COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
BERNARD LEWIS MILES, JR.
v. Record No. 2387-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Cynthia E. Payne for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Following a jury trial, the appellant, Bernard L. Miles,
Jr., was convicted of abduction with intent to defile and
attempted sexual battery. Pursuant to the jury's recommendation,
the trial court sentenced Miles to seventy-five years
imprisonment for abduction with intent to defile and five years
for attempted sexual battery. The victim was a ten-year-old
child. On appeal, Miles contends that, during the sentencing
phase, the trial court improperly admitted the Commonwealth's
rebuttal evidence of a threat the defendant made to a police
officer fifteen years previously. Finding no error, we affirm.
Under Code § 19.2-295.1, after the Commonwealth presents
evidence of the defendant's prior convictions, the defendant may
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
introduce relevant, admissible evidence related to punishment,
and the Commonwealth may then introduce relevant, admissible
evidence in rebuttal.
The recitation of facts is limited to those admitted during
the sentencing phase. The Commonwealth produced evidence of
Miles' May 31, 1979 convictions for abduction by deception with
intent to defile and sodomy. Miles then called James R.
Thompson, Jr., a psychologist, the director of the Relapse
Prevention Program at the Staunton Correctional Center. Thompson
testified generally about relapse prevention and then stated that
he had met with Miles in 1990 while Miles was incarcerated for
his 1979 convictions. He testified that he believed Miles
sincerely intended to deal with his problem of being a sexual
offender and that Miles "had a tremendous amount of interest in
returning to free society and remaining there . . . leading a
law-abiding productive life."
On cross-examination, Thompson testified, with respect to
Miles' prognosis, that he "was concerned about [Miles] and his
behavior after he [got] out. . . . [All sex offenders] have a
proven track record of highly dysfunctional behavior . . . ."
Miles' father testified that, since his son's release from
prison, he had been employed and had refrained from using
alcohol.
In rebuttal, the Commonwealth called Henrico County Police
Officer Jerry Gainous, who was involved in the investigation of
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Miles' prior offenses. Gainous testified that "at the end of
[the 1978] investigation, [in] one of the last interviews [he]
conducted with Bernard Miles, [Miles] threatened to kill--when he
got out of prison, he threatened to kill [Gainous] and [his]
family and he dwelled on [Gainous'] children." Miles objected,
relying on the rules of evidence regarding proper rebuttal of
character evidence. He argued that Gainous' testimony was
improper since (1) Miles had not put his character in issue; and,
alternatively, (2) even if his character had been in issue, the
Commonwealth was precluded from rebutting his good character by
showing specific bad acts. The court overruled Miles' objection,
ruling that both Thompson's and Gainous' testimony was evidence
of Miles' future intent, not his character.
Miles filed a motion to set aside or modify the sentence on
the grounds that Gainous' testimony was inadmissible as a prior
bad act, too remote in time, and highly prejudicial. The court
denied the motion, for the reasons stated at trial. The court
also stated that Miles failed to timely raise the issue of
remoteness, that he subsequently cross-examined Gainous
extensively, and that the jury's knowledge of Miles' prior
conviction outweighed any prejudice to Miles.
The admissibility of evidence is left to the discretion of
the trial judge. Miller v. Commonwealth, 15 Va. App. 301, 304,
422 S.E.2d 795, 797 (1992), aff'd, 246 Va. 336, 437 S.E.2d 411
(1993). The trial judge did not abuse his discretion concluding
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that Gainous' testimony was not improper rebuttal of character
evidence but was offered to rebut Thompson's testimony concerning
Miles' future intent. The trial judge also properly ruled that
the evidence rebutted Thompson's testimony. Thompson's testimony
did not put Miles' character in issue; it addressed Miles'
intention upon his 1992 prison release. Gainous' testimony was
proper since it was elicited to "explain, repel, counteract, or
disprove" Miles' evidence. Black's Law Dictionary 1139 (5th ed.
1979); see generally Charles E. Friend, The Law of Evidence in
Virginia § 1-4(e) (4th ed. 1993). As such, it tends to prove the
improbability of Miles' good intentions. Cf. Caccioppo v.
Commonwealth, 20 Va. App. 534, 538, 458 S.E.2d 592, 595 (1995)
("[E]very fact, however remote or insignificant, that tends to
establish the probability or improbability of a fact in issue, is
admissible.") (citation omitted).
Miles also argues that Gainous' testimony was irrelevant
because it was remote in time and circumstance and that it was
prejudicial. However, Miles did not raise either of these
arguments at trial; he raised them for the first time in his
post-verdict motion. Because Miles failed to raise the issues
1
timely, he is precluded from raising them on appeal. Rule
5A:18.
1
The trial court clearly considered Miles' remoteness
argument procedurally barred at the hearing on his post-verdict
motion and, as such, did not rule on whether Gainous' statement
was too remote to be admissible.
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Affirmed.
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