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Date: 02-01-2020

Case Style:

Shannon Shamar Cousett v. Commonwealth of Virginia

Case Number: 0967-18-1

Judge: ROBERT J. HUMPHREYS

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: Mason Williams, Assistant Attorney General (Mark R. Herring, Attorney General; Kelsey M. Bulger, Assistant Attorney General, on brief)

Defendant's Attorney:

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Need help finding a lawyer for representation concerning appealing a conviction for one count of rape; one count of abduction; burglary with the intent to commit larceny/assault/battery, and burglary with the intent to commit rape/robbery/murder, also charged with assault and battery in Virginia?

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On August 6, 2016, at approximately 9:30 p.m., T.H. woke up “to a man [she] did not
know inside of [her] in [her] bed.” T.H. clarified that her characterization of the incident meant
that the unknown man forced his penis inside her vagina. T.H. described the man as a “[t]all
African-American” man with a “black do-rag on his head.” After waking up to the assault, T.H.
screamed, yelled, and chased the man out of her apartment. As T.H. chased the man, T.H. saw
him grab a white bag by the front door of the apartment. T.H. later observed that she was
missing fifty dollars, a money order, and a beer from her refrigerator. T.H. was unable to
identify her assailant.
Approximately ten minutes before the assault took place, T.H.’s neighbor, N.B., observed
a black male standing on the stairs of the apartment complex, wearing all-black clothing and a
black “do-rag.” He also described that the black male was carrying a white “book bag.” A few
minutes later, N.B. witnessed the same black male walk out of T.H.’s apartment building at a fast
pace and followed by T.H. According to N.B., T.H. “started breaking down into tears” and
stated, “I woke up and he was next to me.” N.B. later identified the black male as Cousett, both
in a photo lineup and at Cousett’s trial. Detective Jeffrey Michael Oglesby (“Detective
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Oglesby”) of the Virginia Beach Police Department administered the photo array to N.B. the
night of the assault on T.H.
Approximately two hours after the assault on T.H., and within half a mile of T.H.’s
apartment, Cousett entered I.P.’s apartment. At the time, I.P. was sitting on her sofa, and her
front door was unlocked. I.P. described Cousett as “a little bit over average height,”
African-American, and in his mid-to-late forties or early fifties. I.P. also stated that Cousett was
wearing dark clothing and had a “cream colored bag slung over his . . . right shoulder.” I.P.
described that after Cousett entered her apartment, Cousett “latche[d] the door closed and he
turn[ed] around and [said] shh to [her].” I.P. subsequently ran to the door to unlatch it. Cousett
repeatedly punched I.P. on the right side of her head, “four to six” times, until I.P. was able to
unlatch the door. When I.P. twisted the door handle to open it, Cousett pushed the door open and
ran out of the apartment. I.P. was unable to identify Cousett in a photo lineup, but she identified
Cousett as her assailant at Cousett’s preliminary hearing and trial.
Canvassing the area of the two incidents later that night, Officer William Patrick Ahern,
Jr. (“Officer Ahern”), of the Virginia Beach Police Department discovered a white “drawstring”
bag on a bench in the “convention center area,” approximately a quarter of a mile from I.P.’s
apartment. After Officer Daley of the Virginia Beach Police Department arrived on the scene,
Officer Ahern observed a cell phone, money, and Cousett’s identification card inside of the bag.
Additionally, Officer Ahern observed two red spots on the outside of the bag that he believed to
be blood stains.
On February 6, 2017, a grand jury indicted Cousett on multiple charges stemming from
the night of August 6, 2016. Regarding the incident involving T.H., the grand jury charged
Cousett with one count of rape of T.H. and burglary with the intent to commit
rape/robbery/murder. Regarding the incident involving I.P., the grand jury charged Cousett with
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one count of abduction and burglary with the intent to commit larceny/assault/battery. Cousett
was also charged with one count of assault and battery against I.P.
Before trial, Cousett moved to sever the charges involving T.H. from those involving I.P.2 On May 22, 2017, following a hearing, the circuit court denied Cousett’s motion.3 Cousett
subsequently pleaded not guilty to all charges against him.
A bench trial took place on December 5, 2017. There, the Commonwealth called eight
witnesses, including T.H., N.B., I.P., Officer Ahern, and Detective Oglesby. Cynthia James
(“James”), a security officer at the Virginia Beach Convention Center, also testified for the
Commonwealth. James worked the night shift from approximately midnight to 8:00 a.m. James
testified that sometime during the night of August 6, 2016, she witnessed two Virginia Beach
police officers retrieve a white bag from a bench outside of the convention center. James also
testified that later that same night, an African-American male, around “forty-ish” with a bald
head and dark clothing, rang the convention center’s doorbell. James explained that the man
asked her “if [she] seen [sic] his white bag” or “if any of [her] guards saw the bag.”
Officer Ryan Daniel Coon (“Officer Coon”) of the Virginia Beach Police Department
testified at the trial about a consensual encounter with Cousett a few days prior to the attacks on
T.H. and I.P. Specifically, Officer Coon testified that on August 3, 2016, at approximately
3:45 a.m. he spoke with Cousett behind a closed business. The consensual encounter took place
2 Although the Commonwealth filed a written response to Cousett’s motion for severance, Cousett never filed a written motion to sever.
3 After denying Cousett’s motion to sever, the circuit court noted that it would be willing to revisit the motion if Cousett was “successful in a pretrial motion or a motion in limine of some type in excluding that evidence that you were hoping at some point to exclude.” Cousett, however, never filed any pretrial motions seeking to limit the circuit court’s consideration of any evidence. Therefore, to the extent that Cousett now argues that the evidence adduced at trial would not have been admissible in separate trials, consideration of that argument is barred pursuant to Rule 5A:18.
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in the vicinity of where the crimes against T.H. and I.P. occurred a few days later. Officer Coon
described Cousett as wearing a black t-shirt, a tan hat, and khaki shorts. Officer Coon also noted
that Cousett was carrying a “white bag.” Officer Coon, however, neither observed nor had any
interaction with Cousett on August 6, 2016.
At the conclusion of the Commonwealth’s evidence, Cousett made what the circuit court
recognized as a motion to strike and renewed motion to strike the evidence incorporated into his
closing argument. The circuit court, however, denied Cousett’s motion to strike and found
Cousett guilty of all charges. On May 30, 2018, the circuit court sentenced Cousett to a total of fifty years and 365 days in prison, with ten years suspended.4 This appeal follows.
II. ANALYSIS
A. Standard of Review
“The question whether an accused, pursuant to Rule 3A:10(c), can be tried in a single
trial for all offenses then pending against that defendant is a matter resting within a trial court’s
sound discretion.” Commonwealth v. Minor, 267 Va. 166, 172 (2004) (citing Cheng v.
Commonwealth, 240 Va. 26, 33 (1990)). Accordingly, “[t]he circuit court’s decision to join
offenses for trial is reviewed for abuse of discretion.” Walker v. Commonwealth, 289 Va. 410,
415 (2015) (citing Scott v. Commonwealth, 274 Va. 636, 644 (2007)). A lower court’s
interpretation and application of the Rules of the Supreme Court, however, presents a question of
law that we review de novo. See id. (citing LaCava v. Commonwealth, 283 Va. 465, 471
(2012)).

4 The circuit court sentenced Cousett to ten years in prison for the abduction charge, specifically, but suspended all of that sentence.
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B. Joinder of Offenses
Rule 3A:10(c) states that “[t]he court may direct that an accused be tried at one time for
all offenses then pending against him, if justice does not require separate trials and (i) the
offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s
attorney consent thereto.” Here, because Cousett did not consent to be tried in a single trial for
the charged offenses, “the Commonwealth was required to establish both of the two other
conditions of Rule 3A:10(c), namely, that the offenses satisfied the requirements of Rule
3A:6(b), and that justice did not require separate trials.” Scott, 274 Va. at 644.
Rule 3A:6(b), in turn, provides that two or more offenses may be joined in a single
indictment “if the offenses are based on the same act or transaction, or on two or more acts or
transactions that are connected or constitute parts of a common scheme or plan.” Notably, “[o]ur
Supreme Court has held that the terms ‘common scheme’ and ‘common plan’ are not
synonymous.” Stickle v. Commonwealth, 68 Va. App. 321, 339 (2017) (some internal quotation
marks omitted) (quoting Scott, 274 Va. at 645). However, neither are they mutually exclusive.
Scott, 274 Va. at 646. In Scott, our Supreme Court defined both terms for the first time. A
common scheme is composed of “crimes that share features idiosyncratic in character, which
permit an inference that each individual offense was committed by the same person or persons as
part of a pattern of criminal activity involving certain identified crimes.” Id. at 645 (citations
omitted). A common plan consists of “crimes that are related to one another for the purpose of
accomplishing a particular goal.” Id. at 646 (citations omitted). Further, our Supreme Court has
stated that “offenses may be considered parts of a common scheme or plan when they are
‘closely connected in time, place, and means of commission,’” all of which supports the use of a
single trial. Walker, 289 Va. at 416 (quoting Satcher v. Commonwealth, 244 Va. 220, 229
(1992)).
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While somewhat disjointed, Cousett’s argument proceeds on two fronts. First, Cousett
argues that the circuit court erred in permitting the joinder of his charges because the evidence
did not show “enough” of a common scheme or plan. Second, Cousett argues that justice
required separate trials because the Commonwealth improperly used I.P.’s identification to
bolster the T.H. case. More specifically, Cousett relies upon T.H.’s inability to identify her
assailant to argue that the Commonwealth utilized I.P.’s identification “to taint the [T.H.] case
and provide a nonexistent identification.” Accordingly, Cousett argues that the circuit court’s
failure to sever the charges involving T.H. from those involving I.P. amounted to an abuse of
discretion.
As a preliminary matter, the Commonwealth contends that “[h]ere, the offenses were
connected, and also constituted a common scheme.” Presumptively, the Commonwealth
intended to suggest that the charged offenses were either “based . . . on two or more acts or
transactions that are connected” or part of a common scheme. See Rule 3A:6(b). The
Commonwealth’s supporting argument and analysis, however, limits the argument to only the
“common scheme” requirement under Rule 3A:6(b). Accordingly, we disregard any argument
by the Commonwealth suggesting that the charges against Cousett resulted from the same acts or
transactions. See Rule 5A:21(d).
The Commonwealth was required to establish that the charges against Cousett were
“closely connected in time, place, and means of commission.” Walker, 289 Va. at 416 (quoting
Satcher, 244 Va. at 229). Here, we conclude that, while connected in time and place, there were
insufficient commonalities in the “means of commission” to support a common plan. In looking
at the similarities between the actions committed by the perpetrator in both the T.H. and I.P.
cases, there are not enough points of commonality to warrant joinder of the trials. The
Commonwealth’s evidence reflects that Cousett entered I.P.’s apartment, located less than half a
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mile from T.H.’s apartment, approximately two hours after breaking into T.H.’s apartment and
raping her. However, the only evidence presented by the Commonwealth to establish a common
plan was that Cousett entered the residences of two female victims through closed but unlocked
front doors. Beyond those two points of similarity, both the indictments and the evidence reflect
that the nature of the offenses committed during the two incidents are different.
The purpose of Rule 3A:10(c) is to strike a balance between judicial economy and the
danger of unfair prejudice. See Godwin v. Commonwealth, 6 Va. App. 118, 123 (1988) (“The
efficiency promoted by joinder of offenses does not outweigh the harm caused by the
introduction of inadmissible evidence of another crime.” (emphasis added)). The purpose of a
joint trial is not to bypass the requirement of presenting evidence establishing the identity of the
perpetrator for each offense as may be done with other crimes evidence under Virginia Rule of
Evidence 2:404(b). There is no indication that Cousett entered I.P.’s apartment with the intent to
sexually assault her as was the case with T.H., and he was not charged to that effect. In fact, as
soon as I.P. unlatched the door Cousett ran off the premises.
The Commonwealth’s argument that the offenses were similar because Cousett entered
the apartments of two women through closed, unlocked front doors is the only commonality in
these incidents and is insufficient to join the offenses for trial because “the methods employed in
each [offense] were ‘not unusual,’ and the transactions were not ‘connected’ within the meaning
of Rule 3A:6(b).” Purvis v. Commonwealth, 31 Va. App. 298, 306 (2000). Thus, these two
similarities in the means of commission between the two incidents are insufficient to tie the
offenses together as a common scheme and the circuit court erred in so holding.
C. Harmless Error
Although the circuit court’s denial of Cousett’s motion to sever was error, the error does
not necessarily require reversal. See id. at 307. “Errors, defects, irregularities or variances that
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do not affect substantive rights shall not constitute reversible error.” Rule 3A:2(a). Because
Cousett “alleges only a violation of Rule 3A:10, we apply the standard for determining whether
non-constitutional error is harmless.” Purvis, 31 Va. App. at 308.
“Non-constitutional error is harmless ‘[w]hen it plainly appears from the record and
evidence given at trial that the parties have had a fair trial on the merits and substantial justice
has been reached.” Id. (alteration in original) (quoting Code § 8.01-678). In determining
whether an error is harmless, we “must review the record and the evidence and evaluate the
effect the error may have had on how the finder of fact resolved the contested issues.” Id.
(quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1007 (1991) (en banc)).
As noted, and emphasized above, the purpose of the rule limiting joinder of trials is to
prevent the harm caused by the introduction of otherwise inadmissible evidence of another crime
and not to bypass the requirement of presenting evidence establishing the identity of the
perpetrator for each offense.
“Ordinarily, error in refusing to sever offenses is harmless if evidence related to each of
the counts would have been admissible in a separate trial of any of the other counts.” Id.
“Conversely, such error may not be harmless if evidence related to each of the counts would
have been inadmissible in a separate trial of any of the other counts.” Id. This rule recognizes
that “in a jury trial, ‘the introduction of admissible evidence of another crime . . . confuses one
offense with the other, . . . and, by showing that the accused has a criminal propensity, tends to
reverse his presumption of innocence.’” Id. at 308 (alterations in original) (internal quotation
marks omitted) (quoting Godwin, 6 Va. App. at 123).
“However, ‘in a bench trial, the trial judge is presumed to disregard prejudicial or
inadmissible evidence, and this presumption will control in the absence of clear evidence to the
contrary.’” Id. at 309 (quoting Hall v. Commonwealth, 14 Va. App. 892, 902 (1992) (en banc)).
- 10 -
In a bench trial, an erroneous refusal to sever offenses is harmless “absent clear evidence that the
trial court (1) considered inadmissible evidence in convicting the accused of the charged
offenses, or (2) used the ‘harmless error doctrine . . . prospectively . . . as a basis to disregard an
established rule of law.’” Id. at 310 (internal citation omitted) (quoting Hackney v.
Commonwealth, 28 Va. App. 288, 296 (1998) (en banc)).
Here, it is clear that evidence of the crimes committed against I.P. and I.P.’s
identification of Cousett as her assailant would have been admissible at a separate trial for the
charges involving T.H. Pursuant to Virginia Rule of Evidence 2:404(b), such evidence would
have been admissible to show identity, among other things. That rule provides that although
“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,” the evidence may be
admitted “if it tends to prove any relevant fact pertaining to the offense charged, such as where it
is relevant to show motive, opportunity, . . . identity, absence of mistake, . . . or . . . a common
scheme or plan.” Va. R. Evid. 2:404(b) (emphasis added); see also Severance v.
Commonwealth, 67 Va. App. 629, 647 (2017). While the method of entering the two apartments
was insufficient to warrant joinder of the offenses as a common scheme, that fact combined with
the evidence that within a two-hour period an African-American male entered the closed and
unlocked front doors of two women, whose apartments were located approximately a quarter of a
mile from each other, while carrying a white bag would have been admissible “other crimes” evidence of identity had there been separate trials.5 Cousett does not assign error to the
5 We recognize that there appears to be an anomalous inconsistency between the Supreme Court’s Rule 3A:10(c) that limits the consideration of other crimes evidence for the purpose of joinder and that Court’s precedent permitting the admission of other crimes evidence to establish various facts in issue that necessarily renders harmless any error in a judgment permitting joinder where the evidence would be admissible in any event in a separate trial. As discussed above, the purpose of Rule 3A:10(c) is to strike a balance between judicial economy and the potential for

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sufficiency of the evidence, and this evidence would have been admissible in a separate trial on
the issue of identity for whatever weight the factfinder might choose to give it.
Thus, in the absence of affirmative evidence to the contrary, we are bound by the
presumption that the circuit court judge, acting as the finder of fact in this case, properly and
separately considered only the evidence relevant to the charges in each case. The erroneous
refusal to sever is therefore harmless unless there is clear evidence on the record that the trial
court either considered inadmissible evidence from T.H.’s case in convicting Cousett in the case
involving I.P. or vice versa. The time, location, and description and other details provided by
I.P. regarding her assault and assailant were relevant and admissible to corroborate the identity of
T.H.’s rapist. After reviewing the record under this standard, we conclude “that the parties have
had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678.

Outcome: For these reasons, we hold that although the circuit court erred in refusing Cousett’s motion to sever, the resulting error was harmless under the facts of this case. Therefore, we affirm Cousett’s convictions.

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