COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Lemons∗ and Frank 

Argued at Chesapeake, Virginia 

ELTON MANNING JACKSON 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 2587-98-1 JUDGE ROBERT P. FRANK 

 SEPTEMBER 5, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Elton Manning Jackson (appellant) appeals his conviction, by 

a jury, of first degree murder. On appeal, he contends the trial 

court erred in: 1) allowing three witnesses to testify regarding 

their sexual encounters with him; 2) overruling his motion to 

exclude a portion of the statement he made to police regarding his 

sexual encounter with Kevin Benton; and 3) allowing a witness to 

testify about the statement Andre Smith made to the witness. We 

disagree and, therefore, affirm the trial court's judgment. 
I. BACKGROUND 

 On July 22, 1996, the body of Andre Smith was found at 

approximately 8:35 a.m. The medical examiner testified the 

victim had been dead at least 18 to 24 hours, but no longer than 

48 hours. The cause of death was ligature strangulation. 

 Arnold Smith, a friend of the victim, testified, over 

appellant's objection, that between 2:30 a.m. and 3:00 a.m. on 

July 21, 1996, the victim said he was going to go "past" 

appellant's house to get some money. Kim Nurney also testified, 

without objection, that at around 2:30 a.m. on July 21, 1996, 

the victim told her he was leaving to go get some money and 

would be back in fifteen minutes. Nurney waited for the victim, 

but he never returned. 

 On July 23, 1996, during a canvas of the victim's 

neighborhood, police officers came in contact with appellant. 

Appellant told the police he did not know the victim, but 

recognized his picture from television reports. Detective 

Ronald Young testified appellant appeared jittery and would not 

make good eye contact with the police. 

 Appellant was arrested on May 6, 1997, and gave a 

videotaped statement to Detective Whitehurst of the Chesapeake 

Police Department. During this videotaped statement, he stated 

the victim had visited his home some time in the evening on July 

20, 1996, and the two of them "had a good time." Whitehurst 

also questioned appellant about a sexual encounter he had with 

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Kevin Benton. Specifically, Whitehurst asked appellant if he 

played a game with Benton where he tied up Benton. 

 At trial, appellant testified he engaged in anal sex with 

the victim on July 20, 1996. Appellant said he gave the victim 

twenty dollars, and the victim left around 10:00 p.m. 

 Kevin Benton testified about a sexual encounter he had with 

appellant in the early morning hours of December 11, 1996. 

Appellant picked Benton up in the Ocean View area of Norfolk, 

and Benton testified they went to appellant's house. Once they 

arrived at appellant's house, Benton, who was high on crack 

cocaine, went into the bedroom with appellant. Appellant 

promised to give Benton seventy-five dollars if he would allow 

appellant to tie his hands behind his back and massage him. 

Benton stripped to his boxer shorts and lay on his stomach on 

the bed while appellant tied his hands behind his back with a 

necktie. After a few moments, during which appellant was out of 

Benton's sight, Benton noticed appellant approaching from 

behind. Appellant tried to lift a leather strap over Benton's 

head. Benton turned away, kicked appellant, and untied the 

necktie around his hands. Later that morning, appellant paid 

Benton nineteen dollars and some change. Appellant then drove 

Benton to a meeting with Benton's probation officer. Appellant 

testified he engaged in consensual sex with Benton, but denied 

any acts of violence. 

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 Tommy Anderson testified he and appellant agreed to 

exchange sex for money in May 1995. Anderson testified he went 

to appellant's house, took off his clothes, and lay on the bed. 

Anderson agreed to let appellant rub lotion between his closed 

legs. At this point, appellant became rough and held Anderson 

down by placing his forearm in the back of Anderson's neck, but 

he stopped when Anderson threatened to scream. Then, appellant 

agreed to drive Anderson to his next destination, but, while in 

the car, he hit Anderson in the face. Appellant threatened to 

kill Anderson if he tried to escape. Appellant drove Anderson 

to the approximate area where the victim's body was found. He 

ordered Anderson to get out and place his hands on the vehicle. 

With his hands on the vehicle, Anderson turned and saw appellant 

approaching him from behind with a strap in his hand. Anderson 

kicked appellant and fled the area. During his testimony, 

appellant denied ever having a sexual encounter with Anderson. 

 Willie C. Swimpson, Jr., lived with appellant during the 

summer of 1995. Swimpson testified he engaged in sexual 

relations with appellant for money during that time. On one 

occasion, appellant took Swimpson to a secluded area and 

Swimpson agreed to allow appellant to put lotion between his 

legs while having sex with him. Swimpson glanced around while 

he waited for appellant to retrieve the lotion and noticed 

appellant approaching him from behind with a strap in his hand. 

Swimpson thought appellant was going to put the strap around his 

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head and twist it. Swimpson escaped through the woods on foot. 

Appellant testified Swimpson fabricated this story because their 

consensual sexual relationship had ended on bad terms after he 

caught Swimpson stealing from him. 

 A bloodstain found on appellant's mattress matched the DNA 

of the victim. Appellant's DNA matched the DNA in semen that 

was swabbed from the victim's anus. 

 Appellant was convicted on August 21, 1998 of murder in the 

first degree. He was sentenced to life imprisonment on October 

27, 1998. 

II. ANALYSIS 

 Appellant contends the trial court erred in allowing Benton, 

Anderson, and Swimpson to testify about their sexual encounters 

with him, during which each said appellant tried to strangle him. 

 Generally, evidence of other offenses 

should be excluded if offered merely to show 

that the accused is a person likely to 

commit the crime charged. 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 defendant guilty of 

another crime. 

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

(1990) (citations omitted). 

 "[O]ne of the issues upon which 'other crimes' evidence may 

be admitted is that of the perpetrator's identity, or criminal 

agency, where that has been disputed. Proof of modus operandi

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is competent evidence where there is a disputed issue of 

identity." Id. (citations omitted). 

 In Spencer, the Supreme Court explained the standard of 

proof for the modus operandi exception: 

[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." Rather, it is sufficient if 

the other 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. 

 Ultimately, the question whether to 

admit evidence of other crimes involves the 

same considerations as any other 

circumstantial evidence. "Every fact, 

however remote or insignificant, that tends 

to establish the probability or 

improbability of a fact in issue, is 

relevant, and if otherwise admissible, 

should be admitted." "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. The question 

remains, however, whether it is "otherwise 

admissible." That question requires the 

trial court to weigh its probative value 

against its prejudicial effect. "Whenever 

the legitimate probative value outweighs the 

incidental prejudice to the accused, 

evidence of prior offenses, if otherwise 

competent, is admissible." 

 The responsibility for balancing the 

competing considerations of probative value 

and prejudice rests in the sound discretion 

of the trial court. The exercise of that 

discretion will not be disturbed on appeal 

in the absence of a clear abuse. 

Id. at 90, 393 S.E.2d at 616-17 (citations omitted). 

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 Appellant contends the differences between his encounters 

with Benton, Anderson, and Swimpson and his encounter with the 

victim were not sufficient to show a modus operandi. He argues 

Benton, Anderson, and Swimpson agreed to have sex with him for 

money, but there was no evidence he paid the victim to have sex 

with him. He argues Benton and Anderson testified, that before 

taking them back to his house, he picked them up in his car 

while cruising the streets. He contends there was no evidence 

that he picked up the victim while driving in his car. He 

argues that Swimpson testified appellant attempted to strangle 

Swimpson in his car, not in his bed, where the Commonwealth 

contends appellant strangled the victim. Benton testified he 

allowed appellant to tie him up prior to the attempted 

strangulation, but the medical examiner testified there was no 

evidence of tie marks or ligature marks on the victim's wrists 

or ankles. Appellant also argues there was no evidence he 

engaged in anal intercourse with Benton, Anderson, or Swimpson. 

However, the autopsy of the victim indicated appellant 

penetrated the victim's anus. Anderson and Swimpson both 

testified appellant wanted to use lotion on their legs, and the 

medical examiner testified there was no evidence of lotion on 

the victim's body. Benton, Anderson, and Swimpson each 

testified he physically resisted appellant when appellant 

attempted to strangle him. Anderson testified appellant punched 

him in the face. Appellant notes there were no signs of 

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resistance or defensive wounds found on the victim's body. 

Benton, Anderson, and Swimpson each testified appellant used a 

thick, leathery strap. According to the medical examiner, the 

victim was strangled with a thin cord. 

 Despite the differences discussed by appellant, we find 

there are significant similarities between appellant's 

encounters with Benton, Anderson, and Swimpson and his encounter 

with the victim. First, all of the men, including the victim, 

engaged in consensual homosexual sex with appellant. Benton, 

Anderson, and Swimpson all stated they were using drugs at the 

time of their encounters with appellant. The victim's 

post-mortem toxicology report indicated cocaine was present in 

his body. Despite appellant's assertion that he did not pay the 

victim to have sex with him, the victim told Arnold Smith and 

Nurney he needed money, then he had sex with appellant, and 

appellant gave him twenty dollars. Finally, appellant engaged 

in rough sex with Benton, Anderson, and Swimpson. Benton stated 

he was face down on the bed with his hands tied behind his back 

when appellant put a strap over his head from behind. Anderson 

said appellant started getting rough during their encounter and 

appellant pinned him down on the bed by the back of the neck. 

Later, appellant came at Anderson with a strap or rope. 

Swimpson stated that during a sexual encounter with appellant, 

appellant tried to put a leather strap around his neck. The 

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victim clearly had engaged in sexual intercourse with appellant 

and was strangled from behind with a thin cord. 

 We find appellant's encounters with Benton, Anderson, and 

Swimpson and the circumstances surrounding the victim's death to 

be "sufficiently idiosyncratic and similar to each other to 

support an inference of a pattern of operation and the 

probability of [a] common [perpetrator]." Chichester v. 

Commonwealth, 248 Va. 311, 328, 448 S.E.2d 638, 649 (1994). 

Furthermore, we find the trial court did not abuse its 

discretion in concluding the prejudicial effect of Benton's, 

Anderson's, and Swimpson's testimony was outweighed by the 

probative value of the evidence. 

 Appellant next contends the trial court erred in admitting 

the portion of his May 6, 1997 statement to police that related 

to his sexual encounter with Benton. 

 The Commonwealth argues appellant is procedurally barred 

from raising this issue on appeal because, pursuant to Rule 

5A:18, he did not state a specific basis for his objection. We 

disagree and address the issue on the merits. 

 In his brief, appellant only argues that the portion of his 

statement to the police regarding his relationship with Benton 

is inadmissible for the "same reasons [as] all of Benton's 

testimony." As discussed above, Benton's testimony was 

admissible to prove modus operandi. 

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 "The admission of evidence is left to the sound discretion 

of the trial court and will be disturbed on appeal only upon a 

showing of abuse of discretion." Langhorne v. Commonwealth, 13 

Va. App. 97, 106, 409 S.E.2d 476, 482 (1991) (citing Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) 

(citation omitted)). 

 "Evidence is relevant if it has any logical tendency to 

prove an issue in a case." Goins v. Commonwealth, 251 Va. 442, 

461, 470 S.E.2d 114, 127 (1996) (citing Coe v. Commonwealth, 231 

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

 In this case, appellant's statement to the police regarding 

his relationship with Benton was relevant because it 

corroborated Benton's admissible testimony. Therefore, we find 

the trial court did not abuse its discretion in admitting 

appellant's statement into evidence. 

 Finally, appellant contends the trial court erred in 

allowing Arnold Smith to testify about the victim's statement 

that he was going to appellant's house. 

 The trial court ruled Smith's testimony was hearsay, but 

ruled it was admissible, over appellant's objection, to show the 

victim's state of mind. The Commonwealth argued the victim's 

state of mind was relevant because it corroborated the 

Commonwealth's contention that he went to appellant's house. 

 Assuming, without deciding, the statement was hearsay, it 

was harmless error for the trial court to admit the statement. 

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 A nonconstitutional error is harmless 

if "it plainly appears from the record and 

the evidence given at trial that the error 

did not affect the verdict." "An error does 

not affect a verdict if a reviewing court 

can conclude, without usurping the jury's 

fact finding function, that had the error 

not occurred, the verdict would have been 

the same." 

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620 

(1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc)). 

 From Smith's testimony, the trier of fact could conclude 

the victim knew where appellant's house was located and the 

victim planned to go "past" appellant's house to get money. 

Smith did not testify as to the time the victim left because he 

left prior to the victim's leaving. Nurney established the 

victim left at 2:30 a.m. and did not return. The victim told 

Nurney he was going to get some money and would return in 

fifteen minutes. Nurney's testimony did not indicate the victim 

knew appellant or was going to appellant's home. 

 Substantively, the inadmissible hearsay adds nothing to the 

evidence already before the trier of fact. Appellant admitted 

he and the victim had sex at his home on the evening of July 20, 

1996. From appellant's testimony, the trier of fact could infer 

the victim knew where appellant's home was located. Therefore, 

we find, had the hearsay not been admitted, the verdict would 

have been the same. 

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 For these reasons, we affirm the judgment of the trial 

court. 

Affirmed.

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