Francisco Ortega v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
FRANCISCO ORTEGA
OPINION BY
v. 	Record No. 1867-98-4 	JUDGE JAMES W. BENTON, JR.
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
George J. Wooditch (Office of the Public
Defender, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Francisco Ortega of five counts
of burglary and five counts of grand larceny and acquitted him
of burglary while armed. 	On appeal, Ortega contends (1) the
trial judge erred in admitting evidence of his prior crimes and
(2) the evidence was insufficient to prove beyond a reasonable
doubt his identity as the burglar. 	For the reasons that follow,
we affirm Ortega's convictions.
I.
Between January 6 and 20 of 1998, six burglaries occurred
in the Del Ray and Rosemont sections of the City of Alexandria.
Detective Barry Schiftic testified that the burglaries had
numerous similarities. 	All the burglaries occurred during the

daytime at residences; each residence was extensively ransacked;
similar items, particularly electronic equipment and jewelry,
were stolen from each residence; the burglaries all occurred
within a one-mile radius of one another; each burglary occurred
on a Tuesday or a Wednesday in the morning or early afternoon;
each residence, except one, was entered by force; and in each
residence the burglar took sharp knives from the kitchen and
left them in other rooms. 	The detective also testified that,
historically, only thirty percent of the burglaries in
Alexandria have been residential, that the ransacking of a
residential burglary site is highly unusual, and that, contrary
to the typical residential burglary, no silverware, silver
trays, candle sticks, or rugs were taken, although those items
were present in most of these residences. 	He further testified
that the moving of knives from the kitchen to another room was
highly unusual and that one of the knives, which had been stolen
from one residence, was left at another residence.
In addition, the detective testified, over objection, that
he had investigated a series of burglaries in 1994 which
involved a strikingly similar pattern. 	He described those
earlier burglaries as having the following pattern:
Back in 1994 . . . we handled a series of
burglaries . . . , and the same type of
items were taken. 	The same mode of
operation, a person going through the rear
of the home, incorporating the glass or the
door. 	They go in, and these homes were
located in the Del Ray/Rosemont area also.
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They occurred during the daylight hours.
Entry was forced. 	The ransacking was the
same. 	There was more ransacking, again,
with these than I had ever seen before, and
the same types of items were taken,
electronic equipment, things of that
kind. . . . 	[K]nives were left throughout
the houses on these different cases.
In addition, one of the homes burgled in 1994 was also burgled
in 1998. 	The detective also testified that Ortega was arrested
and convicted for the 1994 burglaries.
Carolyn Duncan, who lives in the area where the burglaries
occurred, testified that at noon on January 20, which was the
day the last burglary occurred, she answered a knock at her door
and saw two men. 	During her testimony, she identified Ortega as
the man who was at her door and asked "if Miranda was home."
When she told him that no such person lived there, he mentioned
a street name. 	She then directed him to that street; however,
the men walked away in another direction. 	The next day, after
she learned of the burglary that occurred a block away, she
called the police and described the men to Detective Schiftic.
One day later, the detective showed her a photograph spread that
did not contain Ortega's photograph. 	In April, however, she saw
another photographic spread and selected Ortega's photograph as
the person who was at her door on January 20.
Keith Davis testified that he and Ortega committed the
burglaries. 	He has known Ortega for almost nine years and, at
the time of the burglaries, they lived together at Davis'
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grandmother's house. 	Davis described in detail each of the five
burglaries and the property they took from each house. 	After
each burglary, they took the property to Davis' grandmother's
home.
Charles Clark testified that in January 1998 he saw Davis
and Ortega carrying televisions and jewelry into Davis'
grandmother's house. 	In court, he identified some jewelry taken
during one of the burglaries as jewelry he saw in Davis' and
Ortega's possession. 	Clark also testified that in January 1998
he had seen a jacket that was taken during one of the burglaries
and that at Davis' request he had pawned some of the stolen
items.
The trial judge convicted Ortega of the five burglaries and
the five larcenies. 	He sentenced Ortega to twenty years in
prison with ten years suspended.
II.
Ortega contends the evidence concerning the 1994 burglaries
was inherently prejudicial and served only to prove criminal
propensity. 	The Commonwealth argues that the evidence was
properly admitted to prove identity.
"Evidence that shows or tends to show a defendant has
committed a prior crime generally is inadmissible to prove the
crime charged." 	Guill v. Commonwealth, 255 Va. 134, 138, 495
S.E.2d 489, 491 (1998). 	"This is because such evidence confuses
one offense with the other, unfairly surprises the defendant
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with a charge he is unprepared to meet, and, by showing that the
[defendant] has a criminal propensity, tends to reverse his
presumption of innocence of the crime on trial." 	Lewis v.
Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983).
Although evidence of other crimes is not admissible when
offered merely to show the accused's propensity for such crimes
or acts, see Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970), it is admissible when it is "relevant to
an issue or element in the . . . case." 	Sutphin v.
Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985)
(citation omitted).
Thus, evidence of other crimes is allowed
when it tends to prove motive, intent, or
knowledge of the defendant. 	Among other
exceptions, evidence of other crimes also is
allowed if relevant to show the
perpetrator's identity when some aspects of
the prior crime are so distinctive or
idiosyncratic that the fact finder
reasonably could infer that the same person
committed both crimes.
Guill, 255 Va. at 138-39, 495 S.E.2d at 491 (citations omitted).
When offered to prove identity, the prior crime does not
have to be a "signature" crime; however, it must show "'a
singular strong resemblance to the pattern of the offense
charged.'" 	Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d
609, 616 (1990) (citation omitted); see also Chichester v.
Commonwealth, 248 Va. 311, 448 S.E.2d 638 (1994), cert. denied,
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513 U.S. 1166 (1995). 	The identify of the burglar was at issue
in this case.
The detective described a series of similarities among the
1998 burglaries. 	In addition, his testimony proved that those
same similarities existed between the 1994 and 1998 crimes.
Significantly, the evidence proved that in each burglarized home
knives were taken from the kitchen and put in other rooms. 	This
was a highly unusual circumstance that was common to each
burglary and was "sufficiently idiosyncratic to admit an
inference of pattern for purposes of proof." 	Spencer, 240 Va.
at 90, 393 S.E.2d at 616. 	From this evidence, the fact finder
could reasonably infer that the same person had committed both
crimes. 	See id.
Ortega pled guilty to his involvement in the 1994
burglaries, each of which contained "a strong resemblance to the
pattern of the offense charged in this trial." 	Id. 	Thus,
evidence in the 1994 crimes was probative and relevant. 	We
hold, therefore, that the trial judge did not err in admitting
the evidence.
Ortega also argues that the evidence concerning the 1994
burglaries should not have been admitted because other persons
were known to have been involved in those crimes. 	The detective
testified that Keith Davis, Carlton Davis, and Ortega were
suspects in the 1994 burglaries. 	Although Keith and Carlton
Davis were implicated in the prior burglaries, the evidence
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proved that Ortega was also a perpetrator in those burglaries.
While the evidence does not definitively establish that Ortega,
rather than one of the Davises, was the person who moved the
knives, Ortega's presence at both the 1994 and the 1998
burglaries is a sufficient connection between the two sets of
crimes to permit "the fact finder [to] reasonably . . . infer
that the same person committed both crimes." 	Guill, 255 Va. at
139, 495 S.E.2d at 491. 	"We cannot say that the trial court
abused its discretion in concluding that the prejudicial effect
of admitting evidence of [Ortega's] involvement in the [1994
burglaries] was outweighed by the probative value of that
evidence." 	Chichester, 248 Va. at 328, 448 S.E.2d at 649.
III.
When the sufficiency of the evidence is challenged on
appeal, we "review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." 	Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). 	So
viewed, the evidence proved that five burglaries occurred within
a fourteen day period and within a one-mile radius of each
other. 	Clark identified several of the stolen items and
testified that he saw Davis and Ortega with those items shortly
after the burglaries.
Duncan, who lives one block away from the house where the
last burglary occurred, identified Ortega as one of two men who
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knocked on her door the day the burglary occurred. 	Although
Ortega contends that Duncan's identification of him was the
result of an unduly suggestive procedure, the evidence does not
support his argument.
The factors to consider in determining
reliability are: 	(1) the witness'
opportunity to view the criminal at the time
of the crime; (2) the witness' degree of
attention; (3) the accuracy of the witness'
prior description of the criminal; (4) the
level of certainty demonstrated by the
witness at the confrontation; and (5) the
length of time between the crime and the
confrontation.
Charity v. Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59,
61 (1997).
Duncan spoke with Ortega for three minutes and could see
him clearly as they spoke. 	The next day, she described him to
the detective. 	Two days after the event, Duncan viewed a group
of photographs, which contained a photograph of Ortega's
brother. 	Duncan said that the photograph of Ortega's brother
"looks the most like him"; however, she said he was not the
person she saw. 	Several months later, when Duncan was shown
another photograph spread containing Ortega's photograph, she
identified Ortega as the man who came to her door. 	Because
Duncan apparently recognized similar features in Ortega's
brother and later identified Ortega, the identifications support
rather than detract from the conclusion that Ortega was in the
neighborhood when the burglary occurred.
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Although Duncan initially told the detective that the man
at her door was five feet, ten inches tall, which is two and
one-half inches taller than Ortega, that discrepancy is not
sufficient to undermine her positive identification. 	The facts
in totality establish the reliability of the identification.
See id.
In addition, Davis testified that he and Ortega committed
the five burglaries. 	Davis identified the houses and explained
in detail how he and Ortega gained entry, what items they stole,
and how they disposed of them. 	He explained that before
deciding whether to burglarize a house, they would knock on the
door to determine whether the residents were at home. 	That
conduct was consistent with Duncan's testimony.
The evidence also proved that property taken during the
1998 burglaries was found at Davis' residence and in a pawn
shop. 	After Ortega's arrest, no burglaries occurred involving a
similar pattern.
Although Davis' testimony must be considered with caution
because he is also implicated in the crimes, given the other
corroborating evidence, his testimony was sufficiently reliable
to prove Ortega's guilt. 	See Allard v. Commonwealth, 24 Va.
App. 57, 63, 480 S.E.2d 139, 142 (1997) (noting that sufficient
evidence corroborated the codefendant's testimony to prove the
defendant was present at the scene of the crime). 	Indeed, a
defendant "may be convicted upon the uncorroborated testimony of
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an accomplice." 	Johnson v. Commonwealth, 224 Va. 525, 527, 298
S.E.2d 99, 101 (1982).
Accordingly, the evidence was sufficient to prove beyond a
reasonable doubt that Ortega was guilty of the five burglaries
and the five grand larcenies. 	We affirm the convictions.
Affirmed.
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