Brown v. Commonwealth

Wednesday 6th

November, 1996.

Floyd Keith Brown, Appellant,

against Record No. 0753-95-2
Circuit Court Nos. 94-214-1 through 94-214-4

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before the Full Court

On October 8, 1996, came the appellee, by counsel, and filed

a petition praying that the Court set aside the judgment rendered

herein on September 24, 1996, and grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on September 24, 1996, is

stayed pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule 5A:35.

It is further ordered that the appellee shall file with the clerk of

this Court ten additional copies of the appendix previously filed in

this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk
 A Rehearing En Banc was granted in this case on November 6, 1996.

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Overton
Argued at Alexandria, Virginia

FLOYD KEITH BROWN

OPINION BY
v. Record No. 0753-95-2 JUDGE
JAMES W. BENTON, JR.
SEPTEMBER 24, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge

Leon F. Szeptycki (Bruce M. Steen; Charles
R. Haugh; Lair Dayton Haugh; McGuire, Woods,
Battle & Boothe, L.L.P.; Haugh & Haugh,
P.C., on briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

A jury convicted Keith Floyd Brown of statutory burglary,

rape, and two counts of forcible sodomy. Brown contends that the

trial judge erred in ruling that two statements offered by the defense

were hearsay and prohibiting their introduction at trial. We agree

that the statements were not hearsay. Because the errors were not

harmless, we reverse the convictions and remand for a new trial.

I.

The complainant testified at trial that a man entered her

apartment early in the morning of June 25, 1994, beat her, sexually

assaulted her, and raped her. She left her apartment a short time

later and told the police that a man who had raped her was asleep in

her apartment. The police arrested Brown at the complainant's

- 2 -
apartment that morning. The complainant denied ever having seen Brown

before he broke into her apartment.

Brown told the police after his arrest that he had

consensual sexual intercourse with the complainant. At trial, Brown

testified that he and the complainant were acquaintances and that she

admitted him to her apartment. He denied using any force or violence

upon the complainant.

Two defense witnesses testified that Brown and the

complainant knew each other prior to the incident. One of the

witnesses, Charles Gentry, testified that he observed Brown and the

complainant together on at least two or three occasions. The trial

judge admitted evidence that Gentry observed Brown and the complainant

conversing but refused to allow Gentry to testify that the two were

discussing the trading of sex for cocaine.
The trial judge also refused to allow a police officer's

testimony that Brown "asked [the officer] twice if Peggy [, the

complainant,] knew he was [at the police station]." The trial judge

ruled the statement was hearsay. During Brown's testimony, the trial

judge overruled the Commonwealth's objection and allowed Brown to

testify, however, that he "asked the officer did [the complainant]

know [he] was at the police station."

Brown appeals the trial judge's refusal to admit Gentry's

testimony as to the content of the overheard conversation and the

police officer's testimony concerning the question Brown asked at the

police station. The Commonwealth contends that defense counsel waived

objection to the admission of each statement, that the trial judge

correctly ruled that the statements were hearsay, and that the trial

- 3 -
judge's refusal to admit the statements, if erroneous, was harmless

error.

II.

"Hearsay is a statement, other than one made by the

declarant while testifying at trial, which is offered to prove the

truth of the matter asserted." Clark v. Commonwealth, 14 Va. App.

1068, 1070, 421 S.E.2d 28, 30 (1992). "Unless it is offered to show

its truth, an out-of-court statement is not subject to the rule

against hearsay and is admissible if relevant." Church v.

Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985).

At trial, defense counsel sought to introduce testimony that

Gentry "ha[d] seen [Brown] and [the complainant] together on more than

one occasion . . . [and that] on one occasion, he overheard a

conversation between [Brown] and [the complainant] involving trading

sex and cocaine that took place in the area of Gibson's store." The

Commonwealth objected to the testimony on the ground that the rape

shield law had not been satisfied. Ruling that the fact, but not the

content, of the conversation was admissible, the trial judge stated:
Gentry is not going to offer evidence with
regard to sexual conduct, but a
conversation. . . .

This witness [, the complainant,] was
never asked and did not testify so as to
deny about any conversation with regard to
trading sex for drugs, so that conversation
cannot be offered for impeachment purposes
because it is hearsay, and she has not been
impeached on that point. But I will permit
[Gentry] to testify about having observed,
if the person that this woman that [defense
counsel] referred to is the victim, clearly
this witness should be permitted to testify
with regard to seeing the two in the
presence of the other prior to June 25.

But as to the conversation, it is

- 4 -
 otherwise hearsay, and she has not, she did
not deny such a conversation existed, so she
can't be impeached on that point.

The Commonwealth claims that Brown waived his objection to this issue

because he never specifically argued that the testimony was not

hearsay.

Arguments over the admissibility of Gentry's testimony cover

approximately ten pages of the record. Brown proffered the testimony

as admissible evidence and urged the trial judge to admit the

testimony because it related "just a conversation between the two

parties." In considering whether the testimony was admissible, the

trial judge discussed the rape shield statute and raised the issue of

hearsay. Thus, the trial judge was alerted to the possibility of

error and had the opportunity to take corrective actions. Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992).

Brown's counsel consistently maintained that the testimony

was admissible. Furthermore, Code § 8.01-384 has eliminated the

requirement that counsel make formal exceptions to rulings or orders

of the trial judge. "Requiring [Brown] to 'object' after this refusal

would, in effect, recreate the requirement of noting an exception to a

final adverse ruling of the trial judge." Martin, 13 Va. App. at 530,

414 S.E.2d at 404. Counsel's argument was sufficient as an objection

to preserve the issue for appeal.

The Commonwealth also asserts that defense counsel conceded

the issue by stating, "I see what your Honor is saying." We disagree.

The record discloses that counsel's remark was in response to the

trial judge's question whether a different statement by a different

witness was substantive evidence and could be impeached.

- 5 -
 Whether the content of the proffered conversation is hearsay

depends upon the evidentiary purpose for introducing the statements.

"If the court can determine, from the context and from the other

evidence in the case, that the evidence is offered for a . . . purpose

[other than to establish the truth of the facts asserted], the hearsay

rule is no barrier to its admission." Manetta v. Commonwealth, 231

Va. 123, 127, 340 S.E.2d 828, 830 (1986). Brown's defense rested upon

proving that he and the complainant knew each other and had consensual

sexual intercourse. In offering the evidence, Brown's counsel stated

that the purpose of Gentry's testimony was to prove that Brown was

well acquainted with the complainant.
Gentry's testimony was offered as evidence to prove the fact

that the statements about trading sex for cocaine were made. Thus, it

is not hearsay. See Manetta, 231 Va. at 127-28, 340 S.E.2d at 830.

Whether the parties were speaking the truth when they discussed

trading sex for cocaine is not at issue. The truth or falsity of

their out-of-court statements is not important. The mere fact that

they had the conversation is what is important. Out-of-court

statements are not hearsay when offered merely to show that the

conversation occurred. Id.

Conceding that the fact of the conversation is admissible

but arguing that the content is inadmissible, the Commonwealth states

that the "offer of sex for crack cocaine no more proves a prior

relationship between parties than any other conversation." That

argument addresses the relevance of the evidence, not whether it is

hearsay. Certainly, the fact that Brown and the complainant had

talked to each other in public before the alleged sexual assault is

- 6 -
relevant because it tends to prove that they knew each other.

However, the Commonwealth's argument fails to recognize that

both strangers and acquaintances engage in conversations and that the

content of the conversation may tend to establish the fact of the

acquaintance. For example, if the witness had testified that he only

overheard one of the parties ask, "Can you give me directions to the

nearest bus station?," then the content of the conversation would have

tended to prove that the individuals did not know each other.

Conversely, testimony that the individuals discussed trading sex for

cocaine would have tended to prove that the individuals had more than

a casual acquaintance. In introducing Gentry's testimony, Brown was

seeking to prove not only that the individuals had spoken to each

other but also that they had a more substantial acquaintance.
Thus, the content of the conversation Gentry overheard "was

not hearsay, but was admissible as circumstantial evidence tending to

establish the probability of a fact in issue." Church, 230 Va. at

212, 335 S.E.2d at 825. "Any fact, however remote, that tends to

establish the probability or improbability of a fact in issue is

admissible." Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 896

(1983). Gentry's testimony, if believed by the jury, would have

tended to prove an element of Brown's defense.

III.

Brown also contends that the trial judge should have allowed

a police officer's testimony that Brown "asked [the officer] twice if

Peggy [, the complainant,] knew [Brown] was here." The trial judge

sustained the Commonwealth's hearsay objection. When Brown's counsel

stated, "I don't think it is hearsay," the trial judge ruled,

- 7 -
"[o]bjection sustained. It is hearsay. I note your objection."

For a statement to be considered hearsay, the statement must

contain an assertion of fact. "If a statement is offered for any

purpose other than to prove the truth or falsity of the content of the

statement, such as to explain the declarant's conduct or that of the

person to whom it was made, it is not objectionable as hearsay." Hamm

v. Commonwealth, 16 Va. App. 150, 156, 428 S.E.2d 517, 521 (1993).

"According to the very definition of hearsay, an inquiry [or question]

is not an assertion and therefore does not constitute hearsay." Bolen

v. Paragon Plastics, Inc., 754 F. Supp. 221, 225 (D. Mass. 1990).

Accord United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990);

State v. Carter, 651 N.E.2d 965, 971 (Ohio), cert. denied, 116

S. Ct. 575 (1995); Washington v. State, 589 A.2d 493, 495 (Md. 1991).

In determining Virginia law, the Supreme Court of Virginia

has held that "[t]he rule against hearsay prohibits . . . the

admission of extra-judicial statements 'only when offered for a

special purpose, namely, as assertions to evidence the truth of the
matter asserted.'" Church, 230 Va. at 211-12, 335 S.E.2d at 825

(citation omitted)(emphasis added). The decision in Krulewitch v.

United States, 336 U.S. 440 (1949), does not compel a different result

because it decided a different evidentiary issue under federal law.

The Court summarily concluded that statements admitted in evidence at

a federal conspiracy trial were hearsay and held that because the

statements were not made in furtherance of a conspiracy they were

improperly admitted by the trial judge on that ground. Id. at 442-43.

Likewise, the decision in Dutton v. Evans, 400 U.S. 74

- 8 -
(1970), based on the constitutional right to confrontation, is not

dispositive of the hearsay issue. In Dutton, the Court assumed

without discussion that the statements were hearsay. However, the

appellant in Dutton argued "only that the hearsay exception applied by

[the State of] Georgia [was] constitutionally invalid because it [did]

not identically conform to the hearsay exception applicable to

conspiracy trials in the federal courts." Id. at 80. The Supreme

Court rejected that argument and held that "a long-established and

well-recognized rule of state law . . . [does not] violate the

Constitution merely because it does not exactly coincide with the

hearsay exception applicable in the decidedly different context of a

federal prosecution for the substantive offense of conspiracy." Id.

at 83. These federal cases do not change the Virginia rule that an

out-of-court statement, which is not offered to show its truth, "is

not subject to the rule against hearsay and is admissible if

relevant." Church, 230 Va. at 212, 335 S.E.2d at 825-26.

The trial judge prohibited the police officer from stating

that Brown asked him if the complainant knew he was at the police

station. Nothing within the question contains an assertion of fact.

The truth or falsity of Brown's question to the officer is not at

issue. See Hamm, 16 Va. App. at 156, 428 S.E.2d at 521. Therefore,

the question is not barred by the hearsay rule. Accordingly, we need

not address Brown's alternative argument that even if the statement is

hearsay, it is admissible under the state-of-mind exception.

IV.

Brown sought to introduce both statements to prove that he

was acquainted with the complainant before the morning of June 25. If

- 9 -
the trial judge had not barred the evidence and the jury found Gentry

and the police officer to be credible witnesses, the jury would have

had a basis upon which it could have found that the complainant lied

concerning her relationship with Brown. Because the complainant and

Brown agreed that sexual relations occurred but differed on whether

the acts were consensual, the credibility of each "was paramount in

determining the ultimate issue of guilt or innocence." Evans-Smith v.

Commonwealth, 5 Va. App. 188, 210, 361 S.E.2d 436, 448 (1987).
The error was not harmless. "'[A] fair trial on the merits

and substantial justice' are not achieved if an error at trial has

affected the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003,

1005, 407 S.E.2d 910, 911 (1991)(en banc)(quoting Code

§ 8.01-678). Although the Commonwealth introduced physical evidence

of disarray in the apartment and the complainant's injuries as proof

of the sexual offenses, the question of rape or consent ultimately

rested upon the jury's determination of credibility. It is well

settled that the credibility of witnesses, the weight accorded

witnesses' testimony, and the inferences to be drawn from proven facts

are matters that are within the province of the fact finder. Barrett

v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986).

Furthermore, a harmless error analysis is not merely a

sufficiency of the evidence analysis. Hooker v. Commonwealth, 14 Va.

App. 454, 458, 418 S.E.2d 343, 345 (1992). The evidence in this case

was disputed. Even if "the other evidence amply supports the jury's

verdicts, [error is not harmless when] the disputed testimony may well

have affected the jury's decision." Cartera v. Commonwealth, 219 Va.

516, 519, 248 S.E.2d 784, 786 (1978). Where, as here, the trial judge

- 10 -
excludes evidence that tends to support the defendant's theory of the

case, that error cannot be cured merely by weighing the merits of the

Commonwealth's evidence. The harmful error lies in improperly denying

the defendant an opportunity to put before the jury evidence to rebut

the Commonwealth's evidence.

Moreover, the critical issue in this case had to be resolved

by the jury's determination of the credibility of the parties. If the

jurors had been given the opportunity to hear the prohibited

testimony, they may have resolved the credibility conflict in Brown's

favor and accepted his version of the events. Thus, we cannot

"conclude, without usurping the jury's fact finding function, that,

had the error[s] not occurred, the verdict would have been the same."

Barrett, 231 Va. at 107, 341 S.E.2d at 193.

We reverse the convictions and remand the case to the

circuit court for retrial if the Commonwealth be so advised.

Reversed and remanded.

- 11 -
Coleman, J., concurring in part and dissenting in part.

I disagree with the majority's holding that the trial court

erred by excluding Officer Matthew Berryman's proffered testimony. In

my view, Officer Berryman's testimony is hearsay and does not come

within any recognized hearsay exception. Furthermore, although I

concur in the majority's holding that the trial court erred by

refusing to admit Charles Gentry's testimony that he purportedly

overheard a conversation between the victim and defendant before the

alleged offense in which the topic of conversation was exchanging

cocaine for sex, I believe the error was harmless. Therefore, I would

affirm the defendant's convictions.
I. Officer Berryman's Testimony

In my opinion, Officer Matthew Berryman's proffered

testimony that the defendant asked him at the police station after

being arrested "whether Peggy [the victim] knew he was here" was

inadmissible hearsay and the trial judge did not err by so ruling.
Whether an
extrajudicial statement is hearsay depends
upon the purpose for which it is offered and
received into evidence. If the statement is
received to prove the truth of its content,
then it is hearsay and, in order to be
admissible, must come within one of the many
established exceptions to the general
prohibition against admitting hearsay.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22
(1992).
Part of the difficulty in "not-for-truth"
situations is due to the fact that often
such evidence will have a dual nature; the
declaration may indeed be relevant on some
matter unrelated to the truth of the content
of the statement, and yet the content of the
statement may go to the issues of the case
as well. See, e.g., Donahue v.

- 12 -
 Commonwealth, [225 Va. 145, 300 S.E.2d 768
(1983)]. This is perhaps the situation which
creates the greatest dilemma for the courts.
In that regard, however, it should be
remembered that it is a time-honored
principle of evidence law that, in general,
if evidence is admissible for any purpose,
it is admissible.

Jenkins v. Commonwealth, 22 Va. App. 508, 521, 471 S.E.2d 785, 791

(1996) (en banc) (quoting 2 Charles E. Friend, The Law of Evidence in

Virginia § 18-3, at 95-96 (4th ed. 1993) (footnote omitted)).

The majority holds that, by definition, an inquiry or

question such as that asked by the defendant is not an assertion and

does not constitute hearsay. However, the defendant was saying or

asserting, in effect, "I know Peggy personally." See, e.g., Dutton v.
Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970); Krulewitch

v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L.Ed. 790 (1949);

United States v. Reynolds, 715 F.2d 99 (1983). See also Laurence H.

Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958 (1974); Ronald

J. Bacigal, Implied Hearsay: Defining the Battle Line Between

Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1141 (1987). The

statement was being offered by the defendant and was relevant only to

prove that the defendant personally knew the victim. In order for the

jury to infer from the statement that the defendant knew the victim,

it would have had to determine the truth or falsity of the implied

assertion. The statement's probative value depended entirely upon the

truth of an inferred fact that the statement implied and as such it

was hearsay.

The mere fact that the defendant made the statement to

Officer Berryman was not relevant for any other purpose and the fact

that the statement was made in no way proved the defendant's

- 13 -
relationship with the victim unless the truthfulness of the implied

assumptions were accepted. Therefore, in my opinion, the statement

was offered to prove the truth of its content and it was inadmissible

hearsay. 1

II. Charles Gentry's Testimony

As to Charles Gentry's proffered testimony that he

purportedly overheard a conversation between the defendant and the

victim on an occasion before the alleged crimes about trading crack

cocaine for sex, I agree with the majority's holding that the trial

court erred by excluding this testimony. However, the trial judge

ruled correctly that the fact the conversation purportedly occurred

was admissible to prove that the defendant and the victim knew one

another. The fact that the conversation took place would also have

been relevant to impeach the victim if the jury found Gentry's

evidence credible. Nevertheless, the defendant did not seek to

introduce that evidence after the trial court ruled that Gentry could

not testify as to the nature and particulars of the conversation that

he purportedly overheard.
I concur with the majority that Gentry should have been

allowed to testify to the nature and content of the alleged

conversation to prove that the defendant and victim knew one another

and the nature of that relationship. Gentry would have testified that

he had seen the victim and the defendant together on two or three

occasions before the charged incident and that on one occasion the

conversation was about trading sex for cocaine. "The
1
The defendant ultimately testified that he asked Officer
Berryman if "Peggy [knew that he was] . . . down at the police
station."

- 14 -
admissibility of evidence is within the broad discretion of the trial

court, and a ruling will not be disturbed on appeal in the absence of

an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16,

371 S.E.2d 838, 842 (1988). The trial court had discretion to limit

the extent to which the witness will be permitted to give the details

and particulars of the conversation. However, because the alleged

conversation was relevant to prove the nature of the relationship

between the victim and the defendant, which fact was material to prove

whether the sexual intercourse was consensual or forcible, it was

error to preclude Gentry from testifying about the general content of

the alleged conversation.
Although I concur in the majority's holding that the trial

court erred by refusing to admit Charles Gentry's testimony concerning

the alleged conversation between the victim and the defendant and its

content, I would hold that the error was harmless. "A defendant is

entitled to a fair trial but not a perfect one." Lutwak v. United

States, 344 U.S. 604, 619, 73

S. Ct. 481, 490, 97 L.Ed. 593 (1953). Because the defendant conceded

that he had sexual intercourse with the victim, the only issue for the

jury to decide was whether the intercourse was accomplished through

the use of physical force. In my opinion, evidence independent of the

victim's testimony and without regard to her credibility proved

overwhelmingly that the defendant used force to accomplish sexual

intercourse. See Jenkins v. Commonwealth, 244 Va. 445, 454, 423

S.E.2d 360, 366 (1992); Goins v. Commonwealth, 218 Va. 285, 288, 237
S.E.2d 136, 138-39 (1977). Thus, whether the jury believed Gentry

that the conversation had taken place or whether the fact of such a

- 15 -
conversation would have affected the victim's credibility would have

had no bearing upon the jury's deciding that the defendant used force

to have sexual intercourse with the victim. Therefore, in my opinion,

neither the jury's guilty verdict nor its recommended sentence would

have been affected by admitting Charles Gentry's testimony.
In Virginia,
non-constitutional error is harmless "[w]hen
it plainly appears from the record and the
evidence given at the trial that the parties
have had a fair trial on the merits and
substantial justice has been reached." "[A]
fair trial on the merits and substantial
justice" are not achieved if an error at
trial has affected the verdict. . . . An
error does not affect a verdict if a
reviewing court can conclude, without
usurping the jury's fact finding function,
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).

Here, overwhelming evidence, independent of the victim's

testimony, proved that the defendant used physical force to accomplish

sexual intercourse with the victim. A passing motorist testified that

on the night of the alleged crimes she saw the victim "running down

the road naked." The victim stopped the motorist and attempted to

enter her car. According to the motorist, the victim was "bloody" and

"scared to death."

When the police arrived, they found the victim in the back

seat of the motorist's car wrapped in a sheet which the motorist had

provided. Officer R. L. Shaner testified that the victim's right eye

was "swollen and bruised."

The police went to the victim's apartment and found the

defendant sleeping. A later analysis of his blood showed that he had

- 16 -
consumed cocaine. The police found a chair outside the victim's

apartment placed against the wall below the kitchen window. The

window sill into the apartment was bent and the screen to the kitchen

window was damaged. Palm prints that were later identified as

belonging to the defendant were found on the kitchen sink facing

inward from the kitchen window. The defendant's shoes were on the

kitchen sink, and dirt on the shoes appeared to match the dirt in the

victim's backyard. Furniture had been knocked over in the apartment,

and blood was found in approximately eight different areas on a bed

sheet. Blood was also found on the victim's t-shirt.
A doctor examined the victim that night and stated that the

victim was "clearly nervous and jittery." The victim's right eye was

bleeding and swollen shut, and she had red marks on her forehead. In

addition, she had several scratches on her right front thigh, several

red marks on her throat, and dried blood on her head, hair, and

perineum. Her nose was bloody, and there was blood under all of her

fingernails. Her perineum was slightly swollen and red.

The defendant told the police that he went to the victim's

apartment because he had obtained marijuana for her, and that they did

not consume all of the marijuana. However, the police found no

marijuana in the apartment, and an analysis of the victim's blood did

not test positive for marijuana. Furthermore, although the analysis

of the defendant's blood tested positive for cocaine, it showed no

trace of marijuana. A forensic expert testified that marijuana would

be present in a person's blood for at least twenty-four hours after

the last use.

In response to the victim's claim that she had bitten her

- 17 -
attacker's thumb, the police examined the defendant's thumb when he

was arrested and found bite marks. The bite marks were open and raw

and appeared to be very recent.

In light of this overwhelming evidence, I do not believe

that the admission of Charles Gentry's testimony that he claims to

have overheard a conversation between the defendant and victim tending

to prove that they knew one another and discussed trading cocaine for

sex would have affected the jury's guilty verdict. See Hanson, 14 Va.

App. at 191, 416 S.E.2d at 24 (holding that certain hearsay statements

that should have been excluded were nonetheless "inconsequential" in

light of the overwhelming evidence of the accused's guilt).
Likewise, in my opinion the trial court's error did not

affect the defendant's sentence. The fact that the jury recommended

the maximum sentence on all four counts does not require a finding

that the error affected the jury's sentence recommendations; rather,

we must evaluate the seriousness, as well as the number, of the

errors. See Yager v. Commonwealth, 220 Va. 608, 615, 260 S.E.2d 251,

256 (1979).

At the sentencing phase in this bifurcated trial, the

Commonwealth proved that in 1993 the defendant had been convicted of

sodomy and assault and battery; in 1991 he had been convicted of grand

larceny and breaking and entering; in 1990 he had been convicted of

driving as an habitual offender and possession of cocaine; in 1989 he

was convicted of petit larceny and escape; and in 1985 he had been

convicted of breaking and entering.

In my opinion, the jury's sentence recommendations were

influenced by the brutality of the crimes against this victim and by

- 18 -
the defendant's record of multiple felony convictions, and the verdict

and sentences would not have been affected by the trial court

admitting Charles Gentry's testimony that he purportedly overheard a

conversation between the defendant and the victim.

In summary, I disagree with the majority's holding that the

trial court erred by refusing to admit Officer Berryman's testimony

about the defendant's out-of-court statement. Furthermore, although I

agree that it was error to exclude Charles Gentry's testimony

concerning the nature and subject matter of the conversation that he

allegedly overheard, I would hold that the error was harmless.

Accordingly, I respectfully concur in part and dissent in part and

disagree that the convictions should be reversed.

- 19 -