COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

KEVIN W. KIRK 

v. Record No. 1501-94-1 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA NOVEMBER 28, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Scott M. Reed (Scott M. Reed, P.C., on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from his convictions of two counts of robbery, two 

counts of use of a firearm in the commission of robbery, and 

three counts of possession of a firearm while a convicted felon, 

Kevin W. Kirk contends that the trial court (1) denied him due 

process by refusing to sever for trial the charges against him, 

and (2) erred in admitting evidence that an alibi witness was his 

homosexual lover and suffered Acquired Immune Deficiency Syndrome 

(AIDS). We find no error and affirm the judgment of the trial 

court. 

 I. 

 On October 12, 1993, Todd Angelo was working the midnight 

shift as a clerk at the Unimart on South Independence Boulevard 

in Virginia Beach. Kirk entered the store between 1:30 and 2:00 

a.m. Kirk approached the counter, pulled out a small, wooden-
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handled .22 caliber handgun, pointed it at Angelo's chest, and 

demanded the money from the cash drawer. Angelo complied. As 

Kirk left, he told Angelo not to follow him or he would shoot. 

Kirk then fled on foot toward Dahlia Drive. Angelo reported the 

robbery and described Kirk, his gun, and his clothes. 

 On October 22, 1993, Angelo was again working the midnight 

shift. Shortly after 2:00 a.m., Kirk entered the Unimart. 

Angelo recognized him from the previous robbery. Kirk approached 

the counter, pulled out the same handgun, and demanded all the 

money from the cash register. Angelo complied. As Kirk left the 

store, he again warned Angelo not to follow him. Angelo 

immediately reported the robbery. 

 On November 10, 1993, Angelo was again working the midnight 

shift at the same Unimart. A friend, Rodney Baldwin, was in the 

store keeping him company. Angelo saw Kirk approaching the 

Unimart and recognized him as the man who had robbed him twice 

before. Kirk saw the two men in the store and ran toward Dahlia 

Drive. Angelo called the police while Baldwin ran in search of a 

police officer. As Angelo ran out of the store, he saw Kirk in a 

car. Baldwin also saw Kirk. Angelo and Baldwin flagged down a 

policeman, who pursued Kirk. After a high speed chase, Kirk was 

stopped. The officer searched Kirk's car and found the handgun. 

 At the scene of the stop, Angelo identified Kirk as the man who 

had robbed him twice and who had been at the store minutes 

before. 
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 Prior to trial, Kirk moved the trial court to sever the 

charges for trial and to hold five separate trials, one trial for 

each robbery and related firearm charge and one trial for each 

charge of possession of a firearm while a convicted felon. The 

trial court denied the motion, holding that the charges were 

sufficiently connected to warrant consolidation under Rules 

3A:10(c) and 3A:6(b). 

 At trial over Kirk's objection, his probation officer 

testified that Kirk was aware he could not own, use, or possess a 

firearm. Kirk himself testified on direct examination that he 

had been convicted of five felonies and that he had bought the 

gun from a friend to avoid a criminal records check. 

 At trial, Kirk called several alibi witnesses, one of whom 

was Claude Baldwin. Claude Baldwin testified that Kirk lived 

with him and had been with him the nights of the robberies. On 

cross-examination over Kirk's objection, Claude Baldwin admitted 

he was Kirk's homosexual lover and that he had AIDS. He stated 

that he wanted Kirk to be with him for moral and financial 

support. 

 II. 

 Kirk first contends that the trial court violated his due 

process rights by denying his motion to sever the charges and 

conduct separate trials pursuant to Rule 3A:10(c). He argues 

that the two robbery and related firearm charges were not part of 

a common scheme. He further argues that the three charges of 
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possession of a firearm while a convicted felon should have been 

tried separately because evidence of his earlier felony 

convictions would be admissible in the trial of those offenses, 

but not in the trials of the robbery and related use of firearm 

charges. He also argues that the testimony of his probation 

officer as to his prior convictions was prejudicial and that the 

prejudice outweighed its probative value. 

 "A trial court has limited discretion to order an accused to 

be tried for more than one offense at the same time." Godwin v. 

Commonwealth, 6 Va. App. 118, 121, 367 S.E.2d 520, 521 (1988). 

When an accused is charged with multiple offenses: 

 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) or (ii) the 

accused and the Commonwealth's Attorney 

consent thereto. 

Rule 3A:10(c). Because Kirk did not consent to the joinder of 

the charges for trial, joinder could be ordered only if the 

charges met the criteria of Rule 3A:6(b) and justice did not 

require separate trials. 

 Two or more offenses, . . . may be charged in 

separate counts of an indictment . . . 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. 

Rule 3A:6(b). 

 The charges against Kirk met the requirements of Rule 

3A:6(b) because the offenses charged were part of a "common 
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scheme." In all three incidents, Kirk approached the same store, 

on foot, at the same time of night, and from the same direction. 

 During the two robberies, he used the same handgun, made similar 

demands for money, and threatened the clerk not to follow upon 

exiting the store. 

 Justice did not require separate trials for the two robbery 

and related firearm charges. The only issue in dispute was the 

identity of the perpetrator. Evidence of each robbery and 

accompanying firearm charge would have been admissible in the 

trial of the other to prove the identity of the perpetrator. See

Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616, 

cert. denied, 498 U.S. 408 (1990). "'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. . . . 'Whenever the legitimate probative value 

outweighs the incidental prejudice to the accused, evidence of 

prior offenses, . . . is admissible.'" Id. at 90, 393 S.E.2d at 

616-17. 

 Neither did justice require that the charges of possession 

of a firearm while a convicted felon be tried separately. Kirk 

was charged with possessing a firearm as a felon on October 12, 

October 23, and November 10, 1993. The only proof of Kirk's 

possession of the handgun on October 12 and 23 was the testimony 

of the Unimart clerk who had been robbed by Kirk. The evidence 

of the robberies was thus admissible to prove Kirk possessed a 
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firearm on those occasions. See Tuggle v. Commonwealth, 228 Va. 

493, 506-07, 323 S.E.2d 539, 546-47 (1984), vacated on other

grounds, 471 U.S. 1096 (1985). 

 Furthermore, as this case developed, the trial court 

committed no reversible error in admitting evidence of Kirk's 

prior felony convictions in his trial for the robberies and the 

accompanying use of firearm charges. Because that evidence was 

admissible, all of the evidence relating to the charges of 

possession of a firearm while a convicted felon was relevant and 

admissible with respect to the robbery and accompanying firearm 

charges. Thus, in this case, justice did not require severance 

of the charges of possession of a firearm while a convicted 

felon. We have heretofore held to the contrary in cases that are 

distinguishable from this. See Johnson v. Commonwealth, 20 Va. 

App. 49, 455 S.E.2d 261 (1995); Long v. Commonwealth, 20 Va. App. 

223, 456 S.E.2d 138 (1995). 

 Johnson was charged with possession of cocaine and 

possession of a firearm after having been convicted of a felony. 

 The circumstances of his possession of cocaine charge were not 

such that his prior felony conviction was probative or otherwise 

admissible. Holding that justice required separate trials and 

that the trial court erred in denying severance, we said: 

 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 
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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. 

Johnson, 20 Va. App. at 56, 455 S.E.2d at 265. 

 Long was charged with possession of heroin, possession of a 

firearm while in possession of heroin, and possession of a 

firearm after having been convicted of a felony. Again, the 

circumstances of his trial on the first two charges were such 

that his prior felony conviction had no relevance or probative 

value. Holding that justice required severance of the third 

charge, we said: 

 Evidence of Long's prior felony conviction would not 

have been admissible in a trial on the possession of 

heroin and firearm/heroin possession charges, unless 

Long put his character or credibility in issue. 

Long, 20 Va. App. at 226, 456 S.E.2d at 139. 

 Kirk testified, thus putting his character and credibility 

at issue1. His prior felony convictions thereby became relevant 

and admissible for impeachment purposes. Furthermore, Kirk 

himself testified, on direct examination, that he had been 

convicted of five prior felonies. Although the general rule, 

enunciated in Johnson and Long, requires severance when proof of 

one charge requires introduction of evidence that is irrelevant 

and prejudicial in the trial of another, the development of this 

case rendered harmless any error that may initially have occurred 

 

 1Nothing in the record suggests that Kirk's election to testify 

was tied to the denial of his severance motion. 
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in the denial of Kirk's motion to sever the charges of possession 

of a firearm while a convicted felon. Justice does not require 

exclusion of evidence that is probative of the central issue on 

trial and that the accused himself chooses to interject. 

Furthermore, the trial court instructed the jury to consider 

Kirk's prior felony convictions only in relation to his 

credibility and to the charges of possession of a firearm while a 

convicted felon. The jury is presumed to have obeyed this 

instruction. See Jennings v. Commonwealth, 20 Va. App. 9, 19, 

454 S.E.2d 752, 756 (1995). 

 III. 

 Kirk next contends that the trial court erred in admitting 

testimony from Claude Baldwin, an alibi witness, that he was 

Kirk's homosexual lover and had contracted AIDS. Kirk argues 

that this evidence caused the jury to focus on an irrelevant and 

controversial subject. He further argues that the prejudicial 

nature of the evidence significantly outweighed its probative 

value on the issue of Baldwin's bias. He cites Jones v. United 

States, 625 A.2d 281 (D.C. 1993), in support of his contention 

that "'[e]vidence of homosexuality has an enormous proclivity for 

humiliation and degradation' and, thus, poses a high risk of 

prejudicial impact on a jury." Id. at 284. 

 It is always open to a party to undertake a 

demonstration of the bias or testimonial 

motivation . . . of one who testifies for his 

adversary. "Such an effort . . . may 

properly solicit . . . information of 

potential value to the trier of fact in the 

assessment of credibility." Evidence of 
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homosexuality is no exception . . . . 

Tinker v. United States, 417 F.2d 542, 544, cert. denied, 396 

U.S. 864 (1969). The trial court weighed the evidence of 

Baldwin's being Kirk's homosexual lover and of his illness with 

AIDS. It found that the probative value of this witness's bias 

outweighed the prejudicial impact. "The responsibility for 

balancing these competing considerations is largely within the 

sound discretion of the trial judge. And . . . will not be 

disturbed on appeal absent a clear abuse of discretion." Coe v. 

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). We 

find no abuse of discretion in this ruling. 

 "[O]n cross-examination great latitude is allowed . . . . 

[T]he general rule is that anything tending to show the bias on 

the part of a witness may be drawn out." Henning v. Thomas, 235 

Va. 181, 188, 366 S.E.2d 109, 113 (1988). The nature of Kirk's 

relationship with Claude Baldwin was relevant to the witness's 

testimonial motivation. 

 For the foregoing reasons, we affirm the judgment of the 

trial court. 

 Affirmed.