COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements 

Argued at Alexandria, Virginia 

HUGO ALEXANDER SANCHEZ 

 OPINION BY 

v. Record No. 2969-01-4 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 26, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gaylord L. Finch, Judge 

 Jeanne E. Klapps, Senior Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 John H. McLees, Senior Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Hugo Sanchez was charged with three counts of failing to 

stop after an accident, felony hit and run, in violation of Code 

§ 46.2-894. The jury convicted Sanchez of one of those counts 

and fixed his punishment at four years in prison. Sanchez now 

appeals, contending the trial court erred in 1) refusing to 

provide him with additional funds for an expert witness, 2) 

denying three motions for mistrials, 3) striking three potential 

jurors for cause and 4) denying his motion to exclude evidence 

of a prior carjacking. Sanchez also contends the evidence was 

insufficient to prove his guilt beyond a reasonable doubt. For 

reasons that follow, we reverse the conviction. 
I. Background

 Hugo Sanchez was tried for felony hit and run and 

carjacking in two separate trials. Prior to both trials, he 

moved in limine to have the trial court order the Commonwealth 

not to refer to the carjacking during the hit-and-run trial. 

The trial court denied the motion. 

 During the trial on the hit-and-run charge, the 

Commonwealth's evidence showed that at 5:50 a.m. on November 23, 

1999, Helen Unangst was seized at gunpoint by Hugo Sanchez in 

the parking lot of her Vienna apartment and forced to surrender 

the keys to her car. Sanchez then got into Unangst's green 2000 

Honda Accord and drove away. Unangst later identified her car 

as one towed in by the police because it had been in a "wreck." 

 Two days later, on the evening of November 25, 1999, Sandra 

Contrevas drove her boyfriend, Rodrigo Omar Ramirez-Villatoro, 

and his friend, Johnny Rigaberto Cerrato-Marquez, to a party at 

an apartment complex in Maryland. Contrevas waited briefly 

outside in the car while the men went in to "check out" the 

party and determine if they wanted to stay. While she waited, 

Contrevas saw two Hispanic men come out of the apartment 

complex, walk by her car, get into a new green Honda Accord 

parked behind her car, and drive past her. The men appeared to 

be 23 or 24 years old. Contrevas identified Hugo Sanchez as the 

driver of the Honda. Cerrato-Marquez and Ramirez-Villatoro 

decided to stay at the party, and Contrevas went home without 

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them. She never heard from Ramirez-Villatoro or saw him alive 

again. 

 Cerrato-Marquez testified that he had "like one" beer 

before he arrived at the party, but had not smoked marijuana. 

He saw Sanchez at the party at approximately 10:00 p.m. and 

remembered that Sanchez was drinking. Ramirez-Villatoro and 

Cerrato-Marquez were also drinking at the party. 

 Sanchez later left the party in a vehicle, together with 

Cerrato-Marquez, Sanchez's brother, Victor Sanchez, decedent 

Rodrigo Omar Ramirez-Villatoro, and decedent Jose Israel 

Ramirez-Alvarez.1 At trial, Cerrato-Marquez identified Sanchez 

as the driver of the vehicle. The men drove to a liquor store, 

where three of the passengers bought beer. 

 Cerrato-Marquez testified that, with Sanchez still driving, 

the men left the liquor store, drinking beer and smoking 

marijuana in the car. Cerrato-Marquez was sitting directly 

behind Sanchez, on the left side of the rear passenger seat. 

Cerrato-Marquez described the moments before the accident and 

said he believed someone was following them: "I recall just 

like screaming, you know, they're following us, and people are 

screaming, you know, like shut-up and everything. And then what 

 1

 Cerrato-Marquez testified there were six people in the 

car; however, he named only five passengers and the record 

indicates only five. 

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happened, we got a curve and the car just fly. I just remember 

the impact, you know, boom-boom." 

 Cerrato-Marquez remembered hearing voices after the 

accident saying "he's dead, he's dead." He also recalled people 

pulling him out of the car and putting him down on "something." 

He later woke between four and five o'clock in the morning, 

alone "in just bushes of this creek," thinking someone had 

beaten him and left him there. He saw no one at the car, and he 

did not notice the bodies remaining inside the car. He walked 

to a gas station and called his mother and a cab to take him 

home. A gas station employee, Mitra Dalil, testified that 

Cerrato-Marquez had a small amount of blood on his hand and 

forehead when he came into the station. 

 Donald Lee, a Virginia State Police Motorist Assistant, 

found the car at approximately 11:30 a.m. on Friday, November 

26, 1999. His dispatcher had told him to go to the location "to 

check for debris in the road." There was no evidence presented 

at trial that Lee responded to the site as the result of an 

accident report. He found the car stopped on the other side of 

a guardrail on the Dulles Connector Road. When Lee looked over 

the guardrail, he saw two people inside the car who appeared to 

be dead. 

 Virginia State Trooper Anthony Conte arrived on the scene 

shortly after Lee and found the two dead bodies in the car. 

They were later identified as Jose Israel Ramirez-Alvarez and 

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Rodrigo Omar Ramirez-Villatoro. Ramirez-Alvarez was seated in 

the front passenger seat, and Ramirez-Villatoro was seated in 

the back seat. 

 Forensic technicians found a shoe impression on the inside 

of the driver's side of the front window. The impression was 

consistent with a right shoe belonging to Sanchez, in outsole 

design, approximate size, and wear. However, the laboratory 

could not definitively identify Sanchez's shoe as the shoe that 

had left the impression. 

 DNA analysis of bloodstain samples taken from the car 

revealed that Sanchez's blood was found on the inside of the 

driver's door. Stains of Cerrato-Marquez's blood were found on 

the guardrail and steering wheel airbag. A mixture of 

Cerrato-Marquez's blood and the blood of an unidentified 

individual were found on the front left headrest and seat. 

 To refute the Commonwealth's evidence that he was the 

driver of the car, Sanchez offered the alibi testimony of Israel 

Montilla and Rosily Sanchez. Both men testified that, on 

November 25, 1999, they drove into Washington, D.C. between 

10:40 p.m. and 11:00 p.m. and picked up Sanchez. Montilla and 

Rosily Sanchez stated that the three men then went to a party at 

Montilla's apartment in Prince George's County, Maryland, where 

they stayed until approximately 2:15 a.m. Rosily Sanchez stated 

that he then drove Sanchez home. 

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 Several months prior to trial, Sanchez moved the court for 

funds to employ a DNA expert witness and a DNA expert 

investigator in order to evaluate the Commonwealth's DNA 

evidence and the processes by which it was developed. The trial 

court granted Sanchez $3,000 to engage DNA consultants as he saw 

fit. 

 Before the trials began, Sanchez moved the court for 

additional funds to pay for his expert witness to testify at 

trial, stating the expert witness' pretrial evaluations had 

depleted the previously allotted funds, that the expert would 

need no more than one-half day to present his testimony, and 

that his court appearance fee would be $250 per hour or a 

maximum of $1,750 per day. The reasonableness of the expert 

witness' expected fees was not contested. 

 Counsel represented to the court that the testimony would 

be material to the defense. However, he initially declined to 

reveal the substance of the expected testimony unless permitted 

to do so in an ex parte proceeding, which the Commonwealth 

opposed. The court denied the motion, stating, "I'm not 

inclined to have the motion to be made ex parte. So unless 

there's something further, the Court is going to deny your 

motion for additional funds." Defense counsel responded to the 

court's denial of Sanchez's motion by stating that the expert 

would testify that there were errors in the way the DNA 

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procedures were followed and, therefore, that the DNA results 

would be challenged. Sanchez offered the following proffer: 

[W]e . . . [had the expert] go over the 

[DNA] documents from the state laboratory. 

There are approximately four or five inches 

worth of documents that he has reviewed. In 

that documentation, he has noticed that 

there were errors in the way that the DNA 

procedures were followed, that there were 

errors in the way the examination was done, 

which could have had a significant impact in 

the results of the DNA. 

So therefore the DNA results that the 

Commonwealth is going to put forth as being 

scientifically valid could be questioned, 

will be questioned, to an extent by our 

expert witness and therefore the 

Commonwealth's only other evidence, other 

than the DNA which we submit would not be 

credible, would be testimony of one witness. 

So it is certainly material for the defense 

as to whether Mr. Sanchez was in that car 

for those reasons. 

 The trial court denied Sanchez's motion. Sanchez was 

convicted of failing to stop after an accident, in violation of 

Code § 46.2-894, and was sentenced to serve four years in 

prison. This appeal followed. 

II. Denial of Motion for Additional Funds For Expert Witness

 On appeal, Sanchez contends the trial court erred in 

refusing his request for additional funds for his expert witness 

on the ground that he established a particularized need for the 

funds. We agree. 

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 The United States Supreme Court established an indigent 

defendant's right to the assistance of an expert at the state's 

expense in Ake v. Oklahoma, 470 U.S. 68 (1985). Citing the Due 

Process Clause of the Fourteenth Amendment, the Court reasoned: 

Meaningful access to justice has been the 

consistent theme of these cases. We 

recognized long ago that mere access to the 

courthouse doors does not by itself assure a 

proper functioning of the adversary process, 

and that a criminal trial is fundamentally 

unfair if the State proceeds against an 

indigent defendant without making certain 

that he has access to the raw materials 

integral to the building of an effective 

defense. Thus, while the Court has not held 

that a State must purchase for the indigent 

defendant all the assistance that his 

wealthier counterpart might buy, it has 

often reaffirmed that fundamental fairness 

entitles indigent defendants to "an adequate 

opportunity to present their claims fairly 

within the adversary system." To implement 

this principle, we have focused on 

identifying the "basic tools of an adequate 

defense or appeal," and we have required 

that such tools be provided to those 

defendants who cannot afford to pay for 

them. 

Id. at 77 (internal citations omitted). 

 The Court in Ake applied a three-part test to determine 

whether the defendant in that case should have been provided the 

services of a state-funded psychiatrist to assist with the 

insanity defense he raised: 1) the defendant's private interest 

in diminishing the risk of erroneous conviction; 2) the state's 

economic considerations, and 3) the risk of error if the case 

were to proceed in the absence of the requested assistance. 

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Id. at 78. "When the defendant is able to make . . . a 

threshold showing to the trial court [that the issue for which 

he seeks expert assistance] is likely to be a significant factor 

in his defense" and that he will be prejudiced were the request 

to be denied, due process requires the appointment of an expert 

at state expense. Id. at 82-83. 

 The Virginia Supreme Court applied Ake in Husske v. 

Commonwealth, 252 Va. 203, 476 S.E.2d 920 (1996), and defined 

its parameters, stating that neither the decision in Ake nor due 

process confers the right to receive "[a]ll assistance that a 

non-indigent defendant may purchase." Id. at 211, 476 S.E.2d at 

925. All that is due, constitutionally, is that an indigent 

defendant not be denied "'an adequate opportunity to present 

. . . claims fairly within the adversary system.'" Id. (quoting 

Ross v. Moffitt, 417 U.S. 600, 612 (1974)). 

 To warrant the appointment of an expert, the Husske Court 

also noted that "the indigent defendant . . . must show a 

particularized need." Id. at 212, 476 S.E.2d at 925. The 

showing required "'is a flexible one and must be determined on a 

case-by-case basis.'" Id. at 212, 476 S.E.2d at 925-26 (quoting 

State v. Mills, 420 S.E.2d 114, 117-19 (N.C. 1992)). "Whether a 

defendant has made the requisite showing of a particularized 

need lies within the discretion of the trial court." Lenz v. 

Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305 (2001) 

(citing Husske, 252 Va. at 212-13, 476 S.E.2d at 926); accord

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Hoverter v. Commonwealth, 23 Va. App. 454, 466, 477 S.E.2d 771, 

776 (1996). 

 Numerous Virginia appellate cases address the question of 

whether a "particularized need" has been established by an 

indigent defendant. None of the cases establishes a bright-line 

test for what constitutes a "particularized need." It is in the 

context of facts found insufficient to satisfy the Ake test that 

the meaning of the phrase, "particularized need," emerges. 

Citing Caldwell v. Mississippi, 472 U.S. 320 (1985), for 

example, the Court in Husske rejected what it described as 

"'little more than undeveloped assertions that the requested 

assistance would be beneficial,'" as insufficient to establish 

the requisite need. Husske, 252 Va. at 210, 476 S.E.2d at 926 

(quoting Caldwell, 472 U.S. at 323 n.1) (emphasis added). In 

Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), the 

Court found the claim that "'a particular service might be of 

benefit,'" was insufficient to establish that "'the [requested] 

service is constitutionally required.'" Id. at 478, 331 S.E.2d 

at 430 (quoting Ross, 417 U.S. at 616) (emphasis added). In 

Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), a 

case decided the same day as Husske, the Court found that the 

defendant's request for the appointment of a forensic 

pathologist to rebut the medical examiner's testimony about the 

rape victim's injuries did not articulate a particularized need 

because it amounted to, at best "a hope or suspicion that 

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favorable evidence [that the victim's injuries did not 

necessarily result from force] may be procured." Id. at 171, 

477 S.E.2d at 276 (emphasis added). In Hoverter, the defendant 

predicated his request for an appointed expert on the need "to 

determine if psychological or mental health mitigation evidence 

exists," and if so, "to aid him in the development and 

presentation of such evidence for the sentencing proceeding." 

Hoverter, 23 Va. App. at 466, 477 S.E.2d at 776 (emphasis 

added). The Court affirmed the trial court's finding that a 

particularized need was not established, noting that Hoverter 

had made no showing that he suffered from mental illness. Id.

at 467, 477 S.E.2d at 777. In short, the indigent defendant's 

need for an appointed expert at state expense has to be more 

than hypothetical; the court must be able to conclude that 

expert assistance relates to an issue which is likely to be 

material to the defense. 

 Inherent in this Court's review of whether a defendant has 

articulated a particularized need for the assistance of an 

expert is the question of possible prejudice to the defense were 

the request to be denied. In Hoverter, for example, the 

defendant showed no prejudice resulted from the non-appointment 

of an expert to give testimony on prison conditions. Other 

evidence on the issue had already been admitted, and the Court 

found Hoverter failed to show why this other evidence did not 

adequately address the question. Id. at 466, 477 S.E.2d at 776; 

- 11 -
see also Ake, 470 U.S. at 78 (finding that a high risk of error 

exists if the case were to proceed in the absence of the 

requested assistance); Lenz, 261 Va. at 462, 544 S.E.2d at 305 

(finding that, because the expert testimony defendant proffered 

was available from other witnesses, he suffered no prejudice and 

the trial was not fundamentally unfair). 

 In the case at bar, we find that Sanchez articulated a 

particularized need for additional funds to permit his expert to 

testify at trial and that the trial court abused its discretion 

in denying his motion. Sanchez proffered that the defense 

expert had found errors in the "way that the DNA procedures were 

followed, that there were errors in the way the examination was 

done, which could have had a significant impact in the results 

of the DNA." 

 The validity of the DNA evidence was material to Sanchez's 

defense. The trial court's initial appointment of a DNA expert 

at state expense to assist Sanchez in evaluating the test 

results produced by the Commonwealth's DNA expert reflects that 

materiality, and the record confirms it. The Commonwealth's DNA 

results implicated Sanchez as the driver of the car, 

constituting significant physical evidence that directly linked 

Sanchez to the driver's seat. 

 Sanchez's ability to challenge the validity of the 

Commonwealth's DNA results was truncated by the trial court's 

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denial of the additional funds that Sanchez sought. Sanchez 

proffered that the results would be challenged based on his 

expert's conclusions that there were errors in the manner in 

which the Commonwealth's DNA expert followed testing procedures. 

At trial, the Commonwealth's expert testified that he followed a 

"simple method" of DNA analysis and described the method in 

detail in support of his conclusions. Because Sanchez had no 

witness available to challenge the validity of the 

Commonwealth's evidence, the Commonwealth's expert's testimony 

was unrebutted, a prejudicial disadvantage foreseen by the Ake

Court. Ake, 470 U.S. at 77 ("Without . . . the expert's 

assistance, the defendant cannot offer a well-informed expert's 

opposing view, and thereby loses a significant opportunity to 

raise in the jurors' minds questions about the State's proof 

. . . ."). Here, Sanchez was "unable because of poverty to 

parry by his own witnesses the thrusts of those against him." 

Reilly v. Barry, 166 N.E. 165, 167 (N.Y. 1929). As a result, he 

could not fully present a defense against the Commonwealth's DNA 

evidence that tended to establish that he was the driver of the 

vehicle involved in the hit-and-run offense. 

 In summary, we find that the trial court erroneously denied 

Sanchez's motion for additional funds to permit his expert to 

testify at trial and that the denial of the requested funds 

prejudiced Sanchez and his ability to mount a proper defense to 

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the hit-and-run charge. See Lenz, 261 Va. at 462, 544 S.E.2d at 

305. 

 We now turn to whether the trial court's denial of 

additional funds for an expert witness was harmless error. 

Although the issue of harmless error in the Ake context has not 

specifically been addressed in Virginia, the Fourth Circuit 

determined that the denial of expert assistance in violation of 

Ake is trial error subject to harmless error analysis. Tuggle 

v. Netherland, 79 F.3d 1386, 1392 (4th Cir. 1996). 

 In Tuggle, the court noted that, "Errors amenable to 

harmless-error review are trial errors." Id. "Trial error 

'occur[s] during the presentation of the case to the jury, and 

is amenable to harmless-error analysis because it may . . . be 

quantitatively assessed in the context of other evidence 

presented in order to determine [the effect it had on the 

trial]." Brecht v. Abramson, 507 U.S. 619, 629 (1993) (quoting 

Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991)).2 

 The error identified in this case is a trial error and 

subject to harmless error analysis. On direct appeal, the 

 2

 Trial errors may be contrasted with structural errors, 

such as the deprivation of the right to counsel, trial by a 

biased judge, the unlawful exclusion of members of the 

defendant's race from a grand jury, and the denial of the right 

to a public trial. Fulminante, 499 U.S. at 309-10. Unlike 

trial errors, structural errors are not amenable to harmless 

error analysis because they "'infect the entire trial process.'" 

Tuggle, 79 F.3d at 1391 (quoting Brecht, 507 U.S. at 630). 

Thus, assessing the impact of structural errors on the trial is 

impossible. Id.

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harmless error standard for constitutional error is whether the 

error "was harmless beyond a reasonable doubt." Chapman v. 

California, 386 U.S. 18, 24 (1967). Under that standard, a 

constitutional error may not be declared harmless if there is a 

"reasonable possibility" that the "error contributed to the 

verdict." Tuggle, 79 F.3d at 1392. 

 Applying this standard to the case at bar, we find the 

trial court's error in denying Sanchez's request for additional 

funds for a DNA expert was reversible error. Sanchez sought 

expert testimony to challenge the Commonwealth's DNA evidence 

that implicated him as the driver of the Honda Accord at the 

time of the hit-and-run accident. Indeed, the bloodstain found 

on the inside of the driver's door was significant physical 

evidence directly linking Sanchez to the driver's seat. The 

trial court's denial of additional funds for an expert deprived 

Sanchez of the opportunity to use a rebuttal expert to challenge 

the DNA analysis procedures followed by the Commonwealth's 

witness. Such rebuttal evidence could be crucial in a case that 

otherwise rested on the testimony of only one witness who 

identified Sanchez as the driver at the time of the accident and 

whose competence or credibility was subject to challenge.3 

 3

 Although two other witnesses, Sandra Contrevas and Helen 

Unangst, identified Sanchez as the driver of the car at some 

point prior to the accident, Johnny Rigaberto Cerrato-Marquez 

was the sole witness who testified that Sanchez was the driver 

at the time of the accident. 

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Because we find the circumstances create a "reasonable 

possibility" that the "error contributed to the verdict," 

Tuggle, 79 F.3d at 1392, we find the error was not harmless 

"beyond a reasonable doubt." Chapman, 386 U.S. at 24. 

 Accordingly, we reverse the trial court's decision to deny 

Sanchez additional funds for an expert witness. 

III. Sufficiency of the Evidence

 Although we reverse Sanchez's conviction, the 

constitutional principles which preclude placing an individual's 

freedom in jeopardy twice require us to address Sanchez's claim 

that the evidence was insufficient to sustain his conviction. 

See Parsons v. Commonwealth, 32 Va. App. 576, 581, 529 S.E.2d 

810, 812-13 (2000); see also Burks v. United States, 437 U.S. 1, 

18 (1978) (finding that a full sufficiency analysis is required 

to satisfy the mandate of the Double Jeopardy Clause of the 

federal Constitution); Timbers v. Commonwealth, 28 Va. App. 187, 

201-02, 503 S.E.2d 233, 240 (1998) (addressing appellant's 

sufficiency of the evidence claim, after reversing on a Miranda

violation, to comport with double jeopardy principles). 

 In reviewing a sufficiency claim on appeal, we "consider 

the evidence and all reasonable inferences fairly deducible 

therefrom in the light most favorable to the Commonwealth[,]" 

the party prevailing below. Derr v. Commonwealth, 242 Va. 413, 

424, 410 S.E.2d 662, 668 (1991). The trial court's judgment 

must be affirmed "unless plainly wrong[,]" Phan v. Commonwealth, 

- 16 -
258 Va. 506, 511, 521 S.E.2d 282, 284 (1999), and an appellate 

court "'should not overrule it and substitute its own judgment, 

even if its opinion might differ from [the trial court's].'" 

Id. (quoting George v. Commonwealth, 242 Va. 264, 278, 411 

S.E.2d 12, 20 (1991)). 

 It is within the province of the trier of fact to resolve 

conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from the facts presented. Long v. 

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

Witness credibility determinations shall only be disturbed on 

appeal if the testimony is "inherently incredible, or so 

contrary to human experience so as to render it unworthy of 

belief." Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 

S.E.2d 202, 204 (1984). To convict Sanchez, the Commonwealth 

was required to prove, beyond a reasonable doubt, that Sanchez 

1) was the driver of a vehicle he knew was involved in an 

accident causing personal injury, 2) knew or should have known 

that a person was injured, and 3) that he failed to (a) stop 

immediately as close to the accident as possible, (b) render all 

reasonably necessary assistance to any person injured, or (c) 

report his name, address, driver's license number and vehicle 

registration number to the police or the person injured. Code 

§ 46.2-894. We find the evidence presented by the Commonwealth 

was sufficient to prove those elements beyond a reasonable 

doubt. 

- 17 -
 The evidence supports the jury's conclusion that Sanchez 

was driving the car when it was involved in the accident. 

Cerrato-Marquez identified him as the driver of the car in the 

period before the accident. The jury could also consider 

evidence that Contrevas identified Sanchez as the driver earlier 

in the evening and that Unangst identified Sanchez as the 

individual who carjacked her Honda Accord two days before the 

accident. The trier of fact was free to accept and credit the 

testimony of these witnesses and was free to reject the alibi 

testimony of Sanchez's brother and friend. Moreover, DNA 

evidence established that blood found on the inside panel of the 

driver's side door came from Sanchez. 

 Sanchez also contends that the evidence does not support 

the conclusion that he failed to fulfill the duties imposed on 

him by Code § 46.2-894 as the driver of a vehicle involved in an 

accident in which someone had been killed or injured. We 

disagree with this contention. 

 The evidence in the record shows that Sanchez neither 

rendered reasonable assistance to Cerrato-Marquez, who was 

clearly injured, nor came to the aid of Ramirez-Alvarez and 

Ramirez-Villatoro, who lay dead or dying in the car. Indeed, 

Cerrato-Marquez regained consciousness, lying in the bushes 

beside a creek, so dazed and disoriented that he thought someone 

had robbed and beaten him. The jury could reasonably infer that 

Sanchez did not report the accident or call for assistance 

- 18 -
because, although it occurred between 2:00 and 4:00 a.m., the 

vehicle and the fatalities were not discovered until 11:30 that 

morning. Donald Lee, the Virginia State Police Motorist 

Assistant, responded not to an accident report but to a report 

from his dispatcher to check debris in the road; he discovered 

the Honda Accord on the other side of the guardrail on the 

Dulles Connector Road. No evidence established that the arrival 

of police on the scene was in response to an accident report.

 Accordingly, we find the evidence sufficient beyond a 

reasonable doubt to convict Sanchez and that reversal and remand 

to the trial court for further proceedings are not in violation 

of double jeopardy principles. 

IV. Evidence of the Carjacking

 Sanchez also contends that the trial court erred in denying 

his motion in limine that the Commonwealth not reveal to the 

jury his participation in the carjacking of the car involved in 

the accident.4 Because the issue may arise again at trial on 

remand, we address the question and find no error. 

 4

 Sanchez moved the trial court in limine to direct the 

Commonwealth not to seek to admit or refer to: 1) his prior 

criminal record, unless used to impeach him, 2) any statements 

regarding his prior incarceration, 3) any allegations of his 

drug use or abuse, 4) the existence of any juvenile convictions 

or findings of delinquency, and 5) prior bad acts, including the 

alleged carjacking. The Commonwealth did not object to motions 

1-4, and they were granted. The motion in limine regarding 

prior bad acts, specifically evidence of the carjacking, is the 

only motion at issue on appeal. 

- 19 -
 The legal principles governing the issue are well settled. 

Evidence of other crimes or bad acts is inadmissible if it is 

offered to show that the defendant is likely to have committed 

the crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 

272, 79 S.E.2d 802, 805 (1970). However, such evidence is 

admissible if it tends to prove any element of the offense 

charged, although it also tends to show that the defendant is 

guilty of another crime. Woodfin v. Commonwealth, 236 Va. 89, 

95, 372 S.E.2d 377, 380-81 (1988). In addition, evidence of 

other crimes may be admitted to establish the perpetrator's 

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

609, 617 (1990), to show motive or intent, establish knowledge, 

negate mistake or accidence, establish modus operandi or to show 

common scheme or plan. Lockhart v. Commonwealth, 18 Va. App. 

254, 259, 443 S.E.2d 428, 429 (1994). Evidence of this nature 

will be permitted only when its probative value outweighs any 

incidental prejudice to the defendant. Woodfin, 236 Va. at 95, 

372 S.E.2d at 380-81. The trial court is vested with the 

discretion to determine whether the evidence of prior bad acts 

has probative value that outweighs the prejudice to the accused. 

Spencer, 240 Va. at 90, 393 S.E.2d at 617. 

[T]he general rule . . . must sometimes 

yield to society's interest in the 

truth-finding process, and numerous 

exceptions allow evidence of prior 

misconduct [w]henever the legitimate 

probative value outweighs the incidental 

prejudice to the accused. For this reason, 

- 20 -
rather than stating the rule as an 

exclusionary rule with numerous exceptions, 

it may be more helpful to phrase [it] in 

terms of relevance. 

Wilkins v. Commonwealth, 18 Va. App. 293, 297, 443 

S.E.2d 440, 443 (1994) (en banc) (citations and 

quotations omitted). 

 In the instant case, the evidence sought to be admitted 

establishes that two days and a few hours before the accident, 

Sanchez was identified as the person who carjacked the car 

involved in the hit-and-run offense. The victim, Helen Unangst, 

identified him as the perpetrator, and the testimony of Sandra 

Contrevas, established that a few hours before the accident, 

Sanchez was driving the carjacked car. Sanchez's involvement in 

the carjacking tends to prove his identity as the driver at the 

time of the accident and relates to an essential element of the 

crime with which he was charged. The evidence also tends to 

establish a motive for not reporting the accident as required by 

law, since such a report would have incriminated Sanchez in the 

carjacking. 

 Sanchez claims he was prejudiced by the admission of the 

carjacking evidence because the jury may have inferred his guilt 

on the hit-and-run charge from the fact that he was also being 

tried for carjacking. However, when the relevance of prior acts 

evidence sought to be admitted is clear, the admission into 

evidence of even serious crimes may not be unduly prejudicial. 

- 21 -
See, e.g., Satcher v. Commonwealth, 244 Va. 220, 230-31, 421 

S.E.2d 821, 828 (1992) (finding that, in capital murder, rape, 

and related crimes trial, evidence of prior assault, robbery, 

and attempted rape in same general location was properly 

admitted to show motive, intent, and common scheme or plan); 

Stockton v. Commonwealth, 227 Va. 124, 143, 314 S.E.2d 371, 383 

(1984) (finding that, in capital murder trial, it was proper to 

admit evidence of subsequent murder committed to silence 

eyewitness to murder being tried), rev'd on other grounds, 852 

F.2d 740 (4th Cir. 1998); Robbins v. Commonwealth, 31 Va. App. 

218, 223-24, 522 S.E.2d 394, 396 (1999) (finding that, in trial 

for breaking and entering with intent to commit assault, 

evidence of prior abduction and severe beating of same victim 

was properly admitted to show intent); Tomlinson v. 

Commonwealth, 8 Va. App. 218, 224, 380 S.E.2d 26, 30 (1989) 

(finding that, in trial for shooting into occupied dwelling, 

evidence of later shooting into a different dwelling the same 

evening was properly admitted to show intent or scheme). We 

find the probative value of the carjacking evidence outweighs 

any possible prejudice to Sanchez as a result of its admission.

 Furthermore, the jury was properly instructed not to 

consider the carjacking evidence as general evidence of 

Sanchez's guilt. Such instructions minimize any incidental, 

undue prejudice. Robbins, 31 Va. App. at 224, 522 S.E.2d at 

397. 

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 In summary, we find the trial court did not err in 

admitting evidence that Sanchez was identified as the 

perpetrator of a prior carjacking offense. 

V. Conclusion

 We find that the trial court erred in refusing to grant 

Sanchez additional funds for his expert witness to testify at 

trial. Sanchez established a particularized need for the 

services, and the failure to allot him the funds adversely 

affected his ability to rebut and challenge the Commonwealth's 

evidence. We further find the evidence was sufficient to 

establish Sanchez's guilt on the charge of felony hit and run 

beyond a reasonable doubt and that Sanchez's retrial on the same 

charge will not violate double jeopardy principles. Finally, we 

find the trial court properly admitted evidence of Sanchez's 

prior carjacking because it tended to prove his identity as the 

driver in the hit-and-run accident and that its probative value 

outweighed any prejudicial effect on Sanchez. Because we also 

find that the denial of Sanchez's motion for additional funds 

for his expert witness constituted error that was not harmless 

beyond a reasonable doubt, we reverse his conviction and remand 

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the matter to the trial court for further proceedings if the 

Commonwealth be so disposed.5

 Reversed and remanded.

 5

 Because we reverse on other grounds, we do not address the 

issues Sanchez raises on appeal that will not arise on retrial. 

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