Joseph Anthony Robbins, Sr. v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
JOSEPH ANTHONY ROBBINS, SR.
OPINION BY
v. 	Record No. 2189-98-4 	JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate
Dayton F. Slater, Jr. (Dayton F. Slater,
Jr., Ltd., on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Joseph Anthony Robbins, Sr. ("appellant") appeals his
conviction for breaking and entering with intent to commit
assault and battery. 	He argues that the circuit court erred in
admitting evidence of his abduction and assault of the victim,
Nate Tilly, two days prior to the date of the offense for which
appellant was convicted. 	We find no error and affirm.
FACTS
Upon review, the evidence and all reasonable inferences
which may be drawn from it are viewed in the light most
favorable to the Commonwealth, the party prevailing below. 	See
Reynolds v. Commonwealth, 30 Va. App. 153, 156, 515 S.E.2d 808,
809-10 (1999).

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In mid-October, 1997, relations between appellant and Nate
Tilly began to deteriorate. 	On an unidentified evening in the
middle of the month, appellant discovered Tilly outside the
bedroom window of appellant's son, Joe Robbins, Jr. ("Joe").
Tilly was attempting to persuade Joe to sell drugs on Tilly's
behalf. 	Appellant ordered Tilly off his property, and Tilly
responded by telling appellant that he "did not know who he was
messing with." 	Subsequently, at some time prior to October 28,
appellant discovered that someone had broken into his home, and
he suspected Tilly. 	On October 28, 1997, appellant and Joe
found Tilly parked by the side of a highway because of a flat
tire. 	Appellant parked nearby, approached Tilly, produced a
knife, and ordered Tilly into appellant's car. 	As appellant
drove from the scene with Tilly in the car, Joe held a seat belt
around Tilly's neck, and appellant stabbed Tilly in the leg and
threatened him. 	Subsequently, appellant stopped the car, pulled
Tilly out, and began to beat him with a wooden bat. 	Tilly
managed to escape from appellant and run to a nearby house,
where he called for help.
This series of confrontations and violence culminated on
October 30, when appellant found a gasoline-filled "Molotov
cocktail" lying directly in front of the door to his house,
caught in a Halloween decoration on the porch. 	Suspecting Tilly
of attempting to firebomb his home, appellant and Joe drove to

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the home of Jason Marsten, where they believed they might find
Tilly. 	Appellant and Joe knocked on the door and demanded to
know if Tilly was inside. 	After making threatening remarks to
the Marstens and two other individuals present, appellant and
Joe returned to their car. 	They returned almost at once,
however, and appellant, armed with a billy club, kicked in the
front door while Joe attempted unsuccessfully to kick in the
back door. 	Seeing that Tilly was not present, appellant again
returned to his car, and he and Joe left the scene.
On April 13, 1998, appellant was indicted on a charge of
breaking and entering Marsten's home with intent to commit
assault and battery. 	At the jury trial of the charge, the court
admitted, over appellant's objection, evidence that Tilly was
abducted and beaten on October 28, and photographs of the wounds
Tilly sustained to corroborate the incident. 	The evidence was
admitted for the purpose of establishing appellant's intent to
administer another beating to Tilly on October 30. 	In
conjunction with the admission of the evidence, the court
instructed the jury, inter alia, to
consider this evidence not for the purpose
of punishment or guilt or innocence of the
events [of October 28, 1997], but only for
the purpose of determining what intent there
was, if any, to commit assault and battery
on [October 30, 1997].
Appellant was convicted in the Circuit Court of Loudoun
County on October 16, 1998. 	He contends on appeal that the

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admission of Tilly's testimony relating to the events of October
28, 1997, and of the photographs of Tilly's wounds, was improper
"prior bad acts evidence" and constituted reversible error. 	We
disagree.
Under established Virginia law, "'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.'" 	Shifflett v.
Commonwealth, 29 Va. App. 521, 529, 513 S.E.2d 440, 444 (1999)
(quoting Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d
489, 491 (1998)). 	Evidence of such other crimes may be
admitted, however, if relevant 1) to prove any element of the
offense charged; 2) to show the motive, intent, or knowledge of
the accused; 3) to show the conduct and feeling of the accused
toward his victim; or 4) to show premeditation or malice. 	See
id. (citing Satcher v. Commonwealth, 244 Va. 220, 230, 421
S.E.2d 821, 828 (1992)). 	Thus, because such evidence is
admissible for the enumerated purposes despite the general
prohibition against prior crimes evidence, it may be excluded
only if the prejudicial effect of the evidence outweighs its
probative value, a determination within the trial court's sound
discretion. 	See Goins v. Commonwealth, 251 Va. 442, 461-62, 470
S.E.2d 114, 127, cert. denied, 519 U.S. 887 (1996); Wilkins v.

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Commonwealth, 18 Va. App. 293, 298, 443 S.E.2d 440, 443 (1994)
(en banc).
In the present case, the challenged evidence includes
Tilly's testimony concerning the events of October 28, 1997, and
the photographs of the wounds he sustained on that date. 	The
evidence was clearly probative of appellant's intent to
physically harm Tilly when he forced his way into the Marsten
home. 	Their relationship had become heated and mutually
assaultive, and on the date in question, appellant forcibly
entered the Marsten home in response to his belief that Tilly
had thrown a "Molotov cocktail" at his house.
The Commonwealth's proof of appellant's intent was founded
on circumstantial evidence. 	See Herrel v. Commonwealth, 28
Va. App. 579, 586, 507 S.E.2d 633, 637 (1998) ("Intent may, and
usually must, be proven by circumstantial evidence."); Long v.
Commonwealth 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989)
(intent may be shown by a person's conduct and statements). 	As
such, the Commonwealth had the burden to exclude every
reasonable hypothesis of innocence, see Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993), a
burden it sought to meet by the admission of the challenged
evidence. 	The evidence was clearly probative. 	In the absence
of the prior crimes evidence, the Commonwealth's proof may not
have fully addressed the reasonable hypothesis of innocence

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suggested by the evidence, to-wit, that appellant armed himself
with the club in self-defense and not with the intent to assault
Tilly upon entering the Marsten house.
Evidence that enhances the likelihood of a guilty verdict
cannot be deemed, on that sole ground, unduly prejudicial to the
defendant. 	See Barefoot v. Estelle, 463 U.S. 880, 905-06
(1983); Jennings v. Commonwealth, 21 Va. App. 328, 464 S.E.2d
179 (1995) (en banc). 	In the present case, while the severity
of the prior assault on Tilly arguably may have been prejudicial
to appellant's case, the prejudice was not undue. 	See Barefoot,
463 U.S. at 905-06. 	The jury was "entitled to all relevant and
connected facts . . . even [those that] may show the defendant
guilty of other offenses." 	Scott v. Commonwealth, 228 Va. 519,
526-27, 323 S.E.2d 572, 576 (1984); see also Evans v.
Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268, 272 (1975)
(evidence of prior beatings of victim by accused admitted to
prove murder by showing intent to do serious bodily harm,
defendant's feelings toward victim, and to establish the events
leading up to the victim's death). 	Finally, any incidental
undue prejudice was diminished and minimized by the court's
instruction that the jury was to consider the evidence only on
the issue of intent. 	See LeVasseur v. Commonwealth, 225 Va.
564, 589, 304 S.E.2d 644, 657 (1983); Rodriguez v. Commonwealth,
18 Va. App. 277, 282, 443 S.E.2d 419, 423 (1994). 	In sum, we

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find that any incidental prejudice inherent in the evidence of
prior crimes was outweighed by its probative value.1
For the foregoing reasons, we affirm the conviction.
Affirmed.
1 Appellant also premises his claim of prejudice on
"surprise," claiming that he had an alibi defense to the prior
crimes charges and was unprepared to address the introduction of
such evidence at the trial of the instant offense. 	He further
claims that because he was subsequently found not guilty of the
prior offenses, evidence of those offenses should not have been
admitted. 	Neither claim has merit. 	The former claim was not
preserved in the lower court, as appellant failed either to
object on these grounds or ask for a continuance to subpoena his
alibi witnesses and otherwise prepare to meet the Commonwealth's
evidence of prior crimes. 	See Doan v. Commonwealth, 15 Va. App.
87, 94, 422 S.E.2d 398, 401 (1992); Harward v. Commonwealth, 5
Va. App. 468, 473, 364 S.E.2d 511, 513 (1988). 	The resolution
of the second claim is controlled by Taylor v. Commonwealth, 186
Va. 587, 593, 43 S.E.2d 906, 909 (1947). 	In Taylor, the Supreme
Court upheld the admission of testimony concerning a criminal
defendant's prior crime, even though the defendant had already
been tried and acquitted of the prior act.