COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

ISRAEL MUSA SHAW 

 MEMORANDUM OPINION* BY 

v. Record No. 0357-98-2 JUDGE ROBERT P. FRANK 

 JULY 20, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Matthew P. Geary (Goodwin, Sutton, DuVal & 

Geary, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

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

 Israel Musa Shaw (appellant) appeals his conviction after a 

jury trial of abduction and using a firearm during the 

commission of a felony (abduction). On appeal, he challenges 

the trial judge’s denial of his motion for a mistrial and the 

trial judge’s denial of his request for a cautionary 

instruction. We conclude that the trial court erred and reverse 

the convictions and remand for a new trial. 

I. BACKGROUND 

 According to well-settled principles of appellate review, 

we recite the facts in the light most favorable to the 

Commonwealth, the prevailing party below. 
 On December 10, 1997, appellant was convicted of abducting 

Alyssa Meyer and using a firearm during the commission of the 

abduction. 

 Meyer drove into the parking lot of her apartment building 

on September 14, 1997 at 11:00 p.m. She removed some groceries 

from the trunk of her car and walked towards the apartment 

building. A man, later identified as Duane Washington, came up 

behind her. When she turned around, he had a gun to her head. 

The man demanded her keys, forced her to walk back to her 

vehicle, made her open the trunk and told her to get inside. 

She hesitated, and then saw appellant approach. Meyer testified 

that appellant told her that she “better get in the car.” The 

first man, Washington, took her identification and keys. Then, 

she struggled as someone attempted to push her into the trunk of 

her car. She was able to break free and run. As she was 

running, she was tackled from behind, and, then, was struck in 

the forehead with the gun. She was able to escape a second time 

and screamed for help. Someone inside the apartment building 

came out onto a balcony and yelled at the men. Appellant and 

Washington ran away. 

 Officer Kenneth Coleman testified that he received a radio 

call regarding the abduction and stopped appellant a mile to a 

mile and one-half from the apartment building because he matched 

Meyer’s description of one of the suspects. Meyer’s description 

to police was that the suspect was wearing a gray shirt with 

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“USA” and a flag on it. Appellant was wearing such a shirt. 

Officer Coleman testified that appellant was out of breath, 

breathing heavily, and nervous when he stopped appellant on the 

street. Appellant agreed to return to the scene with Officer 

Coleman, and, there, Meyer identified him as one of the men 

involved in the abduction. 

 On direct examination, Duane Washington, a witness for the 

Commonwealth, testified that he pled guilty to robbery, 

abduction and two counts of use of a firearm during the 

commission of a felony. He stated that the Commonwealth had 

made no promises to him in exchange for his testimony. He 

testified that he and appellant were best friends and that 

appellant was with his cousin, Lamont, and another friend, 

Cartwright, on the night of September 14, 1997. Appellant and 

his cousin had some guns that night, and appellant said he 

wanted to rob someone. Washington gave appellant a mask, and 

the four men went to Meyer’s apartment building. They were 

there for twenty-five to thirty minutes. When no one would do 

anything, Washington took the mask and ran up behind Meyer. 

 Washington grabbed Meyer. Appellant then came out with the 

gun and told her to get in the trunk of her car. Meyer got 

scared, and when appellant put the gun down, she ran. 

Washington testified that Meyer was never hit with the gun. 

Appellant’s cousin, Lamont, cut Meyer off as she was trying to 

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run away, and appellant then hit her a couple of times. 

Washington admitted to hitting her once. 

 On cross-examination, Washington was asked about two 

charges against him that had been dropped: 

[DEFENSE COUNSEL]: Didn’t you just come in 

here a couple of hours ago and he [the 

prosecutor] dropped a couple of charges 

against you in return for your plea of 

guilty; do you remember that? 

 The Commonwealth’s attorney then said, before Washington 

could respond to defense counsel’s question and in the presence 

of the jury, “They were dropped for the defendant [appellant] 

also, Judge.” 

 Defense counsel moved for a mistrial. The trial judge told 

defense counsel to move on and overruled the motion. 

 Washington then testified that the charges had not been 

dropped, and the following exchange occurred: 

[DEFENSE COUNSEL]: They weren’t dropped? 

So, if he [the prosecutor] just said that 

they were he is lying now, too? 

[TRIAL JUDGE]: He didn’t say that, Mr. 

Geary. 

 Defense counsel again asked Washington whether the charges 

were dropped. 

[TRIAL JUDGE]: Wait a minute, Mr. Geary. 

Let’s get the whole fact out. Two charges 

were dropped against him [Washington] and 

two charges were dropped against him 

[appellant], which were identical. Don’t 

play games. 

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 Defense counsel again asked Washington about the charges 

being dropped. 

[WASHINGTON]: Well, it was said, I mean, 

but I haven’t seen any papers. But, he told 

me that two charges were dropped against me 

and two charges were dropped against him 

[appellant] that way both of us have the 

same charges. 

 At the conclusion of the evidence, the defense renewed its 

motion for a mistrial and motion to strike. Both motions were 

denied. The defense also requested a cautionary instruction 

regarding the Commonwealth’s attorney’s statement about the 

charges against appellant that were dropped, and the Court 

denied the request. 

 Appellant was acquitted of robbery and use of a firearm 

during the commission of a robbery, but he was convicted of 

abduction and use of a firearm during the commission of an 

abduction. 

II. ANALYSIS 

 Appellant’s first assignment of error is that the trial 

court erroneously denied his motions for a mistrial that arose 

because of the prosecutor’s statement in front of the jury 

regarding the two charges against appellant that were dropped. 

We agree with appellant. 

 “A trial court exercises its discretion when it determines 

whether it should grant a motion for a mistrial. Whether 

improper evidence is so prejudicial as to require a mistrial is 

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a question of fact to be resolved by the trial court in each 

particular case.” Beavers v. Commonwealth, 245 Va. 268, 280, 

427 S.E.2d 411, 420 (1993) (citing Lewis v. Commonwealth, 211 

Va. 80, 83, 175 S.E.2d 236, 238 (1970)). Therefore, “[u]nless 

[the appellate court] can say that the trial court’s resolution 

of that question was wrong as a matter of law, it will not 

disturb the decision on appeal.” Id. (citing Spencer v. 

Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990)). 

However, “[w]hen the evidence is so prejudicial that it 

‘probably remained on the minds of the jury and influenced their 

verdict,’ . . . the judgment will be reversed on appeal.” Id.

(citing Asbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d 

239, 241-42 (1970)). 

 Evidence of other crimes or bad acts of an accused are 

generally inadmissible in a criminal prosecution. See

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

805 (1970). “The purpose of this rule is to prevent confusion 

of offenses, unfair surprise to the defendant and a suggestion 

of ‘criminal propensity,’ thus preserving the ‘presumption of 

innocence.’” Crump v. Commonwealth, 13 Va. App. 286, 289, 411 

S.E.2d 238, 240 (1991) (citing Lewis v. Commonwealth, 225 Va. 

497, 502, 303 S.E.2d 890, 893 (1983); Sutphin v. Commonwealth, 1 

Va. App. 241, 245-46, 337 S.E.2d 897, 899 (1985)). 

 Courts have recognized exceptions to the general rule 

excluding evidence of other crimes or bad acts. See Sutphin, 1 

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Va. App. at 245, 337 S.E.2d at 899. The threshold requirement 

for admissibility of evidence of other offenses is relevancy to 

an issue or element in the present case. See id. (citing 

Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805). “[T]he test is 

whether ‘the legitimate probative value outweighs the incidental 

prejudice to the accused.’” Hawks v. Commonwealth, 228 Va. 244, 

247, 321 S.E.2d 650, 652 (1984) (quoting Lewis, 225 Va. at 502, 

303 S.E.2d at 893). We have held that evidence of other crimes 

is admissible 

(1) to prove motive to commit the crime 

charged; (2) to establish guilty knowledge 

or to negate good faith; (3) to negate the 

possibility of mistake or accident;(4) to 

show the conduct and feeling of the accused 

toward his victim, or to establish their 

prior relations; (5) to prove opportunity; 

(6) to prove identity of the accused as the 

one who committed the crime where the prior 

criminal acts are so distinctive as to 

indicate a modus operandi; or (7) to 

demonstrate a common scheme or plan where 

the other crime or crimes constitute a part 

of a general scheme of which the crime 

charged is a part. 

Sutphin, 1 Va. App. at 245-46, 337 S.E.2d at 899. 

 The prosecutor’s statement does not come within any of the 

exceptions to the general rule recognized by this Court. The 

statement was not relevant to proving an element or issue in the 

present case, and it was prejudicial in that it informed the 

jury that appellant originally was charged with additional 

offenses related to the incident for which he was being tried. 

Further, the statement created an association of guilt between 

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appellant and Washington. Washington admitted that he pled 

guilty to the offenses for which appellant was being tried, but 

after the prosecutor’s statement, the jury received the 

additional information that appellant and Washington were 

treated in the same manner by the Commonwealth in that both were 

charged with identical offenses and both had identical charges 

dropped. Such information may have created an association of 

guilt in the minds of the jurors. 

 We hold, therefore, that the trial court committed error in 

refusing to grant appellant’s motion for a mistrial because the 

prosecutor’s statement was not relevant and was prejudicial to 

appellant’s defense. 

 The Commonwealth argues that any error committed by the 

trial court in overruling the motion for a mistrial was harmless 

and did not result in prejudice to the appellant. We disagree. 

“When it plainly appears from the record and the evidence given 

at the trial that the parties have had a fair trial on the 

merits and substantial justice has been reached,” 

non-constitutional error is harmless. Code § 8.01-678. If 

error at trial has affected the verdict, then “a fair trial on 

the merits and substantial justice” have not been reached. See

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 

910, 911 (1991) (en banc). “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 

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verdict would have been the same.” Id. In Lavinder, we 

explained that “in order to determine if it plainly appears that 

the error did not affect the verdict, we must review the record 

and the evidence and evaluate the effect the error may have had 

on how the finder of fact resolved the contested issues.” Id.

at 1007, 407 S.E.2d at 912. The first step in determining 

whether an error may have affected a verdict is to determine 

whether the trial court gave a curative instruction. See id. 

If the trial court did give a curative instruction, the jury is 

presumed to have followed such instruction unless the record 

indicates otherwise. See id. If a curative instruction was not 

given, the presumption is that the error was prejudicial 

“‘unless it plainly appears that it could not have affected the 

result.’” Id. (quoting Caldwell v. Commonwealth, 221 Va. 291, 

296, 269 S.E.2d 811, 814 (1980)). 

 At trial, the court did not give a curative instruction. 

Thus, we begin with the presumption that the prosecutor’s 

statement was prejudicial. We cannot say, as a matter of law, 

that the prosecutor’s statement did not affect the outcome of 

appellant’s trial. As we discussed above, the prosecutor’s 

statement provided the jury with information about other 

offenses committed by appellant and may have created an 

association of guilt between appellant and Washington. 

Therefore, we hold that the denial of the motion for a mistrial 

was not harmless error. 

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 The Commonwealth further argues that appellant waived any 

objection to the prosecutor’s statement because Washington later 

testified during cross-examination that the two charges were 

dropped against appellant. The Commonwealth correctly cites 

Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 

(1970), for the rule that an accused, who unsuccessfully objects 

to evidence he considers improper, waives the objection if he 

introduces evidence of the same character on his own behalf. 

However, the rule from Saunders must be understood in 

conjunction with this Court’s holding in McGill v. Commonwealth, 

10 Va. App. 237, 391 S.E.2d 597 (1990). In McGill, we held that 

the defendant’s attempt to rebut evidence of other crimes did 

not constitute waiver of his objection to such evidence. See

id. at 244, 391 S.E.2d at 601. This Court distinguished 

evidence elicited on cross-examination and during rebuttal from 

evidence actually introduced on a defendant’s own behalf. See

id. Therefore, the Saunders rule does not apply to 

cross-examination. 

 Washington’s answers were in response to questions during 

the defense’s cross-examination, and, therefore, appellant did 

not waive his objection to the prosecutor’s statement. 

 Appellant’s second assignment of error is the trial judge’s 

refusal to grant a cautionary instruction regarding the 

prosecutor’s statement about the dropped charges against 

appellant. We find this assignment without merit. 

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 A motion for a mistrial or a cautionary instruction must be 

timely made in order to preserve the issue for appeal even if an 

objection to the prosecutor’s alleged improper comments was 

properly made and overruled. See Cheng v. Commonwealth, 240 Va. 

26, 38, 393 S.E.2d 599, 605-06 (1990). “This requirement 

affords the trial court the opportunity to provide cautionary 

instructions when appropriate to correct the alleged error.” 

Beavers, 245 Va. at 279, 427 S.E.2d at 419. 

 Appellant did not request a cautionary instruction at the 

time the prosecutor interjected with the statement regarding the 

dropped charges. Instead, appellant waited to request the 

instruction at the conclusion of all the evidence, and the trial 

court did not have the opportunity to instruct the jury at the 

time the error occurred. We find that appellant’s request for 

an instruction was not timely made, and, therefore, the trial 

judge’s denial of the instruction at the conclusion of the 

evidence was not error. 

III. CONCLUSION 

 For these reasons, we hold that the trial court committed 

error when it refused to grant appellant’s motion for a 

mistrial. The prosecutor’s statement was prejudicial in that it 

introduced information about other offenses committed by the 

appellant which were not relevant to proving the offenses for 

which appellant was being tried. The trial court, however, did 

not commit error in refusing appellant’s request for a 

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cautionary instruction at the conclusion of all of the evidence 

as such request was not timely made. 

 Reversed and remanded.

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