Santen v. Tuthill

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.”

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 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.

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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

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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

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“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

___________________
of said plea . . . as shown by the records of the criminal
court shall be admissible.”

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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).

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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

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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

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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,

___________________
the type of equipment used on the evening in question by
the police who were involved in the incident.”

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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

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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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