Martin Joseph Reynolds v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
MARTIN JOSEPH REYNOLDS OPINION BY
v. 	Record No. 0378-96-4 	CHIEF JUDGE NORMAN K. MOON
FEBRUARY 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Brendan Feeley for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Martin J. Reynolds appeals his conviction for assault and
battery. 	Reynolds argues that the trial court erred in
permitting the Commonwealth to introduce evidence of Reynolds'
alleged other bad acts unrelated to the charge for which he was
tried. 	Finding the probative value of the other bad acts
evidence outweighed its prejudicial effect, and because the
evidence was probative of Reynolds' motive and intent and was
sufficiently related in time and place to the act for which
Reynolds was convicted, we affirm.
The victim, Hal Taylor, testified that on May 6, 1995, he
went to the Bad Habits Grill at 10:00 p.m. in Arlington,
Virginia. 	Taylor had two drinks and attempted to leave at
approximately midnight. 	In order to leave, Taylor needed to pass
through a narrow passageway between two bathrooms which was
obstructed by Reynolds and his friend of fourteen years, Mark

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Newell. 	Taylor testified that he asked, "[e]xcuse me, can I get
by here," and Reynolds responded with a string of obscenities.
Taylor stated that he shook his head and started to walk by but
that Reynolds struck him in the back of the head, knocking him
down. 	Taylor stated that as he attempted to get up Reynolds
struck him in the face with a chair, knocking him unconscious.
When Taylor regained consciousness, he discovered that he had a
severe cut across his cheek, requiring internal and external
stitches.
Reynolds testified that as Taylor passed by Reynolds and
Newell, Taylor acted belligerent and drunken toward both men.
Reynolds and Newell stated that after exchanging words with
Taylor for a moment or two, Reynolds told Taylor to "get the f___
out of here." 	Reynolds said that Taylor got "right up in [his]
face," and Reynolds pushed Taylor back. 	Reynolds and Newell both
testified that Taylor, not Reynolds, then grabbed a chair and
raised it to strike Reynolds at which point Reynolds struck
Taylor in the face several times. 	Reynolds' witness, Robert
Bainbridge, a self-employed contractor who worked with Reynolds'
father in the construction business for ten years, also recalled
seeing Taylor raise a chair to strike Reynolds.
David Johnson, another patron at the bar, testified that his
attention was drawn to Taylor when he noticed Taylor backing into
the barroom area, with his hands up in front of him, looking at
Reynolds as he backed up. 	Johnson stated he saw Reynolds pick up
a chair and that he, Johnson, then turned to tell the bartender

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to call the police. 	Johnson recalled that when he turned back,
he saw the chair fall, and he saw Reynolds repeatedly punch
Taylor as Taylor moved backwards and fell and that Reynolds
continued beating Taylor even after Taylor was obviously
unconscious.
The bartender testified that he observed Taylor either
standing still or backing away from Reynolds and that Taylor was
holding a chair in front of him. 	The bartender stated that
Taylor was definitely not raising the chair up and that Reynolds
went after Taylor, striking him repeatedly, even after Taylor was
on the floor.
The owner of the bar testified that he first became aware of
Reynolds when he noticed Reynolds hurriedly paying his check as
his friends clapped him on the back and urged him to hurry and
leave. 	The owner stated that he then saw Taylor lying on the
ground bleeding profusely and that he, the owner, then stepped
between Reynolds and the door in order to prevent Reynolds and
his friends from leaving. 	Reynolds then pushed the bar owner
back and cursed him. 	Other bar employees and regulars jumped in
and detained Reynolds until the police arrived.
Arlington County Police Officer Goldman arrived and detained
and later arrested Reynolds. 	Goldman testified that Reynolds
told him that Reynolds had assaulted the victim because the
victim was a homosexual who had been making advances toward
Reynolds and one of his friends.
During cross-examination Reynolds denied having "egged on"

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other patrons in the bar and later volunteered that he "wasn't
there looking for fights." 	In rebuttal, the Commonwealth
recalled David Johnson who testified that twenty to twenty-five
minutes prior to the altercation he had been sitting at the bar
with his friend, Mark Sullivan, when Johnson noticed Reynolds
staring at him. 	Johnson stated that he asked Reynolds if there
was a problem and Reynolds responded, "[i]f you don't look away,
there's going to be a problem." 	Johnson further testified that
when he saw Reynolds attack Taylor, he commented to Sullivan,
"[t]hat's the same guy that just stared me down earlier . . .
trying to start something with me." 	Johnson testified that he
had never seen Reynolds or Taylor before.
Finding Johnson's testimony relevant because Reynolds was
charged with malicious wounding and because the evidence was
"being offered to show that the defendant went a gunning," the
court admitted the rebuttal testimony.1
"Evidence of other independent acts of an accused is
inadmissible if relevant only to show a probability that the
accused committed the crime for which he is on trial because he
is a person of bad or criminal character." 	Sutphin v.
Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985).
However, such evidence is admissible when it is "relevant to an
issue or element in the present case." 	Id. 	"[I]f such evidence
tends to prove any of the relevant facts of the offense charged
1 We assume, for purposes of this opinion, that Johnson's
testimony is properly characterized as "other bad acts" evidence.

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and is otherwise admissible, it will not be excluded merely
because it also shows him to be guilty of another crime."
Williams v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426
(1962).
Accordingly, we have held that evidence of prior bad acts
may be properly admitted
(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.
Lockhart v. Commonwealth, 18 Va. App. 254, 258-59, 443 S.E.2d
428, 429 (1994). 	"With respect to these exceptions, the 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 v. Commonwealth,
225 Va. 497, 502, 303 S.E.2d 890, 897 (1983)).
In Satcher v. Commonwealth, the Supreme Court of Virginia
affirmed a defendant's conviction for capital murder, rape, and
related crimes, holding that evidence of another assault,
robbery, and attempted rape committed by the defendant against
another victim in the same area one hour earlier could have been
admitted in order to prove the defendant's motive, intent, and to

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show a "common plan, design or scheme." 	244 Va. 220, 230-31, 421
S.E.2d 821, 828 (1992). 	In Tomlinson v. Commonwealth, we held
that in the defendant's trial for shooting into an occupied
dwelling, evidence of his shooting into a second dwelling later
the same evening was properly admitted as it was relevant to show
the defendant's plan, intent, or scheme. 	8 Va. App. 218, 224,
380 S.E.2d 26, 30 (1989).
Satcher and Tomlinson are distinguishable from the cases
cited by Reynolds because in both cases the courts determined
that the probative value of the other bad acts evidence, as it
pertained to the accused's motive or intent, outweighed the
incidental prejudice to the accused. 	Such was not the case in
Foster v. Commonwealth, 5 Va. App. 316, 362 S.E.2d 745 (1987),
cited by Reynolds, in which we considered the admissibility of
evidence of two separate allegations of rape at the accused's two
respective trials for the alleged rapes. 	In Foster, we concluded
that "[t]he fact that [the second victim] had been attacked nine
days after the offenses under indictment had no bearing as to
whether [the first victim] consented to the intercourse." 	Id. at
320, 362 S.E.2d at 747. 	Further, we did not consider the
probative value of the other bad acts evidence as it related to
the defendant's motive or intent because we found that although
the evidence was purportedly offered to prove intent, the actual
issue was the identity of the defendant. 	Id. at 323-24, 362
S.E.2d at 748-49. 	Accordingly, citing our prior holdings that
"[i]f evidence of another crime is offered ostensibly to prove

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intent, it is still not admissible if the actual issue is
identity or commission of the act itself." 	Id. at 323, 362
S.E.2d 749 (citations omitted).
In Brown v. Commonwealth, the other case relied upon by
Reynolds, a defendant was charged with distribution of cocaine.
18 Va. App. 150, 442 S.E.2d 421 (1994). 	A police officer
observed the defendant receive cash from an unidentified man in
exchange for some unknown item or items. 	Twenty minutes later,
the officer observed the defendant exchange money for drugs with
another individual. 	We concluded that the evidence of the first
exchange was inadmissible in the defendant's trial for the crime
committed in the second exchange because it "did not tend to
prove an element of the crime with which the defendant was
charged. 	It tended to prove only his propensity to commit a
crime, and was therefore inadmissible." 	Id. at 152, 442 S.E.2d
at 423.
In both Satcher and Tomlinson the Court found that the
evidence of other bad acts was admissible for purposes of showing
the defendant's intent or motive. 	Similarly, here, the
Commonwealth introduced evidence of other bad acts to prove
motive or intent, not a general propensity to commit a crime.
Like the evidence of other bad acts in Satcher and Tomlinson,
here, the evidence was restricted to a narrow time frame, to
events which occurred in the same location as the incident for
which Reynolds was charged, and demonstrated conduct of a similar
nature. 	We have acknowledged that "[a]llowing evidence of other

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crimes to show motive, intent or knowledge recognizes that the
more often a person commits a similar incident with similar
results, the more likely it is that the result was intended."
Henderson v. Commonwealth, 5 Va. App. 125, 128, 360 S.E.2d 876,
878 (1987).
Reynolds' intent was directly at issue as it either
buttressed or undermined his credibility. 	Evidence that
Reynolds, unprovoked, tried to start an altercation with Johnson
twenty minutes before assaulting Taylor permitted the jury to
draw a reasonable inference that when Taylor attempted to pass by
Reynolds, Reynolds, unprovoked, found a new opportunity to exert
his hostilities. 	Reynolds' assertion that he was the victim of
Taylor's hostility and that he acted strictly in self-defense is
belied by evidence that only minutes earlier he attempted to pick
a fight.
Thus, the exchange between Johnson and Reynolds was
probative of Reynolds' intent at a specific time and place and
thereby was not offered merely to demonstrate Reynolds' general
propensity to commit crimes of violence. 	The probative value of
such evidence as it reflected upon Reynolds' motive or intent
clearly outweighed its incidental prejudicial effect.
Accordingly, we hold the trial court did not abuse its discretion
in admitting the evidence.
Affirmed.