to her home, she observed him multiple times following her as she drove, and he repeated ly called her at work. She stated that she hesitated to report appellant’s actions to the police because she believ ed that without any evidence to confirm her statements , the police would not be able to assist her. During her trial testimony, the victim could not r ecall every occasion appellant inte racted with her, but she was able to testify about a numb er of specific instances.

2 Appellant testified that he wo rked for Ferguson Enterprises.- 4 - The victim testified that near the end of March 2008, she was riding in her car while a friend drove. She stated that as they drove down Main Street, appellant passed them and “swerved in front of [them] and cut [them] of f.” She also described an incident on April 29, 2008. She stated that as she wa s leaving her mother’s home in Albemarle County, she noticed a black sports utility vehicle drivi ng behind her. She tes tified that the vehicle alternated between tailing her vehicle and dropping back. Through her rearview mirror, she c ould see that appellant was the driver of the sports utility vehicle. The victim b ecame increasingly frightened by appellant’s presence and began “r unning through the rest of the [s top]lights trying to get away.” As she drove, the victim called her friend Jesse Matthew on her cell phone a nd then proceeded to drive directly to Matthew’s house. At this point, the victim tes tified that appellant abandoned his pursuit of her before she reached Matthew’s street. The victim testified that on May 6, 2008, she was stopped at a stopl ight in Albemarle County when a white car stopped next to her in the left turn lane. Rather than turning left, the white car moved into the victim’s lane, directly behind her vehicle. The victim testified that she believed the white car was swerving to hit her, so she pulled into the right turn lane to avoid a collision. She said that when she looked back at the white car, appellant was driving the white car and laughing. The victim testified that between March 25, 2008, and July 16, 2008, appellant called her multiple times at work. Appellant never threatened the victim, but the victim testified that she found his telephone calls disturbing. The victim tes tified that several days after one of the many telephone calls from appellant, she discovered her front driver side tire slas hed. After this event, appellant called her at work a nd asked, “[D]o you think I’ve b een punished enough?” On June 7, 2008, appellant called the victim and made a sexually provocative suggestion. On July 10, 2008, appellant asked the victim if she wanted “to play ” and he mentioned a “secret admirer.” Finally,- 5 - on another unidentified date, appellant called the victim and told her that she did not know how to drive. In addition to the protective order prohibiti ng appellant from contacting the victim and the certified copy of a misdemea nor conviction order for stalki ng the victim, the Commonwealth also submitted into evidence a certified copy of a misdemeanor conviction order, convicting appellant of stalking another woman. Jury Instruction 9 At the close of all of the ev idence, the trial court heard arguments on the proposed jury instructions. When Jury Instruction 9 was presented by the Commonwealth, appellant objected on the grounds that it was a “similar crimes instru ction.” Appellant maintained that a similar crimes instruction could be provided only when a modus operandi existed and there was evidence of a common scheme or plan. 3 The trial court found that the instruction, with slight alterations, was appropriate, and stated:

3 Jury Instruction 9 was based on Mode l Jury Instruction 2.260, which reads: You may consider evidence that the defendant committed [an offense; offenses] other than the offense for which he is on trial only [as evidence of the defendant’s motive; as evidence of the defendant’s intent; as evidence of the defendant’s scheme or plan; as evidence of the defendant’s identity; as evidence of the defendant’s knowledge; as eviden ce of the defendant’s conduct and feelings toward the victim and relations between them; as evidence of the defendant’s malice; as evidence of the defendant’s premeditation; as evidence of th e defendant’s opportunity; as evidence of the absence of mistake or accident on the part of the defendant; as evidence to negate the defense that the defendant was merely an innocent bystander; as evidence of the uni que nature of the method of committing the crime charged] in connection with the offense for which he is on trial and for no other purpose. It appears from the record that the focus of the appellant’s argument at the instruction stage was related to appellant’s conc ern that the proposed instruction was strictly a “similar crimes” or “ modus operandi ” instruction and thus should not be read to the jury. On appeal,- 6 - Well, the annotation says this inst ruction is designed to be used only when proof of a prior offense is relevant to prove an element or circumstance of the current o ffense, so [the Commonwealth’s Attorney’s] argument is this prior offense would go to show his intent at going to the door, followi ng her in a car, etcetera, so I think it does correctly state that it goes to intent so I’m struggling with motive or evidence of scheme or plan. There is certainly a pattern of conduct of contact acco rding to [the victim]---to the Commonwealth’s evidence. Okay, so what I’m going to do is I’m going to give this instruction but I’m striking the last sentence, so I’m going to end it with a period on the third line, defendant’s scheme or plan . . . . Over appellant’s objection, the tria l court gave amended Jury Instru ction 9 to the jury. It read: “You may consider evidence that the defendan t committed an offense or offenses other than the offense for which he is on trial as evidence of the defendant’s motive or as evidence of the defendant’s intent; as evidence of the defendant’s scheme or plan[.]” The jury was further instructed regarding th e use of “prior crim es” evidence. Jury Instruction 11 stated, “Evidence th at the defendant was previously co nvicted of a similar offense is not proof that he committed Stalking March 25 through July 16, 2008.” The jury found appellant guilt y of stalking, third or subseq uent offense, and violating a protective order. This appeal followed.
II. ANALYSIS On appeal, appellant argues that the trial court erred in issuing Jury Instruction 9, claiming that the trial court failed to properly instruct the jury of the legitimate and limited purposes for which the evidence was to be considere d. He contends that the trial court’s stated purpose for allowing the admission of the Fluvanna County incident evidence “was to show why [victim] might be in fear of [appellant]” was in error. In support of this contention, appellant further contends, “There was nothing in this testimony, along with the Fluvanna County case,

appellant maintains more precisely that the la nguage referencing a “common scheme or plan” should not have been incl uded in the instruction.- 7 - that demonstrates the actions we re part of an idiosyncratic modus operandi or a unique common scheme or plan and therefore the inst ruction should not have been given. Spencer v. Commonwealth , 240 Va. 78, 393 S.E.2d 609 (1990).” Accordi ngly, appellant asks this Court to remand the case to the trial court for a new trial. This Court’s “‘sole responsibility in reviewi ng [jury instructions] is to see that the law has been clearly stated and that the instructi ons cover all issues which the evidence fairly raises.’” Molina v. Commonwealth , 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher , 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). Even if “an instruction correctly states the law, if it is not applicable to the facts and circumstance s of the case, it should not be given.” Hatcher v. Commonwealth , 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978) (citing Banner v. Commonwealth , 204 Va. 640, 647, 133 S.E.2d 305, 310 (1963)). Generally, evidence of other crim es is inadmissible at trial. Tucker v. Commonwealth , 17 Va. App. 520, 522, 438 S.E. 2d 492, 493 (1993). This evidence is excluded in order “to protect the accused ‘against unfair prejudice resulting from th e consideration of prior criminal conduct in determining guilt.’” Id. (quoting Sutphin v. Commonwealth , 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985)). However, [t]he many exceptions to the rule ar e as well established as the rule itself. Kirkpatrick [ v. Commonwealth ], 211 Va. [269,] 272, 176 S.E.2d [176,] 805 [(1970)]. Specifica lly, other crimes evidence is admissible where it shows the conduct and feeling of an accused toward his victim or establishes their prior relations; where it proves motive or opportunity to commit the crime charged; where it proves an element in the actus reus of the crime charged; where it proves intent or guilty knowledge on the part of the accused, or negates good faith or the possibility of mistake or accident; where it proves the identity of the accused as the one who committed the crime charged by showing criminal acts so distinct as to indicate a modus operandi ; and where it demonstrates a common scheme or plan of which the crime charged is part. See Kirkpatrick , 211 Va. at 272, 176 S.E.2d at 805; Boyd [ v. Commonwealth ], 156 Va. [934,] 944, 157 S.E.2d [546,] 549-50 [(1931)]; Sutphin , 1 Va. App. at 245-46, 337 S.E.2d at 899-900. In general, other crimes- 8 - evidence “must be relevant to an issue or element in the present case” in order to be admissible. Sutphin , 1 Va. App. at 245, 337 S.E.2d at 899. Id. Additionally, “[e]vidence of other crimes is admi ssible if it tends to prove any fact in issue, even though it also tends to show the defendant guilty of anot her crime.” Spencer , 240 Va. at 89, 393 S.E.2d at 616 (citing Woodfin v. Commonwealth , 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988); Scott v. Commonwealth , 228 Va. 519, 527, 32 3 S.E.2d 572, 577 (1984) ). Finally, “it is largely within the discretion of the trial court to determine ‘[w]hether evidence is so remote that it lacks probative value.’” Collins v. Commonwealth , 226 Va. 223, 230, 307 S.E.2d 884, 889 (1983) (quoting Bunch v. Commonwealth , 225 Va. 423, 438, 304 S.E.2d 271, 279 (1983); citing Gibson v. Commonwealth , 216 Va. 412, 415-16, 21 9 S.E.2d 845, 848 (1975); Brown v. Commonwealth , 208 Va. 512, 516-17, 158 S.E.2d 663, 667-68 (1968)). Here, appellant was convicted of stalking, third or subsequent conviction, under Code § 18.2-60.3, which states in pertinent part: A. Any person . . . who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member is guilty of a Class 1 misdemeanor. B. A third or subsequent convicti on occurring within five years of a conviction for an offense under this section or for a similar offense under the law of any othe r jurisdiction sha ll be a Class 6 felony. (Emphasis added). Thus, to find appellant guilty of stalking, the Common wealth was required to prove beyond a reasonable doubt th at appellant knew, or reasonably should have known, that his conduct placed the victim in “reason able fear of death, criminal se xual assault, or bodily injury” to either herself or a member of her family.- 9 - The victim testified at length that beginning in March 2008, appellan t appeared uninvited at her home, followed her while she was driving, and repeatedly called her at work. The victim testified that appellant’s be havior was preceded by two in cidents in August 2007 where he followed her in his vehicle for miles and in one case, “yanked [her] clothes off.” The victim further testified that the prosecution of one of these 2007 incidents was dismissed, while the other incident resulted in appell ant’s conviction for misdemeanor st alking and the publication of a protective order that prohibited him from contacting the victim for a period of two years. All of these incidents tended to show the rela tionship between appellant and the victim. The trial court’s stated purpose for allowi ng Jury Instruction 9 was that the evidence offered by the Commonwealth reasonably suggest ed a common scheme or plan that tended to prove appellant’s knowledge, intent , and course of conduct and that would likely place the victim in fear or apprehension of death, criminal sexual a ssault, or bodily injury. Notably, in instructing the jury, the trial court issued a limiting instru ction, instructing the jury that the fact that appellant had been convicted of stalking the vic tim and another woman in the past was not proof that he stalked the victim in 2008. Thus, the issue before this Court is not whether the victim’s testimony regarding the Fluvanna County incident was admissible; rather, it is whether the trial c ourt’s jury instruction regarding the stated purpose for which the jury could consider the victim’s testimony regarding appellant’s 2007 conduct was proper. 4 Appellant’s actions in August 2007 were admissible “to prove any fact at issue,” Spencer , 240 Va. at 89, 393 S. E.2d at 616 (citing Woodfin , 236 Va. at 95, 372 S.E.2d at 380-81; Scott , 228 Va. at 527, 323 S.E.2d at 577), and in the instant case, the

4 We do not address whether the trial court erred in providing a jury instruction that failed to instruct the jury that the evidence of prior crimes could be considered only for the stated purposes, i.e., as evidence of appellant’s intent, knowledge, and course of conduct. Appellant failed to raise this objection at tr ial, and as such, this Court cannot consider this issue for the first time on appeal. See Rule 5A:18.- 10 - Commonwealth was required to prove that appellant knew or reason ably should have known that his conduct in 2008 would reason ably frighten the vict im pursuant to Code § 18.2-60.3. The August 2007 events, as described by the victim at trial, were pertinent to the jury’s determination regarding whether or not appellant had motive and intent when he violated the protective order in 2008 and went to the victim’s hom e, followed her in vari ous vehicles, and calle d her repeatedly at work. Additionally, under the un ique circumstances of this case, it was not error for the jury to consider appellant’s 2007 behavior and its simila rity to appellant’s 2008 behavior. Appellant’s pursuit of the victim in his car in 2008 was comparable to the 2007 pursuits. Given that the victim had sought appellant’s prosecution and the entry of a protective order afte r the 2007 events, there was evidence that appellan t had notice that the victim would be frightened if he followed her in his vehicle. Accordingly, it was proper for the jury to consider appellant’s past course of conduct and common behavior in the simp le context of whether these pr ior malevolent actions reasonably tended to prove that appellant’s behavior in the instant matte r placed the victim in fear. Upon a review of the record, we conclude that the trial cour t did not err in providing the jury with Jury Instruction 9, as appellant’s 2007 prior conduct tended to prove that he knew or should have reasonably known that his 2008 conduc t would reasonably cause the victim to fear bodily harm and that the jury in structions properly informed the jury for what specific purposes the victim’s testimony could be considered. For the above reasons, we affirm the trial co urt’s conviction of appellant for criminal stalking, third or subsequent offense, in viola tion of Code § 18.2-60.3, an d violating a protective order, in violation of Code § 18.2-60.4. Affirmed.