Present: All the Justices 

DAVID MICHAEL SCATES 

v. Record No. 010091 OPINION BY JUSTICE DONALD W. LEMONS 

 November 2, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the trial court erred 

in admitting evidence of other crimes committed by the 

defendant in this prosecution for a particular burglary and 

larceny. 

I. Facts and Proceedings Below 

 David Michael Scates (“Scates”) was indicted for 

feloniously and unlawfully taking, stealing, and carrying away 

United States currency and/or property, having a value of 

$200.00 or more, belonging to Susan Shepard (“Shepard”), in 

violation of Code § 18.2-95. Scates was also indicted for 

feloniously and unlawfully breaking and entering in the 

daytime, the dwelling house of Shepard, with the intent to 

commit a felony therein, in violation of Code § 18.2-91. 

Scates was tried and convicted for both offenses by a jury in 

the Circuit Court for the City of Richmond. The jury fixed 

punishment at three years imprisonment on the grand larceny 

offense and six years on the breaking and entering offense, 

and the trial court imposed both sentences. 
 We state the evidence 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. 951 (1996). Maggie Galliot 

(“Galliot”), Shepard’s roommate, testified that on March 2, 

1998, she was at home alone in her bedroom. She left the 

apartment door unlocked because she was expecting her 

boyfriend and he did not have a key. 

 Galliot heard a knock on the door and did not answer it 

because she thought it was her boyfriend, who would usually 

knock and then enter the apartment. She heard someone walking 

around the apartment and realized it was not her boyfriend 

when she heard the person enter Shepard’s room. Galliot heard 

the door to the bathroom open and then heard the person leave 

the apartment. She never saw the intruder. Shepard arrived 

home later that day and Galliot informed her of what happened. 

At that time, neither woman noticed that anything was missing 

from the apartment. 

 Police subsequently contacted Shepard because they 

believed they had recovered a ring she owned. Shepard later 

identified her ring and other pieces of jewelry, which were 

found during a police search of a room belonging to Scates. 

 Police also found a number of credit cards during their 

search of Scates’ room. Immediately prior to trial, the 

2
parties discussed with the trial court the admissibility of a 

statement made by Scates to Detective Robert Click (“Detective 

Click”), “that in order to go into homes, [Scates] would take 

credit cards, [and] jam them into a door.” The Commonwealth 

maintained that this testimony was admissible because the 

credit cards were “an instrument of [Scates’] scheme of 

breaking into homes.” 

 Scates argued that the statement regarding the use of 

credit cards to gain access to homes was irrelevant because no 

forced entry occurred in this case. Additionally, Scates 

argued that such evidence would be highly prejudicial. In a 

pre-trial ruling the trial court stated, “I will not allow 

evidence about other crimes.” 

 Despite the pre-trial ruling, the Commonwealth was 

permitted, over the defendant’s objection, to elicit from 

Detective Click testimony that Scates told him, “that in order 

to go into homes, he would take the credit cards, jam them 

into a door. . . [u]se the credit cards, jam [one] into the 

lock of the door, and wiggle it around until the door itself 

came open.” On cross-examination, Detective Click 

acknowledged that Scates’ statement about using the credit 

cards for entry into homes “didn’t pertain to this case, the 

burglary, alleged burglary at Ms. Shepard’s home . . . .” 

3
 Additionally, at trial the Commonwealth was permitted, 

over the defendant’s objection, to elicit testimony from 

Sergeant Burton Walker about the condition of certain 

laminated cards found in Scates’ room. Walker testified, 

“[m]ost of them are chewed up on the end. On each there are 

gashes and gouges. Some of them are cracked. Most of the 

laminated cards appear to be bent. This driver’s license is 

separated and broken at the end.” 

 The Court of Appeals denied Scates’ petition for appeal, 

stating that, “Click’s testimony concerning appellant’s 

admitted use of the credit cards addressed appellant’s general 

scheme of breaking into and entering residences, an offense 

with which appellant was charged in the present case. 

Accordingly, the trial judge did not abuse her discretion in 

admitting the evidence.” 

II. Analysis 

 Scates argues on appeal that the trial court erred in 

admitting the detective’s statement about Scates’ use of 

credit cards to break into homes and in admitting evidence 

concerning the condition of cards found in his room. Scates 

asserts that the Commonwealth failed to demonstrate the 

relevance of the evidence to the offenses charged; therefore, 

he contends that the evidence served only to demonstrate his 

4
propensity to commit the type of crimes for which he stood 

charged and should not have been admitted. 

 We have previously stated: 

 The general rule is well established that 

in a criminal prosecution, proof which shows or 

tends to show that the accused is guilty of the 

commission of other crimes and offenses at 

other times, even though they are of the same 

nature as the one charged in the indictment, is 

incompetent and inadmissible for the purpose of 

showing the commission of the particular crime 

charged. It is also well established that 

evidence of other offenses should be excluded 

if offered merely for the purpose of showing 

that the accused was likely to commit the crime 

charged in the indictment. However, the 

exceptions to the general rule are equally as 

well established. Evidence of other offenses 

is admitted if it shows the conduct and feeling 

of the accused toward his victim, if it 

establishes their prior relations, or if it 

tends to prove any relevant element of the 

offense charged. Such evidence is permissible 

in cases where the motive, intent or knowledge 

of the accused is involved, or where the 

evidence is connected with or leads up to the 

offense for which the accused is on trial. 

Also, testimony of other crimes is admissible 

where the other crimes constitute a part of the 

general scheme of which the crime charged is a 

part. Frequently it is impossible to give a 

connected statement showing the crime charged 

without incidental reference to such 

contemporaneous and similar crimes and where 

there is only such incidental disclosure of 

other offenses. 

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

805 (1970). Additionally, admission of evidence of other 

crimes is subject to the further requirement that the 

probative value of the evidence must outweigh any incidental 

5
prejudice to the defendant. Guill v. Commonwealth, 255 Va. 

134, 139, 495 S.E.2d 489, 491-92 (1998). 

 Although we have recognized numerous circumstances where 

“other crimes” evidence is admissible, we confine our analysis 

in this case to the reasons offered by the prosecutor at trial 

and the additional justification utilized by the Court of 

Appeals. At trial, the prosecutor argued that the credit card 

evidence showed “an instrument of [Scates’] scheme of breaking 

into homes.” The Court of Appeals agreed with the 

Commonwealth and added a separate analytical basis for the 

admissibility of this evidence, quoting Scott v. Commonwealth, 

228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984), holding that, 

“[a]n accused is not entitled ‘to have the evidence 

“sanitized” so as to deny the jury knowledge of all but the 

immediate crime for which he is on trial.’ ” Scates v. 

Commonwealth, Rec. No. 1115-00-2, November 3, 2000, Slip Op. 

at 6. The trial court and the Court of Appeals erred in 

permitting the introduction of this evidence for either 

reason. 

 We have previously held that “evidence of similar acts is 

admissible to show a common scheme, design, or plan where 

there is ‘such a concurrence of common features that the 

various acts are naturally to be explained as caused by a 

general plan of which they are the individual 

6
manifestations.’ ” McWhorter v. Commonwealth, 191 Va. 857, 

870-71, 63 S.E.2d 20, 26 (1951)(citations omitted). See also

Satcher v. Commonwealth, 244 Va. 220, 230-31, 421 S.E.2d 821, 

827-28 (1992), cert. denied, 507 U.S. 933 (1993). Here, there 

is no “concurrence of common features” that proves a “common 

scheme, design, or plan.” The only evidence of entry into the 

apartment is that the door was unlocked and the person who 

unlawfully entered did so by using the door knob. There is no 

evidence that access to this apartment was gained by utilizing 

a credit card. 

 The Court of Appeals’ additional justification for the 

admission of the credit card evidence cites our opinion in 

Scott. The Scott case involved a course of criminal conduct 

which was continuous and interwoven consisting of a series of 

related crimes. In Scott, the defendant argued that evidence 

of transporting the victim to Tennessee and raping her there 

was “other crimes” evidence inadmissible in his Virginia 

prosecution for abduction with intent to defile. As we noted, 

“[e]vidence of such connected criminal conduct is often 

relevant to show motive, method, and intent.” Id. at 527, 323 

S.E.2d at 577. When the course of criminal conduct is 

continuous and interwoven, “[t]he fact-finder is entitled to 

all of the relevant and connected facts, including those which 

followed the commission of the crime on trial, as well as 

7
those which preceded it; even though they may show the 

defendant guilty of other offenses.” Id. at 526-27, 323 

S.E.2d at 577. However, continuous and interwoven conduct is 

not present in the case before us. 

 Finally, contrary to the Commonwealth’s assertion, 

Detective Click’s testimony combined with Sergeant Walker’s 

testimony clearly referenced other crimes. Scates’ statement 

that, “in order to go into homes, he would take the credit 

cards [and] jam them into a door” did not refer to a particular 

offense, but suggested multiple other offenses. Evidence of 

mutilated credit cards further supported the statement. Under 

the facts of this case, the evidence was not in support of an 

asserted “common scheme, design, or plan” or “continuous and 

interwoven criminal conduct.” 

III. Conclusion 

 For the foregoing reasons we hold that the Court of 

Appeals and the trial court erred in approving the admission 

of evidence of other crimes in this case. The order of the 

Court of Appeals affirming Scates’ convictions will be 

reversed. The case will be remanded to the Court of Appeals 

with direction that it be remanded to the circuit court for a 

new trial if the Commonwealth be so advised. 

Reversed and remanded. 

8