Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Compton, S.J. 

COMMONWEALTH OF VIRGINIA 

v. Record No. 030401 OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 16, 2004 

KURVYN DARNELL MINOR 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether a defendant, who 

was indicted for offenses against three victims occurring 

on three different dates, should have been granted separate 

trials for the offenses allegedly committed against each 

victim. We conclude that the trial court abused its 

discretion in denying the defendant’s motion to sever the 

charges because evidence of the other crimes was not 

relevant to the only contested issue, whether each victim 

did or did not consent to sexual intercourse. We will 

therefore affirm the judgment of the Court of Appeals, 

which reversed the trial court’s judgment and the 

defendant’s convictions. 

PRIOR PROCEEDINGS 

 The defendant, Kurvyn Darnell Minor, was charged with 

14 offenses that arose out of three separate incidents 

involving three different victims. First, he was charged 

with the April 3, 2000, abduction of C.M. and use of a 

firearm in the commission of that felony. Second, he was 
charged with the April 13, 2000 abduction, rape, robbery, 

oral sodomy, attempted anal sodomy, credit card theft, and 

use of a firearm in the commission of a felony, all against 

W.S. Third, the defendant was charged with the September 

30, 2000, abduction, rape, robbery, oral sodomy, and anal 

sodomy of G.C. 

 Minor filed a motion to sever the charges, asking that 

he be tried separately for the offenses related to each 

victim. He asserted that evidence admissible in the trial 

of the charges involving one victim would not be relevant 

to the other offenses involving different victims. The 

Commonwealth opposed the defendant’s motion and moved for 

joinder of the charges in a single trial. In a memorandum 

in support of its motion for joinder, the Commonwealth 

stated that, “[i]n the present case, modus operandi, 

opportunity, relationship to the victims, absence of 

mistake or accident and interconnection of the offenses are 

all relevant to the trial of these three cases.” The 

Commonwealth also stated that “[t]he place of attack, the 

type of victim, the method of transportation, the topics of 

conversation and other factors are sufficiently 

idiosyncratic to permit an inference of pattern or purpose 

for proof showing a common predator or common modus 

operandi.” 

2
 At a hearing on the parties’ motions, the Commonwealth 

admitted that there was no dispute regarding the identity 

of the perpetrator in the charged offenses. Despite that 

admission, the Commonwealth stated that the evidence of 

other crimes was admissible “to show that the defendant’s 

modus operandi was the same.” The defendant, however, 

suggested that the only contested issue was whether the 

victims consented to sexual intercourse. Defense counsel 

acknowledged that Minor had admitted, in a statement to the 

police, that he knew these women and had contact with them, 

including sexual intercourse. Defense counsel then stated, 

“I don’t think that it’s going to be the Commonwealth’s 

position necessarily that on the issue of whether it was 

consensual or not that there was — there’s something so 

unique that occurred between the women that [the 

Commonwealth] would need to try all the cases on the same 

day in order to present that issue.” The Commonwealth did 

not disagree with that statement. 

The trial court granted the Commonwealth’s motion for 

joinder of the indictments for trial, finding that joinder 

was proper under Rule 3A:10(c). At trial, Minor did not 

testify. The court instructed the jury on the issue of 

consent only with regard to the victim identified as W.S. 

That instruction stated: 

3
Consent by [W.S.] is an absolute bar to a 

conviction of rape. However, consent, once 

given, may be withdrawn prior to sexual 

intercourse. If after consideration of all of 

the evidence you have a reasonable doubt as to 

whether [W.S.] consented to have intercourse with 

the defendant, then you shall find him not 

guilty. 

 The jury convicted Minor of three counts of abduction; 

two counts each of rape, oral sodomy, and robbery; and one 

count each of anal sodomy, attempted anal sodomy, credit 

card theft, and use of a firearm in the commission of 

abduction. The jury fixed Minor’s total punishment for 

these convictions at two life sentences plus 113 years 

imprisonment. The trial court, however, struck the charge 

of attempted anal sodomy and reduced the defendant’s 

sentence to 108 years plus two life sentences. 

 Minor appealed the trial court’s judgment to the Court 

of Appeals. In an unpublished opinion reversing the 

judgment of the trial court, the Court of Appeals held 

that, under Rule 3A:10(c), justice required separate trials 

because “[n]either the number of alleged victims nor the 

strength of similarities between or among the offenses has 

any bearing on the admissibility of evidence of other 

offenses where, as here, the only issue genuinely in 

dispute is whether the acts were consensual or forcible.” 

Minor v. Commonwealth, No. 3105-01-2, slip op. at 11 (Dec. 

4
31, 2002). The Commonwealth appeals from the judgment of 

the Court of Appeals. 

MATERIAL FACTS 

 The three incidents at issue occurred in the late 

evening to early morning hours on the respective dates 

alleged in the indictments. Minor approached each 

pedestrian victim within the same relative area on the 

north side of the City of Richmond and identified himself 

as “Kevin Wilkinson” to C.M. and as “Kevin” to W.S. He 

offered each one a ride in his vehicle, which C.M. and W.S. 

willingly accepted by getting into Minor’s vehicle. 

Although G.C. initially accepted Minor’s offer of a ride to 

her home, she refused to get into his car when Minor told 

her that he wanted to take her to his house. At that 

point, Minor pulled out a knife, held it to G.C.’s throat, 

made her get into his vehicle, and told her that he was 

going to rape her. 

 After each victim got into his vehicle, whether 

willingly or otherwise, Minor drove along Interstate 95, 

taking each victim to a secluded area in Hanover County. 

Minor took C.M. and W.S. to a location near a church, and 

he took G.C. to a wooded area about a mile away from the 

same church. 

5
 C.M. testified that, as she and Minor traveled to 

Hanover County, they discussed “getting together, having 

sexual performance or act, and I, you know, didn’t mind at 

that particular time.” She further testified that she and 

Minor agreed to stop at a gasoline station, where she 

purchased a condom using Minor’s money. According to C.M., 

Minor then told her “that he wanted anal sex.” At that 

point, C.M. objected, “I said no, that’s okay. I change my 

mind. I don’t want to do that.” C.M. testified that 

Minor’s “whole tone and attitude just change[d]” then and 

“his voice [got] real harsh and nasty.” 

 When Minor stopped his vehicle near the church, he 

took the keys out of the ignition and went back to the 

trunk of the vehicle. As he started to reenter the 

vehicle, C.M. “jumped out” and went over by the church. 

Minor then drove away “real fast” but suddenly stopped, 

backed up, and told C.M. that he was not going to leave her 

there. He ordered C.M. to get back into the vehicle, but 

she refused. Minor pointed an “object out of the car that 

look[ed] like a gun,” and C.M. started running behind the 

church. As she ran, C.M. heard a sound “[l]ike a 

firecracker or a pop.” 

 When W.S. got in Minor’s car, he offered her $100 

“[t]o have some sex.” W.S. agreed and testified that, as 

6
they were driving along, Minor was “a very nice, very nice 

guy.” However, W.S. stated that “all of a sudden on the 

interstate, he started getting — attitude start[ed] 

changing, . . . he really was getting very forceful 

. . . .” According to W.S., Minor forced her to perform 

oral sodomy on him while he was driving on the interstate. 

 Minor stopped his vehicle in the middle of a road near 

the church. W.S. testified that they had vaginal sexual 

intercourse in the front seat of the vehicle and that she 

did so because she was scared. Minor also attempted to 

have anal sodomy with W.S. Eventually, Minor drove to 

another location where he pulled out a gun and pointed it 

at W.S.’s head, telling her not to scream. W.S. then 

opened the passenger door, and as she was trying to exit 

the vehicle, Minor grabbed her purse, which contained her 

identification and a credit card. He then drove away. In 

the early morning hours of April 13, 2000, Minor attempted 

to use that credit card three times at two different 

automatic teller machines. 

 After Minor made G.C. get into his car, he drove along 

Interstate 95 and stopped in a wooded area. According to 

G.C., Minor dragged her out of his vehicle with a knife 

held to her throat and then took her back to the vehicle 

where he started removing her clothes. G.C. testified that 

7
Minor forced her to engage in acts of vaginal intercourse, 

oral sodomy, and anal sodomy, while “poking” her with the 

knife or “bang[ing]” her head on the vehicle. Minor drove 

off, leaving G.C. in the woods and taking most of her 

clothes, her cellular telephone, a pager, and approximately 

$40 in cash. 

 Evidence established that, during a traffic stop in 

May 2000, a police officer seized a handgun from Minor. 

That seizure took place after the first two incidents at 

issue had transpired but before the third one occurred. 

ANALYSIS 

 It is well established in our jurisprudence that 

evidence of other offenses is generally not admissible to 

prove guilt of the crime for which a defendant is presently 

on trial. See Stockton v. Commonwealth, 227 Va. 124, 142, 

314 S.E.2d 371, 383 (1984); Moore v. Commonwealth, 222 Va. 

72, 76, 278 S.E.2d 822, 824 (1981); Eccles v. Commonwealth, 

214 Va. 20, 22, 197 S.E.2d 332, 333 (1973). This is so 

because “[s]uch evidence implicating an accused in other 

crimes unrelated to the charged offense . . . may confuse 

the issues being tried and cause undue prejudice to the 

defendant.” Guill v. Commonwealth, 255 Va. 134, 138, 495 

S.E.2d 489, 491 (1998). There are, however, some 

recognized exceptions to this general principle: 

8
“Evidence of other offenses is admitted if 

it shows the conduct and feeling of the accused 

toward [the] victim . . . 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.” 

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

828 (1992) (quoting Kirkpatrick v. Commonwealth, 211 Va. 

269, 272, 176 S.E.2d 802, 805 (1970)); accord Scates v. 

Commonwealth, 262 Va. 757, 761, 553 S.E.2d 756, 759 (2001); 

Turner v. Commonwealth, 259 Va. 645, 651, 529 S.E.2d 787, 

790-91 (2000). For such evidence to be admissible under 

one of these exceptions, the legitimate probative value of 

the evidence must outweigh its prejudicial effect. Guill, 

255 Va. at 139, 495 S.E.2d at 491-92; Satcher, 244 Va. at 

231, 421 S.E.2d at 828. 

 The question whether an accused, pursuant to Rule 

3A:10(c), can be tried in a single trial for all offenses 

then pending against that defendant is a matter resting 

within a trial court’s sound discretion. Cheng v. 

Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599, 603 (1990) 

(citing Fincher v. Commonwealth, 212 Va. 552, 553, 186 

S.E.2d 75, 76 (1972); Bryant v. Commonwealth, 189 Va. 310, 

9
315, 53 S.E.2d 54, 56 (1949)). Thus, on appeal, a trial 

court’s decision to join different offenses for trial will 

not be reversed absent a showing that the court abused its 

discretion. Cheng, 240 Va. at 33-34, 393 S.E.2d at 603. 

 The issue in this appeal is whether “justice” required 

separate trials under Rule 3A:10(c). To resolve that 

issue, we must determine whether evidence showing the 

defendant’s rape of one victim was relevant to prove that a 

different victim did not consent to sexual intercourse. 

The only contested issue identified at the hearing on the 

defendant’s motion to sever the charges was whether the 

victims consented. Similarly, the Court of Appeals stated 

that “the only issue genuinely in dispute [was] whether the 

acts were consensual or forcible.” 1 Minor, No. 3105-01-2, 

slip op. at 11. 

 Before answering that evidentiary question, we must 

clarify one matter with regard to a defendant’s intent to 

commit the crime of rape vis-à-vis a victim’s lack of 

consent to sexual intercourse. The Commonwealth never 

articulated at trial exactly to what relevant issues the 

evidence of other crimes pertained. However, the 

Commonwealth maintains on appeal that such evidence was 

10
admissible to show the defendant’s intent and thus the 

victims’ lack of consent to sexual intercourse. In its 

argument, the Commonwealth seems to equate those two 

issues. For example, the Commonwealth states on brief, 

“Simply put, the other crimes evidence here showed the 

defendant’s intent, in each instance, to force the victim 

to submit to sexual contacts of various sorts, regardless 

of the victim’s wishes.” In discussing the decision of the 

Court of Appeals in this case, the Commonwealth asserts 

that “the Court of Appeals has established a rule of law 

that prohibits the introduction of other crimes evidence in 

rape cases when the principal issue to be resolved is 

whether the sexual act was consensual.” But, in the same 

paragraph, the Commonwealth states that the decision in 

Moore “clearly holds that other crimes evidence is 

admissible on the issue of intent.” 

 However, a defendant’s intent to commit the crime of 

rape is not the same issue as whether a victim consented to 

sexual intercourse. Those two issues are distinct and 

should not be blurred. 

Although proof of rape requires proof of 

intent, the required intent is established upon 

proof that the accused knowingly and 

 1

 On appeal to this Court, neither party challenged 

the scope of the contested issue addressed by the Court of 

Appeals. 

11
intentionally committed the acts constituting the 

elements of rape. The elements of rape . . . 

consist of engaging in sexual intercourse with 

the victim, against her will, by force, threat, 

or intimidation. (Emphasis added.) 

Clifton v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 

155, 158 (1996); see also, People v. Mangiaracina, 424 

N.E.2d 860, 863 (Ill. App. Ct. 1981) (“[W]hether the 

defendant intended to commit the offenses without the 

victim’s consent is not relevant, the critical question 

being whether the victim did, in fact, consent. This 

involves her mental state, not the defendant’s.”); 

Commonwealth v. Grant, 464 N.E.2d 33, 36 (Mass. 1984) (the 

crime of rape does not require proof that the defendant 

harbored a “specific intent that the intercourse be without 

consent”); State v. Ayer, 612 A.2d 923, 925 (N.H. 1992) 

(Rape is generally considered to be “a general intent, 

rather than a specific intent, crime. . . . [T]he general 

intent requirement for rape means that ‘no intent is 

requisite other than that evidenced by the doing of the 

acts constituting the offense.’”) (citations omitted). The 

issue of a victim’s consent pertains to the element of rape 

requiring proof that sexual intercourse was against the 

victim’s will, not to whether a defendant “knowingly and 

intentionally committed” the acts constituting rape. 

Clifton, 22 Va. App. at 184, 468 S.E.2d at 158. 

12
 We now turn to the dispositive evidentiary question. 

In doing so, we recognize that evidence showing that a 

defendant committed similar sexual offenses against an 

individual other than the victim in a particular case is, 

on occasion, admissible to prove certain contested matters, 

such as a defendant’s identity or the attitude of a 

defendant toward a victim, provided the probative value of 

the evidence outweighs its prejudicial effect. See

Satcher, 244 Va. at 231, 421 S.E.2d at 828. Indeed, if the 

evidence of other similar offenses had been offered as 

proof on a contested issue about the defendant’s identity 

in these offenses, that evidence would likely have been 

admissible. 

 In fact, this Court reached that exact result in 

Satcher, a case in which the defendant denied committing 

the crimes and identity was an issue. Satcher was 

convicted in one trial of the robbery, assault and battery, 

and attempted rape of Deborah Abel; and the robbery, rape, 

and capital murder of Ann Elizabeth Borghesani. Id. at 

225, 421 S.E.2d at 824. We upheld the trial court’s denial 

of Satcher’s motion for separate trials. Id. at 229, 421 

S.E.2d at 827. We stated that the evidence of the Abel 

offenses would have been admissible in a separate trial for 

the Borghesani offenses because that evidence established 

13
Satcher as the assailant in both crimes. Id. at 229-30, 

421 S.E.2d at 827; see also Turner, 259 Va. at 651, 529 

S.E.2d at 790-91 (evidence of similar offenses involving 

different victims was admissible to prove a common 

perpetrator); Spencer v. Commonwealth, 240 Va. 78, 89, 393 

S.E.2d 609, 616 (1990) (same); Hewston v. Commonwealth, 18 

Va. App. 409, 412, 444 S.E.2d 267, 268-69 (1994) (same); 

cf. Herron v. Commonwealth, 208 Va. 326, 327-28, 157 S.E.2d 

195, 196-97 (1967) (evidence of other incidents of sexual 

intercourse with the same victim was admissible to show the 

defendant’s disposition with respect to the particular act 

charged). 

Also, in Moore, a case discussed at length by the 

Commonwealth on brief, we approved the admission of 

evidence concerning a sexual offense against a third party 

but not for the purpose of proving the victim’s lack of 

consent. There, the defendant was charged both with 

enticing a male child under the age of 14 to enter a house 

for the purpose of fondling or feeling the sexual or 

genital parts of the child and with the actual fondling of 

that child. 222 Va. at 73, 278 S.E.2d at 823. The 

challenged testimony concerned the defendant’s subsequent 

attempted homosexual act upon the third party, also a teenager. That subsequent offense occurred at the defendant’s 

14
office when the victim and the third party were both 

present. During that encounter, the defendant described 

homosexual acts he had performed with other boys, offered 

the victim and the third party money to engage in similar 

acts with him, pulled down the third party’s pants, told 

the victim to hold the third party, and attempted to 

perform a sexual act upon the third party. Id. at 75, 278 

S.E.2d at 824. Although the evidence involved an offense 

against a third party, we noted that it also concerned the 

victim and “showed the conduct or attitude of the defendant 

toward [the victim], indicated the ongoing nature of their 

relationship, and negated the possibility that the 

defendant’s touching of [the victim] in the [prior] 

incident was accidental or for a purpose misunderstood by 

[the victim].” Id. at 77, 278 S.E.2d at 825. 

In our view, evidence showing that a defendant raped 

one or more individuals other than the victim in the crime 

charged is generally not relevant to the question whether 

that victim did or did not consent to sexual intercourse 

with the defendant. This is so because “[t]he fact that 

one woman was raped . . . has no tendency to prove that 

another woman did not consent.” Lovely v. United States, 

169 F.2d 386, 390 (4th Cir. 1948); accord Foster v. 

Commonwealth, 5 Va. App. 316, 320, 362 S.E.2d 745, 747 (Va. 

15
Ct. App. 1987); see also Brown v. State, 459 N.E.2d 376, 

379 (Ind. 1984) (where the only issue was consent of the 

prosecutrix, evidence of prior rapes was not admissible 

because the fact that one woman was raped did not tend to 

prove that another woman did not consent); State v. 

Christensen, 414 N.W.2d 843, 847 (Iowa Ct. App. 1987) 

(“[n]either . . . does one woman’s lack of consent to 

intercourse with a man imply a different woman’s lack of 

consent to intercourse with the same man”); State v. 

Hatcher, 372 So.2d 1024, 1034 n.1 (La. 1979) (in a 

prosecution for rape where the only issue is consent, 

“[t]he lack of consent by other victims is not probative of 

lack of consent by the complainant of the charged 

offense”); State v. Alsteen, 324 N.W.2d 426, 429-30 (Wis. 

1982) (evidence of defendant’s prior acts had no probative 

value on the issue of the complainant’s consent because 

“[c]onsent is unique to the individual”); cf. Winfield v. 

Commonwealth, 225 Va. 211, 218, 301 S.E.2d 15, 19 (1983) 

(“there is no logical connection between a woman’s 

willingness to submit to the defendant accused of raping 

her, and her willingness to share intimacies with another 

man with whom she might have had a special relationship”). 

As the court in Lovely explained, “evidence of other 

similar offenses is held admissible for the purpose of 

16
establishing intent in cases of assault with the intent to 

commit rape . . . , and evidence of other offenses of like 

character is admissible in prosecutions for crime involving 

a depraved sexual instinct.” 169 F.2d at 390. However, 

the court observed that “the overwhelming weight of 

authority is that such evidence is not admissible in 

prosecution for rape” for obvious reasons.2 Id. “Other 

attempts to ravish have a tendency to show that an assault 

under investigation was made with like intent. Acts 

showing a perverted sexual instinct are circumstances which 

with other circumstances may have a tendency to connect an 

accused with a crime of that character.” Id. But, as 

already noted, the issue of consent concerns a victim’s 

state of mind and is unique with regard to each individual 

victim.3

 2

 We recognize that the decision in Lovely predates 

the adoption of Fed. R. Evid. 413. However, that rule 

states that evidence of a defendant’s commission of similar 

sexual offenses is admissible and “may be considered for 

its bearing on any matter to which it is relevant.” 

(Emphasis added.) 

3

 The Commonwealth argued on brief that the Court of 

Appeals’ reliance on the decision in Lovely was misplaced 

because of the later decision of the Fourth Circuit Court 

of Appeals in United States v. Beahm, 664 F.2d 414 (4th 

Cir. 1981). We do not agree. In Beahm, the court approved 

the admission of testimony from two male witnesses, neither 

of whom was a victim in the case being tried. That 

testimony showed that the defendant had made sexual 

advances to them within three years prior to the offenses 

17
Based on the specific circumstances presented in this 

case, we hold, as did the Court of Appeals, that “the 

testimony of each victim . . . was inadmissible at the 

trial for the offenses allegedly committed against each of 

the other victims.”4 Minor, No. 3105-01-2, slip op. at 11. 

For that reason, we conclude that the trial court abused 

its discretion in denying the defendant’s motion to sever 

the charges and will therefore affirm the judgment of the 

Court of Appeals. 

Affirmed. 

 

at issue. The evidence was admissible because the 

“defendant was insisting that under the Virginia statute 

the burden was on the government to show that defendant’s 

acts were performed with lascivious intent and did not 

occur by accident.” Id. at 417. The evidence was not 

admitted to prove whether the victim consented. 

4

 As the Court of Appeals noted, it is not necessary 

to decide whether the charged offenses satisfied the 

requirements of Rule 3A:6(b) because “justice” required 

separate trials. Rule 3A:10(c). 

18