Herbert Eugene Smith, Jr. v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Raphael
UNPUBLISHED
Argued at Richmond, Virginia
HERBERT EUGENE SMITH, JR.
MEMORANDUM OPINION* BY
v. Record No. 0929-21-2 JUDGE DANIEL E. ORTIZ
MARCH 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
W. Reilly Marchant, Judge
Paul C. Galanides for appellant.
Liam A. Curry, Assistant Attorney General (Jason S. Miyares,
Attorney General; David M. Uberman, Assistant Attorney General,
on brief), for appellee.
Herbert Eugene Smith, Jr. appeals his convictions, following a jury trial, for rape and
abduction with the intent to defile, in violation of Code §§ 18.2-61 and 18.2-48.1 He asserts that the
prosecutrix’s testimony was so inherently incredible or contrary to human experience that it was
unworthy of belief. He further argues that the Commonwealth failed to prove asportation or
restraint beyond the extent necessary to accomplish the underlying crime of rape. Lastly, Smith
argues that the trial court violated his Sixth Amendment right to confront witnesses when it
restricted his cross-examination of a cooperating co-defendant. Because there was sufficient
evidence to support both of Smith’s convictions and because Smith failed to sufficiently proffer
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Smith was also convicted of statutory burglary, grand larceny of a motor vehicle, and
credit card theft, which are not subject to this appeal.
the contents of Zekhaire Robinson’s anticipated testimony on his dismissed charge, we affirm the
convictions.
BACKGROUND2
On January 25, 2020, C.A. responded to a message Smith sent to her via Facebook
messenger. C.A. and Smith knew each other from high school and made plans to meet and smoke
marijuana later that day. When Smith asked C.A. if anyone was with her, she stated she was alone.
Smith then informed C.A. that his brother would come with him to pick her up.
Several hours later, Smith arrived at C.A.’s hotel with two men, later identified as Zekhaire
Robinson and Shaquan Hill, whom C.A. did not know. The group went to a residence in Gilpin
Court. C.A. did not know that Robinson and Hill would also be at the residence.
The group remained downstairs for a short period to roll a marijuana blunt, then went to an
upstairs bedroom to smoke it and watch television. C.A. sat in a red camping chair, and Smith sat in
a chair next to her while Robinson and Hill sat on a bed. Smith, Robinson, and Hill were drinking
alcohol and smoking marijuana, but C.A. testified that she did not drink.3 C.A. admits she did take
three “puffs” of the marijuana but did not feel intoxicated.
During the evening, Smith put his hand on C.A.’s thigh. C.A. removed Smith’s hand and
asked him what he was doing. Smith responded, “I thought that’s what you came here for.” She
said she “did not.” Without warning, Smith picked C.A. up out of the chair and threw her on the
bed. Smith and Hill held C.A.’s arms as Robinson took off her pants and underwear. The men
2
“In accordance with familiar principles of appellate review, the facts will be stated in
the light most favorable to the Commonwealth, [as] the prevailing party at trial.” Scott v.
Commonwealth, 292 Va. 380, 381 (2016) (citing Baldwin v. Commonwealth, 274 Va. 276, 278
(2007)).
3
Many of the details from the night of the assault are contested. C.A. maintains that she
did not drink alcohol that night. Robinson testified that C.A. not only drank alcohol but “got
drunk.”
-2-
argued about who was going to “go first” while C.A. attempted to push them off and stated, “I don’t
want this.” Then Robinson raped C.A. for five minutes.
When Robinson ceased his assault, Smith “said that he wanted to go next” and held C.A.’s
legs while he raped her for about eight minutes. Robinson and Hill held C.A.’s arms during Smith’s
assault. As Smith assaulted C.A., he sucked her neck. Next, Smith and Robinson encouraged Hill
to participate in the rape of C.A. Hill was the last to violate C.A. as Robinson and Smith held her
down. The entire episode lasted approximately 20 minutes.
When the men finished assaulting C.A., they left the bedroom. C.A. gathered her clothes
and ran from the residence. Smith, Robinson, and Hill chased her until she found a nearby store
where she called her sister to pick her up. When C.A. and her sister arrived back at her hotel, C.A.
called her uncle, a law enforcement officer, who directed her to call the police and to not wash
herself or her clothing.
Richmond Police Officer Garrick Danko was dispatched to C.A.’s hotel in Henrico and
learned that C.A. had been attacked earlier that day but had left the location of the assault. C.A.
shared her phone’s recent location,4 Facebook photos, and an Instagram story5 of her assailants with
Officer Danko. While observing the images, Officer Danko noted that one of the suspects wore a
blue lanyard.
Officer Danko took C.A. to police headquarters to speak with Detective Baynes and then
took C.A. to the hospital. Thereafter, he went to the location C.A. indicated the rape occurred.
Officer Danko learned that the residence belonged to Shaquan Hill’s mother, who gave consent for
the police to search the residence. Officer Danko found an upstairs bedroom exactly as C.A. had
4
When C.A. had called her sister and requested that she pick her up, C.A. had pinned her
current location so her sister could find her at 1102 North 2nd Street in the City of Richmond.
5
Officer Danko explained that an Instagram story is a picture or video posted to an
individual’s Instagram account that can only be viewed for twenty-four hours.
-3-
described and saw Hill was wearing a lanyard that matched the lanyard in the Instagram post C.A.
had shown him.
Meanwhile, C.A. was examined by forensic nurse Claryana Feliciano when she arrived at
VCU Medical Center. Feliciano explained that when she conducts a forensic exam of a potential
rape victim, she interviews the patient and collects physical evidence. Feliciano took samples from
C.A.’s neck and genitals. Feliciano conducted a pelvic exam with toluidine blue dye, which
revealed several injuries to C.A.’s outer genitalia that were invisible to the naked eye. At the time
of the exam, C.A. had a bruise on her neck, linear breaks in the skin, and a small laceration in her
outer genitalia. C.A. testified that after the forensic exam, she developed bruises on her arms and
legs.
Feliciano also documented C.A.’s account of the incident. C.A. told Feliciano that Smith
was raping her when two men walked into the room and asked if it was their turn. Feliciano
testified that C.A. told her that she drank alcohol and smoked marijuana that day. Despite that
admission, Feliciano did not note that C.A. displayed any signs of intoxication. Feliciano testified
that trauma victims sometimes have trouble recalling what happened.
Several days after the assault, Detective Baynes conducted a recorded interview with Smith,
that was shown to the jury. Smith denied the incident occurred. Detective Baynes then collected
buccal swabs from Smith, Robinson, and Hill.
Forensic biologist Kerri Galloway testified that male DNA was found in the right neck,
thigh, and external genitalia samples. Smith could not be eliminated as a major contributor of the
right neck sample. Robinson could not be eliminated as a major contributor on the thighs and
external genitalia sample. Galloway also found DNA from two other males in the thigh and
external genitalia sample but was unable to determine whose DNA was a contributor.
-4-
At trial, Robinson testified as a cooperating co-defendant, and his account of the night’s
events differed slightly from C.A.’s testimony. Robinson testified that he first went to Hill’s
residence on January 25 and that Smith arrived about ten minutes later. While talking, Smith told
Robinson that he had “got a girl.” Later that evening, the trio went to a hotel in Henrico to meet the
girl (C.A.) and brought her back to Hill’s residence. According to Robinson, everyone remained
downstairs smoking marijuana and drinking alcohol until Smith and C.A. went upstairs for fifteen
minutes. When Robinson and Hill went upstairs, Smith was raping C.A., who told Smith to “get
off.” Robinson admitted that he raped C.A. while Smith held her down by her arms. Hill was the
next to rape C.A. while he and Smith held C.A. by her arms. At the conclusion of the sexual
assault, the men went downstairs. Unexpectedly, Smith “blanked out,” pulled a gun on Robinson
and Hill, and told everyone to “get the fuck out.”
Robinson admitted he had three misdemeanor larceny convictions and one conviction for
lying to police. Additionally, Robinson admitted that he had one felony conviction for the rape of
C.A. He acknowledged he pleaded guilty to raping C.A. under a plea agreement providing that, in
exchange for his testimony, Robinson would be sentenced to an active period of incarceration of
seven years and nine months.
After the Commonwealth rested, Smith made a motion to strike contending that the
evidence was insufficient to convict him of rape and abduction with intent to defile. The trial court
denied the motion. Thereafter, Smith renewed his motion to strike, which the trial court again
denied. The jury found Smith guilty of rape by force and abduction with intent to defile.
After the jury rendered its verdict but before Smith’s final sentencing order was entered,
Smith moved to set aside the verdict. The trial court denied this motion. Ultimately, the trial court
sentenced Smith to five years for rape and twenty years for abduction with intent to defile. Smith
appeals.
-5-
ANALYSIS
I. The evidence was sufficient to support Smith’s conviction for rape.
A. Standard of Review
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
B. Analysis
Smith asserts that C.A.’s testimony is inherently incredible because her in-court
testimony was inconsistent with her prior complaint, the testimony of other witnesses, and
physical evidence. He notes that C.A. told Feliciano that she consumed alcohol the evening of
her assault, but at trial denied consuming alcohol that night. Additionally, C.A. never told the
forensic nurse or police that she was held by her legs and that Hill held her arms, both of which
she testified about at trial. Robinson’s testimony is also at odds with C.A.’s account of the night
of the assault. Robinson testified that C.A. consumed alcohol and smoked marijuana that
-6-
evening and that Smith and C.A. were upstairs alone for about fifteen minutes before he and Hill
came upstairs to rape C.A., which differs from C.A.’s account that all three men went upstairs
with her at the same time and all began holding her down before Smith began raping her.
Finally, Smith argues that there was no indication that C.A. fought off an attack by three
men because Feliciano found no evidence of a scrape, a nick, a cut, a bruise, or a fingernail
scraping hours after the attack.
“The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v.
Commonwealth, 67 Va. App. 519, 529-30 (2017)). Moreover, “[t]he conclusions of the fact
finder on issues of witness credibility may be disturbed on appeal only when we find that the
witness’ testimony was ‘inherently incredible, or so contrary to human experience as to render it
unworthy of belief.’” Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000) (quoting Fisher v.
Commonwealth, 228 Va. 296, 299 (1984)). “In all other cases, we must defer to the conclusions
of ‘the fact finder[,] who has the opportunity of seeing and hearing the witnesses.’” Id. (quoting
Schneider v. Commonwealth, 230 Va. 379, 382 (1985)). “These same principles apply in cases
involving rape, sodomy, and other sexual offenses, which may be sustained solely upon the
testimony of the victim, even in the absence of corroborating evidence.” Id. at 548-49.
C. C.A.’s testimony was not inherently incredible.
“A legal determination that a witness is inherently incredible is very different from the
mere identification of inconsistencies in a witness’ testimony or statements.” Kelley v.
Commonwealth, 69 Va. App. 617, 626 (2019). “Testimony may be contradictory or contain
inconsistencies without rising to the level of being inherently incredible as a matter of law.” Id.;
see, e.g., Nobrega v. Commonwealth, 271 Va. 508, 518 (2006) (holding that a witness was not
-7-
inherently incredible despite minor inconsistencies in her testimony). “To be ‘incredible,’
testimony ‘must be either so manifestly false that reasonable men ought not to believe it, or it
must be shown to be false by objects or things as to the existence and meaning of which
reasonable men should not differ.’” Juniper v. Commonwealth, 271 Va. 362, 415 (2006)
(quoting Cardwell v. Commonwealth, 209 Va. 412, 414 (1968)).
At trial, Smith attacked C.A.’s credibility and argued that her version of the events
constantly shifted. Despite Smith’s claims, C.A.’s testimony was not uncorroborated. At trial,
C.A. testified that she and Smith discussed and arranged via Facebook messenger to meet and
smoke marijuana. Smith, Robinson, and Hill picked her up and brought her to a Gilpin Court
residence. They all smoked marijuana and watched television for several hours in a bedroom.
After C.A. told Smith not to touch her, Smith picked her up out of the chair and threw her
on the bed. Robinson removed her clothing while Smith and Hill held her arms, and then all
three men took turns raping her. Robinson corroborated much of C.A.’s testimony. Robinson
testified that he, Smith, and Hill picked C.A. up from her hotel and returned to Hill’s residence in
Gilpin Court. The group spent several hours smoking marijuana and drinking alcohol. He
admitted he raped C.A. while Smith held her arms. He also admitted that while both Smith and
Hill raped C.A., he held her arms.
Any inconsistencies in C.A.’s statements elicited during her cross-examination or during
other witnesses’ testimony were put before the jury for its consideration. See Kelley, 69
Va. App. at 626 (“[A]s Virginia law dictates, ‘[p]otential inconsistencies in testimony are
resolved by the fact finder,’ not the appellate court.” (second alteration in original) (quoting
Towler v. Commonwealth, 59 Va. App. 284, 292 (2011))). In exercising its role as the factfinder,
the jury weighed the evidence and resolved any inconsistencies in favor of the Commonwealth in
-8-
this case. In doing so, the jury necessarily rejected Smith’s theory of innocence—that the victim
had lied—and found her credible.
The Commonwealth elicited testimony from Detective Baynes and Feliciano that victims
of violent crimes often have difficulty remembering details and the sequence of events. Thus,
the whereabouts of C.A.’s cell phone during the attack and whether Smith or Robinson raped her
first, are details that a jury could reasonably conclude were minor and misremembered. Whether
or not C.A.’s inconsistencies were detrimental to her credibility was a determination for the jury.
By finding Smith guilty, the jury concluded that C.A. was credible.
The inconsistencies within C.A.’s testimony that Smith raises to this Court simply do not
render her testimony “so manifestly false that reasonable men ought not to believe it.” See
Juniper, 271 Va. at 415.
Accordingly, we find that the record supports the jury’s credibility determination.
II. The evidence was sufficient to support Smith’s conviction for abduction with intent to
defile.
Smith contends that the evidence was insufficient to find him guilty of abduction with
intent to defile. He asserts that any detention or asportation of the victim was incidental to the
alleged rapes and did not constitute a separate offense.
A. Standard of Review
“Whether an abduction is merely incidental to another crime is a question of law.
However, because no two crimes are exactly alike, determining whether an abduction is
incidental necessarily requires consideration of the historical facts of each case.” Hoyt v.
Commonwealth, 44 Va. App. 489, 496 n.4 (2004). Therefore, the trial court’s findings of
historical fact are controlling but we review the court’s application of those facts to the law de
novo. Smith v. Commonwealth, 56 Va. App. 711, 721 (2010).
-9-
B. Analysis
“Any person who, by force, intimidation or deception, and without legal justification or
excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such
other person of his personal liberty . . . shall be deemed guilty of ‘abduction.’” Code
§ 18.2-47(A). If such abduction occurs with intent to defile, the person shall be punished under
Code § 18.2-48. “The abduction statute does not contain a temporal requirement, which means a
victim can be detained under the statute even if only for the briefest of moments.” Brown v.
Commonwealth, 74 Va. App. 721, 732-33 (2022).
The Virginia Supreme Court has held that
one accused of abduction by detention and another crime involving
restraint of the victim, both growing out of a continuing course of
conduct, is subject upon conviction to separate penalties for
separate offenses only when the detention committed in the act of
abduction is separate and apart from, and not merely incidental to,
the restraint employed in the commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314 (1985). Further, “[t]he only issue when abduction is
charged alongside an offense for which detention is an intrinsic element is whether any detention
exceeded the minimum necessary to complete the required elements of the other offense.”
Lawlor v. Commonwealth, 285 Va. 187, 225 (2013). Therefore, the issue becomes whether
sufficient evidence exists to support the factfinder’s determination that a defendant used greater
restraint than that necessary to commit the simultaneously charged offense. See Powell v.
Commonwealth, 261 Va. 512, 541 (2001).
When considering whether an abduction is incidental to another crime, this Court
considers several factors:
“‘(1) the duration of the detention or asportation,’” (2) “‘whether
the detention or asportation occurred during the commission of a
separate offense,’” (3) “‘whether the detention or asportation which
occurred is inherent in the separate offense,’” and (4) “‘whether the
- 10 -
asportation or detention created a significant danger to the victim
independent of that posed by the separate offense.’”
Wiggins v. Commonwealth, 47 Va. App. 173, 183 (2005).
Under either standard—Wiggins’ four-factor analysis or Hoyt’s additional restraint test—
the evidence was sufficient to demonstrate that Smith abducted C.A.
C. There is sufficient evidence of asportation such that the abduction with intent to defile
is separate and apart from, and not incidental to, the rape.
The Virginia Supreme Court has “acknowledged some degree of detention to be inherent
in rape, robbery, and assault but . . . [has] not indicated that any asportation of the victim is
similarly inherent.” Lawlor, 285 Va. at 225 n.13.
Here, Smith lured C.A. to the home under false impressions. This Court has previously
found this amount of asportation is sufficient to support an independent conviction for abduction
without being subsumed by another offense. See Smith, 56 Va. App. at 723 (finding that “slight”
asportation occurring from defendant “lur[ing the victim] into his home and into his bedroom by
placing her under the false impression that [someone else] was in the bedroom and wanted to see
her” was sufficient asportation to support abduction with intent to defile conviction even though
the attempted rape occurred almost immediately after the victim entered the bedroom); Wiggins,
47 Va. App. at 189 (finding that “the victim [being] forced to walk approximately ‘twenty-three
feet’ to the front cash register and then approximately ‘eight feet’ to the drive-through cash
register, for a total of thirty-one feet” was sufficient asportation to distinguish it from cases
where we found the abduction merely incident to a robbery).
Smith initiated contact with C.A. and invited her to “his” house where only his brother
was supposed to have been present. Smith ultimately led C.A. to the upstairs floor of the
residence with two other men, previously unknown to her. The victim testified that she did not
- 11 -
agree to go to what she believed to be Smith’s residence for a “physical encounter.” The victim
was manipulated and isolated by Smith to facilitate his gang rape of her.
Although luring C.A. to the residence aided in the commission of the rape, it was not
necessary to accomplish the rape. Furthermore, the asportation here posed a danger to C.A.
independent of that posed by the rape itself.
Smith lured C.A. miles from her home under false pretenses, lying about who would be at
the residence, and making sure that no one was with her.6 Smith’s plan to abduct C.A. is further
illustrated by his encounter with Robinson earlier in the day, showing him the texts between
Smith and C.A., and telling Robinson that he “got a girl.” Smith then enticed C.A. to an upstairs
bedroom to isolate her in a place where the three men could assault her. C.A. testified her
protests and resistance during the assault ceased because she feared for her safety. It can be
fairly inferred from these different text messages and Robinson’s corroboration, that Smith
engaged in a plan to lure C.A. and abduct her. There is sufficient evidence to show asportation
independent and separate from the rape. Consequently, we affirm the jury’s judgment.
III. Smith’s Sixth Amendment right to confrontation was not violated.
Smith asserts that his Sixth Amendment right to confrontation was violated when the trial
court prohibited him from asking Robinson about a charge pending in Henrico County at the
time of the rape that was subsequently dismissed by nolle prosequi. He argues that he was
“entitled to explore whether the dismissal of a felony charge in another jurisdiction was part of
the favorable treatment . . . Robinson . . . receiv[ed] for his testimony” and whether this
motivated Robinson to change his story and testify favorably for the Commonwealth.
6
During their text conversation, Smith asked C.A. if anyone was with her, to which she
responded no. In that same text conversation, Smith told C.A. that Smith and his brother would
go to pick her up, when in fact Smith, Robinson, and Hill took an Uber to pick her up. Smith
never mentioned Robinson nor Hill, both of whom C.A. did not know.
- 12 -
A. Standard of Review
“The 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.” Jones v.
Commonwealth, 38 Va. App. 231, 236 (2002) (quoting Blain v. Commonwealth, 7 Va. App. 10,
16 (1988)).
B. Analysis
Smith argues that his right to confront his accusers pursuant to the Confrontation Clause
of the United States Constitution was violated when the trial court did not allow him to ask
Robinson about an alleged pending felony charge in Henrico. However, Smith failed to timely
and sufficiently proffer what he expected the content of that testimony to be. When the trial
court sustained the objection to preclude testimony about Robinson’s charge in Henrico, it
invited Smith to provide a basis to ask about the Henrico charge, asking how it was related to
Robinson’s deal with the Richmond City Commonwealth’s Attorney, stating “[u]nless that is
part of the deal or something, you can’t impeach him on charges brought up and nol-prossed.”
Smith “argue[d] that not every consideration that would motivate a person in his position to
testify favorably is going to be documented in the plea deal”—without any proffer of the specific
expected testimony that would connect Robinson’s dismissed charge to his testimony.
After the conclusion of the trial, Smith filed a Virginia Rule of Evidence 2:103 proffer in
conjunction with a motion to set aside the verdict. In it, counsel advised the trial court that the
prohibited inquiry involved the case of “Commonwealth v. Zekhaire Robinson,”
GC19079369-00, in Henrico General District Court, charging Robinson with felonious
possession of a stolen vehicle. Smith’s counsel proffered that he would have introduced the
Virginia Courts Case History and would have cross-examined Robinson about the timeline, and
whether or not he was aware if anyone had contacted the Henrico detectives or prosecutors about
- 13 -
Robinson’s cooperation agreement with the Commonwealth’s Attorney in the City of Richmond
and whether or not the dismissal of that charge was made to compensate Robinson for his
cooperation against Smith. Even this untimely proffer failed to do more than speculate about a
connection between Robinson’s testimony and his dismissed Henrico charge, and still did not
describe the expected testimony.
“The failure to proffer the expected testimony is fatal to [a] claim on appeal.” Tynes v.
Commonwealth, 49 Va. App. 17, 21 (2006) (quoting Molina v. Commonwealth, 47 Va. App. 338,
367-68 (2006)). “[W]here admissibility is challenged, the litigant must provide a proffer that is
sufficiently detailed to give the trial judge a fair opportunity to resolve the issue correctly and
contemporaneously.” Creamer v. Commonwealth, 64 Va. App. 185, 199 n.7 (2015) (emphasis
added). Smith failed to proffer any connection between the dismissal of Robinson’s Henrico
charge and his testimony in this case at the time that the testimony was excluded.
Furthermore, even if Smith’s proffer after the conclusion of the trial was sufficient and
the trial court erred when it prohibited Smith’s line of questioning, any resulting error was
harmless because the jury was aware of Robinson’s prior criminal history, his plea agreement
with the Commonwealth, the details of that agreement, and that Robinson had a charge pending
in Henrico when police initially questioned him about C.A.’s assault.
Absent an error of constitutional magnitude, “no judgment shall be arrested or reversed”
when “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.” Code § 8.01-678. “‘A
defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Brown v.
United States, 411 U.S. 223, 231-32 (1973) (quoting Bruton v. United States, 391 U.S. 123, 135
(1968)). “If, when all is said and done, the conviction is sure that the error did not influence the
[factfinder], or had but slight effect, the verdict and the judgment should stand[.]” Rose v.
- 14 -
Commonwealth, 270 Va. 3, 12 (2005) (quoting Clay v. Commonwealth, 262 Va. 253, 260
(2001)). Therefore, in determining whether an error is harmless, “we must review the record and
the evidence and evaluate the effect the error may have had on how the finder of fact resolved
the contested issues.” Becker v. Commonwealth, 64 Va. App. 481, 497 (2015) (quoting Lavinder
v. Commonwealth, 12 Va. App. 1003, 1007 (1991) (en banc)).
On cross-examination, Robinson admitted that he had three misdemeanor larceny
convictions, a misdemeanor conviction for lying to police, and a felony conviction for the rape of
C.A. Smith’s trial counsel then attempted to ask Robinson about a suspended sentence in
Henrico County. The Commonwealth objected. The trial court allowed counsel to explore
Robinson’s potential bias. The trial court stated “[i]f [trial counsel] [is] trying to imply that there
is some quid pro quo from the Commonwealth, then you [can] ask that question.” The court
continued “that would be a proper bias. But you are getting around to it in a way that is allowing
the objection. If you are asking [Robinson] if there is a deal, ask him if there is a deal and what
is it.” Trial counsel then elicited a substantial amount of impeachment testimony from Robinson.
The jury learned that when police questioned Robinson, he told them he was not involved
in C.A.’s assault and that he wished to be released so that could attend a court date for a pending
charge in Henrico that was subsequently dismissed by nolle prosequi. Robinson explained at
trial that he lied to police when he denied any involvement in C.A.’s assault. Upon learning that
his DNA was found on C.A., Robinson decided to accept the Commonwealth’s plea agreement
because he, in fact, raped C.A. In exchange for his testimony against his co-defendants,
Robinson would be sentenced to an active period of incarceration of seven years and nine
months, which could be reconsidered. Robinson articulated his hope that his sentence would be
reduced because of his testimony.
- 15 -
It was at this juncture that Smith’s trial counsel revisited Robinson’s charge in Henrico
County. The Commonwealth objected and stated that “It’s in Henrico. I have nothing to do with
it.” The trial court sustained the objection, ruling that it was irrelevant and “[t]here is no
evidence that Richmond had anything to do with Henrico.”
Thus, the jury was aware of Robinson’s prior criminal history, his plea agreement with
the Commonwealth, the details of that agreement, and that Robinson had a charge pending in
Henrico when police initially questioned him about C.A.’s assault. We find that learning
whether the Henrico charge was dismissed by nolle prosequi because of Robinson’s plea
agreement in the Richmond case would not have impacted how the jury resolved this case.
Consequently, we affirm the trial court’s decision.
CONCLUSION
We find that the evidence was sufficient to convict Smith of rape by force and abduction
with the intent to defile and that Smith waived his confrontation argument through his failure to
sufficiently proffer what he expected the content of Robinson’s testimony regarding his
dismissed charge in Henrico to be. Alternatively, even if Smith did not waive his argument, any
error would be harmless. Accordingly, we affirm the convictions.
Affirmed.
- 16 -