COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
ARTHUR CLEMENTS BROOKS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0366-00-2 JUDGE JEAN HARRISON CLEMENTS
MAY 15, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Lloyd C. Sullenberger, Judge
John R. Maus for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Arthur Clements Brooks, Jr., was convicted in a jury trial of
twenty counts of object sexual penetration of a minor in violation
of Code § 18.2-67.2 and in a bench trial of failure to appear in
court, a felony, in violation of Code § 19.2-128. On appeal, he
contends the trial court erred (1) in failing to instruct the jury
during the sentencing phase of the trial that parole in Virginia
has been abolished 1 and (2) in sentencing him for failure to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Brooks further asserts that the trial court erred in the
guilt phase of the trial when it failed to instruct the jury on
the legal consequences of their inability to agree on a verdict
in response to the jury's question, "We would like to be
informed about what happens if we are unable to come to a
decision. Will he be retried or released?" We do not address
this argument because we conclude that the issue of whether a
appear when he was never tried or convicted for that violation.
After examining the record, we conclude that, although the trial
court did err in failing to instruct the jury that parole has been
abolished in Virginia, that error was harmless. We further find
appellate review of Brooks's conviction for failure to appear
procedurally barred. Therefore, we affirm Brooks's sentence and
his convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
A. JURY INSTRUCTION ON ABOLIITON OF PAROLE
During the penalty phase of its deliberation, the jury asked
the trial court, "If a term is specified, how much time is
actually served?" Upon agreement of counsel, the trial court
responded to the jury's question as follows:
You should impose such punishment as you feel
is just under the evidence and within the
instructions of the court. You are not to
concern yourselves with what may happen
afterward. I ask that you take that to add
to the instructions that you will consider
and return to your jury room to deliberate.
The jury subsequently imposed five-year sentences on each of the
twenty sexual penetration convictions.
jury instruction on the abolition of parole should have been
given pursuant to Fishback v. Commonwealth, 260 Va. 104 532
S.E.2d 629 (2000), is the only one for which an appeal was
granted.
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Brooks concedes he posed no contemporaneous objection to and,
indeed, concurred in the trial court's response to the jury's
question. He contends, however, that the holdings in Fishback v.
Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), and Jerman v.
Commonwealth, 34 Va. App. 323, 541 S.E.2d 307 (2001), dictate that
this case be remanded for resentencing.
We noted in Jerman that the Supreme Court's decision in
Fishback, 260 Va. at 117, 432 S.E.2d at 635, provides that a
jury's knowledge of the abolition of parole is materially vital to
a defendant, at least in those cases in which the jury
specifically inquires during the penalty-determination phase of
the trial about the possible impact of parole. Jerman, 34 Va.
App. at 326-28, 541 S.E.2d at 308-09. Thus, when a jury inquires
about parole, the trial court has an affirmative duty to properly
instruct the jury on the abolition of parole, if applicable, and
the court's failure to do so is error, regardless of whether the
defendant failed to object or raise the issue at trial. Id.
Accordingly, neither Brooks's failure to object to the trial
court's deficient response to the jury's question nor his
concurrence in that response precludes our consideration of this
issue on appeal. We conclude, therefore, that the trial court
erred in failing to inform the jury about the abolition of parole
in Virginia.
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However, our inquiry does not end there. We must decide
whether the error requires us to vacate Brooks's sentence and
remand for resentencing.
A non-constitutional error by the trial court is harmless if
"it plainly appears from the record and the
evidence given at the trial that" the error
did not affect the verdict. An error does
not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding functions, that, had the error not
occurred, the verdict would have been the
same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (quoting Code § 8.01-678). "Each case must
. . . be analyzed individually to determine if an error has
affected the verdict." Id. at 1009, 407 S.E.2d at 913.
In this case, the jury returned verdicts of five years
incarceration on each charge of object sexual penetration of a
minor, the minimum sentence provided by statute. See Code
§ 18.2-67.2. We can conclude, therefore, without usurping the
jury's fact-finding function, that, had the jury been properly
instructed on the abolition of parole in Virginia, the penalty
verdict would have been the same. Accordingly, the error was
harmless and we affirm appellant's sentence.
B. CONVICTION FOR FAILURE TO APPEAR IN COURT
Brooks contends that the trial transcript from December 3,
1999, shows that he was not tried or convicted on the charge of
failure to appear. Brooks acknowledges that he was indicted and
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arraigned on this charge and that evidence was presented to the
trial court on this charge. Moreover, the adjudication order
entered December 6, 1999, recited that the trial court heard
evidence and argument on the charge and found Brooks guilty of
failure to appear. Brooks concedes he never objected to the order
or to his sentencing on this charge before the trial court. He
asserts, however, that his conviction should be reversed to attain
the ends of justice.
Rule 5A:18 provides, in pertinent part, that "[n]o ruling of
the trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds therefor
at the time of the ruling." (Emphasis added.) Thus, we will not
consider a claim of trial court error as a ground for reversal
"where no timely objection was made." Marshall v. Commonwealth,
26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998). Nor will we
"consider an argument on appeal which was not presented to the
trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1988) (citation omitted).
The main purpose of requiring timely specific
objections is to afford the trial court an
opportunity to rule intelligently on the
issues presented, thus avoiding unnecessary
appeals and reversals. In addition, a
specific, contemporaneous objection gives the
opposing party the opportunity to meet the
objection at that stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991).
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We hold, therefore, that, because it was never presented to
the trial court, the argument Brooks makes before us on appeal is
procedurally barred by Rule 5A:18. Furthermore, our review of the
record in this case does not reveal any reason to invoke the "good
cause" or "ends of justice" exceptions to Rule 5A:18.
Accordingly, we affirm appellant's sentence and convictions.
Affirmed.
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