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 foster- care son. Over a two-week period, the infant “suffered instances of gasping