James Richard King v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Record No. 0498-25-1

JAMES RICHARD KING

v.

COMMONWEALTH OF VIRGINIA

Present: Judges O’Brien, Chaney and Raphael

Argued at Williamsburg, Virginia

Opinion Issued October 20, 2026

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

James Clayton Lewis,1 Judge

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Jason S. Miyares,2 Attorney General, on brief), for appellee.

PUBLISHED OPINION BY

JUDGE MARY GRACE O’BRIEN

Following a jury trial, the circuit court convicted James Richard King of first-degree murder

and object sexual penetration. On appeal, King argues that the court erred in admitting evidence of

his conviction for a 1986 murder. He contends that this prior conviction was inadmissible under

Virginia Rule of Evidence 2:404. Finding no error, we affirm.

1

Judge Lewis presided over the trial and sentencing hearing and entered the final order. Judge Steven C. Frucci ruled on the pretrial motion that is a subject of this appeal. Now a member of this Court, Judge Frucci took no part in this decision.

2

Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026.

BACKGROUND

“We recite the facts in the light most favorable to the Commonwealth, the prevailing

party below.” McCumber v. Commonwealth, 88 Va. App. 169, 173 (2026). “Doing so requires

that we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence,

‘regard as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair

inferences’ in the Commonwealth’s favor.” Id. (quoting Camann v. Commonwealth, 79

Va. App. 427, 431 (2024) (en banc)).

1. The Murder of Lexie Walters

On September 15, 2020, King checked into a hotel room with Lexie Walters, a woman he

had been dating “on and off” for “quite some time.” On the second day of their stay, September

16, they went to a bar and drank a significant amount of alcohol. When the bartender stopped

serving them, King told her that Walters was “dying anyway” and said, “If you were dying,

wouldn’t you want to drink as much alcohol as you can?”

King and Walters left the bar between 7:00 and 8:00 p.m. and returned to the hotel. King

murdered Walters in the hotel room that night and turned himself in at a police station the next

morning. King told the police that Walters’s body was lying on a couch in the hotel room and

that he had covered her with a blanket. King said he had consumed so much alcohol the

previous night that he could not recall the details of Walters’s death, but he wanted the police to

“find her before anyone else did.” He said that he did not call 911 because he wanted to smoke

and drink coffee “before coming in and going to jail.”

King explained that he thought he was responsible because he had “flipped out before.”

He elaborated that he had been convicted of murder in Ohio and said, “I did the same thing that I

am doing right now. When I found her, I just turned myself in.”

-2-The police located Walters’s body, covered with a blanket, on a couch in the hotel room,

as King had reported. She was naked from the waist down, and her shirt and bra were “pulled up

high on her chest” exposing her breasts. Walters’s perineum and anus displayed “blunt force

trauma,” and she had suffered “[m]ultiple contusions and abrasions to the face, neck, torso, and

extremities” and “blunt force injuries to the head, torso, and extremities.” Her blood alcohol

content was between .231 to .261 percent. The cause of Walters’s death, however, was

asphyxiation. King was arrested and indicted for first-degree murder, first-degree murder during

object sexual penetration, and object sexual penetration.

2. Pretrial Motion to Admit Ohio Murder Conviction

Before trial, the Commonwealth moved under Rule 2:404(b)3 to admit evidence of

King’s prior conviction for a 1986 murder in Ohio, which he had referenced when reporting

himself to police. The Commonwealth proffered that, in November 1986, King walked into an

Ohio police station and reported that a woman’s dead body was on a bed in his apartment and he

wanted police to know before someone else found her. According to the proffer, King told the

police that he had met the woman—Janis Kloshen—at a wedding reception and they

subsequently went to his apartment. The woman’s body was found on a bed in King’s

3

Rule 2:404(b) provides exceptions to the general rule excluding “other crimes” evidence:

[E]vidence of other crimes, wrongs, or acts is generally not

admissible to prove the character trait of a person in order to show

that the person acted in conformity therewith. However, if the

legitimate probative value of such proof outweighs its incidental

prejudice, such evidence is admissible if it tends to prove any

relevant fact pertaining to the offense charged, such as where it is

relevant to show motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, accident, or if they are

part of a common scheme or plan.

-3-apartment; she was lying on her back, naked, with a pillow over her face, and a sheet covering

her genitals.4

At a hearing on the motion, the Commonwealth entered several exhibits, including (1) the

Ohio conviction order, showing that King pleaded guilty to the 1986 murder of Kloshen; (2)

Kloshen’s autopsy; (3) the autopsy of Walters, the victim in this case; and (4) photographs of

both crime scenes. Kloshen’s autopsy reported that she had suffered significant injuries to her

anus, as well as hemorrhaging and bruising to her face, head, neck, and extremities. According

to the report, Kloshen’s cause of death was “asphyxia due to strangulation,” and her blood

alcohol concentration was between .13 and .16 percent when she died. The photographs

depicted Kloshen naked, lying on a bed on her back, partially covered with a blanket.

The Commonwealth argued that, because King was charged with premeditated murder,

the evidence was relevant to establish King’s relationship to his victims, his modus operandi, and

that Walters’s killing “was not an accident or a mistake that happened during the course of

intoxication beyond [King’s] control.”

The court granted the Commonwealth’s motion, noting that the similarities between the

Ohio murder and the instant case were “striking.” Both murders began with a consensual

relationship and involved alcohol. The victims had “injuries in similar locations,” and both had

died of asphyxiation. In both cases, King wanted police to find the bodies before anyone else

did. Significantly, the court found the crime scene photographs “hauntingly similar” in “the way

th[e] bodies were placed.” The court ruled that the similarities between the two crimes were

“sufficiently idiosyncratic . . . to establish the probability of a common perpetrator” and that

King’s prior conviction was relevant evidence of his modus operandi. Moreover, the factual

4

The Commonwealth also sought to admit evidence of King’s 2018 conviction for assault. The court denied the Commonwealth’s motion pertaining to the assault conviction.

-4-similarities were so strong that the probative value outweighed the prejudicial harm, and the

lapse of time between the crimes did not “dissipate” the probative value.

3. Trial

At trial, the Commonwealth introduced evidence of King’s prior murder conviction along

with other evidence. Retired Ohio Police Detective Michael Belcik testified that in 1986, he

executed a search warrant at King’s apartment in Ohio. Inside, he found a deceased woman—

Kloshen—lying down, naked, with a pillow over her face, and a sheet covering her genitals.

When the pillow was removed, he saw that Kloshen’s face was heavily bruised. She had

abrasions on her wrists and ankles, as well as bite marks on her nipples. Detective Belcik

observed a beer can, drinking glasses, and cigarettes on the nightstand.

The Commonwealth also introduced crime scene photographs of Kloshen, her

possessions, her injuries, and how she was found in King’s apartment. The photographs depicted

Kloshen lying naked on King’s bed with both arms at right angles above her head; her face was

red and mottled, and she had markings on her neck. One photograph showed Kloshen with the

pillow on her face before investigators removed it. Detective Belcik testified that, at the police

station, King “refused to make a phone call” and instead said, “[W]hy would I want to call my

mother and father and tell them I just murdered someone[?]” The parties stipulated that King

had been found guilty of murdering Kloshen in November 1986.

After the Commonwealth rested, King renewed his objection to the evidence of his prior

murder conviction. He pointed out that the Commonwealth did not introduce Kloshen’s autopsy

report, as it had at the pretrial hearing, and that the trial evidence therefore did not establish her

cause of death. King also argued that the trial evidence did not establish the nature of his

relationship with Kloshen. The court declined to reconsider the prior ruling, made by a different

judge, and overruled the renewed objection.

-5-King’s defense evidence consisted of a stipulation that King and Walters spent over three

hours together at the bar before the killing, drinking alcohol and behaving affectionately.

Sergeant Bryan Smolin also testified that the police recovered many of Walters’s personal items

from the hotel room, including keys, a wallet, medicines, clothes, and cosmetics. King rested

and unsuccessfully moved to strike the evidence.

The court instructed the jury that it could consider King’s prior murder conviction “only

for the purpose of showing [King’s] motive, opportunity, preparation, plan, knowledge, identity,

absence of mistake, accident, or if part of a common scheme or plan. You may not consider it

for any other purpose.”

During closing argument, King suggested that Walters’s death was accidental. He

addressed Walters’s cause of death—asphyxiation—and asserted that “strangulation or

smothering” is a “sort of behavior that’s not unusual in sexual relations” but “[i]t’s something

that can go wrong.”

The Commonwealth closed by summarizing the beating and extensive injuries that

Walters suffered prior to being asphyxiated and addressed the incriminating statements King

made to the bartender and the police. The Commonwealth argued that the similarities between

Kloshen’s murder and Walters’s murder demonstrated King’s modus operandi and that King

“plan[ned]” Walters’s death; it was “no accident” or “mistake.” The jury convicted King of

first-degree murder and object sexual penetration.5

5

The jury also convicted King of first-degree murder during object sexual penetration. The Commonwealth later moved to vacate the conviction for first-degree murder during object sexual penetration, which the court granted. See Severance v. Commonwealth, 295 Va. 564, 572 (2018) (“In the simultaneous-prosecution context, the prohibition against double jeopardy protects against ‘multiple punishments for the same offense.’” (quoting Commonwealth v. Gregg, 295 Va. 293, 298 (2018))).

-6-ANALYSIS

“The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Cheripka v.

Commonwealth, 78 Va. App. 480, 494 (2023) (quoting Warnick v. Commonwealth, 72 Va. App.

251, 263 (2020)). “In evaluating whether a trial court abused its discretion, . . . we do not

substitute our judgment for that of the trial court. Rather, we consider only whether the record

fairly supports the trial court’s action.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021)

(quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)). We “can conclude that ‘an abuse

of discretion has occurred’ only in cases in which ‘reasonable jurists could not differ’ about the

correct result.” Cheripka, 78 Va. App. at 495 (quoting Commonwealth v. Swann, 290 Va. 194,

197 (2015)).

King argues that the court erred in admitting evidence of his prior conviction for the 1986

murder of Kloshen. He claims that the evidence “did not tend to prove any relevant fact

pertaining to the charged offenses.” He emphasizes factual differences between the two crimes

and argues that any “generalized similarities . . . are not sufficiently idiosyncratic as to justify

their admission.” King also asserts that the prior conviction amounts to propensity evidence and

the court abused its discretion in finding that the probative value exceeded the incidental

prejudice under Rule 2:404(b). Finally, King argues that the court erred in declining to

reconsider the pretrial ruling to allow evidence of the prior conviction.

“[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the

character trait of a person in order to show that the person acted in conformity therewith.” Va.

R. Evid. 2:404(b). “The law is clear that evidence ‘tend[ing] to show that the accused is guilty of

other crimes and offenses at other times’ is not admissible if ‘offered merely to show [the

accused’s] propensity to commit’ the charged crime.” Cheripka, 78 Va. App. at 495 (alterations

-7-in original) (quoting Harvey v. Commonwealth, 76 Va. App. 436, 475 (2023)). Yet, Virginia

courts take an “inclusionary approach” to the admissibility of other-crimes evidence, provided it

is “relevant[] for any purpose other than to show a mere propensity.” Harvey, 76 Va. App. at

476 (alteration in original) (quoting Castillo v. Commonwealth, 70 Va. App. 394, 415 (2019)).

“As an exception to the general rule of exclusion,” evidence of other crimes is admissible when

“it tends to prove any relevant fact pertaining to the offense charged, such as . . . motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake [or] accident, or if

they are part of a common scheme or plan.” Vera v. Commonwealth, 77 Va. App. 271, 281

(2023) (emphasis added) (first quoting Shifflett v. Commonwealth, 29 Va. App. 521, 529 (1999);

and then quoting Va. R. Evid. 2:404(b)). “In addition to being relevant and material, other

crimes evidence ‘is subject to the further requirement that the legitimate probative value of the

evidence must exceed its incidental prejudice to the defendant.’” Kenner, 299 Va. at 427

(quoting Rose v. Commonwealth, 270 Va. 3, 11 (2005)); accord Va. R. Evid. 2:404(b).

As a preliminary matter, in determining whether the court erred under Rule 2:404(b), we

consider only the evidence presented at trial. Although the trial judge declined to “reconsider”

the pretrial ruling by a different judge, he was in fact presented with a new question: whether

King’s 1986 murder of Kloshen remained admissible even though the Commonwealth

introduced less extensive evidence of Kloshen’s murder at trial. Specifically, at trial, the

Commonwealth did not introduce Kloshen’s autopsy, evidence that Kloshen and King’s

relationship began consensually, or that King wanted the police to find Kloshen’s body before

anyone else did—information that was before the judge at the pretrial hearing.

But the evidence the Commonwealth did introduce at trial nevertheless established

substantial similarities between the 1986 murder and the instant case. That trial evidence

included testimony from the Ohio detective who investigated the 1986 murder and saw

-8-Kloshen’s dead body in King’s apartment. Numerous crime scene photographs showed

Kloshen’s body in a position similar to Walters’s body: both women were found naked, on their

backs, with their arms overhead. The photographs showed that both women were beaten.

Kloshen had bruising on her neck and was found with a pillow on her face, permitting the

reasonable inference that King smothered her, similar to how he asphyxiated Walters. The fact

that Kloshen was on King’s bed permits a reasonable inference that she and King had been

sexually involved prior to her murder, like Walters and King. And, although Kloshen’s BAC

was not admitted into evidence at trial, photographs showed alcohol on the nightstand at the

1986 crime scene; similarly, the police found beer bottles on a table in the hotel room where

Walters died, indicating that both incidents involved alcohol.

The trial evidence also included the fact that, after each murder, King turned himself in to

the police and made incriminating statements. Specifically, the Ohio detective testified that King

refused to make any phone calls and instead said, “[W]hy would I want to call my mother and

father and tell them I just murdered someone[?]” Similarly, here, King turned himself in, telling

police that he had smoked and drank coffee “before coming in and going to jail.” King even

referenced his Ohio murder conviction, telling police that he had “flipped out before” and “I did

the same thing that I am doing right now. When I found her, I just turned myself in.”

The evidence before the trial judge—although not as extensive as the evidence presented

at the pretrial hearing—was still admissible under Rule 2:404(b). King was charged with

first-degree murder, requiring the Commonwealth to prove that Walters’s homicide was “willful,

deliberate, and premeditated.” Code § 18.2-32. Evidence that King had previously murdered

another sexual partner, after brutally beating her, was relevant to the issue of King’s intent in this

case and to negate the possibility that Walters’s death was a mistake or accident. See Va. R.

Evid. 2:404(b) (allowing evidence of other crimes if relevant to show absence of mistake or

-9-accident); see also Kirkpatrick v. Commonwealth, 211 Va. 269, 272 (1970) (stating that “other

crimes” evidence is “permissible in cases where the motive, intent[,] or knowledge of the

accused is involved”); Jennings v. Commonwealth, 20 Va. App. 9, 15, aff’d on reh’g en banc, 21

Va. App. 328 (1995) (stating that “evidence of other crimes may be admitted to prove

knowledge, or to refute a claim of mistake”). The evidence was relevant to refute King’s

suggestion that his actions merely amounted to “rough sex” that went too far. See, e.g., Williams

v. Commonwealth, No. 1786-23-1, 2025 Va. App. LEXIS 115, at *30-31 (Feb. 25, 2025) (“To

the extent appellant attempted to excuse some of his behavior as an accident or mistake, the

evidence of other similar and intentional incidents rebuts that defense.”).6

We also find no abuse of discretion in the court’s conclusion that the probative value of

King’s prior conviction outweighed the incidental prejudice. “Rule 2:404(b) permits the

introduction of otherwise admissible prior-bad-act evidence only ‘if the legitimate probative

value of such proof outweighs its incidental prejudice.’” Williams v. Commonwealth, 85

Va. App. 718, 734 (2025) (quoting Va. R. Evid. 2:404(b)). The Rule 2:404(b) standard is

“marginally stricter than the balancing test for prejudice used to evaluate the admission of

relevant evidence generally.” Id. at 737 (quoting Drexel v. Commonwealth, 80 Va. App. 720,

741 n.6 (2024)). “The responsibility for balancing the two considerations rests in the trial court’s

discretion[,] and we will not disturb the trial court’s determination in the absence of a clear abuse

of discretion.” Kenner, 299 Va. at 427.

The Commonwealth had to prove that Walters’s murder was premeditated. Thus, any

evidence that was probative of King’s intent, plan, modus operandi, relationship to the victim,

and absence of mistake or accident was relevant. See Va. R. Evid. 2:404(b); see also Va. R.

6

“Unpublished opinions of this Court, while having no precedential value, are nevertheless persuasive authority.” Otey v. Commonwealth, 71 Va. App. 792, 799 n.3 (2020) (quoting Samartino v. Fairfax Cnty. Fire and Rescue, 64 Va. App. 499, 508 n.2 (2015)).

- 10 -Evid. 2:401 (“Relevant evidence” is “evidence having any tendency to make the existence of any

fact in issue more probable or less probable than it would be without the evidence”). As stated

above, based on our review of the trial record, the evidence of Kloshen’s murder was relevant to

show that Walters’s death was not a mistake or accident and to show King’s criminal intent. The

trial record also supports a finding that the probative value of King’s prior conviction

outweighed its incidental prejudice. The evidence of Kloshen’s murder helped establish King’s

intentional method for abusing and killing Walters. The Commonwealth must “prove every

element of its case” and “is entitled to do so by presenting relevant evidence in support of the

offense charged.” Kenner, 299 Va. at 426. It is settled law in Virginia that “the perpetrator has

no right to have the evidence ‘sanitized’ so as to deny the jury knowledge of all but the

immediate crime.” Id. (quoting Scott v. Commonwealth, 228 Va. 519, 526 (1984)). “Given that

all incriminating evidence ‘is prejudicial to an accused,’ the fact that prejudice results does not

‘justify automatic exclusion.’” Williams, 85 Va. App. at 739 (quoting Jordan v. Commonwealth,

84 Va. App. 446, 469 (2025)). Rather, the rule is concerned with unfair prejudice. See id.

“[T]he danger of unfair prejudice can . . . be mitigated by an instruction to the jury that

limits their consideration of other crimes evidence to its proper purposes and application to each

offense charged.” Id. (second alteration in original) (quoting Brooks v. Commonwealth, 73

Va. App. 133, 148 (2021)). Here, the court instructed the jury that it could consider King’s prior

conviction only to assess “motive, opportunity, preparation, plan, knowledge, identity, absence

of mistake, accident, or if part of a common scheme or plan” and “not . . . for any other purpose.”

“We presume that juries heed such instructions.” Williams, 85 Va. App. at 739-40.

We also note that although nearly 34 years had passed between the homicides, King was

incarcerated for the majority of that time.7 See Turner v. Commonwealth, 259 Va. 645, 652-53

7

King pleaded guilty to the Ohio murder in 1990 and served a 20-year sentence.

- 11 -(2000) (holding that the court properly considered whether the defendant was incarcerated in

weighing the probative value of crimes committed years apart). Although evidence of a prior

crime may be too remote in time where it shows “no causal relationship or logical connection

between” the first incident and the second, Quinones v. Commonwealth, 35 Va. App. 634, 642

(2001), once factual relevancy has been established, the court “should not withhold such

evidence solely on the basis of remoteness unless the expanse of time has truly obliterated all

probative value,” which is a “determination . . . committed to the sound discretion of the trial

court,” Lafon v. Commonwealth, 17 Va. App. 411, 419 (1993). Here, considering the clear

logical connection between the two offenses and King’s intervening incarceration, the passage of

time did not obliterate the probative value of the prior bad act nor render it inadmissible.

Because the court’s evidentiary ruling was supported by the record, we find no abuse of

discretion. Kenner, 299 Va. at 423; Lafon, 17 Va. App. at 419.8

CONCLUSION

For these reasons, we affirm the court’s judgment.

Affirmed.

8

We need not decide whether King’s prior conviction was admissible as evidence of modus operandi—the exception on which the court relied below—because the record amply demonstrates that it was admissible to show an absence of mistake or accident and King’s criminal intent. “Under the ‘right-result-different-reason principle,’ we may sustain a trial court’s judgment ‘where the correct conclusion has been reached but [a different] reason [is] given.’” Reed v. Commonwealth, 85 Va. App. 196, 211 n.6 (2025) (alterations in original) (quoting Vandyke v. Commonwealth, 71 Va. App. 723, 731 (2020)). “Further, the doctrine of judicial restraint obligates us to decide cases ‘on the best and narrowest grounds.’” Id. (quoting Butcher v. Commonwealth, 298 Va. 392, 396 (2020)).

- 12 -Raphael, J., concurring.

I join the majority opinion in full. I agree that the trial court properly admitted the

evidence that James King killed Janis Kloshen 34 years before he killed Lexie Walters under

unusually similar circumstances. King claimed that he did not intend to kill Walters and that her

death was accidental. Kloshen’s killing was not admitted “to prove the character trait of [King]

in order to show that [he] acted in conformity therewith.” Va. R. Evid. 2:404(b). The

prosecution’s theory was not, “once a murderer, always a murderer.” Rather, King’s prior bad act

tended to show that Walters did not die by “accident,” id., because it was highly improbable that

two women could die by accident in King’s presence under such exceptionally similar

circumstances. I also agree that the probative value of the prior-bad-act evidence outweighed the

risk of unfair prejudice.

I write separately to show that the relevance of the prior-bad-act evidence here derives

from what Dean Wigmore called the “doctrine of chances,” the early name for what we now call

probability theory.

I. The common-law precursors to Virginia Rule of Evidence 2:404

The Virginia Rules of Evidence, promulgated in 2012,9 were “adopted to implement

established principles under the common law and not to change any established case law

rendered prior to the adoption of the Rules.” Va. R. Evid. 2:102. Rule 2:404(b) provides (with

exceptions not applicable here) that “evidence of other crimes, wrongs, or acts is generally not

admissible to prove the character trait of a person in order to show that the person acted in

conformity therewith.”

Such propensity evidence is excluded not because it is irrelevant but because of the

significant risk it poses of “unfair prejudice.” Rodriguez v. Commonwealth, 85 Va. App. 664,

9

See Order (Va. July 1, 2012) (Rule 2:102), https://perma.cc/8AGV-QWTR.

- 13 -684 (2025). “Evidence that a defendant has committed similar offenses in the past ‘might

logically be persuasive that [the defendant] is by propensity a probable perpetrator of the crime.

The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too

much.’” Id. at 684-85 (alteration in original) (quoting Old Chief v. United States, 519 U.S. 172,

181 (1997)). “Courts that follow the common-law tradition almost unanimously have come to

disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to

establish a probability of his guilt.” Old Chief, 519 U.S. at 181 (quoting Michelson v. United

States, 335 U.S. 469, 475 (1948)). “The overriding policy of excluding such evidence, despite

its admitted probative value, is the practical experience that its disallowance tends to prevent

confusion of issues, unfair surprise and undue prejudice.” Michelson, 335 U.S. at 476.

But that rule of exclusion does not apply to prior bad acts that are relevant for a proper

purpose:

[I]f the legitimate probative value of such proof outweighs its

incidental prejudice, such evidence is admissible if it tends to

prove any relevant fact pertaining to the offense charged, such as

where it is relevant to show motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake,

accident, or if they are part of a common scheme or plan.

Va. R. Evid. 2:404(b). That sentence uses such as, making clear that the list of permissible uses

of prior-bad-act evidence “is neither exhaustive nor definitive.” Lafon v. Commonwealth, 17

Va. App. 411, 417 (1993); see also Stambler v. Commonwealth, 88 Va. App. 198, 211 (2026)

(same); Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019) (same). In other words,

Virginia “follows an ‘inclusionary approach’ to the uncharged misconduct doctrine by admitting

such evidence ‘if relevant, for any purpose other than to show a mere propensity or disposition

on the part of the defendant to commit the crime.’” Thomas v. Commonwealth, 44 Va. App. 741,

757 n.8 (quoting Kent Sinclair, Joseph C. Kearfott, Paul F. Sheridan, & Edward J. Imwinkelried,

- 14 -Virginia Evidentiary Foundations § 6.4[A], at 165 (1998)), aff’d upon reh’g en banc, 45

Va. App. 811 (2005).

Our courts have usually described the rule against propensity evidence as the “general

rule” and the use of prior-bad-act evidence for other, relevant purposes as the “exception.” E.g.,

Ortiz v. Commonwealth, 276 Va. 705, 714 (2008). The title of the rule itself tracks that approach.

See Va. R. Evid. 2:404 (“Character Evidence Not Admissible to Prove Conduct; Exceptions;

Other Crimes”). Still, we have recognized that “there are so many exceptions to the rule that it is

difficult to determine which is more extensive—the rule or its acknowledged exceptions.”

Cullen v. Commonwealth, 13 Va. App. 182, 185 (1991) (quoting Ferrell v. Commonwealth, 11

Va. App. 380, 388 (1990)).

The general rule and its exceptions are “deeply rooted in Virginia common law.” Tucker

v. Commonwealth, 17 Va. App. 520, 522 (1993). In Finn v. Commonwealth, 26 Va. (5 Rand.)

701 (1827), a prosecution for passing counterfeit notes, the Court ruled that the prosecution’s

witness properly testified that the defendant had asked him “two or three” times before to

procure counterfeit money. Id. at 709. The Court explained that passing a counterfeit note could

be “a perfectly innocent transaction; the guilt consists in passing it, knowing it to be counterfeit.”

Id. at 710. The defendant’s prior bad act was admissible “so that from his conduct on one

occasion, the jury may infer his knowledge on another.” Id. The Court cited Rex v. Whiley, 2

Leach. 983, 168 Eng. Rep. 589 (K.B. 1804). See Finn, 26 Va. at 710. As Chief Justice Lord

Ellenborough wrote in Whiley, “[c]ircumstances of this kind may produce such strong evidence

as to leave no doubt as to the prisoner’s knowledge that these notes are forged.” 2 Leach at 986,

168 Eng. Rep. at 590. “It was from cases such as Whiley, along with comments of legal

commentators, that the modern ‘other crimes, wrongs, or acts’ rule emerged.” David P. Leonard,

- 15 -In Defense of the Character Evidence Prohibition: Foundations of the Rule against Trial by

Character, 73 Ind. L.J. 1161, 1175 (1998).10

Two years after Finn, the Court applied the general rule against propensity evidence in

Walker v. Commonwealth, 28 Va. (1 Leigh) 574 (1829). Walker held that it was inadmissible in a

prosecution for stealing a watch that the defendant on another occasion had stolen a cloak. Id. at

579-80. The Court distinguished Finn as a case where it was “impossible . . . to become

acquainted with the secret knowledge of another, without referring to his conduct or his acts on

other occasions.” 28 Va. at 578. Walker became known as “the leading case” in Virginia for the

rule against propensity evidence. See Guill v. Commonwealth, 255 Va. 134, 139 (1998) (citing

Kirkpatrick v. Commonwealth, 211 Va. 269, 273 (1970)). Propensity evidence is inadmissible

because it “confuses one offense with the other, unfairly surprises the defendant with a charge he

is unprepared to meet, and, by showing that the accused has a criminal propensity, tends to

reverse his presumption of innocence of the crime on trial.” Lewis v. Commonwealth, 225 Va.

497, 502 (1983).

II. The doctrine of chances

Dean Wigmore was the first legal scholar to describe the use of probability theory—what

was then called “the doctrine of chances”—to warrant the admission of prior-bad-act evidence

for purposes other than showing the defendant’s poor character or propensity to offend. 1 John

10

Unlike certain other common-law rules of evidence, the rules surrounding prior-bad-act evidence were not clearly established under English common law before American independence. Cf. Curry v. Commonwealth, 84 Va. App. 339, 361-62 & n.2 (2025) (Raphael, J., concurring) (noting that the rule of completeness under English common law can be traced to “the 1600s”). The rule against using “character evidence to prove a person’s conduct” was not “well settled” in England until at least 1810. Leonard, 73 Ind. L.J. at 1170 & nn.41-43 (discussing the unreported case of Rex v. Cole). “The rule which is said to be fundamental in English criminal justice was apparently not sufficiently well known even as late as 1824 to merit treatment in the textbooks on criminal law.” Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv. L. Rev. 954, 959 (1933) (footnote omitted).

- 16 -Henry Wigmore, Treatise on the System of Evidence in Trials at Common Law: Including the

Statutes and Judicial Decisions of All Jurisdictions of the United States § 302, at 390 (1904).

The doctrine of chances can be traced to the first treatise on probability theory, published in

1718. See Abraham de Moivre, The Doctrine of Chances 1 (1718) (“THE Probability of an

Event is greater, or less, according to the number of Chances by which it may Happen, compar’d

with the number of all the Chances, by which it may either Happen or Fail.”). The “doctrine of

chances” was also the name used by the father of Bayesian probability theory. See Thomas

Bayes, An Essay Towards Solving a Problem in the Doctrine of Chances, 53 Phil. Trans. R. Soc.

370, 370-71 (1763).11

Wigmore explained that relevance, based on the doctrine of chances, involves “instinctive

recognition.” Wigmore, supra, at 390. “[T]he mind applies this rough and instinctive process of

reasoning, namely, that an unusual and abnormal element might perhaps be present in one

instance, but the oftener similar instances occur with similar results, the less likely is the

abnormal event likely to be the true explanation of them.” Id. Wigmore used the example of a

hunter, A, who hears a bullet fired by B whiz past his head. A “is willing to accept B’s bad aim

or B’s accidental tripping as a conceivable explanation.” Id. “[B]ut if shortly afterwards the

same thing happens again, and if on a third occasion A receives B’s bullet in his body, the

immediate inference (i.e. as a probability, perhaps not a certainty) is that B shot at A

deliberately . . . .” Id. For “the chances of an inadvertent shooting on three successive similar

occasions are extremely small.” Id.

“Most jurisdictions now approve of the doctrine [of chances].” Edward J. Imwinkelried

& Tamara Rice Lave, Uncharged Misconduct Evidence § 5:6 (2024) [“Uncharged Misconduct

11

A Lexis search reveals 50 uses of doctrine of chances in American caselaw before the first edition of Wigmore’s treatise in 1904.

- 17 -Evidence”]. The doctrine “has been used to determine the admissibility of evidence of extrinsic

acts to prove intent, knowledge, or absence of mistake or accident in homicide, sexual crimes,

and other crimes against the person.” Marjorie A. Shields, Application of “Doctrine of

Chances” in Homicide, Sexual Crimes, and Other Offenses Against the Person, 11 A.L.R. 7th

Art. 1, § 1 (2015).

“The doctrine of chances rests on the objective improbability of coincidences.” Edward

J. Imwinkelried, The Dispute over the Doctrine of Chances: Relying on the Concept of Relative

Frequency to Admit Uncharged Misconduct Evidence, 7 Crim. Just. 16, 18 (Fall 1992)

[“Imwinkelried (1992)”]. Professor Imwinkelried offered Rex v. Smith, 84 L.J. 2153 (K.B.

1915), as an example. Id. at 19. Smith was charged with murdering his new wife. She had

recently inherited some money from her father and drowned in the bathtub when Smith was the

only other person at home. Smith had taken his wife to the doctor shortly before her death,

asserting that she was unwell. Smith claimed that his wife had drowned accidentally. But the

trial court allowed the prosecution to introduce evidence that Smith had married twice before,

and both times the wives were “found drowned in their baths in houses where they were living

with [Smith].” 84 L.J. at 2154. Both “women had insured their lives at the suggestion of

[Smith]; in both [Smith] had been at some pains to ensure that a bath should be available; in both

he had taken the woman just before her death to a doctor with a complaint concerning her state

of health.” Id. The appellate court held that the earlier acts were properly admitted to show that

the third wife’s death was not accidental. Id. at 2156.

As Imwinkelried explained in later works, “innocent persons sometimes find themselves

enmeshed in suspicious circumstances; but common sense indicates that it is implausible that

such involvement will occur repeatedly.” Edward J. Imwinkelried, Criminal Minds: The Need to

Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing

- 18 -Uncharged Misconduct Evidence to Prove Intent, 45 Hofstra L. Rev. 851, 855 (2017)

[“Imwinkelried (2017)”]. “In isolation, it might be plausible that the defendant acted

accidentally or innocently . . . . However, in the context of other misdeeds, the defendant’s act

takes on an entirely different light. The fortuitous coincidence becomes too abnormal, bizarre,

implausible, unusual, or objectively improbable to be believed.” Uncharged Misconduct

Evidence, supra, § 5:6 (footnotes omitted).

The Fourth Circuit’s decision in United States v. Woods, 484 F.2d 127 (4th Cir. 1973), is

considered “[o]ne of the leading American cases” relying on the doctrine of chances,

Imwinkelried (2017), supra, at 866, though Woods did not invoke the “doctrine of chances” by

name. Woods was charged with first-degree murder in the death of her seven-month-old fostercare son. Over a two-week period, the infant “suffered instances of gasping for breath and

turning blue from lack of oxygen”—cyanosis—while in Woods’s care. 484 F.2d at 129. On the

last occasion, the infant lapsed into a coma and died. Id. The government’s forensic pathologist

testified that he was 75% certain that the infant’s death was caused by smothering. His 25%

doubt was based on the possibility that the infant “died naturally from a disease currently

unknown to medical science.” Id.

The Fourth Circuit held that the government properly introduced evidence that 9 other

children in Woods’s care had suffered at least 20 episodes of cyanosis and that 7 of them had

died. Id. Woods argued “that cyanosis among infants is too common to constitute an unusual

and distinctive device unerringly pointing to guilt.” Id. at 134. But the court of appeals held that

the evidence was admissible to “prove that a crime had been committed because of the

remoteness of the possibility that so many infants in the care and custody of defendant would

suffer cyanotic episodes and respiratory difficulties if they were not induced by the defendant’s

- 19 -wrongdoing.” Id. at 135. In other words, the “pattern overwhelmingly establishe[d] [Woods’s]

guilt.” Id.

Our Supreme Court too has used probability theory to uphold the use of prior-bad-act

evidence when relevant to an issue other than the defendant’s character. E.g., Angel v.

Commonwealth, 281 Va. 248, 267 (2011) (“Evidence of other crimes is admissible in cases of

disputed identity to prove the probability of a common perpetrator if the other crimes bear

‘sufficient marks of similarity to the crime charged.’” (quoting Turner v. Commonwealth, 259 Va.

645, 651 (2000))); Chichester v. Commonwealth, 248 Va. 311, 327 (2000) (finding “sufficient

marks of similarity to the crime charged to establish that the defendant is probably the common

perpetrator”); Spencer v. Commonwealth, 240 Va. 78, 89 (1990) (“[T]he evidence of other crimes

so resembles the pattern of the offense charged as to raise the probability of a common

perpetrator.”).

As those quotations reflect, “[t]he doctrine of chances does not come into play unless the

incidents are similar.” Uncharged Misconduct Evidence, supra, § 5:6. The requirement to show

“similarity is a logical necessity.” Imwinkelried (2017), supra, at 862. Our Court at first

adopted a strict similarity requirement, insisting that “the device used to commit the [uncharged]

crime, or the manner in which the [uncharged] crime was committed, must be so unusual and

distinctive as to act as a signature.” Sutphin v. Commonwealth, 1 Va App. 241, 247 (1985),

overruled by Spencer v. Commonwealth, 240 Va. 78 (1990).

But the Supreme Court relaxed that standard in Spencer. The Court said that the term

signature was useful only if understood to mean “a distinctive modus operandi, such that the

evidence of other crimes so resembles the pattern of the offense charged as to raise the

probability of a common perpetrator.” 240 Va. at 89. The Court warned that our standard in

Sutphin could have been “misunderstood to require . . . virtual carbon copies of the case on trial.”

- 20 -Spencer, 240 Va. at 89-90. “[E]vidence of other crimes, to qualify for admission as proof of

modus operandi, need not bear such an exact resemblance to the crime on trial as to constitute a

‘signature.’ Rather, it is sufficient if the other crimes bear ‘a singular strong resemblance to the

pattern of the offense charged.’” Id. at 90 (quoting United States v. Hudson, 884 F.2d 1016, 1021

(7th Cir. 1989)). “That test is met where the other incidents are ‘sufficiently idiosyncratic to

permit an inference of pattern for purposes of proof’ . . . .” Id. (quoting Hudson, 884 F.2d at

1021); see generally Kent Sinclair, The Law of Evidence in Virginia § 8-4[c] at 473-74 (8th ed.

2018) (noting that Spencer “renders the ‘signature’ test (and the Court of Appeals cases which

applied it) obsolete”). As we acknowledged more than 30 years ago, “[t]he signature theory,

insofar as it requires that the crimes be ‘carbon copies’ of each other, was rejected by . . .

Spencer.” Ferrell, 11 Va. App. at 387.

Another prerequisite for admitting prior-bad-act evidence under the doctrine of chances is

that no step in the theory of relevance can depend on the defendant’s propensity to commit the

crime. A propensity inference would defy the prohibition that “evidence of other crimes,

wrongs, or acts is generally not admissible to prove the character trait of a person in order to

show that the person acted in conformity therewith.” Va. R. Evid. 2:404(b). By contrast, “[i]f

the facts satisfy the requirements for invoking the doctrine of chances, the jury can draw the

ultimate inference of intent without positing an intermediate assumption that the accused has a

disposition or propensity for criminal or immoral conduct.” Imwinkelried (2017), supra, at 874.

A third requirement for applying the doctrine of chances is that the probative value of the

prior-bad-act evidence must outweigh its incidental prejudice. Va. R. Evid. 2:404(b). This

standard is more demanding than the general rule that relevant evidence is admissible unless its

probative value is “substantially outweighed” by the danger of unfair prejudice. Va. R. Evid.

2:403(a)(i). As explained in Williams v. Commonwealth, 85 Va. App. 718 (2025), it is “easier for

- 21 -a party to introduce relevant evidence generally than to introduce relevant prior-bad-act

evidence. Prior-bad-act evidence that is otherwise admissible must be excluded whenever its

probative value is merely outweighed by its incidental prejudice; the prejudice need not

substantially outweigh the probative value.” Id. at 734.

To be sure, the balancing task is difficult because the probative value of prior-bad-act

evidence cannot be measured in the same units as the danger of unfair prejudice to the defendant.

The balancing task is akin to deciding “whether a particular line is longer than a particular rock

is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U. S. 888, 897 (1988) (Scalia, J.,

concurring in judgment); Uncharged Misconduct Evidence § 8:27 (applying Justice Scalia’s

metaphor). That is why “[t]he responsibility for balancing the two considerations rests in the

trial court’s discretion and we will not disturb the trial court’s determination in the absence of a

clear abuse of discretion.” Kenner v. Commonwealth, 299 Va. 414, 427 (2021).

Finally, a trial court that relies on the doctrine of chances to admit prior-bad-act evidence

should generally give a limiting instruction, as the trial court did here. “[T]he distinction

between verboten character reasoning and legitimate use of the doctrine [of chances] can be so

thin that the trial judge ought to give the jury a limiting instruction sharply differentiating

between character reasoning and the use of the evidence according to the doctrine.”

Imwinkelried (2017), supra, at 857. “When evidence is admissible . . . for one purpose but not

admissible as to . . . another purpose, the court upon motion must restrict such evidence to its

proper scope and instruct the jury accordingly.” Va. R. Evid. 2:105. The court need not wait for

a motion; it “may give such limiting instructions sua sponte, to which any party may object.” Id.

A “limiting instruction may be the accused’s final and most important safeguard against the

danger that the jury will misuse the testimony as evidence of the accused’s bad character.”

Imwinkelried (2017), supra, at 878.

- 22 -III. The doctrine of chances applied here

The doctrine of chances warranted the admission of the prior-bad-act evidence here

despite that it was only one other act and despite the large gap in time between the two killings.

A. The prior bad act was admissible despite that it was the only other act of misconduct.

In Wigmore’s hunter example, two shots missed the victim before the third one landed.

In Rex v. Smith, two of the defendant’s wives had drowned in the bathtub under similarly

suspicious circumstances as the third wife. And in Woods, nine other children in the defendant’s

care suffered from cyanosis and seven died. Is the single instance in which Kloshen died under

similar circumstances as Walters enough to invoke the doctrine of chances?

It is. “The question is not the absolute number of incidents. Rather, the question is

whether the concurrence of the charged and uncharged incidents would amount to an

extraordinary coincidence—exceeding the ordinary incidence of that type of event.”

Imwinkelried (2017), supra, at 863 (footnote omitted). “If an innocent person is likely to

become involved in that type of event only once in his or her lifetime, proof of a single

uncharged, similar incident suffices to trigger the doctrine.” Id.

A good but “somber example” of how the occurrence of a single, highly unusual event

influences the predictive probability of the same event recurring is “the September 11 attacks”:

Most of us would have assigned almost no probability to terrorists

crashing planes into buildings in Manhattan when we woke up that

morning. But we recognized that a terror attack was an obvious

possibility once the first plane hit the World Trade Center. And we

had no doubt we were being attacked once the second tower was

hit. Bayes’s theorem can replicate this result.

. . . One accident on a bright sunny day in New York was unlikely

enough, but a second one was almost a literal impossibility, as we

all horribly deduced.

Nate Silver, The Signal and the Noise: Why So Many Predictions Fail—but Some Don’t, 247-48

(2015).

- 23 -What King claims was an accident here would surely be a once-in-a-lifetime event for

any innocent person (if it even happened at all): waking up next to a dead naked woman whose

face was battered and who died from asphyxiation (or apparent smothering) after a night of

drinking; covering her naked body with a sheet or blanket; and reporting her death to the police

while claiming he could not remember what happened. The facts surrounding Kloshen’s killing

bore “a singular strong resemblance to the pattern of the offense charged” and was “sufficiently

idiosyncratic,” Spencer, 240 Va. at 90 (quoting Hudson, 884 F.2d at 1021), to warrant its

admission under Rule 2:404(b) to rebut King’s claim of accident.

B. The prior bad act was admissible despite its age.

This case is also admittedly unusual because of the 34-year gap between the deaths of

Kloshen and Walters. In our other appellate cases approving the admission of prior-bad-act

evidence, the longest gap appears to have been 20 years. Prieto v. Commonwealth, 283 Va. 149,

174 (2012) (“20-year-old allegation”); Bramblett v. Commonwealth, 257 Va 263 (1999) (“two

decades”); George v. Commonwealth, 242 Va. 264, 273 (1991) (“twenty years”).

But just as the single prior instance involving Kloshen’s killing was sufficiently

idiosyncratic to warrant the inference that Walters did not die accidentally, the 34-year gap

likewise does not negate its relevance. The rule is well-settled that “it is largely within the

discretion of the trial court to determine ‘[w]hether evidence is so remote that it lacks probative

value.’” Collins v. Commonwealth, 226 Va. 223, 230 (1983) (alteration in original) (quoting

Bunch v. Commonwealth, 225 Va. 423, 439 (1983)). “Once factual relevance has been

established, the trial court may consider remoteness as one of the factors in determining

evidentiary relevance of prior bad act evidence, but it should not withhold such evidence solely

on the basis of remoteness unless the expanse of time has truly obliterated all probative value.”

- 24 -Lafon, 17 Va. App. at 419. When the prior bad act is relevant, as it was here,12 “the issue of

remoteness concerns the weight of the evidence and the credibility of the witnesses, both of

which are within the province of the jury.” Barnes v. Commonwealth, 214 Va. 24, 26 (1973).

***

This case is a particularly good example under Rule 2:404(b) of how the doctrine of

chances can explain why an unusually similar prior bad act can be relevant to negate an accident

defense. The Court properly affirms that the trial court here did not abuse its discretion by

admitting the evidence surrounding Kloshen’s murder to show that Walters did not die

accidentally.

12

As the Court properly notes, King served a 20-year sentence for murdering Kloshen. “In determining whether a prior crime is too remote in time to be considered by the fact finder, the trial court may consider the length of time that a defendant has been incarcerated between the date of the prior crime and the date of the offense charged.” Turner, 259 Va. at 652-53.

- 25 -Chaney, J., dissenting.

Since the trial court declined to decide whether evidence of King’s 1986 murder

remained admissible on the narrower showing the Commonwealth made at trial, and the majority

resolves that question itself on appeal, I respectfully dissent from the affirmance of James

Richard King’s present conviction for the first-degree murder of Lexie Walters.13

Before trial, the motions judge ruled admissible evidence of King’s 1990 Ohio conviction

for the 1986 murder of Janis Kloshen, relying on the Commonwealth’s pretrial showing that

included Kloshen’s autopsy findings and an account of how the encounter began. R. 380-82,

405-06, 898. At trial, however, the Commonwealth introduced neither. R. 874-98, 903, Maj.

Op. at 8. When King identified the missing proof and renewed his objection, the trial court

responded—“[W]hat you’re asking me to do is reverse [the motions judge’s] ruling and I’m not

going to do that.” R. 947. The majority acknowledges that the trial judge “was in fact presented

with a new question,” but resolves that question through its own assessment of the remaining

evidence. Maj. Op. at 8-11.

Deference to a trial court’s evidentiary judgment presupposes that the court exercised its

discretion on the question presented. Here, the trial court failed to weigh the probative value of

the Ohio evidence, as the Commonwealth presented it at trial, against its prejudice, as Rule

2:404(b) requires. The majority’s alternative rationale does not supply that judgment. The error

was also not harmless. The Commonwealth expressly used the Ohio murder to establish the

mental state distinguishing premeditated murder from the lesser homicide offenses submitted to

the jury. R. 747-49, 765-66. King’s first-degree murder conviction should be reversed, and the

case remanded for a new trial on that charge.

13

This dissent does not disagree with King’s conviction of object sexual penetration. R. 353.

- 26 -I. The trial court declined to reassess admissibility on the changed evidentiary showing.

Rule 2:404(b) generally excludes evidence of other crimes offered “to prove the character

trait of a person in order to show that the person acted in conformity therewith.” Va. R. Evid.

2:404(b). The rule permits other-crimes evidence for a legitimate purpose, including intent or

absence of mistake or accident, only “if the legitimate probative value of such proof outweighs

its incidental prejudice.” Id. Those are separate requirements. Evidence offered to prove intent

must actually bear a permissible connection to that intent, and its legitimate probative value must

exceed its prejudice. See Guill v. Commonwealth, 255 Va. 134, 138-40 (1998); Kenner v.

Commonwealth, 299 Va. 414, 424, 427 (2021).

The balance differs from the general rule governing relevant evidence. “Prior-bad-act

evidence that is otherwise admissible must be excluded whenever its probative value is merely

outweighed by its incidental prejudice; the prejudice need not substantially outweigh the

probative value.” Williams v. Commonwealth, 85 Va. App. 718, 734 (2025). Spencer v.

Commonwealth, 240 Va. 78, 90 (1990), similarly distinguishes relevance from admissibility.

Even when similarities make other-crimes evidence relevant, “[t]he question remains, however,

whether it is ‘otherwise admissible.’” Id. That determination “requires the trial court to weigh

its probative value against its prejudicial effect.” Id. Thus, identifying some remaining

relevance did not answer King’s renewed objection. The court still had to assess whether the

legitimate probative value of the comparison—in light of the changed evidentiary showing King

identified—justified the prejudice of admitting the prior murder. R. 944-47.

That assessment ordinarily warrants substantial deference. We “do not substitute our

judgment for that of the trial court,” but ask “whether the record fairly supports the trial court’s

action.” Kenner, 299 Va. at 423 (quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)).

Yet the same standard requires review to ensure that the discretion “was not guided by erroneous

- 27 -legal conclusions.” Carter, 293 Va. at 543-44 (quoting Porter v. Commonwealth, 276 Va. 203,

260 (2008)). As the Supreme Court explained in Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 92

(2021), discretion does not mean “that the court is free to simply act in any way it may deem

desirable under the circumstances.” Rather, the court “has a range of choice, and . . . its decision

will not be disturbed as long as it stays within that range and is not influenced by any mistake of

law.” Id. at 93 (quoting Landrum v. Cippenham & Johnston-Willis Hosps., Inc., 282 Va. 346,

352 (2011)). As Williams explained, a trial court abuses its discretion by “(1) failing to consider

a significant relevant factor, (2) giving significant weight to an irrelevant or improper factor, (3)

committing a clear error of judgment in assigning weight to all proper factors, or (4) making a

mistake of law.” 85 Va. App. at 733 (quoting Citizens for Fauquier Cnty. v. Town of Warrenton,

81 Va. App. 363, 385 (2024)). The legal error here concerns the court’s refusal to reassess

admissibility after a material change in the evidentiary showing, not merely disagreement over

the weight the evidence deserved.

The motions judge’s pretrial ruling identifies the basis for the original balance. He relied

on a “consensual relationship,” “alcohol,” “injuries in similar locations,” “asphyxiation cause of

death,” the placement of the bodies, and King’s concern about who would find them. R. 406.

Describing the photographs as “hauntingly similar,” he found the circumstances sufficiently

idiosyncratic to establish a modus operandi. R. 406. His assessment of probative value

expressly depended on the similarities: “The probative value in this case I feel—because of the

similarities I feel is strong,” and “factually[,] it’s so sufficiently strong that it outweighs

the . . . prejudicial harm.” R. 406. The ruling, therefore, did not admit the Ohio murder simply

because intent would be disputed. It depended on the asserted circumstances connecting that

murder to Walters’s death.

- 28 -The Commonwealth’s trial presentation omitted substantial parts of that pretrial

comparison. The Commonwealth expressly advised the court that it was “not seeking to

introduce” Kloshen’s autopsy report. R. 903. The jury consequently did not receive that report’s

findings concerning Kloshen’s cause of death, alcohol level, or anal injuries, although the pretrial

presentation had relied on those matters to establish a similar course of sexual violence ending in

asphyxiation. R. 380-82, 390, 406. The majority also acknowledges that the Commonwealth did

not introduce the pretrial information that Kloshen and King’s encounter began consensually or

that King wanted the police to discover her body before someone else did. Maj. Op. at 9. These

omissions concerned the asserted connection between the two crimes, the very basis for the

pretrial court’s assessment of probative value.

The trial evidence supplied a narrower comparison. Detective Belcik agreed that

Kloshen was found naked with “a pillow over her face” and a sheet covering her private area.

R. 884. He observed “a Busch beer can, two drinking glasses with liquids in them” on the

nightstand. R. 890. He also described “a lot of bruising on her face area, bruising on her neck,”

and “bite marks on her nipples.” R. 892-93. His testimony identified abrasions on her wrists and

stated that her ankles “had been tied up with rope.” R. 893. The jury heard King’s statement

that he did not want to tell his parents he had “just murdered someone,” and the parties stipulated

to his murder conviction. R. 895, 898. The trial record contained evidence from which the

Commonwealth could argue similarities. However, the evidence also disclosed different injuries

and omitted the medical findings and account of the encounter that had supported the original

assessment of probative value.

King specifically asked the court to evaluate that changed showing. R. 944. Before

moving to strike the Commonwealth’s evidence, King renewed his request to exclude the Ohio

evidence “in light of the evidence” presented on the 1986 murder. R. 944. He explained: “We

- 29 -don’t have any evidence as to what the cause of [Kloshen’s] death was. We don’t have the

autopsy confirming what the cause of death was. We don’t know anything about the relationship

between her and Mr. King out in Ohio.” R. 944. He identified those matters as “key factors” in

the asserted connection and continued: “With the limited evidence that’s in, at this point, I don’t

think there’s sufficient evidence to justify allowing it in over the prohibition against bringing a

bad acts evidence to court.” R. 944-45. King then made the scope of his request explicit:

“Again, it’s to all of the evidence from the 1986 murder coming into this case.” R. 945. He also

renewed his prejudice objection, telling the court, “I don’t think we can have a fair trial with

them hearing [the Ohio evidence].” R. 947. He made the request after the Commonwealth

rested, the first opportunity to measure its full presentation against the pretrial proffer.

The Commonwealth argues that King “did not specifically alert the judge that the

underlying factual record before it was different than the factual record considered by his

colleague at the pretrial hearing.” A’ee Br. at 32. However, the objection did precisely that:

King identified the missing autopsy and prior relationship evidence, explained that they had been

“key factors” connecting the crimes, and asked for exclusion “[w]ith the limited evidence that’s

in.” R. 944. Earlier, the trial judge had recognized that the admissible testimony was to concern

“those features of the ’86 murder which bear a similarity on some level to the 2020 murder.”

R. 879-80. The Commonwealth answered the renewed objection on its merits, asserting that

King’s “actions were the same in both” and that the remaining similarities supported motive,

identity, knowledge, and lack of mistake or accident. R. 945. The court was given both the

particular problem and the competing grounds for resolving it. King’s request to exclude all the

Ohio evidence sought a ruling on admissibility; it was not merely a challenge to the sufficiency

of the Commonwealth’s proof of guilt.

- 30 -The trial court instead responded—“I think, at the end of the day, Mr. Evans, what you’re

asking me to do is reverse [the motions judge’s] ruling and I’m not going to do that. Your

motion is denied.” R. 947. The court’s stated reason was its unwillingness to reverse the earlier

ruling. King’s renewed objection, however, asked whether the materially different evidence

actually presented remained legitimately probative to justify its admission. R. 944-47. The

pretrial ruling had not resolved that question. As the majority recognizes, the trial judge “was in

fact presented with a new question.” Maj. Op. at 8. Deference to the resolution of the pretrial

question did not answer whether the materially different trial presentation remained admissible.

Commonwealth v. White, 293 Va. 411 (2017), explains why renewal of King’s objection

matters. In reviewing a suppression ruling, our Supreme Court stated that an appellate court

considering affirmance reviews “not only the evidence presented at the pretrial hearing but also

the evidence later presented at trial.” Id. at 414. The Court then distinguished reliance on trial

evidence as a ground for reversal: “evidence at trial becomes relevant only if the defendant

renews his pretrial motion at trial.” Id. at 414 n.2. Renewal allows the trial court “to reconsider

its pretrial ruling in light of the actual evidence presented,” rather than relying on “the charging

documents, pretrial proffers of the parties, or cursory evidentiary presentations” available before

trial. Id. The distinction protects the trial court’s opportunity to address the effect of the

developed record before an appellate court reverses on that basis.

White does not hold that an appellate court must disregard all pretrial evidence in every

evidentiary appeal. Nor did it decide the Rule 2:404(b) issue presented here. Its renewal

analysis nevertheless answers the procedural objection: King returned to the trial court, identified

the omitted proof, and requested a ruling on the evidence actually presented. R. 944-47. He

gave the trial court the opportunity that White requires. Treating the pretrial ruling alone as a

sufficient reason to decline that inquiry deprives renewal of its purpose.

- 31 -Lucas similarly illustrates the importance of requesting a ruling in light of developments

at trial. 300 Va. at 94. There, the circuit court excluded expert testimony without prejudice to

reconsideration based on those developments. Id. Although the proponent proffered the

testimony at trial, she did not request reconsideration. Id. The Supreme Court held that she

thereby deprived the circuit court of an opportunity to make a final admissibility ruling in light of

the trial evidence and declined to consider the challenged ruling as a basis for reversal. Id. King

expressly requested that assessment here, identifying the omitted evidence and explaining its

significance to the original ruling. R. 944-47.

Nor must every preliminary fact governing admissibility be established anew before the

jury. Rabeiro v. Commonwealth, 10 Va. App. 61, 64 (1990), explains that “[t]he factual

determinations which are necessary predicates to rulings on the admissibility of evidence and the

purposes for which it is admitted are for the trial judge and not the jury.” That case concerned

the foundation for coconspirator hearsay. Id. at 63-65. The question here is different: whether

the Ohio evidence retained the legitimate probative value attributed to it when the jury did not

hear much of the information that was supposed to connect the two crimes. The stipulation

established the prior conviction; it did not convey the omitted medical findings or circumstances

of the encounter. R. 898. Rabeiro identifies the judge’s responsibility to determine admissibility

and does not dispense with that responsibility when the evidentiary presentation changes.

Commonwealth v. Holland, 304 Va. 34 (2025), requires an appellate court to presume,

even without express factual findings, “that the trial court resolved all factual ambiguities or

inconsistencies in the evidence in favor of the prevailing party and gave that party the benefit of

all reasonably debatable inferences from the evidence.” Id. at 47 (quoting Hill v.

Commonwealth, 297 Va. 804, 807 (2019)). Accordingly, the absence of express findings does

not, by itself, establish that the court failed to exercise discretion. Id. However, Holland also

- 32 -recognizes that the presumption that the law was correctly applied operates “[a]bsent clear

evidence to the contrary in the record.” Id. at 47 n.4 (quoting Yarborough v. Commonwealth,

217 Va. 971, 978 (1977)).

The trial judge’s earlier limitation of Belcik’s testimony demonstrates that he exercised

discretion concerning the Ohio evidence during trial. R. 879-80. That ruling preceded the

Commonwealth’s decision not to introduce the autopsy and King’s renewed objection to the

completed presentation at trial. R. 903, 944-47. In response to that objection, the court

expressly stated that it would not reverse the motions judge’s ruling. R. 947.

Read in context, that explanation shows that the earlier ruling displaced consideration of

the materially different question King presented. The error, therefore, rests on the court’s stated

reason for declining reassessment, rather than an inference drawn merely from the absence of

findings. Its refusal left a “significant relevant factor”—the materially reduced showing

supporting admission—unconsidered. See Williams, 85 Va. App. at 733. The trial court,

therefore, abused its discretion in refusing to undertake the reassessment.14

II. Invoking the right-result-different-reason doctrine does not sustain admission on this record.

The majority invokes the right-result-different-reason doctrine to affirm on intent and

absence of mistake or accident, without deciding whether the Ohio evidence established the

pattern on which the pretrial court relied. Maj. Op. at 12-13 n.8. Those purposes were argued

below. The Commonwealth expressly invoked the absence of accident at the pretrial hearing and

again when King renewed his objection. R. 401, 945. The defect is, therefore, not that the

majority considered a label never mentioned in the trial court. It is that the alternative ground

14

This narrow ground of reversal does not require a holding that evidence of the Ohio murder could never be admitted on an adequately developed record.

- 33 -depends on the significance of the materially changed evidentiary showing that the trial court

declined to reassess.

Perry v. Commonwealth, 280 Va. 572 (2010), explains that alternative affirmance is

unavailable “where, because the trial court has rejected the right reason or confined its decision

to a specific ground, further factual resolution is needed before the right reason may be assigned

to support the trial court’s decision.” Id. at 579 (quoting Whitehead v. Commonwealth, 278 Va.

105, 115 (2009)). The controlling question is whether the alternative ground requires further

factual resolution; reliance on a particular ground below does not itself foreclose affirmance. Id.

at 579-81. Vandyke v. Commonwealth, 71 Va. App. 723, 732 (2020), similarly requires “that all

evidence necessary to that alternate ground was before the trial court.” The record must also

show that the evidence was “undisputed,” or disclose “how the trial court resolved any dispute.”

Id. Unlike the probable cause question in Perry, which was a legal conclusion drawn from a

complete record, the balance of probative value against incidental prejudice is itself a

discretionary determination.

The majority’s alternative rationale depends on its assessment of the factual connection

established by the changed trial presentation. It infers from the pillow and neck bruising that

King smothered Kloshen, from her presence on his bed that they had been sexually involved, and

from alcohol at the scene that both incidents involved alcohol. Maj. Op. at 9. It then relies on

the murder of “another sexual partner” to establish intent and rebut accident in Walters’s death.

Maj. Op. at 10-11. King challenged the connection the remaining evidence established and its

legitimate probative value in his renewed objection. R. 944-47. The court declined to reverse

the earlier ruling. R. 947. The necessary assessment concerned both the strength of that

disputed factual comparison and whether its legitimate probative value justified the prejudice of

- 34 -admitting the prior murder. Substituting a permissible purpose for admission did not resolve

those questions.

The Commonwealth is entitled to “the benefit of any reasonable inferences” from the

evidence. White, 293 Va. at 413 (quoting Evans v. Commonwealth, 290 Va. 277, 280 (2015)).

Circumstantial proof need not reproduce the form of the evidence presented before trial.

However, the strength and limits of the proposed inferences matter to the balance. A beer can

and two glasses support an inference that alcohol was present at the scene; they do not establish

Kloshen’s alcohol level or the role of intoxication in the encounter. R. 890. Kloshen’s naked

body on a bed may suggest sexual activity, but it does not establish that the encounter began

consensually or that she and King had a relationship comparable to King and Walters. Belcik

testified that King wanted the police “to find out who Jan was.” R. 896. That statement does not

exclude sexual contact, but it provides no affirmative support for the consensual relationship on

which the pretrial ruling relied. Counsel’s assertion that King “didn’t know her” was argument,

not an additional fact established by testimony. R. 946.

The same distinction applies to cause of death. Even accepting that the pillow and visible

injuries on Kloshen’s body support an inference of asphyxiation, the remaining evidence did not

supply the autopsy findings on which the original comparison depended. R. 892-93, 903.

Similarly, accepting the majority’s description that both bodies were found on their backs with

their arms overhead does not establish that the encounters began or developed in the same way.

Maj. Op. at 9. A shared position after death does not, without further analysis, establish the

mental state accompanying the act that caused death. The issue is the legitimate force of the

comparison, not whether the remaining circumstances support any inference at all.

The Commonwealth emphasizes that the motions judge adopted its arguments, including

arguments concerning intent. A’ee Br. at 26-27. However, the ruling linked those arguments to

- 35 -the asserted pattern: after referring to the Commonwealth’s reasons, the motions judge found the

similarities sufficiently idiosyncratic and ruled “in favor of the Commonwealth as it relates to

modus operandi.” R. 406. His balance then expressly relied on the strength of those similarities.

R. 406. Even a reading that includes intent and absence of accident among the original purposes

does not establish that he assessed the materially reduced trial presentation.

The majority announces that it considers only trial evidence, yet cites the motions judge’s

pretrial ruling to support its conclusions that the evidence showed intent and absence of accident

and that probative value outweighed prejudice. Maj. Op. at 4, 11. Those portions of the record

do not contain a determination of the legitimate probative value of the materially different

evidence presented at trial. The alternative purpose and the changed factual showing required

consideration together. The court never performed that task in response to King’s renewed

objection. The majority’s alternative ground cannot inherit the probative value of facts the jury

never received.

Spencer does not resolve the changed evidentiary showing here. There, the Supreme

Court rejected a requirement that the other crimes be “virtual carbon copies of the case on trial,”

but retained the requirement of “a singular strong resemblance to the pattern of the offense

charged.” 240 Va. at 90 (quoting United States v. Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989)).

The comparison rested on evidence that all four victims had suffered forcible rape and sodomy

and died by ligature strangulation; each had been found with her hands tied, and in three cases,

the neck ligature was connected to those bindings. Id. at 88. The crimes occurred within 90

days, and serological and DNA evidence further connected the defendant to them. Id. at 88-89.

Although the ligature materials and certain characteristics of the victims differed, the Court

concluded that the demonstrated similarities and scientific evidence supported the trial court’s

balance. Id. at 91.

- 36 -King’s objection did not require two crimes to be identical. It required the court to assess

the comparison that remained after the Commonwealth omitted evidence underlying the original

ruling. R. 944-47. Differences within an established pattern and missing proof of the asserted

pattern present different questions. The absence of Kloshen’s autopsy did not foreclose every

circumstantial inference concerning her death, but it left the court to determine whether the

remaining evidence still established a sufficiently probative connection to Walters’s killing.

R. 892-93, 903. Spencer’s rejection of exact correspondence did not answer that question.

Guill directly addresses why invoking intent does not resolve that difficulty. There, the

disputed element was the defendant’s intent in entering a dwelling. 255 Va. at 139. The

Commonwealth offered evidence of an earlier burglary and attempted rape to prove an intent to

rape in the charged burglary. Id. at 137-38. This Court affirmed admission for the “narrow

purpose of proving, elucidating, or explaining [the defendant’s] intent.” Id. at 138 (alteration in

original). The Supreme Court reversed. It required “a causal relation or logical and natural

connection between the two acts,” or acts forming parts of one transaction, and held that the prior

offense was not probative of the charged intent. Id. at 140-41 (quoting Barber v.

Commonwealth, 182 Va. 858, 868 (1944)). That an earlier offense demonstrated criminal intent

on that occasion did not establish the necessary connection to the later offense.

The Guill Court then separately addressed the asserted similarities under Spencer.

Assuming without deciding that the identity-based test applied when the perpetrator’s identity

was known, it held that the crimes lacked the necessary idiosyncratic characteristics. Guill, 255

Va. at 141. Both involved entry into a home and the bedroom of two girls, and both involved a

threat. Id. Yet the earlier offense involved attempted rape and physical contact; the charged

offense did not. Id. The threats also differed, and “conduct of this nature unfortunately is

common, rather than idiosyncratic, in this type of crime.” Id. The evidence, therefore, “lacked a

- 37 -logical relationship to the offense charged” and “showed only the defendant’s propensity to

commit the crime charged.” Id. Guill thus requires an explanation of how the earlier crime

proves the disputed intent without relying on a disposition to commit such crimes. Id. at 140-41.

Turner v. Commonwealth, 259 Va. 645 (2000), similarly requires consideration of the

demonstrated pattern of distinctive acts as a whole. The crimes need not constitute a “signature,”

but must bear a “singular strong resemblance” and be “sufficiently idiosyncratic to permit an

inference of pattern for purposes of proof.” Id. at 651 (quoting Chichester v. Commonwealth,

248 Va. 311, 326-27 (1994)). The shared circumstances there included approaching victims as

they entered vehicles at shopping centers, handling their driver’s licenses, directing them not to

look at the attacker, using their vehicles to take them elsewhere, raping them, requiring them to

wait before leaving, and leaving their keys outside the vehicles. Id. at 652-53. The Supreme

Court rejected reliance on isolated differences in the victims’ ages and races and the locations of

the attacks because those facts had to be considered with the “entire record.” Id. at 653.

The same approach requires consideration of what the comparison here actually

establishes. The missing autopsy findings and account of the encounter concern the asserted

sexual assault and mechanism of death themselves. The rope restraints and bite marks described

by Belcik also bear directly on the manner of attack. R. 892-93. King specifically contrasted

those injuries with the charged offense and noted that Kloshen was found on a bed while Walters

was found on a sofa. R. 946. Neither a difference in furniture nor any single dissimilarity

independently decides admissibility. However, these circumstances cannot be dismissed as

immaterial differences while the missing details of the earlier attack are supplied by assumption.

At minimum, whether those remaining similarities established a comparably probative

connection required the trial court’s assessment; it was not an undisputed premise that could be

supplied for the first time on appeal.

- 38 -Quinones v. Commonwealth, 35 Va. App. 634 (2001), which the majority invokes in its

discussion of remoteness, directly addresses the use of an earlier offense to establish disputed

intent. Maj. Op. at 12. There, the defendant admitted applying lotion to a child but denied

acting with sexual intent. Quinones, 35 Va. App. at 638, 640. The Commonwealth introduced

evidence of different sexual misconduct involving another child approximately 20 years earlier.

Id. at 638, 641. Although both incidents involved sexual misconduct concerning a child, the

earlier incident “did not negate good faith, mistake or accident” and instead tended to show a

predisposition to commit such offenses. Id. at 641. Applying Guill, this Court held that the

evidence established “no causal relationship or logical connection” to the charged crimes and

was inadmissible to prove the disputed intent. Id. at 641-42.

Quinones did not establish a numerical limit on remoteness or require identical offenses.

It required a permissible connection between the earlier conduct and the intent at issue in the

charged offense. Id. Here, King asked the court to assess whether the trial presentation

established that connection after the Commonwealth omitted medical findings and circumstances

of the encounter underlying the original ruling. R. 380-82, 406, 903, 944-47. The existence of

the Ohio murder conviction did not itself resolve that question. R. 898.

King’s own statements must also be considered. King told the police that he had “flipped

out before” and referred to the Ohio murder. R. 130. The Ohio detective recounted his reference

to having “just murdered someone.” R. 895. Those statements are incriminating. However, the

comparison that the majority relies on must be read in context: “I did the same thing that I am

doing right now. When I found her, I just turned myself in.” R. 131; Maj. Op. at 9-10. The

second sentence identifies surrender as the conduct being compared. Even if the statement

supports a broader inference that King associated the two incidents, it does not describe a shared

method of attack, supply the missing Ohio medical findings, or identify premeditation. The fact

- 39 -that he reported both deaths warrants consideration, but its bearing on the mental state preceding

Walters’s death must still be explained. It cannot substitute for the omitted circumstances of the

earlier killing.

Lafon v. Commonwealth, 17 Va. App. 411, 419 (1993), similarly makes factual relevance

the starting point—“Once factual relevance has been established, the trial court may consider

remoteness as one of the factors [governing admissibility].” There, the prior conduct was

probative because it supplied a “blueprint” for the charged crime, and the Commonwealth

presented evidence that the plan had come to fruition. Id. at 418-19. Although remoteness alone

should not exclude otherwise relevant evidence unless the passage of time has diminished its

probative value, that principle presupposes an established factual connection. Id. at 419. It does

not supply the connection itself.

The nearly 34-year interval does not create an automatic bar, but Turner does not remove

its significance. Turner held that a trial court “may consider the length of time that a defendant

has been incarcerated” between offenses. 259 Va. at 652-53. There, the prior crimes occurred

“during the last four years that Turner was not incarcerated” before the charged offenses. Id. at

653. Here, the Commonwealth represented that King had received a sentence of 15 years to life

and served 20 years. R. 377. The motions judge proceeded on the understanding that King “got

out I guess in 2010-ish,” leaving “roughly ten years” before the later killing. R. 407. Even

accepting that understanding, the interval after release was appreciably longer than the period

outside prison in Turner. More fundamentally, incarceration may explain a lapse in

opportunities to offend but does not establish the missing factual connection between the

offenses. Turner considered remoteness after identifying the distinctive pattern actually proved.

Kenner does not establish that a general resemblance between crimes suffices merely

because the evidence is offered for a permissible purpose. It held that the pornography titles at

- 40 -issue were relevant to the defendant’s “conduct or attitude towards the victim, motive, method

and intent.” 299 Va. at 427. The victim testified that Kenner showed her adult pornography

while sexually touching her, and the child pornography downloads occurred during the period

she lived with him. Id. at 419-20. The Supreme Court explained that the assaults “mirrored or

were closely akin to the titles” and that those titles bore on the required lascivious intent. Id. at

426-27. Thus, Kenner did not dispense with a factual connection to the charged conduct. It

identified that connection in the evidence presented.

The handling of the evidence in Kenner is equally instructive. Although the pretrial

ruling allowed images or evidence of child pornography, at trial, the court refused, over the

Commonwealth’s objection, to permit the jury to see the photographs and videos. Id. at 419-20.

It allowed the titles. Id. at 420. In affirming, the Supreme Court stressed that “the trial court

balanced the probative value of the evidence against its prejudicial effect and only allowed the

titles” to be admitted. Id. at 427. The deference followed an actual assessment of the evidence

admitted. Here, the trial court declined the requested reassessment after the Commonwealth’s

presentation materially changed.

The majority’s reliance on Kenner’s statement that a defendant has no right to “sanitized”

evidence must be read in that context. Maj. Op. at 11. Kenner held that a defendant cannot bar

relevant evidence simply by taking the position that the offense did not occur and intent is

therefore not genuinely disputed. 299 Va. at 426. Kenner then quotes Scott concerning

circumstances “[w]here a course of criminal conduct is continuous and interwoven, consisting of

a series of related crimes.” Id. at 426-27 (alteration in original) (quoting Scott v. Commonwealth,

228 Va. 519, 526 (1984)). That proposition does not itself establish the necessary connection

here. Nor does it dispense with the required balance. Kenner immediately reaffirmed that “the

- 41 -legitimate probative value of the evidence must exceed its incidental prejudice.” Id. at 427

(quoting Rose v. Commonwealth, 270 Va. 3, 11 (2005)).

The loss of evidence concerning the earlier encounter, cause of death, and particular

sexual injuries materially diminished the legitimate probative value of the comparison without

comparably diminishing the prejudice from presenting a prior murder to a jury deciding whether

King committed premeditated murder. The conviction and account of the Ohio scene remained,

while much of the evidence invoked to justify their admission did not. Rule 2:404(b) required

assessment of that combination. The majority cannot defer to the pretrial balance as though its

factual basis was unchanged, and alternative affirmance cannot supply the disputed premises and

discretionary assessment the trial court declined to undertake.15

III. The error was not harmless.

Code § 8.01-678 precludes reversal “[w]hen 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.” For nonconstitutional evidentiary error, the question is “whether the

alleged error substantially influenced the jury.” Haas v. Commonwealth, 299 Va. 465, 467

(2021) (quoting Clay v. Commonwealth, 262 Va. 253, 259 (2001)). That inquiry considers the

potential effect of the challenged evidence in light of all the evidence presented. Id. This Court

15

The concurrence’s doctrine-of-chances analysis rests on the similarities it identifies between the two deaths. However, in this case, Kloshen’s autopsy was not admitted, so the trial evidence did not establish her cause of death. R. 903, 944. Although the scene evidence permitted certain inferences from the pillow over Kloshen’s face and her visible injuries, an inference based on the improbability of repeated events necessarily depends on the evidentiary support for the circumstances being compared. R. 884, 892-93.

More fundamentally, the doctrine does not resolve the error identified here—the trial court’s failure to reassess admissibility based on the evidence actually presented at trial. King specifically asked the court to reassess the probative value and prejudice of the Ohio evidence in light of the materially different trial presentation. R. 944-47. The court instead relied on the motion judge’s earlier ruling without undertaking the requested assessment of the evidence actually presented. R. 947. The concurrence’s doctrine-of-chances rationale cannot substitute for that necessary assessment.

- 42 -must be able to conclude with “fair assurance . . . that the judgment was not substantially swayed

by the error.” Carter, 293 Va. at 546 (quoting Adams v. Commonwealth, 275 Va. 260, 277-78

(2008)).

The existence of sufficient evidence to convict does not answer that question. Since the

trial court did not determine whether the evidence actually presented satisfied Rule 2:404(b), the

Commonwealth cannot rely on a ruling that was never made to show that the jury weighed only

properly admitted evidence. Whether the Ohio evidence could survive the Rule 2:404(b)

balancing test is for the trial court to determine on retrial. The question here is whether evidence

admitted without that determination substantially influenced the verdict.

The Commonwealth presented substantial evidence of a violent killing. Dr. Masian, the

medical examiner, identified asphyxia as Walters’s cause of death and found evidence of both

smothering and strangulation. R. 1177-78, 1191. Deep bruising near the esophagus indicated “a

pretty strong amount of force.” R. 1163. She testified, “I think anybody would have died from

being strangled and smothered,” and explained that a healthy, athletic person might have

survived only a few seconds longer. R. 1188. The majority also recounts King’s statement that

Walters was “dying anyway” and his decision to smoke and drink coffee before reporting her

death. Maj. Op. at 2-3. Those circumstances support the jury’s verdict. Harmless error analysis

nevertheless must address the disputed mental state for which the Ohio evidence was introduced.

The jury instructions make that distinction concrete. The jury could find second-degree

murder if the Commonwealth proved a malicious killing but failed to prove that it was “willful,

deliberate, and premeditated.” R. 747-48. It could find involuntary manslaughter if the killing

was unintended but resulted from the criminal negligence described in the instruction.

R. 748-49. The court also instructed that intoxication rendering King “incapable of deliberating

or premeditating” precluded first-degree murder. R. 752. Defense counsel expressly argued that

- 43 -the death was unplanned and that sexual activity could have gone wrong. R. 770-73. Counsel

also invoked King’s statement that he had “flipped out once before” to argue that the killing was

unplanned. R. 774. The existence of lesser-offense instructions does not itself establish

prejudice, but it identifies the decision on which the challenged evidence could operate even if

the jury concluded that King caused Walters’s death.

The medical testimony does not eliminate that concern. Dr. Masian stated, “I don’t know

whether it was smothering, strangulation or both and I can’t tell what order they occurred in.”

R. 1190. She immediately clarified: “I saw evidence at autopsy that she was both smothered and

strangled.” R. 1191. Her uncertainty concerned which mechanism was ultimately dominant and

the order in which they occurred; it did not suggest a natural death or establish that Walters’s

death was accidental. R. 1190-91. She also acknowledged that some injuries could have

occurred during rough sexual play, answering, “Some of them perhaps.” R. 1191. On further

questioning, she explained that she had never encountered a death from such sexual activity

involving a couple. R. 1192. The force and injuries could support an inference of premeditation,

which need not exist for any particular length of time. R. 750. However, proof of fatal violence

did not make the evidence offered to distinguish premeditated murder from the lesser offenses

inconsequential.

The limiting instruction also did not remove that concern. At the close of evidence, the

court told the jury it could consider the Ohio conviction to show “motive, opportunity,

preparation, plan, knowledge, identity, absence of mistake, accident, or if part of a common

scheme or plan.” R. 752-53. It added, “You may not consider it for any other purpose.” R. 753.

The authorized purposes included plan and common scheme or plan, although the motions judge

had specifically stated, “I don’t see how they could argue it was a plan or a common plan,” and

explained that he was instead “focused . . . on modus operandi.” R. 389, 392.

- 44 -The presumption that jurors follow instructions addresses compliance with the instruction

given; it does not establish that the uses the instruction authorizes are supported by the

evidence.16 Williams relied on an instruction confined to identity, premeditation, and the “unique

nature of the method of committing the crime charged.” 85 Va. App. at 732, 739-40. Here, a

juror following the instruction could consider the Ohio murder as evidence of a plan, precisely

the use the prosecutor urged in closing. R. 753, 765. The instruction, therefore, does not

establish that the Ohio evidence lacked substantial influence on the jury’s choice of first-degree

murder. Its breadth bears on the effect of the challenged evidence under Code § 8.01-678; it

supplies no independent ground of instructional error for reversal.

The Commonwealth’s closing argument illustrates the problem. The prosecutor told the

jury not to reason, “He committed murder before; therefore, he’s guilty of this murder.” R. 765.

However, she then explained that the Ohio evidence established his modus operandi and

continued: “This is his plan. This is what he does. This is no accident, and this is no mistake,

what he’s done to these—both of these women.” R. 765. She identified similarities between the

two scenes and urged a first-degree murder conviction. R. 765-66. The disclaimer does not

eliminate the effect of an argument inviting the jury to resolve the disputed mental state by

reference to what King “does.” Thus, the Commonwealth used the prior murder to establish

planned and intentional conduct through the asserted pattern. Without the necessary connection,

16

In McGowan v. Commonwealth, 274 Va. 689, 693 (2007), the jury received a limiting instruction authorizing consideration of other-crime evidence only for intent, opportunity, or absence of mistake or accident. The Supreme Court nevertheless reversed, holding that evidence of the defendant’s subsequent cocaine possession had “little, if any, tendency” to establish her knowledge of cocaine at the time of the charged offense and was “unduly prejudicial.” Id. at 696. In rejecting the Commonwealth’s use of extrinsic evidence to contradict the defendant on a collateral matter, the Court described that evidence as “highly inflammatory and misleading to a jury” and “lacking in serious probative value.” Id.

- 45 -the assertion “[t]his is what he does” invites the disposition-based inference Rule 2:404(b)

prohibits.

The Commonwealth also relies on jury selection and the stipulation’s omission of King’s

plea as safeguards. A’ee Br. at 36-37. Even accepting its account of those precautions, they do

not establish that the Ohio evidence had no substantial influence. A juror could honor the

presumption of innocence and still rely heavily on a comparison that the court’s instruction

authorized and the prosecutor presented as proof of a plan. Similarly, the stipulation’s omission

of the plea did not remove the fact that King had already been convicted of murdering another

woman. R. 898. The relevant concern is the use of that evidence to decide this killing’s

character and degree.

Nor do King’s references to Ohio make the additional evidence merely cumulative. Even

treating his statements as independently admissible, the detective’s testimony, crime scene

photographs, and stipulation supplied a detailed presentation beyond King’s brief references to

having “flipped out” and turning himself in. R. 130-31, 884, 890, 892-98.17 The

Commonwealth used those additional details to argue a pattern and returned to King’s

comparison in rebuttal. R. 765-66, 781. His statements and conduct after Walters’s death were

incriminating, but they did not expressly admit the premeditation required for a conviction of

first-degree murder. The Ohio presentation supplied the asserted pattern from which the

Commonwealth asked the jury to infer that mental state.

Given the Commonwealth’s reliance on that presentation to establish a plan and reject

accident, I cannot conclude “with fair assurance” that the first-degree murder verdict “was not

substantially swayed by the error.” Carter, 293 Va. at 546 (quoting Adams, 275 Va. at 277-78).

17

Exhibit 21, which contained those statements, was received without objection, though King had lodged a standing objection to “any of the evidence or mention or reference to the murder in 1986.” R. 866, 1019-20.

- 46 -IV. CONCLUSION

The trial court declined to decide whether the Ohio evidence remained admissible after

the Commonwealth’s presentation materially changed. The majority cannot sustain that refusal

by supplying the disputed factual premises and discretionary balance itself in the first instance.

The challenged evidence was used to resolve the mental state distinguishing premeditated

murder from the lesser offenses before the jury, and the breadth of the instruction did not

eliminate the resulting prejudice. On this record, the error cannot be treated as harmless under

Code § 8.01-678. King’s first-degree murder conviction should be reversed, and the case

remanded for a new trial on that charge.

For these reasons, I respectfully dissent.

- 47 -