Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser and
Lemons, JJ., and Compton, S.J.
MICHAEL SANTEN
v. Record No. 021781 OPINION BY JUSTICE CYNTHIA D. KINSER
April 17, 2003
ROBERT TUTHILL, T/A WINCHESTER
FAMILY BILLIARDS, ET AL.
FROM THE CIRCUIT COURT OF CLARKE COUNTY
John R. Prosser, Judge
The primary issues in this appeal concern the
admissibility of certain evidence in a civil proceeding,
specifically: (1) a defendant’s guilty plea in general
district court when the defendant subsequently appeals the
conviction to circuit court; (2) the result of a
preliminary breath test; and (3) testimony of an expert
toxicologist. Because the guilty plea was annulled by the
appeal to circuit court and because there was not an
adequate foundation to support the admissibility of the
other evidence, we find no error in the circuit court’s
refusal to admit this evidence.
This case arose out of an alleged altercation between
Michael Curtis Santen, Sr., and Glenn Richard Wilfong. The
incident occurred when Wilfong was assisting Robert
Tuthill, Jr. (Tuthill, Jr.), in delivering and assembling a
billiard table at the home of Santen and Norma Katherine
DeSantos. Santen and DeSantos had purchased the billiard
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table from Robert Tuthill, Sr. (Tuthill, Sr.), t/a
Winchester Family Billiards. Tuthill, Sr., had asked
Wilfong to accompany Tuthill, Jr., on this occasion.
Wilfong had previously assisted the Tuthills in installing
billiard tables.
Approximately 20 minutes after arriving at the Santen-
DeSantos residence, Tuthill, Jr., realized that he needed
to return to the store to obtain the correct piece of slate
for the billiard table. While Tuthill, Jr., was away, a
disagreement arose between Santen and Wilfong which
resulted in DeSantos calling Tuthill, Sr., and informing
him that he needed to “get [Wilfong] out of [her] basement
and take the pool table pieces back.” Tuthill, Sr.,
instructed DeSantos to tell Wilfong to pack up his tools
and wait outside until Tuthill, Jr., returned. After
DeSantos told Wilfong to leave, the situation escalated,
and Wilfong allegedly struck Santen in the face with a
hammer.
Local law enforcement officers were dispatched to the
residence. They found Santen and Wilfong in the basement
of the house, with Wilfong lying on the floor and Santen
“over top of him.” One of the officers subsequently
administered a preliminary breath test to Wilfong, using a
“department issued . . . alcosensor.”
2
Wilfong was charged with a misdemeanor as a result of
the altercation. He pled guilty to the charge in general
district court. Wilfong, however, subsequently appealed
his conviction to circuit court where he pled not guilty. 1
Santen then filed an amended motion for judgment
against Wilfong and Tuthill, Sr., t/a Winchester Family
Billiards, seeking monetary damages for his injuries
allegedly resulting from the altercation with Wilfong.
Prior to trial, the defendants filed motions in limine
asking the court, among other things, to exclude not only
testimony from Richard McGarry, an expert in the field of
toxicology, but also evidence that Wilfong had pled guilty
to the misdemeanor charge in general district court and
that his blood alcohol content, as measured by the
preliminary breath test, was 0.209. 2
After hearing argument on the motions, the circuit
court initially stated from the bench that it would allow
the numerical result of the preliminary breath test to be
admitted. However, the court revisited the motions on the
1
The records concerning the misdemeanor charge are not
part of the record in this appeal.
2
On brief, Santen uses the phrase “grams per liter of
breath” as the unit of measure for Wilfong’s blood alcohol
content. However, there is nothing in the record to verify
that “grams per liter of breath” was the unit of measure
for the preliminary breath test administered to Wilfong.
3
morning of trial and learned, for the first time, that
Wilfong’s blood alcohol content had been measured by a
preliminary breath test. Noting that the results of such
tests are inadmissible in a criminal prosecution, see Code
§ 18.2-267(E), the court observed that the issue here was
whether a different rule should apply in a civil case. The
circuit court concluded that results of preliminary breath
tests are inadmissible because “they’re not deemed to be
sufficiently reliable,” and that, therefore, the numerical
result of Wilfong’s preliminary breath test could not be
admitted into evidence. However, the court stated that
“[the officer] can testify that the test indicated that
[Wilfong] had consumed alcohol, . . . [b]ut the number and
readings . . . [are] inadmissible for any purpose[.]”
With regard to the other issues raised in the motions
in limine, the circuit court held that Santen could not
introduce evidence that Wilfong had pled guilty in general
district court to the misdemeanor charge. Finally, the
court concluded that Santen could “call Richard McGarry to
testify concerning, and limited to, the matters designated
by [Santen] in his expert designation herein.” Continuing,
the court held that “[a]lthough Richard McGarry [could]
testify concerning the effects of alcohol on the central
nervous system in general, he [would] not be permitted to
4
testify as to the effects alcohol did or may have had on
Defendant Wilfong specifically.” Despite the court’s
ruling that McGarry could testify with regard to certain
matters, Santen elected not to call him as a witness at the
trial.
At the conclusion of Santen’s evidence, counsel for
Tuthill, Sr., moved to strike the evidence, arguing that
Santen had not established the existence of an
employer/employee relationship between Tuthill, Sr., and
Wilfong. After hearing argument from counsel, the court
granted the motion. The trial then proceeded against only
Wilfong. A jury ultimately returned a verdict in favor of
Wilfong.
On appeal, Santen first argues that the circuit court
erred in excluding evidence concerning Wilfong’s guilty
plea in general district court. Santen contends that, if
Wilfong had not appealed his conviction to circuit court,
the guilty plea would have been admissible against him in
this subsequent civil proceeding pursuant to Code § 8.01-
418. 3 According to Santen, the appeal to circuit court
3
Code § 8.01-418 provides, in relevant part, that
“[w]henever, in any civil action, it is contended that any
party thereto pled guilty . . . in a prosecution for a
criminal offense . . . which arose out of the same
occurrence upon which the civil action is based, evidence
5
“merely vacat[ed] the judgment of the general district
court—it [did] not eradicate the record of the
proceedings.” Further, Santen asserts that, even if
evidence of the guilty plea was not admissible pursuant to
Code § 8.01-418, such evidence should have been admitted
either as a party admission or as a prior statement that
was inconsistent with Wilfong’s trial testimony that he had
acted in self-defense. We do not agree with Santen’s
position.
“Any person convicted in a district court of an
offense not felonious shall have the right . . . to appeal
to the circuit court” even when the conviction was based on
a plea of guilty. Code § 16.1-132. The appeal is heard de
novo in the circuit court. Code § 16.1-136. The purpose
of these statutes is to give an accused the benefit of a
new trial in the circuit court “unhampered and
unprejudiced” by the guilty plea entered in the district
court. Baylor v. Commonwealth, 190 Va. 116, 120, 56 S.E.2d
77, 79 (1949) (decided under former corresponding
statutes).
This Court has repeatedly held that the effect of an
appeal to circuit court is to “annul[] the judgment of the
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of said plea . . . as shown by the records of the criminal
court shall be admissible.”
6
inferior tribunal as completely as if there had been no
previous trial.” Gaskill v. Commonwealth, 206 Va. 486,
490, 144 S.E.2d 293, 296 (1965); accord Buck v. City of
Danville, 213 Va. 387, 388, 192 S.E.2d 758, 759 (1972);
Baylor, 190 Va. at 119-20, 56 S.E.2d at 78-79; Gravely v.
Deeds, 185 Va. 662, 664, 40 S.E.2d 175, 176 (1946). In
other words, the appeal to circuit court “annuls or wipes
out the former plea of guilty.” Baylor, 190 Va. at 120, 56
S.E.2d at 79. Thus, it is reversible error to permit the
former guilty plea and the judgment of the district court
to be introduced into evidence in the trial of the criminal
charge on appeal. Id.; Gravely, 185 Va. at 664, 40 S.E.2d
at 176.
Since an appeal under Code § 16.1-132 “annuls or wipes
out” a guilty plea entered in the district court, there no
longer exists a guilty plea that, otherwise, would be
admissible in a subsequent civil proceeding under the
provisions of Code § 8.01-418. We draw a distinction
between a guilty plea, which forms the basis of a district
court’s judgment, and a defendant’s statements made while
testifying before the district court. That testimony,
unlike a guilty plea, is not “wiped out” by an appeal and
is, therefore, admissible in the subsequent trial of the
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case. Harbaugh v. Commonwealth, 209 Va. 695, 700, 167
S.E.2d 329, 334 (1969).
Thus, we hold that a guilty plea entered in district
court that has been annulled by virtue of an appeal to
circuit court is not admissible in a civil proceeding,
either under the provisions of Code § 8.01-418, or as a
party admission or prior inconsistent statement.
Consequently, the circuit court did not err in excluding
evidence of Wilfong’s guilty plea.
Santen next argues that the circuit court erred in
excluding both the numerical result of Wilfong’s
preliminary breath test and McGarry’s testimony. 4 According
to Santen, this evidence, taken together, was relevant to
demonstrate the amount of alcohol consumed by Wilfong on
4
In the assignment of error regarding McGarry, Santen
initially stated that “The Trial Court Erred in Excluding
the Testimony of Richard McGarry, Plaintiff’s Specially
Retained Expert, who was to Testify Regarding the
Reliability of the Alcosensor used to Determine Wilfong’s
Blood Alcohol Content, and was to Testify how Defendant
Glenn Wilfong’s Elevated Blood Alcohol Content Affected his
Ability to Control his Actions, and his Ability to
Accurately Recollect the Events of that Night.” On brief,
Santen re-stated the assignment of error and added a phrase
that McGarry would testify “about the accuracy of the
Preliminary Breath Test Device and how much Vodka, Ingested
Five Hours Earlier, would be Required to Result in a Blood
Alcohol Content of 0.209 Grams Per Liter of Breath in a
person the Weight and Gender of Wilfong.” However, an
appellant may not change the wording of an assignment of
error. Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va.
40, 44, 445 S.E.2d 140, 143 (1994).
8
the evening in question, its effect on Wilfong’s ability to
control his actions and to observe and recall the events
that occurred at the Santen-DeSantos residence, and to
impeach Wilfong’s testimony that he had consumed only one
and one-half alcoholic drinks during the afternoon prior to
the altercation at issue. Santen also asserts that, while
Code § 18.2-267(E) provides that the result of a
preliminary breath analysis shall not be admitted into
evidence in any prosecution under Code §§ 18.2-266 and –
266.1, it does not exclude such evidence from all criminal
or civil actions.
During the initial hearing on the defendants’ motions
in limine and on the morning of trial, Santen proffered
McGarry’s testimony to the court. Santen stated that
McGarry would testify that, in order to have a blood
alcohol content of 0.209, Wilfong would have had to consume
more than one and one-half alcoholic drinks during the
five-to-six-hour period before the incident with Santen,
and that Wilfong’s level of intoxication would have
affected his ability to recall what happened at the Santen-
DeSantos residence. Santen further proffered that McGarry
would testify that the type of machine used to administer
the preliminary breath test “was accurate to a .005
9
percent, assuming it was regularly calibrated.” 5 However,
at no time did Santen proffer any evidence that the actual
machine used to test Wilfong had, in fact, been calibrated
or was accurate.
Similarly, Santen proffered that the police officer
who administered the preliminary breath test to Wilfong
would testify “that he used the machine that was in his
vehicle that was normally used in the course of his duties
as a police officer” and that Wilfong registered a blood
alcohol content of 0.209. During the police officer’s
trial testimony, he was not asked any questions about the
accuracy of the machine or whether it had been regularly
calibrated.
Expert testimony is generally admissible in a civil
case if it will assist the trier of fact in understanding
the evidence or determining a factual issue. Code § 8.01-
401.3; John v. Im, 263 Va. 315, 319, 559 S.E.2d 694, 696
(2002); Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d
5
In his expert designation, Santen stated that McGarry
would testify “as to the effect that alcohol will have on a
person who has a blood alcohol content of .209; the amount
of alcohol that is needed to cause a person with the age,
height and weight of Defendant Wilfong to reach a .209
blood alcohol content; and the effect a .209 blood alcohol
content would have in terms of the ability to control
conduct and emotions.” He also indicated that McGarry
would discuss the “method by which alcohol is measured by
10
645, 648 (2000); Tarmac Mid-Atlantic, Inc. v. Smiley Block
Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995).
However, admissibility depends on whether the expert
testimony satisfies certain fundamental requirements,
including the requirement that the testimony be based on an
adequate factual foundation. Countryside Corp. v. Taylor,
263 Va. 549, 553, 561 S.E.2d 680, 682 (2002); Tarmac, 250
Va. at 166, 458 S.E.2d at 465-66.
In this case, McGarry’s proffered testimony regarding
the effect of Wilfong’s alcohol consumption and the amount
of alcohol Wilfong would have had to consume was premised
upon the specific result of Wilfong’s preliminary breath
test. According to the proffer, the type of machine used
to administer the test was accurate, and thus also the
result, “assuming [the machine] was regularly calibrated.”
(Emphasis added.) But, there was no evidence, by way of
proffer or otherwise, that the machine actually used to
give Wilfong the preliminary breath test had been regularly
calibrated. Thus, neither McGarry’s testimony nor the
numerical result of Wilfong’s preliminary breath test was
based on an adequate factual foundation. For that reason,
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the type of equipment used on the evening in question by
the police who were involved in the incident.”
11
we conclude that the circuit court did not err in excluding
both McGarry’s testimony and the result of the preliminary
breath test. 6
Finally, Santen argues that the circuit court erred in
ruling as a matter of law that Tuthill, Sr., was not
vicariously liable for the actions of his servant, Wilfong.
However, “where master and servant are sued together in
tort, and the master’s liability, if any, is solely
dependent on the servant’s conduct, a verdict for the
servant necessarily exonerates the master.” Roughton
Pontiac Corp. v. Alston, 236 Va. 152, 156, 372 S.E.2d 147,
149 (1988) (citing Rakes v. Fulcher, 210 Va. 542, 549, 172
S.E.2d 751, 757 (1970); Whitfield v. Whittaker Mem’l Hosp.,
210 Va. 176, 183, 169 S.E.2d 563, 568 (1969); Monumental
Motor Tours, Inc. v. Eaton, 184 Va. 311, 314-15, 35 S.E.2d
105, 106 (1945); Virginia State Fair Ass’n v. Burton, 182
Va. 365, 368, 28 S.E.2d 716, 717-18 (1944); Barnes v.
Ashworth, 154 Va. 218, 228-30, 153 S.E. 711, 713-14
(1930)). Because the jury returned a verdict in favor of
Wilfong and because we find no reason, based on the
assignments of error presented in this appeal, to reverse
6
Because the evidence concerning the result of the
preliminary breath test was not based on an adequate
factual foundation, it is not necessary to reach the issue
12
the judgment of the circuit court, we need not address this
issue.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.
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whether such evidence would be admissible in a civil
action.
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