PRESENT: All the Justices 

DWAYNE EDWARD GUILL 

v. Record No. 971153 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 9, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this criminal appeal, the dispositive issue is whether 

the trial court erred in admitting evidence of another crime 

committed by the defendant for the purpose of proving his intent 

to commit the crime charged. 

 Dwayne Edward Guill was indicted for unlawfully and 

feloniously breaking and entering a dwelling house in the 

nighttime with the intent to commit murder, rape, or robbery in 

violation of Code § 18.2-90. He was tried by the Circuit Court 

of Charlotte County, sitting without a jury, and was found guilty 

as charged. The trial court sentenced Guill to confinement in 

the penitentiary for 20 years, with execution of 5 years 

suspended. 

 We state the evidence taken at trial in the light most 

favorable to the Commonwealth, the prevailing party below. Roach 

v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert. 

denied, 519 U.S. ___, 117 S.Ct. 365 (1996); Graham v. 

Commonwealth, 250 Va. 79, 81, 459 S.E.2d 97, 98, cert. denied, 

516 U.S. 997 (1995). On May 22, 1995, at about 2:00 a.m., Guill 

broke and entered the home of Danny and Donna Crews who were 

asleep in their bedroom. The Crews' two daughters, ages five and 

seven, were also in the house at the time. The girls shared a 

bed in a ground floor bedroom, which was illuminated both by an 
outdoor safety light and by a light inside the house. 

 Mr. Crews testified that he awakened and heard his daughters 

talking. When he arose and walked into the kitchen, he saw 

Guill, a stranger, backing out of the girls' bedroom. Crews 

confronted Guill, stating, "[M]an, what in the hell are you doing 

in my house." In response, Guill reached for his back pocket 

with his right hand and said, "I'll cut your f_ _ _ing head off." 

 After the two men looked at each other "for a second or two," 

Guill ran out the back door. 

 Mr. Crews stated that although there were open ground floor 

windows in the living room and the master bedroom, Guill entered 

the house by taking a twelve-foot ladder from the basement and 

climbing through a bathroom window. The open windows were 

located in a portion of the house which was illuminated by 

exterior light, while there were no exterior lights in the area 

near the bathroom window. In a hallway just outside the 

bathroom, Mrs. Crews had left a purse containing $200 in plain 

view, as well as her keys. 

 Over Guill's objection, the Commonwealth called a witness 

who stated that, in 1985 when she was 16 years old, Guill broke 

and entered the house in which she was sharing an upstairs room 

with her 15 year-old female cousin. The witness testified that 

she and her cousin were asleep when Guill, a stranger to the two 

girls, got into the witness' bed with his shirt off, kissed her, 

and attempted to rape her. According to the witness, Guill "told 

my cousin that if I [did not] be quiet he was going to kill me." 

 Three weeks after the incident at the Crews' residence, 
Guill was arrested. He made a statement to the police in which 

he gave the following explanation. He stated that he stopped at 

the Crews' house because his vehicle "ran out of gas." He first 

attempted to get some gasoline out of a truck on the Crews' 

property and then broke into their house to find keys to open 

some locked gas tanks. 

 Guill also told the police that he entered the house by 

using a ladder to go through a bathroom window. Once in the 

house, he looked around for keys "and heard the kid wake up." 

When he told her to be quiet, she started crying. Guill stated 

that, at this point, he "got up and went out of the room and as I 

did I met the man." Guill did not testify at the trial. 

 The trial court found the defendant guilty after ruling that 

evidence of the 1985 crime was admissible because it was of "such 

. . . a similar nature" to the present offense. The Court of 

Appeals affirmed the trial court's judgment in an unpublished 

opinion, holding that the 1985 crime and the present offense were 

"sufficiently similar to be probative of [the defendant's] 

intent," and that the evidence of his prior conduct was 

admissible for the "narrow purpose of proving, elucidating, or 

explaining [the defendant's] intent." 

 On appeal to this Court, the defendant argues that evidence 

of the 1985 crime was irrelevant because the facts of the present 

offense contain no evidence of an intent to commit rape. The 

defendant also asserts that the trial court erred in admitting 

evidence of the 1985 crime because it was dissimilar to the 

present offense. 
 In response, the Commonwealth asserts that evidence of the 

1985 crime was admissible to prove the defendant's intent in the 

crime charged based on his conduct on the prior occasion. We 

disagree with the Commonwealth and hold that the Court of Appeals 

erred in affirming the trial court's ruling on this issue. 

 Evidence that shows or tends to show a defendant has 

committed a prior crime generally is inadmissible to prove the 

crime charged. Woodfin v. Commonwealth, 236 Va. 89, 95, 372 

S.E.2d 377, 380 (1988), cert. denied, 490 U.S. 1009 (1989); 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 

805 (1970). Such evidence implicating an accused in other crimes 

unrelated to the charged offense is inadmissible because it may 

confuse the issues being tried and cause undue prejudice to the 

defendant. See Boggs v. Commonwealth, 199 Va. 478, 486, 100 

S.E.2d 766, 772 (1957). There are several exceptions to the 

general rule excluding this type of evidence. 

 Evidence of "other crimes" is relevant and admissible if it 

tends to prove any element of the offense charged. Kirkpatrick, 

211 Va. at 272, 176 S.E.2d at 805. Thus, evidence of other 

crimes is allowed when it tends to prove motive, intent, or 

knowledge of the defendant. Id. Among other exceptions, 

evidence of other crimes also is allowed if relevant to show the 

perpetrator's identity when some aspects of the prior crime are 

so distinctive or idiosyncratic that the fact finder reasonably 

could infer that the same person committed both crimes. Spencer 

v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616, cert. 

denied, 498 U.S. 908 (1990). 
 Admission of evidence under these exceptions, however, is 

subject to the further requirement that the legitimate probative 

value of the evidence must exceed the incidental prejudice caused 

the defendant. Lewis v. Commonwealth, 225 Va. 497, 502, 303 

S.E.2d 890, 893 (1983). Further, the admission of such "other 

crimes" evidence is prohibited when its only purpose is to show 

that the defendant has a propensity to commit crimes or a 

particular type of crime and, therefore, probably committed the 

offense for which he is being tried. Kirkpatrick, 211 Va. at 

272, 176 S.E.2d at 805. 

 The element of the crime in dispute in the present case is 

that of the defendant's intent. Intent is the purpose formed in 

a person's mind that may, and often must, be inferred from the 

particular facts and circumstances of a case. Ridley v. 

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Like 

any other element of a crime, intent must be proved as a matter 

of fact and may not be the subject of surmise and speculation. 

Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345 

(1955). 

 As we stated in Kirkpatrick, 211 Va. at 273, 176 S.E.2d at 

805, the leading case on the principles involved here is Walker 

v. Commonwealth, 28 Va. (1 Leigh) 574 (1829). There, a defendant 

was indicted for larceny of a watch and, at trial, evidence was 

admitted that at one time he had stolen a coat. In setting aside 

his conviction, we held that this evidence was irrelevant and 

inadmissible to prove the defendant's intent in the crime 

charged, because the evidence did not have "such necessary 
conne[ct]ion with the transaction then before the court as to be 

inseparable from it." Id. at 580. We explained that 

 if the circumstances [of the other event] have no 

intimate conne[ct]ion with the main fact; if they 

constitute no link in the chain of evidence . . . they 

ought to be excluded, because they are irrelevant; 

[and] if they denote other guilt, they are not only 

irrelevant, but they do injury, because they have a 

tendency to [cause] prejudice. 

Id. at 577. 

 In Barber v. Commonwealth, 182 Va. 858, 30 S.E.2d 565 

(1944), an appeal of an attempted rape conviction, we again 

applied these principles. The trial court had allowed evidence 

that the defendant committed an attempted rape on a different 

victim for the purpose of showing the defendant's intent in the 

crime charged. 

 We reversed the defendant's conviction, stating that it is 

improper to use evidence that a defendant has committed another 

crime when it has "no connection with the one under 

investigation. Such other acts of criminality . . . are not 

legally relevant and should not be [used] to prejudice the 

defendant or to create a probability of guilt." Id. at 866, 30 

S.E.2d at 568 (internal quotation marks omitted). We explained 

that the test for admission of evidence of other crimes is met 

when there is "a causal relation or logical and natural 

connection between the two acts, or they . . . form parts of one 

transaction." Id. at 868, 30 S.E.2d at 569 (internal quotation 

marks omitted); see also Day v. Commonwealth, 196 Va. 907, 912-

13, 86 S.E.2d 23, 26 (1955). 

 We again applied these principles in Donahue v. 
Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983). There, the 

trial court had allowed evidence of the defendant's prior sale of 

phencyclidine (PCP) for the purpose of proving her intent to 

distribute PCP and marijuana in the crimes charged. The prior 

sale had occurred over one month before her arrest on the crimes 

charged. Id. at 149, 300 S.E.2d at 770. 

 We held that evidence of the prior sale of PCP was 

inadmissible to prove the defendant's intent because that 

evidence was unrelated to the crime charged and none of the other 

exceptions to the general rule barring admission of "other 

crimes" evidence was applicable. We also stated that the 

prejudicial effect of that evidence required its exclusion. Id.

at 156, 300 S.E.2d at 774; see also Boyd v. Commonwealth, 213 Va. 

52, 53, 189 S.E.2d 359, 360 (1972). 

 Applying these principles to the present case, we hold that 

evidence of the 1985 crime was unrelated to the crime charged. 

Like the "other crimes" evidence in the above cases, there was no 

causal relation or logical connection between the 1985 offense 

and the crime charged, nor did the two crimes form parts of one 

transaction. See Barber, 182 Va. at 868, 30 S.E.2d at 569; see

also Kirkpatrick, 211 Va. at 273, 176 S.E.2d at 806; Day, 196 Va. 

at 912-13, 86 S.E.2d at 26; Walker, 28 Va. (1 Leigh) at 577. 

Therefore, evidence of the 1985 crime was not probative evidence 

of the defendant's intent in the crime charged and was irrelevant 

and inadmissible for purposes of proving that intent. See

Donahue, 225 Va. at 155-56, 300 S.E.2d at 773-74; Kirkpatrick, 

211 Va. at 272, 176 S.E.2d at 805; Day, 196 Va. at 912-13, 86 
S.E.2d at 26; Barber, 182 Va. at 866-68, 30 S.E.2d at 568-69; 

Walker, 28 Va. (1 Leigh) at 577. 

 We also hold that evidence of the 1985 crime is not 

admissible under any other exception to the general rule barring 

admission of "other crimes" evidence. Specifically, we hold that 

the trial court erred in ruling that the evidence was admissible 

because it was of "such a similar nature" to the offense charged. 

 In Spencer, we held that when the identity of a perpetrator is 

at issue, evidence of another crime may be admitted to prove the 

actor's identity if the prior crime bears "a singular strong 

resemblance to the pattern of the offense charged" and is 

sufficiently idiosyncratic in relation to that offense to permit 

an inference of a pattern for proof purposes. 240 Va. at 90, 393 

S.E.2d at 616 (internal quotation marks omitted). 

 Assuming, without deciding, that this test is applicable 

here when the identity of the perpetrator is known, we hold that 

the test is not met. Although a few of the facts in the two 

burglaries are similar, the crimes do not have any idiosyncratic 

characteristics. 

 As stated above, in the 1985 crime, the defendant entered a 

house through a rear door and proceeded to an upstairs bedroom 

occupied by two girls, ages 15 and 16. Here, the defendant used 

a ladder to crawl through a ground floor bathroom window after 

punching holes in the window screen. He then walked into the 

ground floor bedroom of two girls who were five and seven years 

of age. 

 In the 1985 crime, the defendant got into the girls' bed and 
kissed and attempted to rape one of them. Here, there is no 

evidence that the defendant got into the girls' bed or touched 

either girl in any manner. Instead, the evidence shows only that 

the defendant "got up" before he left the girls' room. 

 Although the defendant threatened the girls' father in this 

case, he threatened the witness in the 1985 crime. Moreover, we 

note that conduct of this nature unfortunately is common, rather 

than idiosyncratic, in this type of crime. 

 Based on the above factual differences, evidence of the 1985 

crime was inadmissible under a Spencer analysis because that 

offense was not idiosyncratic in relation to the facts of the 

present offense. As such, the evidence lacked a logical 

relationship to the offense charged and, thus, was irrelevant and 

showed only the defendant's propensity to commit the crime 

charged. See Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. 

Since this evidence was inadmissible and had no probative value, 

we hold that its admission caused undue prejudice to the 

defendant. See Donahue v. Commonwealth, 225 Va. at 156, 300 

S.E.2d at 774.*

 For these reasons, we will reverse the Court of Appeals' 

judgment and remand the case to the Court with direction that the 

matter be remanded to the trial court for a new trial, if the 

Commonwealth be so advised, consistent with the principles set 

forth in this opinion. 

 

 * Since our holding requires reversal of this case, we do 

not reach the defendant's remaining assignment of error 

challenging the sufficiency of the evidence. 
Reversed and remanded.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins, 

dissenting. 

 The main issue in this criminal appeal is whether the trial 

court erroneously admitted so-called "other crimes" evidence on 

the question of the accused's specific intent to commit the 

offense charged. 

 Dwayne Edward Guill was tried by the Circuit Court of 

Charlotte County, sitting without a jury, upon an indictment for 

unlawfully and feloniously breaking and entering a dwelling house 

in the nighttime with the intent to commit murder, rape, or 

robbery in violation of Code § 18.2-90. Defendant was found 

guilty as charged and was sentenced to confinement in the 

penitentiary for 20 years, with execution of 5 years suspended. 

 Upon review, a panel of the Court of Appeals unanimously 

affirmed the conviction in an unpublished opinion. The Court of 

Appeals concluded that the trial court correctly admitted 

evidence regarding defendant's 1985 conviction for breaking and 

entering a dwelling house in the nighttime with the intent to 

commit rape, and correctly found the evidence sufficient to 

sustain the instant conviction. 

 The Court awarded defendant this appeal. According to 

settled principles of appellate review, I shall summarize the 

facts in the light most favorable to the Commonwealth. 

 On May 22, 1995, Danny Crews, his wife, and their two 

daughters, five and seven years of age, resided in the Drakes 
Branch area of Charlotte County. On that date, near 2:00 a.m., 

the parents awoke in their ground level bedroom to the sound of 

the daughters talking in a separate bedroom, also at ground 

level. As the father approached the children's room, the 

defendant "was backing out of that bedroom," which was 

illuminated by a security light mounted on a pole outside the 

home. 

 The father said to defendant, a stranger, "[M]an, what in 

the hell are you doing in my house." According to the father, 

defendant "reached for his back pocket with his right hand" and 

threatened to cut off the father's head. The two men stood 

facing each other "for a second or two." Then defendant "fled 

out of the back door," breaking two door locks as he ran. 

Defendant left the scene on a motorcycle parked nearby. 

 Defendant, age 34, was arrested three weeks later. "At 

first he denied any involvement in the burglary or break-in and 

later on he did admit that he went in the house," according to 

the investigating officer. 

 In a statement to the police, defendant, who did not testify 

at trial, claimed that while riding the motorcycle, he "ran out 

of gas and that he was in the house looking for keys to the gas 

tanks" of trucks parked in the yard of the Crews' home. 

Defendant stated he had found "a little" gas but was searching 

for more in a locked tank "on the back of a pickup truck." 

 Defendant further stated he gained access to the home by 

using a ladder and crawling through a bathroom window after 

cutting the screen. Once inside, he said, "I was looking around 
for the keys and heard the kid wake up." Defendant stated that 

while he was in the children's room, "I told her to be quiet . . 

. And then she started crying." Asked what happened next, 

defendant stated: "I got up and went out of the room and as I 

did I met the man." 

 The investigation revealed that, at the time of the 

incident, ground floor windows were open that would have allowed 

defendant to enter the home without use of a ladder. These 

windows, however, were in a portion of the home that was 

illuminated by the exterior light, while the area near the 

bathroom window was dark. 

 In addition, a desk and chair in an illuminated hall area 

were in the path of one proceeding from the bathroom to the 

girls' room. Mrs. Crews' purse containing keys was in the chair, 

and $200 in cash "was sticking up out of [the] pocketbook"; it 

was not disturbed during the incident. Also, prior to the 

incident, the door to the girls' room "was halfway open" and a 

light burning in the kitchen shone into their room. 

 At trial, the prosecution presented, over defendant's 

objection, the testimony of a woman who was the victim of a 

breaking and entering with intent to commit rape perpetrated by 

defendant in June of 1985. That crime occurred during the 

nighttime in a Chase City residence when the witness, age 16 at 

the time, occupied an upstairs bedroom with her 15-year-old 

female cousin. 

 The defendant, a stranger to the girls, unlawfully entered 

the dwelling through a rear door, proceeded past a downstairs 
bedroom occupied by an adult, entered the girls' bedroom wearing 

only "shorts," got into their bed, kissed one of the girls, 

attempted to rape the witness, and left the home when the girls 

fought him and screamed for help. According to the witness, 

defendant "told my cousin that if I don't be quiet he was going 

to kill me." Subsequently, defendant was convicted in 

Mecklenburg County of that offense. 

 In this appeal, defendant contends the Court of Appeals 

erred in affirming the action of the trial court in admitting the 

evidence of the 1985 crime. I disagree. 

 Generally, proof showing an accused committed other crimes 

at other times is incompetent and inadmissible for the purpose of 

establishing commission of the particular crime charged. Woodfin

v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380 (1988), 

cert. denied, 490 U.S. 1009 (1989); Kirkpatrick v. Commonwealth, 

211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Such evidence is 

admissible, however, when "it tends to prove any relevant element 

of the offense charged," such as when the accused's intent is at 

issue. Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805. Accord

Jennings v. Commonwealth, 20 Va. App. 9, 15, 454 S.E.2d 752, 755 

(1995). Nevertheless, evidence of other crimes is admissible 

only when "the legitimate probative value outweighs the 

incidental prejudice to the accused." Lewis v. Commonwealth, 225 

Va. 497, 502, 303 S.E.2d 890, 893 (1983). 

 In the present case, under the indictment, the Commonwealth 

had the burden to prove beyond a reasonable doubt that defendant 

broke and entered the Crews' residence in the nighttime with the 
specific intent to commit rape. See Code § 18.2-90; Snyder v. 

Commonwealth, 220 Va. 792, 798, 263 S.E.2d 55, 59 (1980). 

"Intent is the purpose formed in a person's mind which may, and 

often must, be inferred from the facts and circumstances in a 

particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252 

S.E.2d 313, 314 (1979). This state of mind may be shown by the 

offender's acts and conduct. Id.

 Here, there is no dispute defendant broke and entered the 

Crews' dwelling in the nighttime. The only contested element of 

the offense charged is whether defendant's intent, in entering 

the home, was to rape either or both of the girls, as opposed to 

an intent to procure fuel for his motorcycle, as he claimed. The 

question then becomes whether evidence of the 1985 crime was 

relevant and tended to prove defendant's specific intent to 

commit the crime. 

 Admissibility of "other crimes" evidence does not 

necessarily turn on the proximity of the prior acts to the crime 

charged. Indeed, the Court of Appeals has approved the use of 

such evidence when the prior conduct was ten and twenty years in 

the past. Jennings, 20 Va. App. at 14, 454 S.E.2d at 754. 

 Also, this Court has rejected the notion that when evidence 

of other crimes is offered to prove modus operandi, an exact 

resemblance to the crime on trial as to constitute a "signature" 

is necessary to qualify such evidence for admission. Rather, the 

Court has said it is sufficient if the evidence of other crimes 

bears "a singular strong resemblance to the pattern of the 

offense charged." Spencer v. Commonwealth, 240 Va. 78, 90, 393 
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990) (internal 

quotation marks omitted). The Court has explained that the test 

for admissibility is met when the prior crime is sufficiently 

idiosyncratic to permit an inference of a pattern for proof 

purposes. Id. The present case is not a modus operandi case in 

which an effort is made to establish the identity of the accused 

by showing the probability of a common perpetrator. However, I 

perceive no reason why the same test should not apply when, as 

here, the perpetrator's identity is known and his intent is in 

question. 

 Here, the evidence of the 1985 crime bears a singular strong 

resemblance to the pattern of the offense charged and is 

sufficiently distinctive to permit an inference of a pattern of 

behavior. For example, in 1985, as here, defendant broke and 

entered a residence. In 1985, as here, the crime was committed 

in the nighttime. In 1985, as here, the defendant proceeded past 

an adult's bedroom en route to a bedroom occupied by young 

girls.In 1985, the girls were young, 15 and 16 years of age. 

Here, the girls also were young, five and seven years of age. 

 In 1985, defendant tried to rape one of the girls. Here, 

the defendant did something in the bedroom, while he was there an 

undetermined period, that required him to "get up" before he left 

the room. A reasonable inference from that proven fact is that 

defendant sat on the girls' bed in order to molest either or both 

of them. Although that proven fact may give rise to other 

inferences, such as, that defendant intended to commit an assault 

and battery, the Court must accept on appeal the inference that 
is most favorable to the Commonwealth. 

 In 1985, the girls screamed and defendant threatened to kill 

one of them. Here, the girls cried and defendant threatened to 

kill the father. 

 Therefore, I would hold that proof of the 1985 crime was 

relevant because it tended to establish the defendant's specific 

intent. Further, the legitimate probative value of the evidence 

outweighs the incidental prejudice to the defendant. "The 

responsibility for balancing these competing considerations is 

largely within the sound discretion of the trial judge. . . . And 

a trial court's discretionary ruling 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). Hence, the evidence 

was admissible, and the Court of Appeals did not err in affirming 

the trial court's ruling on that issue. 

 My analysis of the first issue effectively disposes of the 

second. Defendant contends the evidence was insufficient to 

convict him of the crime charged. I disagree. 

 The trial court was entitled to infer that defendant, given 

his propensity to commit sexual crimes involving young girls, 

entered the home and remained in the girls' bedroom intending, 

not to look for keys, but to rape either or both of them. 

Defendant's activity was wholly inconsistent with a quest for 

fuel. 

 Defendant observed the girls sleeping as he was standing in 

the yard near their illuminated room. At that point in time, he 

already had obtained "a little" gasoline, sufficient to enable 
him to drive a distance from the scene after he fled the home, 

according to the evidence. Nevertheless, according to his story, 

he risked entering the home to search for still more fuel. One 

wonders why he did not just drive away using the gas he had 

found. 

 After breaking and entering the home through a dark area to 

avoid detection, he moved through a lighted hall toward the 

girls' room. He passed an open purse containing both keys and 

money, with which he readily could have obtained the gas he 

allegedly sought. He remained in the girls' room for an 

indeterminate period of time and "got up" in order to leave. As 

I have said, reasonably to be inferred from all the circumstances 

is the conclusion that defendant entered the home with the 

specific intent to commit rape. 

 Consequently, I would hold that the Court of Appeals did not 

err, and I would affirm the judgment appealed from.