COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and AtLee Argued at Richmond, Virginia UNPUBLISHED
JOSEPH CARROLL BUSH MEMORANDUM OPINION* BY v. Record No. 1628-17-2 JUDGE RANDOLPH A. BEALES MARCH 5, 2019 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Designate
Lauren Whitley, Deputy Public Defender, for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Joseph Bush was tried by a jury and found guilty of possession of a firearm by a
person previously convicted of a violent felony in violation of Code § 18.2-308.2. On appeal, he
argues that the “trial court erred in admitting evidence of the nature and number of Mr. Bush’s prior
felony convictions during the guilt phase of his trial” when Bush had offered to stipulate to having
been convicted of a violent felony.
I. BACKGROUND
On April 6, 2017, Bush was tried by a jury for possession of a firearm by a convicted violent
felon. Immediately after the parties’ opening statements (during which the Commonwealth stated
that Bush “has been convicted of armed robbery”), the Commonwealth moved to introduce a
redacted sentencing order, dated April 25, 2012, showing Bush’s previous convictions for robbery
and use of a firearm in the commission of a robbery for events that occurred on March 23, 2011.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The portion of the order stating the sentence imposed was redacted. Bush objected to the admission
of the sentencing order, stating that Bush was willing to stipulate to having been convicted of a
violent felony.1 He argued that since he was willing to make such a stipulation, “the certified
conviction sentencing order is not relevant. . . . There is no probative value given the fact that we
are willing to stipulate that he’s been convicted of a violent felony.” Bush also argued the probative
value of the sentencing order was greatly outweighed by its prejudice, especially since the
sentencing order showed two convictions instead of just one. The trial judge answered, “I think the
law in Virginia is that neither the Commonwealth nor the defendant is required to accept a
stipulation. That’s the law in Virginia. So I have to ask if the Commonwealth accepts the
stipulation?” The Commonwealth rejected the stipulation, the judge then denied Bush’s motion to
exclude, and the redacted sentencing order was admitted into evidence. Bush was ultimately found
guilty and sentenced to five years of incarceration.
II. ANALYSIS
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Michels v.
Commonwealth, 47 Va. App. 461, 465 (2006) (quoting Breeden v. Commonwealth, 43 Va. App.
169, 184 (2004)). “[A] trial court ‘by definition abuses its discretion when it makes an error of law
. . . . The abuse-of-discretion standard includes review to determine that the discretion was not
guided by erroneous legal conclusions.’” Booker v. Commonwealth, 60 Va. App. 35, 40 (2012)
(quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)).
1 Bush had filed a “Motion to Exclude Prejudicial Collateral Evidence of Defendant’s Prior Conviction” three days prior to trial. In that motion, he argued that evidence of his prior convictions should be excluded because he was willing to stipulate that he had been convicted of a felony. The Commonwealth filed a response on April 5, 2016, the day prior to trial. The trial judge addressed this motion after Bush objected to the introduction of the sentencing order at trial. -2- In this appeal of his conviction, Bush argues that the sentencing order showing his previous
convictions should have been excluded based on Virginia Rule of Evidence 2:403. That Rule states:
Relevant evidence may be excluded if: (a) The probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or (b) the evidence is needlessly cumulative.
Bush argues that the evidence should have been excluded under each of the three reasons provided
in the Rule. First, he contends the probative value was substantially outweighed by the danger of
unfair prejudice, especially because one of Bush’s previous convictions was use of a firearm and he
was on trial for a firearm offense. He argues that this similarity made the jury likely to convict him
based on his prior bad acts as opposed to the evidence related to the offense for which he was then
charged. Bush notes that this was the reason that the United States Supreme Court reversed a
conviction based on Federal Rule of Evidence 403 (which is substantially similar to Virginia Rule
of Evidence 2:403) in Old Chief v. United States, 519 U.S. 172 (1997).2 Second, Bush argues that
there was a likelihood that the jury would be misled by the information of the prior convictions, and
the jury’s passions would be inflamed because the prior convictions would encourage them to
assume that “once a violent felon, always a violent felon.” Third, Bush contends that because the
sentencing order included two convictions, the evidence was needlessly cumulative.
Bush also argues that, with his offer to stipulate to being a convicted violent felon, the
sentencing order was rendered irrelevant because it retained no probative value, and thus should
have been inadmissible. Bush contends the only reason the Commonwealth had for seeking to
admit the sentencing order was to poison or inflame the minds of the jury as to his character. He
alleges that the Commonwealth relied on the previous conviction inappropriately, citing the
2 Bush argues that this Court should consider Old Chief to be persuasive authority in its interpretation of the Virginia Rules of Evidence. -3- prosecutor’s reference to “armed robbery” during his opening statement3 at trial and reference to
robbery in a jury instruction and verdict form.
Bush argues that Virginia Rule of Evidence 2:403 should be interpreted in the same manner
as Federal Rule of Evidence 403. However, when the Virginia Rules of Evidence were adopted in
2012, they expressly provided that they were not intended to abrogate or overturn existing case law.
The Rules were
adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. Common law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence.
Va. R. Evid. 2:102. Virginia case law prior to the adoption of the Virginia Rules of Evidence,
therefore, still applies.
In Glover v. Commonwealth, 3 Va. App. 152 (1986), which was summarily affirmed by the
Supreme Court in Glover v. Commonwealth, 236 Va. 1 (1988), Glover made a similar argument to
the one made by Bush in the case now before us. Glover was convicted of being a felon in
possession of a weapon in violation of Code § 18.2-308.2(A).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and AtLee Argued at Richmond, Virginia UNPUBLISHED
JOSEPH CARROLL BUSH MEMORANDUM OPINION* BY v. Record No. 1628-17-2 JUDGE RANDOLPH A. BEALES MARCH 5, 2019 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Designate
Lauren Whitley, Deputy Public Defender, for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Joseph Bush was tried by a jury and found guilty of possession of a firearm by a
person previously convicted of a violent felony in violation of Code § 18.2-308.2. On appeal, he
argues that the “trial court erred in admitting evidence of the nature and number of Mr. Bush’s prior
felony convictions during the guilt phase of his trial” when Bush had offered to stipulate to having
been convicted of a violent felony.
I. BACKGROUND
On April 6, 2017, Bush was tried by a jury for possession of a firearm by a convicted violent
felon. Immediately after the parties’ opening statements (during which the Commonwealth stated
that Bush “has been convicted of armed robbery”), the Commonwealth moved to introduce a
redacted sentencing order, dated April 25, 2012, showing Bush’s previous convictions for robbery
and use of a firearm in the commission of a robbery for events that occurred on March 23, 2011.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The portion of the order stating the sentence imposed was redacted. Bush objected to the admission
of the sentencing order, stating that Bush was willing to stipulate to having been convicted of a
violent felony.1 He argued that since he was willing to make such a stipulation, “the certified
conviction sentencing order is not relevant. . . . There is no probative value given the fact that we
are willing to stipulate that he’s been convicted of a violent felony.” Bush also argued the probative
value of the sentencing order was greatly outweighed by its prejudice, especially since the
sentencing order showed two convictions instead of just one. The trial judge answered, “I think the
law in Virginia is that neither the Commonwealth nor the defendant is required to accept a
stipulation. That’s the law in Virginia. So I have to ask if the Commonwealth accepts the
stipulation?” The Commonwealth rejected the stipulation, the judge then denied Bush’s motion to
exclude, and the redacted sentencing order was admitted into evidence. Bush was ultimately found
guilty and sentenced to five years of incarceration.
II. ANALYSIS
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Michels v.
Commonwealth, 47 Va. App. 461, 465 (2006) (quoting Breeden v. Commonwealth, 43 Va. App.
169, 184 (2004)). “[A] trial court ‘by definition abuses its discretion when it makes an error of law
. . . . The abuse-of-discretion standard includes review to determine that the discretion was not
guided by erroneous legal conclusions.’” Booker v. Commonwealth, 60 Va. App. 35, 40 (2012)
(quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)).
1 Bush had filed a “Motion to Exclude Prejudicial Collateral Evidence of Defendant’s Prior Conviction” three days prior to trial. In that motion, he argued that evidence of his prior convictions should be excluded because he was willing to stipulate that he had been convicted of a felony. The Commonwealth filed a response on April 5, 2016, the day prior to trial. The trial judge addressed this motion after Bush objected to the introduction of the sentencing order at trial. -2- In this appeal of his conviction, Bush argues that the sentencing order showing his previous
convictions should have been excluded based on Virginia Rule of Evidence 2:403. That Rule states:
Relevant evidence may be excluded if: (a) The probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or (b) the evidence is needlessly cumulative.
Bush argues that the evidence should have been excluded under each of the three reasons provided
in the Rule. First, he contends the probative value was substantially outweighed by the danger of
unfair prejudice, especially because one of Bush’s previous convictions was use of a firearm and he
was on trial for a firearm offense. He argues that this similarity made the jury likely to convict him
based on his prior bad acts as opposed to the evidence related to the offense for which he was then
charged. Bush notes that this was the reason that the United States Supreme Court reversed a
conviction based on Federal Rule of Evidence 403 (which is substantially similar to Virginia Rule
of Evidence 2:403) in Old Chief v. United States, 519 U.S. 172 (1997).2 Second, Bush argues that
there was a likelihood that the jury would be misled by the information of the prior convictions, and
the jury’s passions would be inflamed because the prior convictions would encourage them to
assume that “once a violent felon, always a violent felon.” Third, Bush contends that because the
sentencing order included two convictions, the evidence was needlessly cumulative.
Bush also argues that, with his offer to stipulate to being a convicted violent felon, the
sentencing order was rendered irrelevant because it retained no probative value, and thus should
have been inadmissible. Bush contends the only reason the Commonwealth had for seeking to
admit the sentencing order was to poison or inflame the minds of the jury as to his character. He
alleges that the Commonwealth relied on the previous conviction inappropriately, citing the
2 Bush argues that this Court should consider Old Chief to be persuasive authority in its interpretation of the Virginia Rules of Evidence. -3- prosecutor’s reference to “armed robbery” during his opening statement3 at trial and reference to
robbery in a jury instruction and verdict form.
Bush argues that Virginia Rule of Evidence 2:403 should be interpreted in the same manner
as Federal Rule of Evidence 403. However, when the Virginia Rules of Evidence were adopted in
2012, they expressly provided that they were not intended to abrogate or overturn existing case law.
The Rules were
adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. Common law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence.
Va. R. Evid. 2:102. Virginia case law prior to the adoption of the Virginia Rules of Evidence,
therefore, still applies.
In Glover v. Commonwealth, 3 Va. App. 152 (1986), which was summarily affirmed by the
Supreme Court in Glover v. Commonwealth, 236 Va. 1 (1988), Glover made a similar argument to
the one made by Bush in the case now before us. Glover was convicted of being a felon in
possession of a weapon in violation of Code § 18.2-308.2(A). On appeal, Glover argued, inter alia,
that the trial court erred by allowing the Commonwealth to introduce the specific nature of his prior
felony conviction for robbery when he offered to stipulate that he had a prior conviction of the type
required by Code § 18.2-308.2(A). This Court (and the Supreme Court through its summary
affirmance) rejected Glover’s argument. Noting that Code § 18.2-308.2(A) required proof of
specifically enumerated felonies, the Court held that “[t]he Commonwealth . . . is not obliged to
enter into an agreement whereby it is precluded from putting on its evidence simply because the
3 Bush complains that the Commonwealth made inappropriate reference to his robbery conviction during opening statements. However, the record does not reflect that Bush objected to such statements during or at any point after the statements were made. -4- defendant is willing to make a qualified stipulation. The trial court correctly ruled that the
Commonwealth was entitled to prove the indictment . . . .” Glover, 3 Va. App. at 162.
In Essex v. Commonwealth, 18 Va. App. 168 (1994), this Court again recognized that the
Commonwealth was permitted to reject a defendant’s proposed stipulation and introduce evidence
of a prior conviction. Essex was convicted of being a felon in possession of a firearm in violation of
Code § 18.2-308.2(A). On appeal, Essex argued, inter alia, that the trial court erred in allowing the
Commonwealth to admit the specific nature of his prior felony conviction for murder, especially
when the Commonwealth could have offered a copy of Essex’s prior burglary conviction order
instead of the murder conviction. Although Code § 18.2-308.2(A) had been amended since Glover
so that the Commonwealth no longer needed to prove a specifically enumerated felony but only had
to show conviction of any felony, this Court found that the change in the statute did not require a
different outcome than in Glover. “The Commonwealth is not required to accept a stipulation. The
most efficient way to prove the prior felony conviction is to offer in evidence an authenticated copy
of the prior order of conviction.” Essex, 18 Va. App. at 171. Further, relying on Pittman v.
Commonwealth, 17 Va. App. 33 (1993), where the Court held that the Commonwealth can prove
multiple convictions when it only is required to prove one, this Court in Essex held, “It follows that
if the Commonwealth can prove multiple convictions when it only needs to prove one, the
Commonwealth may select any one of the prior convictions to prove its case.” Id. at 172. The
Court noted that any “prejudice may be alleviated by a jury instruction limiting the purpose for
which the evidence is offered.” Id.
The precedents provided in Glover and Essex, taken in conjunction with the express
statement in Rule 2:102 that the Virginia Rules of Evidence did not change case law, make clear
that “[t]he Commonwealth is not required to accept a stipulation.” Essex 18 Va. App. at 171.
Instead, this Court has consistently held that, where there are concerns that evidence may be
-5- unfairly prejudicial, a limiting or clarifying instruction is the appropriate remedy. See Sheppard v.
Commonwealth, 250 Va. 379, 394-95 (1995); Thomas v. Commonwealth, 44 Va. App. 741, 751,
adopted upon reh’g en banc, 45 Va. App. 811 (2005); Essex, 18 Va. App. at 172; Woodson v.
Commonwealth, 16 Va. App. 539, 541 (1993); Clinton v. Commonwealth, No. 0184-16-1, at *2
(Va. Ct. App. Apr. 18, 2017). The Commonwealth, in its “Response to Motion to Exclude
Evidence of Prior Conviction” made prior to trial, provided a sample limiting instruction that
could have been provided to the jury.4 The record does not reflect that at any time Bush
requested that a limiting or clarifying instruction be given informing the jury of the limited
purpose for which his prior sentencing order was admitted.5 Bush cannot now on appeal claim
prejudice after having rejected the opportunity at trial to resolve such prejudice. Consequently,
because Bush sought no such limiting or clarifying instruction, Bush cannot prevail on appeal
and we do not need to reach his other arguments, including his argument about Old Chief, which
addresses a federal, nonconstitutional rule of evidence.6
4 The Commonwealth’s suggested jury instruction, derived from Virginia Criminal Model Jury Instruction No. 2.250, stated, “Evidence that the defendant was previously convicted of robbery is not proof that he possessed a firearm on November 14, 2016, and such evidence may not be considered by you in determining whether the defendant possessed a firearm on November 14, 2016.” 5 Bush argues on appeal that he was not required to request a cautionary instruction or a mistrial because those actions are reserved for times when evidence is admitted in error. Bush contends on brief that, since the trial court found the evidence was not erroneously admitted, no mistrial or cautionary instruction was warranted. However, Bush at trial and on appeal argues that his prior sentencing order was admitted erroneously at trial. Bush’s argument is circular, and, in any event, runs counter to settled case law. See Sheppard, 250 Va. at 394-95; Thomas, 44 Va. App. at 751; Essex, 18 Va. App. at 172; Woodson, 16 Va. App. at 541. 6 Our jurisprudence dictates that we should resolve cases on appeal on the narrowest and best grounds available. See Commonwealth v. Swann, 290 Va. 194, 196 (2015) (“The doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010))); Luginbyhl v. Commonwealth, 48 Va. App. 58, 64 (2006) (en banc). -6- III. CONCLUSION
In short, it is well established that the Commonwealth is not required to accept a
defendant’s offered stipulation, even when there are multiple convictions which the
Commonwealth could choose to admit into evidence. At trial, Bush failed to request a limiting or
clarifying instruction which could have addressed his concerns for any undue prejudice that he
argues arose from the admission into evidence of the redacted sentencing order. For these reasons,
the trial court did not err in admitting the sentencing order showing Bush’s previous convictions
despite Bush’s offer to stipulate to being previously convicted of a violent felony. Therefore, we
affirm Bush’s conviction for possession of a firearm by a previously convicted violent felon under
Code § 18.2-308.2.
Affirmed.
-7-