COURT OF APPEALS OF VIRGINIA
Present: Judges Annunzia ta, Bumgardner and Clements Argued at Salem, Virginia

HARLESS FITZGERALD ROSE MEMORANDUM OPINION * BY v. Record No. 0995-03-3 JUDGE JEAN HARRISON CLEMENTS JULY 6, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF WISE COUNTY J. Robert Stump, Judge Stephen J. Kalista; Walter Rivers for appellant. Stephen R. McCullough, Assistant A ttorney General (Je rry W. Kilgore, Attorney General, on brief), for appellee.
Harless Fitzgerald Rose was conv icted in a jury trial of capita l murder, in violation of Code § 18.2-31, robbery, in viol ation of Code § 18.2-58, and the use of a firearm in the commission of a robbery. On appeal, Rose contends the trial c ourt erred in allowing th e Commonwealth to adduce evidence in this case rega rding a prior robber y allegedly committed by him. Finding no error, we affirm Rose’s convictions. As the parties are fully co nversant with the record in this case and because this memorandum opinion carries no precedential value, th is opinion recites on ly those facts and incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND The evidence relevant to this appeal is no t in dispute. At approximately 10:30 p.m. on October 5, 2000, Timoth y Hughes, James Brown, and Lucas Hu rley, closed the Payless grocery store in Coeburn, Virginia for the night and walked to a nearby bank to depo sit the store’s money in a night deposit box. Whenthe three men arrived at the bank’s night deposit box, a man wearing a dark ski mask and dark clothing came around the co rner, pointed a revolve r at the men, and demanded the money. Brow n could see some of the robber’s skin around his eyes and noticed that he was Caucasian. Hurley threw the deposit bags at the robber, who caugh t them. When Hughes shuffled his feet or slipped, the ro bber shot him with the revolver. Hughes fell, but was able to right himself. The robber then ran b ack around the corner whence he had come, and Hughes gave chase. Moments later, Brown and Hurley heard a second shot. They ran around the corner and saw the robber running away at a fast pace and Hughes lyin g on the ground. Before they could reach him, Hughes got up and started after the robber again. When Brown caught up to Hughes, they turned back and were jo ined by Hurley. Brown ran to a pay phone and called the police, informing them that the Payless store had been robbed an d the store’s manager sh ot. Meanwhile, Hurley remained with Hughes, w ho, after starting back to the bank, said he c ould go no farther and lay down in a parking lot. When resc ue squad personnel arrived at the scene, they administered aid to Hughes and transported hi m to a local hospital. Upon his arrival at the hospital, however, Hughes was pronounced dead as a result of the gunshot w ounds to his chest and abdomen. Around 11:00 p.m. that same ni ght, Shannon Kilgore, who lived approximately an eighth of a mile from the Payless store in Coeburn, saw a man dressed in bl ack with a “black toboggan” on his head run through his yard, acro ss the road, and “over the hill, through some brush” consisting of trees and briers. Robert Teaster, who was sitting in hi s truck outside Kilgore’s house around 11:00 p.m., noticed a man dressed in dark clothes and “what looked like a toboggan ” on his head- 3 - run through Kilgore’s yard and across the road into some briers . Jessica Amanda Counts Salyers, Rose’s former girlfriend, was al so at Kilgore’s house, getting some air outside, when she heard Teaster say “there goes somebody.” Looking up, she saw a man running “really, really fast” across the road and down a “steep hill with briers, and a re ally, really tough terrain. ” She lost sight of the man but hear d “the bushes ripping and rattling” as he went down the hill. At approximately 1:30 a.m., Deputy Ernie Caldwell arrived at the scene of the robbery with a bloodhound to track the robber. Upon reaching the location where the robber was last seen, the bloodhound found a sc ent and started to track th e robber’s trail. The s cent led the dog across a street and up a steep ba nk to some dense undergrowth and br ambles that were “real tough.” Caldwell could see that someone had recently torn through this thick brush. The dog tracked the robber’s scent until they arrived at a gas station, where the petrol eum odors caused the dog to lose the track. At approximately 2:30 a.m., Deputy Russ Cyphers and Chief Investigator Mike Holbrook responded to a call about a trespasse r in the Riverview section of Co eburn. Upon arriving at the reported location, they fo und Rose, who is Caucasian, walkin g in an alley near the Riverview Pentecostal Church. Acco rding to Cyphers, Rose seemed “very nervous.” When asked what was going on, Rose explaine d that two of his friends, Joe Dw ayne Mullins and Da rrell Hayes, had dropped him off there because he wa nted to see Salyers, who lived in the area, and that they were waiting for him at a carwash. Cyphers and Holbrook drove Rose to the carwash and left him with his friends. Cyphers estimated that the Riverview section of Coeburn is about “a mile, or a mile and a half” from the location of the robbery. When the police later asked Ro se if he knew the victim, Rose acknowledged that he had known Hughes for a long time and had played basketball with him.- 4 - At trial, Salyers testified about the roc ky romantic relationship she had with Rose throughout 2000 and their extens ive use of illegal drugs . Both developed se vere addictions to Oxycontin and Dilaudid, prescription medicine s they would dissolve in water and inject intravenously. According to Salyer s, the two of them “shot up” withdrugs as often as they could, sometimes up to “twenty to thirty times” a day, if they had th e money. The amo unt of drugs they took was “[b]ased on the money” they had. Rose told the police that he and Salyers would spend $1,000 a week to feed th eir Oxycontin habits. The two sold drugs to support their habits. According to Salyers, “[e]very penny [they] got we nt to Oxycontin.” When Rose could not supply Salyers with drugs, she would leave him until he was able to get more dr ugs. From May 2000 to October 2000, they did no t “have much money” and only “had drugs half the time.” Salyers had broken up with Rose a “week or two” before the robbery on October 5, 2000 , because they had “run out of” drugs and money. Salyers further testified that, a few months be fore the robbery, Rose talked to her about robbing the Payless store employees who made the night deposit. He to ld her that they did not have “cops” to “escort[] the pers on with the money bag.” According to Salyers, Rose drove to her house on October 6, 20 00, the day after the robbery, and said he needed to talk. Salyers discovered that Rose had some Diluadid pills with him. They proceeded “to shoot” some pills. After going ou t to eat, they went to a hotel, where they each shot up “twenty to thirty ” pills that night. Saly ers noticed that Rose had new clothes and shoes and a “wad” of twenty and fifty dollar bills. Salyers also testified, over Rose’s objection, that Rose had perpetrated a robbery a few months before the robbery of th e Payless store employees. Beforeallowing the Commonwealth to adduce this evidence, the trial court instructed the jury that it should consider the testimony only as- 5 - evidence of motive, schemeor plan, or iden tity and not as evidence that Rose committed the instant charge for which he was being tried. Salyers described how she an d Rose, with help from two other accomplices, formulated a plan on July 18, 20 00, to rob Linda Couch, an “old lady” who lived in Coeburn. They knew that Couch, who had been Rose’s neighbor for almost a year in 1999, would be returning home with her mother from an auction that ni ght after 10:00 p.m. and that she would have Oxycontin pills prescribed by her doctor and a substantial amount of money in her purse. Salyers and the others would follow Couch home and honk their horn when th ey drove past her home. This would signal to Rose, who had been dropped o ff earlier and would be waiting be hind a tree or bush, that Couch would soon be arriving home. Th e others would then park in an area above the hous e, where they would meet Rose af ter the robbery. That night, Rose wore black sw eatpants, a black shirt, and a dark blue jacket. He also wore a nylon hose over his head to conceal his face, and placed a hood over his head. When Couch arrived home at approximately 10 :30 p.m., Rose approached her and hit her “really hard” in the back, knocking her against the hood of her car. When Couch would not relinquish her purse, he hit her again, knocking her to the grou nd. Finally, he pried the purse away from her and ran away up a “rough,” “straight-up” hill, throug h some dense, “really harsh” vege tation that includ ed briers. At the top of the hill, Rose met the others. They then drove to a motel and divided up the pills and money they found in Couch’s purse. Rose offered the test imony of several alib i witnesses. Among them, Mullins and Hayes testified that Rose spent the evening of th e robbery helping Mul lins repair a truck. Keith Rose, Rose’s nephew and Mullins’s cousin , testified that, the da y before the robbery, he drove with Mullins into Coeb urn around 10:00 p.m., parked in the library parking lot, and watched the Payless employees make their night de posit in the bank’s night deposit box. Mullins- 6 - told Keith Rose they were supposed to meet Ha yes, but Hayes wa s not there. Mu llins told Keith Rose not to say anything about their watching the night depos it being made. The day of the robbery, Keith Rose saw Rose an d Mullins together. The morning after the robbery, Keith Rose saw Rose, Mullins, and Hayes together at Mu llins’s house in Tacoma. Mullins looked pale and scared. Keith Rose was not allowed to join the othe r three when they went into the basement, but he heard Hayes tell Rose that “everything would be all right.” Alvia Smith testified that she went to the Payless store betw een 4:00 and 6: 00 p.m. on the day of the robbery. While she was there she saw Ro se in the store with tw o other men, standing next to the pay phone. Following the presentation of evidence, the trial court instructed the jury regarding the evidence of the alleged prior robbery as follows: You may consider eviden ce that Harless Rose may have committed an offense other than the offense for which he is on trial only as evidence of modus operandi, motive, scheme or plan , an/or identity, in connection with the offense for wh ich he is on trial, [a]nd for no other purpose. You shall not co nsider this as evidence of a predisposition to co mmit an offense. The jury convicted Rose of ca pital murder, robbery, and use of a firear m in the commission of a robbery and recommended that Rose be sentenced to life in prison for the murder, thirty-five years in prison for the robbery, and three years in prison for the firearm charge. Prior to sentencing, Rose moved to have the jury’s verdict set aside, arguing, inter alia , that the evidence regarding the robbery of Couch should not have been ad mitted at trial. During the hearing on that motion, the trial court took judicialnotice that Coeburn is a “very small town.” The trial court denied Rose’s motion to set aside th e verdict and subsequently sentenced Rose in accordance with the ju ry’s recommendation. This appeal followed.- 7 - II. ANALYSIS On appeal, Rose contends the trial cour t abused its discretio n in allowing the Commonwealth to introduc e evidence of the robb ery of Couch to show that he committed the charged crimes. While conceding that there were some “tenuous and general” similarities between the Couch robbery and the robbery of the Payless store employee s, he argues that the two robberies were not sufficiently idiosyncratic and similar to each other to pe rmit an inference that the same person committed them both. He further argues that, even if the evidence of the prior robbery had some probative value, the prejudicial effect of that evidence outweighed the probative value. Thus, he concludes, the evidence of the prior robbery was improperly admitted. In response, the Comm onwealth argues that the evidence regarding the robbery of Couch was properly admitted because th e circumstances of the two robberi es were sufficien tly similar and idiosyncratic to de monstrate a common modus operandiand the probability of a common perpetrator. Thus, the Commonwea lth argues, the evidence of the prior robbery was relevant in resolving the central issue in th e case, the identity of the personwho robbed the Pa yless employees and murdered Hughes. Any incidental prejudice resulting from the jury knowing that Rose had previously committed a similar offense, the Commonwealth asse rts, was outweighed by the probative value of the evidence. Thus, the Commonwealth conclude s, the trial court did not abuse its discretion in admitting the ev idence concerning the robbery of Couch. We agree with the Commonwealth. Under familiar principles of appellate review, we consider “the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth,” the prevailing party below. Chichester v. Commonwealth , 248 Va. 311, 314, 448 S.E.2d 638, 641 (1994).- 8 - “The standard governing the admission of eviden ce of other crimes in the guilt phase of a criminal trial is well established. Generally, evidence that shows or tends to show that a defendant has committed a prior crime is inadmi ssible to prove the crime charged.” Johnson v. Commonwealth , 259 Va. 654, 676, 529 S.E.2d 769, 782 (2000). “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 de fendant guilty of anothe r crime.” Spencer v. Commonwealth , 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990) (citatio n omitted). “[O]ne of the issues upon which ‘other crimes’ evidence may be ad mitted 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 omitted). [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” [or carbon copy]. Rather, it is sufficient if the ot her 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. Id. at 90-91, 393 S.E.2d at 616-17 (quoting United States v. Hudson , 884 F.2d 1016, 1021 (7th Cir. 1989)). Hence, [i]f the evidence of other crimes bears sufficient marks of similarity to the crime charged to establish that the defendant is probably the common perpetrator, that evidence is relevant and admissible if its probative value ou tweighs its prejudicial effect. The trial court, in the exercise of its sound discretion, must decide which of these competing considerations outweighs the other. Unless that discretion has been clearly abused, we will affirm the trial court’s decision on this issue. Chichester , 248 Va. at 327, 44 8 S.E.2d at 649 (c itations omitted). Applying these principles to th e instant case, in which the identity of the perpetrator of the charged crimes was the primary issue in disput e, we hold the trial court did not abuse its- 9 - discretion in admitting the evidence of the Couch robbery in the guilt phase of the trial because that crime, while not a carbon copy of the char ged robbery, was sufficiently idiosyncratic and similar to the charged robbery to establish th e probability of a comm on perpetrator and the record supports a finding th at the probative value of the evidence of the Couch robbery outweighed its potential prejudicial effect. The two robberies occurred less than three m onths apart in the “sma ll” town of Coeburn. In both incidents, the victims were confront ed at approximately 10:30 p.m. by a solitary, Caucasian robber on foot who wore dark clothes to conceal his presence and a head covering and mask to conceal his identity. Neither robber was daunted by the fact that there were mu ltiple witnesses present at the time of the robbery. Both robberies were fueled by the perpetrator’s desperate need for drugs and involved careful pl anning with his accomplices. In both instances, the perpetrators knew the victims were vulnerable and had large amounts of money with them. In both crimes, the victims’ attempts to resist or stop the robbers were met with violence. After committing the crime, each perpetrator fled on foot and later met his accomplices, who had dropped him off earlier, at their vehicle some dist ance away from the scene of the crime. Most strikingly, in making his getaway from the crime s cene, each robber disdai ned easier routes of egress in favor of ru nning up or down hills ides covered with thic k prickly vegetation. In light of this distin ctive method of flight through brambl es and briers, along with the other similar aspects of the crimes, we conclude th at the robbery of Couch bears a singular strong resemblance to the pattern of the charged robbery, thus permitting the inference that the same person committed both crimes. Ev idence of the prior ro bbery was therefore relevant to the issue of the identity of the perpet rator of the robbery of the Payless employees and the murder of Hughes. Because the identity of th e perpetrator of those char ged crimes was the central issue at the trial, we cannot say the trial court abused its discretion in fi nding that the incidentalprejudice resulting from- 10 - the jury knowing Rose ha d previously committed a si milar offense wa s outweighed by the probative value of the evidence. Accordingly, we affirm the trial court’s decisi on to allow the Commonw ealth to adduce the evidence of the prior robbery and we affirm Rose’s convictions. Affirmed.