Gardner v. Commonwealth

PRESENT: All the Justices

MICHAEL ARMIN GARDNER
OPINION BY
v. Record No. 131166 JUSTICE S. BERNARD GOODWYN
June 5, 2014
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming the circuit court’s exclusion of evidence

of good character sought by the defendant.

Procedural and Factual Background 1

In the Circuit Court of Arlington County, Michael Armin

Gardner (Gardner) was charged with three counts of aggravated

sexual battery in violation of Code § 18.2-67.3 and one count

of object sexual penetration in violation of Code § 18.2-67.2.

The charges arise from events alleged to have taken place

during sleepovers at his home on June 16 and June 18, 2011,

and involve pre-teen girls who were friends of his daughter.

After a jury trial, Gardner was found guilty of two counts of

aggravated sexual battery and one count of object sexual

penetration. 2

1
We will address only those facts and procedures
relevant to the dispositive issue.
2
The circuit court declared a mistrial on one count of
aggravated sexual battery after the jury was unable to reach a
unanimous verdict on that charge. That charge is not
presently at issue in this appeal.
 Gardner appealed his convictions to the Court of Appeals,

which denied his petition for appeal. Gardner v.

Commonwealth, Record No. 1831-12-4 (June 21, 2013). This

Court granted Gardner’s petition for appeal. The dispositive

issue for purposes of this appeal is whether the Court of

Appeals erred in affirming the judgment of conviction despite

the circuit court’s refusal to permit Gardner to elicit

evidence of his good character through two witnesses. 3

While presenting its case at trial, the defense called

six character witnesses. In addition to presenting evidence

of Gardner’s character for truth and veracity, Gardner also

attempted to question two of those character witnesses, Laurie

Ombrembt (Ombrembt) and Katherine Allan (Allan), about his

reputation in the community for being a good caretaker of

children and for not being sexually assaultive or abusive

toward them.

Specifically, Gardner’s counsel asked Ombrembt, “Do you

know if Mr. — what Mr. Gardner’s reputation is, among those

who know him as well, for being someone who would be a good

caretaker of children as opposed to someone who would harm or

abuse or be neglectful of them?” The Commonwealth objected

3
Although Gardner asserts additional assignments of
error, we need not address them because this assignment of
error is dispositive. See, e.g., Board of Supervisors v.
Davenport & Co., 285 Va. 580, 591-92, 742 S.E.2d 59, 64
(2013).

2
and argued that Gardner was limited to presenting character

evidence relating to “a reputation for truthfulness and

veracity or for peacefulness.” In response, Gardner argued to

the circuit court that he was entitled to present evidence

regarding his reputation for possessing traits related to the

crimes charged and that reputation evidence could be in the

form of negative testimony regarding his not having a

reputation for possessing a certain trait.

The Commonwealth then argued that

it is the defendant’s reputation at the time of the
incident which is at issue here, so if the neighbors
had a discussion that he’s never known to be a
pedophile, that would be one thing if they had a
discussion in the neighborhood about that, but I
doubt that they did until after the incident and I
don’t think he can prove that up through this
witness or any other.

Immediately thereafter, the circuit court stated, “I

agree,” and sustained the Commonwealth’s objection to the

character evidence sought by Gardner.

Gardner then proffered the following:

Your Honor, we would proffer, then, that Ms.
Ombrembt . . . would testify that - beyond what
she’s already testified to - that there is no
evidence of a negative sort that Mr. Gardner has
been involved in any sort of abusive, physical,
sexual, neglectful behavior with children.

That that is current and that that is including
the time period of mid-June of 2011 and the time
frame leading up to that; that she has knowledge of
that, of people’s involvement with Mr. Gardner; that
they have expressed that they allow and would allow

3
 [their] kids to be with him, to be supervised with
him; and that they have no evidence, no indication,
of any sort of bad conduct, sexual conduct, with
minor children during that time. . . . And she’s
never heard any of that.

Gardner called Allan as his next witness. After

establishing her knowledge of Gardner’s reputation in the

community and questioning Allan about Gardner’s reputation for

truth and veracity, Gardner, without objection, asked the

circuit court to incorporate his earlier questions to Ombrembt

and proffer as part of Allan’s testimony.

In its order denying Gardner’s appeal and affirming the

circuit court’s ruling regarding the Commonwealth’s objection

to Gardner’s character evidence inquiry, the Court of Appeals

stated that there was no evidence that the witnesses had

discussed the characteristic of being a good caretaker of

children and not being abusive or assaultive toward them prior

to Gardner’s being charged with the offenses. The court noted

that the proffered testimony of the reputation witnesses

focused on the suggestion that Gardner had not been involved

previously in any sort of abusive, physical, sexual or

neglectful behavior with children and that these witnesses

knew individuals who would allow Gardner to supervise their

children. The Court of Appeals then concluded that the

circuit court did not preclude testimony as to the general

reputation evidence that existed regarding Gardner prior to

4
his being charged with the offenses and affirmed the judgment

of the circuit court. Considering the Commonwealth’s

objections and Gardner’s proffer in the context in which they

were presented at trial, we conclude that this ruling of the

Court of Appeals was erroneous.

Analysis

Gardner claims that the circuit court misapplied the law

by ruling that truth and veracity were the only admissible

traits or, alternatively, that the reputational evidence

sought was not within a relevant time period. Gardner claims

the Court of Appeals erred in not reversing the convictions

and by ruling that the circuit court did not preclude

testimony as to Gardner’s general reputation prior to his

being charged with the offenses.

By asking Ombrembt and Allan to testify about their

personal knowledge of his “reputation in the community for a

character trait at issue in the case,” Gardner maintains he

laid the proper foundation for admission of the additional

character testimony he sought from them. He claims his

proffer addressed the Commonwealth’s claim that the character

testimony he sought did not relate to his reputation prior to

being charged with the offenses. Gardner proffered that the

reputation evidence he sought from the witnesses included “the

time period of mid-June of 2011 and the time frame leading up

5
to it.” According to Gardner, the proffer also provided

additional foundational information to support the

reputational evidence he wanted admitted.

The Commonwealth acknowledges Gardner’s proffer

“reference[d] the relevant time period.” However, it argues

that “though [Gardner] asserted Ombrembt and Allan were aware

of the assessment of Gardner by particular individuals as it

related to their children, [he] failed to place this proffer

into the larger context of community opinion.” The

Commonwealth disagrees that Gardner’s proffer was merely

laying a foundation. According to the Commonwealth, Gardner’s

proffer focused on Ombrembt’s and Allan’s own personal

knowledge, which is impermissible as character evidence.

A trial court exercises its sound discretion when it

decides whether to admit character evidence in the form of

witness testimony in a criminal trial. See Zirkle v.

Commonwealth, 189 Va. 862, 872, 55 S.E.2d 24, 30 (1949).

However, although a trial court exercises its discretion in

admitting or excluding evidence, the court may not exercise

its discretion to exclude admissible evidence. See Gray v.

Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004). This is

because admissibility of evidence is determined by legal

principles. Id.

6
 At trial, the Commonwealth objected, on two grounds, to

Gardner’s question that sought the disputed character

evidence. It first objected to the question because the

Commonwealth believed Gardner was limited to character

evidence concerning reputation for truthfulness, veracity or

peacefulness. Secondly, the Commonwealth claimed that the

question sought inadmissible reputation evidence because the

evidence did not exclusively concern Gardner’s reputation

before the incident. As a matter of law, neither ground was a

proper basis for sustaining the Commonwealth’s objection to

Gardner’s question that sought the proposed character

evidence.

We have repeatedly stated that a defendant is not limited

solely to reputation evidence regarding truthfulness, but may

offer evidence to prove good character for any trait relevant

in the case. See Barlow v. Commonwealth, 224 Va. 338, 340,

297 S.E.2d 645, 646 (1982); Zirkle, 189 Va. at 871, 55 S.E.2d

at 29; see also Va. R. Evid. 2:404(a)(1) (permitting character

evidence in the form of “[e]vidence of a pertinent character

trait of the accused offered by the accused”). Character is

used as a synonym for reputation. Zirkle, 189 Va. at 871, 55

S.E.2d at 29. “A person on trial for a criminal offense has

the right to introduce evidence of his good character, on the

theory that it is improbable that a person who bears a good

7
reputation would be likely to commit the crime charged against

him.” Id. For this reason, the circuit court erred as a

matter of law to the extent it sustained the Commonwealth’s

objection and excluded Gardner’s character evidence based upon

the Commonwealth’s stated objection that character evidence is

limited to a defendant’s character for truth and veracity or

for peacefulness.

Likewise, case law does not support the Commonwealth’s

argument at trial, accepted by the circuit court and affirmed

by the Court of Appeals, that Gardner’s character evidence was

restricted to his reputation before being criminally charged.

The Commonwealth cites no Virginia case that supports

excluding evidence offered to bolster a defendant’s character

on that basis. Prior decisions of this Court and of the Court

of Appeals demonstrate that reference to post-offense conduct

or conversations in cross-examining a defense character

witness may be restricted in the discretion of the trial

court, but none of these cases asks the impossible: that a

defense character witness not testify to the defendant’s

reputation at the time of trial but reconstruct what that

reputation was prior to the offense. See Ginger v.

Commonwealth, 137 Va. 811, 814-15, 120 S.E. 151, 152 (1923)

(prosecution rebuttal character witness could not testify

without knowledge of the general reputation of the defendant

8
before or after the offense); Mohler v. Commonwealth, 132 Va.

713, 735-36, 111 S.E. 454, 461-62 (1922) (in rebutting defense

character evidence, prosecution cannot offer proof of a

reputation adversely affected by the pendency of the present

prosecution); Carter v. Commonwealth, 4 Va. (2 Va. Cas.) 169,

169-70 (1819) (witness without knowledge of the defendant’s

character could not recount conversation with third party held

after the pending charges were brought); Gravely v.

Commonwealth, 13 Va. App. 560, 564, 414 S.E.2d 190, 192 (1992)

(on cross-examination of defense character witness

Commonwealth may not question about unrelated offenses

occurring after the date of the events giving rise to the

pending charges).

Generally, “in a criminal prosecution [if the prosecution

is allowed to offer evidence of the defendant’s bad character

for a particular trait] the evidence must be limited to [the

defendant’s] general reputation ante litem motam,” i.e.,

before the defendant was accused of the crime or the trial

began. Brotherhood of Railroad Trainmen v. Vickers, 121 Va.

311, 314, 93 S.E. 577, 578 (1917). The purpose of this

evidence rule is to prevent admission of untrustworthy adverse

reputation character evidence engendered by the very fact of

the pending charges from unfairly influencing the jury’s

9
verdict. 4 See Ginger, 137 Va. at 815, 120 S.E. at 152

(“[U]nfounded suspicions engendered by the accusation may

serve to color the reputation and render it untrustworthy”)

(internal quotation marks and citation omitted). 5

The rationale for the restriction on adverse character

proof does not apply when a defendant offers evidence of his

good reputation. Any character witness who is prepared to

testify as to the defendant’s good reputation after the

defendant has been accused of a crime has certainly not formed

“unfounded suspicions engendered by the accusation.” Id.

Additionally, the Commonwealth argues that the Court of

Appeals did not err in affirming the convictions because the

circuit court correctly ruled that Gardner had to provide

evidence that the witnesses had discussed the relevant

characteristics prior to Gardner’s being charged for their

testimony to be admissible. However, the Court of Appeals has

previously ruled otherwise. In Byrdsong v. Commonwealth,

4
See generally 5 Wigmore, Evidence § 1618, at 492-93 (3d
ed. 1940) (collecting cases).
5
See generally Christopher Mueller & Laird Kirkpatrick,
Evidence § 419 (3d ed. 2003) (citing case law for the
proposition that a defendant’s “reputation in the community
after the charge became publicized might not be a trustworthy
index to his actual character”); Roger Park, et al., Evidence
Law § 5.07 & n.80 (3d ed. 2011) (citing cases where the
prosecution’s attempt to rebut defendant’s character proof
with reputation affected by the existence of the pending
charges was disallowed).

10
2 Va. App. 400, 407, 345 S.E.2d 528, 532 (1986), the character

witness frankly admitted that “[the defendant’s reputation]

came up after this case came up, but I can’t pinpoint anybody

ever having the need to discuss [whether] he was telling the

truth before this came up.” 6 (Emphasis in original.) The

Court of Appeals correctly held in Byrdsong that the trial

court should have allowed the jury to hear the witness’s

testimony. Id. at 406, 345 S.E.2d at 532. To the extent the

circuit court sustained the Commonwealth’s objection because

Gardner failed to show his character witnesses had discussed

his reputation prior to the incident, or because their

testimony might have included evidence of Gardner’s reputation

as of the day of trial, the circuit court erred.

Although the circuit court erred in sustaining the

objection to Gardner’s character evidence questions, we must

6
Our law permits character evidence based on what the
witness has heard about the defendant and what the witness has
“not heard in the community,” which makes any requirement of
prior discussion by the witness obviously inapplicable. See
Jackson v. Commonwealth, 266 Va. 423, 440, 587 S.E.2d 532, 544
(2003); Zirkle, 189 Va. at 871-72, 55 S.E.2d at 29-30;
Byrdsong, 2 Va. App. at 406, 345 S.E.2d at 531. Generally,
there is no requirement that the defense character witness
have engaged in prior discussions of defendant's character for
the traits at issue. See also Michelson v. United States, 335
U.S. 469, 478 (1948) (approving testimony that the witness had
heard nothing ill of the defendant). See generally, e.g.,
Kenneth Broun, et al., McCormick on Evidence, § 43 (6th ed.
2006) (describing requirements for a character witness's
knowledge of the defendant's reputation with no mention of a
prior discussion requirement).

11
consider the proffer to determine whether the circuit court’s

error prejudiced Gardner. See Commonwealth Transp. Comm’r v.

Target Corp., 274 Va. 341, 348, 650 S.E.2d 92, 96 (2007)

(holding that without a proper proffer, this Court was unable

to determine whether the trial court’s ruling on admissibility

of the evidence prejudiced the appellant). “Error may . . .

be predicated upon . . . exclusion of evidence [if] the

substance of the evidence was made known to the court by

proffer.” Va. R. Evid. 2:103(a)(2). Counsel is required to

proffer the substance of the anticipated testimony. Whittaker

v. Commonwealth, 217 Va. 966, 968-69, 234 S.E.2d 79, 81

(1977); Scott v. Commonwealth, 191 Va. 73, 78-79, 60 S.E.2d

14, 16 (1950); Owens v. Commonwealth, 147 Va. 624, 630-31, 136

S.E. 765, 767 (1927); Union Central Life Ins. Co. v. Pollard,

94 Va. 146, 156-57, 26 S.E. 421, 423-24 (1896).

A criminal defendant may prove his good reputation for a

particular character trait by presenting “[n]egative evidence

of good character.” Zirkle, 189 Va. at 871, 55 S.E.2d at 29.

“Negative evidence of good character is based on the theory

that a person has a good reputation if that reputation has not

been questioned.” Jackson v. Commonwealth, 266 Va. 423, 439,

587 S.E.2d 532, 544 (2003). “A witness may testify that he or

she has never heard that the accused has the reputation of

possessing a certain trait.” Chiles v. Commonwealth, 12 Va.

12
App. 698, 700, 406 S.E.2d 413, 415 (1991). We conclude that

Gardner’s proffer was sufficient to demonstrate the substance

of the evidence of Gardner’s character that would have been

provided, if the circuit court had not erroneously sustained

an objection to Gardner’s inquiry concerning his character,

and it would have been favorable to Gardner.

A jury may consider character evidence in determining a

criminal defendant’s guilt and punishment. Zirkle, 189 Va. at

871, 55 S.E.2d at 29. Considering the evidence presented at

trial and the fact that the jury could not reach a unanimous

verdict on one count of aggravated sexual battery, we cannot

say with fair assurance that the circuit court’s exclusion of

Ombrembt’s and Allan’s character testimony did not

“substantially sway[]” the jury’s determination of Gardner’s

guilt. See Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d

728, 731-32 (2001) (“[I]f one cannot say, with fair assurance,

after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not

substantially swayed by the error, it is impossible to

conclude that substantial rights were not affected. . . .

If so, or if one is left in grave doubt, the conviction cannot

stand.”) (quoting Kotteakos v. United States, 328 U.S. 750,

764-65 (1946)). Thus, we cannot say that the circuit court’s

sustaining of the Commonwealth’s objection resulting in the

13
exclusion of Gardner’s character evidence was harmless error.

See Barlow, 224 Va. at 342, 297 S.E.2d at 647 (holding that

the exclusion of defendant’s character evidence of nonviolence

was not harmless error, despite defendant’s opportunity to

present evidence of his reputation for being “honest and hard-

working”); see also Michelson v. United States, 335 U.S. 469,

476 (1948) (recognizing “[the] privilege [of presenting

character evidence] is sometimes valuable to a defendant

[because] such testimony alone, in some circumstances, may be

enough to raise a reasonable doubt of guilt”).

Conclusion

We hold that the Court of Appeals erred in denying

Gardner’s appeal, because the circuit court erred by

sustaining the Commonwealth’s objection to Gardner’s question

that sought admissible character evidence. Furthermore, we

cannot say that such error was harmless. Therefore, we will

reverse the judgment of the Court of Appeals, vacate the

convictions, and remand this case to the Court of Appeals

directing that it remand the case to the circuit court for

further proceedings if the Commonwealth be so inclined.

Reversed and remanded.

14
JUSTICE LEMONS, concurring.

I join the majority opinion in its entirety and write

this concurrence to emphasize one additional matter which will

be relevant upon remand – the joinder of the separate offenses

under Rule 3A:10(c).

Gardner assigns error to the Court of Appeals' judgment

affirming the trial court's joinder of charges against him

arising from allegations of criminal conduct occurring on June

16 and June 18, 2011. Because this case will be reversed and

remanded and Gardner's convictions will be vacated, it is

unnecessary for this Court to address whether the trial court

erred by joining the separate offenses for trial. However, if

the Commonwealth proceeds with prosecution following remand,

it will have the burden of moving for joinder again and the

defendant will have the opportunity to oppose the motion.

As a general rule, evidence of propensity to commit a

crime is inadmissible. Va. R. Evid. 2:404(b) ("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."). However, under

Rule 3A:10(c), a trial court may order the defendant to be

tried in a single trial for more than one offense 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

15
Commonwealth's attorney consent thereto." Scott v.

Commonwealth, 274 Va. 636, 644, 651 S.E.2d 630, 634 (2007).

See also Commonwealth v. Smith, 263 Va. 13, 16, 557 S.E.2d

223, 225 (2002); Satcher v. Commonwealth, 244 Va. 220, 229,

421 S.E.2d 821, 827 (1992); Cheng v. Commonwealth, 240 Va. 26,

33, 393 S.E.2d 599, 603 (1990). Under Rule 3A:6(b), two or

more offenses may be joined "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."

Upon remand, if the Commonwealth seeks joinder again, the

trial court must carefully reconsider the standards we have

articulated for joinder of separate offenses.

JUSTICE McCLANAHAN, dissenting.

I disagree with the majority's conclusion that the circuit

court abused its discretion in excluding Gardner's proffered

character testimony of Laurie Ombrembt and Katherine Allan.

Furthermore, for the reasons stated by the Court of Appeals in

denying Gardner's petition for appeal, I do not believe the

circuit court abused its discretion in reaching its other

rulings challenged in this appeal. I would thus affirm the

judgment of the circuit court.

16
 Following Ombrembt's testimony regarding Gardner's

reputation for truthfulness, his counsel asked Ombrembt about

Gardner's reputation for being "a good caretaker of children."

The circuit court sustained the Commonwealth's objection to the

question on the ground that no foundation had been established

for whether such reputation was for the period before or after

Gardner's alleged crimes, as the latter would be inadmissible.

Gardner's counsel then proffered Ombrembt's testimony in

response to this question regarding Gardner's reputation for

being a good caretaker of children, which clarified that the

response would cover the period leading up to Gardner's alleged

crimes. Gardner's counsel subsequently offered this proffer as

Allan's answer to the same question regarding Gardner's

reputation for child care.

By proffering this testimony, Gardner preserved the right

to challenge its exclusion on appeal, and the proffer is now

before us for review. See Va. R. Evid. 2:103(a)(2); Holles v.

Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497

(1999); Owens v. Commonwealth, 147 Va. 624, 630, 136 S.E. 765,

767 (1927). The proffered testimony contained no statement that

either Ombrembt or Allan was aware of Gardner's reputation in

the community for a trait regarding child care, which was a

threshold requirement for its admission under well-settled

principles. I would, therefore, hold that the proffer was

17
legally deficient for reputation evidence – despite the

clarification regarding the timing issue.

A character witness in a criminal case "must be aware of

the [accused's] reputation in the community before [she] may

testify [regarding the accused's] reputation for a particular

characteristic." Jackson v. Commonwealth, 266 Va. 423, 440, 587

S.E.2d 532, 544 (2003). As a corollary, the testimony is

confined to "the opinion that the people of the community have

of [the accused]." Zirkle v. Commonwealth, 189 Va. 862, 871, 55

S.E.2d 24, 29 (1949). The long-established rationale for this

common law rule of evidence, which presents a significant

exception to the hearsay rule, is as follows: "reputation is the

aggregate voice of a community, offered to prove its corporate

or collective opinion, as the basis for inferences that the

person is a particular sort of person, hence that he probably

behaved a certain way. It is the very fact that the witness

reports the voice of the community that is thought to be the

great strength of such proof." Christopher B. Mueller & Laird

C. Kirkpatrick, 2 Federal Evidence § 4:42 (4th ed. 2013) (citing

Badger v. Badger, 88 N.Y. 546, 552 (N.Y. 1882)and Michelson v.

United States, 335 U.S. 469, 477 (1948)).

"Reputation," in short, "is not what a few persons say or

may think about the accused, it is what the community generally

believes." Moore v. United States, 123 F.2d 207, 210 (5th Cir.

18
1941) (citations omitted). In laying a foundation for the

admission of reputation evidence, the proponent must therefore

"establish[] that the community from which the reputation

testimony is drawn is sufficiently broad to provide the witness

with adequate knowledge to give a reliable assessment."

Morrison v. State, 818 So.2d 432, 449 (Fla. 2002) (citation

omitted); see State v. Denny, 240 S.E.2d 437, 439 (N.C. 1978)

("[D]efendant's character is proved by testimony concerning his

general reputation, held by an appreciable group of people who

have had adequate basis upon which to form their opinion."

(emphasis in original) (citation and internal quotation marks

omitted)); Commonwealth v. La Pierre, 408 N.E.2d 883, 883-84

(Mass. App. Ct. 1980) (explaining that "the trial judge has

discretion to exclude [reputation] evidence if he determines

that it is based on the opinions of too limited a group,"

because "[i]t is only where the sources are sufficiently

numerous and general that they are viewed as trustworthy"

(citation omitted)). Thus, for example, in State v. Tucker, 968

A.2d 543, 548-49 (Me. 2009), the Supreme Judicial Court of Maine

held that reputation testimony was properly excluded because it

was based on reports from only eight people in a single

apartment community.

Here, the proffered testimony contained an ambiguous

reference to Ombrembt's "knowledge of . . . people's involvement

19
with Mr. Gardner," followed by the statement that "they have

expressed that they allow and [she] would allow her kids to be

with him, [and] be supervised with him." (Emphasis added.)

Ombrembt would then purportedly state that "they have no

evidence, no indication, of any sort of bad conduct, sexual

conduct, with minor children." (Id.) Ombrembt's reference to

"people" involved with Gardner, who purportedly expressed an

opinion about him, could have been any number of individuals

(even as few as two) having any number of disparate connections

to him. There was simply no proffer that Ombrembt knew of

Gardner's reputation for child care from the collective judgment

of any particular community of appreciable size and definition

such as to make the community judgment probative, as required

for the admission of reputation evidence. 1

Even if we assume by the reference to "people" that

Ombrembt was referring to the same individuals upon whom she

1
The proffer, of course, cannot reasonably be read in the
alternative as presenting Ombrembt's knowledge of Gardner's
reputation among everyone with whom he was involved in all of
his various social, commercial and professional activities and
associations, which would be incredible on its face. See
Nobrega v. Commonwealth, 271 Va. 508, 518, 628 S.E.2d 922, 927
(2006) (the trial court may reject, as a matter of law,
testimony determined to be "'inherently incredible'" (quoting
Walker v. Commonwealth, 258 Va. 54, 70-71, 515 S.E.2d 565, 575
(1999)); Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d
729, 732 (1985) ("'[W]e are not required to believe that which
we know to be inherently incredible or contrary to human
experience.'" (quoting Willis v. Commonwealth, 218 Va. 560, 564,
238 S.E.2d 811, 813 (1977)).

20
based her testimony regarding Gardner's reputation for

truthfulness, the proffer would still be deficient. There,

Ombrembt simply identified two certain couples who lived nearby,

and then made reference to "the neighbors around that [she]

know[s] well" - whoever that might have been in addition to the

two named couples, if she was in fact referring to anyone else.

The opinion of a character witness's select group of individuals

with whom she is best acquainted does not represent the

collective judgment of a cognizable community for purposes of

presenting reputation evidence. 2 See Ginger v. Commonwealth, 137

Va. 811, 814, 816, 120 S.E. 151, 152, 153 (1923) (reputation

testimony about a person's dangerousness was "clearly

inadmissible" when based on conversation with two law

enforcement officers rather than "general reputation" (emphasis

in original)).

After hearing the proffered testimony and the argument of

counsel about whether it constituted admissible reputation

evidence, the circuit court did not change its ruling to exclude

it. For the reasons stated above, I would hold that the circuit

court did not abuse its discretion in finding an insufficient

basis for the admission of the purported reputation evidence, as

it was deficient as a matter of law in failing to identify a

2
Allen also testified about Gardner's purported reputation
for truthfulness, but, like Ombrembt, Allen failed to identify a
cognizable community from which to report that particular trait.

21
cognizable community. Therefore, I would affirm Gardner's

convictions.

22