James Earl Bender v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 23, 1999
• Docket: 0176981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and Senior Judge Overton ∗ Argued at Norfolk, Virginia

JAMES EARL BENDER MEMORANDUM OPINION ∗∗ BY v. Record No. 0176-98-1 JUDGE NELSON T. OVERTON FEBRUARY 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Walter J. Ford, Judge

Charles E. Haden for appellant.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

James Earl Bender (defendant) appeals his conviction of

forcible sodomy, in violation of Code § 18.2-67.1. Defendant

presents five questions for review: (1) was the evidence

sufficient to support the verdict, (2) did the trial court err

when it denied defendant's motion for a continuance, (3) did the

trial court err when it ruled that defense counsel could not ask

the victim about her past history of drug use and prostitution

before laying a proper foundation, (4) did the trial court err by

admitting into evidence a prior sexual felony conviction when the

∗ Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth filed a notice with an incorrect date of the

conviction, and (5) was the chain of custody sufficient to admit

into evidence a gun found in defendant's car? Because we hold

that the trial court did not err, we affirm.

The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedental

value, no recitation of the facts is necessary.

Defendant first asserts that the evidence was insufficient

to support his conviction. When the sufficiency of the evidence

is challenged on appeal, we review the evidence in the light most

favorable to the Commonwealth and grant to it all reasonable

inferences fairly deducible therefrom. See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We

may not disturb the conviction unless it is plainly wrong or

unsupported by the evidence. See Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988). Viewed in this light,

we cannot say that defendant's forcible sodomy conviction was

erroneous.

"In prosecutions for rape, an accused may be convicted upon

the sole and uncorroborated testimony of the prosecutrix." Lear

v. Commonwealth, 195 Va. 187, 193, 77 S.E.2d 424, 427 (1953).

Similarly, if the trial court found the victim's testimony to be

credible, and the testimony established that defendant committed

forcible sodomy, then no further evidence was necessary. The

victim testified that defendant threatened her with a gun, took

her in his car to a secluded location and engaged in anal

- 2 - intercourse with her against her will. Notwithstanding

defendant's testimony to the contrary, see Lea v. Commonwealth,

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993), such evidence

supports the conviction, and we affirm.

Defendant next asserts that the trial court erred when it

denied his motion for a continuance. Defendant requested the

continuance because one of his witnesses, Officer Hanrahan of the

City of Hampton Police Department, failed to respond to her

subpoena. The decision to grant a continuance is submitted to

the trial court's sound discretion, and we may not reverse that

decision unless it amounts to an abuse of discretion or is

"plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450

S.E.2d 146, 151 (1994). When the reason for the continuance is

to secure an absent witness, the proponent of the motion must

show that due diligence was used to secure the witness' presence

and that the witness was material. See Shifflet v. Commonwealth,

218 Va. 25, 30, 235 S.E.2d 316, 319-20 (1977). A witness is

material if her testimony tends "'to establish a probability or

improbability . . . of a fact in issue' at the defendant's

trial." Gibbs v. Commonwealth, 16 Va. App. 697, 701, 432 S.E.2d

514, 516 (1993) (quoting Ferrell v. Commonwealth, 11 Va. App.

380, 388, 399 S.E.2d 614, 619 (1990)).

Defendant proffered that Officer Hanrahan was the first

officer to interview the victim. He did not proffer what effect

this might have had on the evidence or any possible prejudice

that might result from Officer Hanrahan's absence. In fact,

- 3 - several people interviewed the victim and two of them, Officer

Lewis Johnson and Detective Pat Orr, testified at trial. What

effect Officer Hanrahan's testimony would have made is not

apparent from the record and had defendant desired to preserve

the issue, he should have proffered his rationale for materiality

of the witness. We cannot base a reversal on defendant's

unfounded suspicion that Officer Hanrahan's testimony would have

been anything but duplicative of the other officers' testimony.

Therefore, we affirm the trial court's refusal to grant the

continuance.

Defendant also asserts that the trial court erred by

stopping defendant from asking the victim about her past history

of drug use or prostitution until defendant laid a proper

foundation for the questions. The trial court ruled that such

questions were highly inflammatory, prejudicial and outside the

scope of direct examination. Therefore, defendant's request to

explore these subjects was denied unless defendant could first

introduce some other evidence that established the subjects were

relevant. "'Once a [witness] has testified as to certain

matters, the proper scope of cross examination lies within the

sound discretion of the trial court.'" Fisher v. Commonwealth,

16 Va. App. 447, 455, 431 S.E.2d 886, 891 (1993) (citation

omitted). The trial court may limit cross-examination to those

matters explored through the witness' direct testimony. See

Stewart v. Commonwealth, 10 Va. App. 563, 567, 394 S.E.2d 509,

512 (1990).

- 4 - Later in the trial defendant testified that the victim was a

prostitute who agreed to intercourse in exchange for money to

purchase drugs. Defendant's testimony established a basis for

further questioning of the victim regarding these issues. "If a

party desires to question an opponent's witness about matters not

covered on direct examination, the proper course is to wait and

call the witness as a part of the party's own case-in-chief,

thereby making the witness the party's own." C. Friend, The Law

of Evidence in Virginia § 3-9 (4th ed. 1993) (citing Smith v.

Stanley, 114 Va. 117, 75 S.E. 742 (1912)). Defendant did not

avail himself of the opportunity to recall the victim and explore

this area once a foundation had been established. Therefore, we

affirm the trial court's ruling excluding the questions.

Defendant next asserts that a conviction for a previous

violent sexual felony should not have been admitted because the

Commonwealth had not complied with the notice requirements of

Code § 19.2-295.1. Code § 19.2-295.1 states in pertinent part:

The Commonwealth shall provide to the defendant fourteen days prior to trial notice of its intention to introduce evidence of the defendant's prior criminal convictions. Such notice shall include (i) the date of each prior conviction, (ii) the name and jurisdiction of the court where each prior conviction was had, and (iii) each offense of which he was convicted. Prior to commencement of the trial, the Commonwealth shall provide to the defendant photocopies of certified copies of the defendant's prior criminal convictions which it intends to introduce at sentencing.

- 5 - The Commonwealth sought to introduce the convictions in order to

prove defendant had been convicted of a previous violent sexual

offense within the past twenty years. In such circumstances,

defendant would receive a mandatory life sentence. See Code

§ 18.2-67.5:3.

The Commonwealth sent notice to defendant that it would

introduce two prior sexual convictions. The notice listed the

felonies as "Lauderdale County Mississippi, Rape, 1/25/77" and

"Lauderdale County Mississippi, Attempt Forcible Rape, 12/7/72."

However, the rape conviction occurred on December 2, 1976, not

January 25, 1977, as was incorrectly stated in the Commonwealth's

notice. Defendant also received copies of the conviction orders

listing the correct dates.

Defendant objected to introduction of the conviction at

sentencing. The trial court ruled that because defendant had

received an actual copy of defendant's prior conviction,

including the correct date, the erroneous date contained in the

Commonwealth's notice did not make the conviction inadmissible.

Our decision in Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998), controls this issue. In circumstances

almost identical to those at bar the Court stated, [a]lthough the Commonwealth's notices incorrectly stated the dates of the actual convictions, the Fairfax County conviction order and the Maryland conviction documentation apprised Lebedun of the convictions that would be proven and the correct dates. . . . The Commonwealth's failure to strictly comply with the procedural requirements of Code § 19.2-295.1

- 6 - violated no substantive right and did not prejudice Lebedun's ability to contest the validity of the convictions.

Id. at 717-18, 501 S.E.2d at 437. Defendant was provided with

certified copies of his convictions before trial. Further,

defendant admits that the conviction to which he objected

actually occurred. Because the Commonwealth substantially

complied with Code § 19.2-295.1 and defendant had sufficient

notice to prepare himself for trial, we affirm the trial court's

decision to admit the convictions into evidence.

Finally, defendant contends that the trial court erred by

admitting into evidence a BB gun found in defendant's car. He

claims that the Commonwealth failed to prove the "chain of

custody" of the gun between its seizure and its presentation at

trial. In order to authenticate a piece of evidence "[t]he

Commonwealth is not required to exclude every conceivable

possibility of substitution, alteration, or tampering. All that

is required in order to establish a chain of custody is that the

Commonwealth's evidence 'afford reasonable assurance that the

exhibits at trial are the same and in the same condition as they

were when first obtained.'" Pope v. Commonwealth, 234 Va. 114,

121, 360 S.E.2d 352, 356 (1987) (quoting P. Smith v.

Commonwealth, 219 Va. 554, 559, 248 S.E.2d 805, 808 (1978)).

This determination lies within the "broad discretion" of the

trial court, and we will reverse only upon an abuse of that

discretion. See Crews v. Commonwealth, 18 Va. App. 115, 118-19,

442 S.E.2d 407, 409 (1994).

- 7 - Detective James Brown found the BB gun under the front seat

of defendant’s car. Detective Brown gave the gun to Detective

Orr who later gave it to Crime Scene Technician Linda Woods.

Technician Woods had custody of the gun until she brought it to

court on the day of trial. All the witnesses identified the gun

by sight and by serial number or case number, which were recorded

when the gun was found. The bag in which the gun was kept bore

the names of the witnesses and the name "Detective Johnson."

Officer Lewis Johnson was present when the gun was found, but did

not handle the gun himself.

The witnesses established the gun was the same one found in

defendant's vehicle and in the same condition as when it was

first obtained, which was all that was required. See Bassett v.

Commonwealth, 222 Va. 844, 854-55, 284 S.E.2d 844, 851 (1981).

Moreover, defendant testified that the gun presented at trial

belonged to him and he kept it in his car. In light of

defendant's testimony, the Commonwealth proved the gun offered at

trial was the same gun used by defendant the night he sodomized

the victim.

We hold that the trial court committed no reversible error

during defendant's trial. Accordingly, his conviction is

affirmed. Affirmed.

- 8 -