Benjamin Forrest Carter v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and AtLee
UNPUBLISHED
Argued at Norfolk, Virginia
BENJAMIN FORREST CARTER
MEMORANDUM OPINION* BY
v. Record No. 0801-18-1 JUDGE RICHARD Y. ATLEE, JR.
JULY 2, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
Jill R. Schmidtke (Andrew M. Sacks; Stanley E. Sacks; Sacks &
Sacks, P.C., on brief), for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Benjamin Forrest Carter appeals his convictions for assault and battery, Code § 18.2-57,
carjacking, Code § 18.2-58.1, and two counts of abduction by force, Code § 18.2-47. Carter
argues that the trial court erred by admitting a witness’s preliminary hearing testimony. He also
argues that the evidence was insufficient to support the convictions. We disagree and affirm the
trial court.
I. BACKGROUND
Carter and Jasmine Smith-Aaron were in a romantic relationship. In April of 2016,
Carter was driving Smith-Aaron’s car, with both Smith-Aaron and her infant daughter in the car.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Carter parked the car at the library, where the parties got into an argument. A physical
altercation ensued,1 which ultimately resulted in the charges against Carter.
Smith-Aaron was the Commonwealth’s primary witness at trial. She cooperated and
answered the Commonwealth’s questions about the events leading up to Carter’s assault on her.
When the Commonwealth asked questions about the assault, Smith-Aaron became less
cooperative, and she repeatedly answered questions by stating that she did not know what
happened or that she could not remember.
The trial court allowed the Commonwealth to treat Smith-Aaron as an adverse witness,
but she continued to state that she could not remember. The Commonwealth attempted to use
the transcript from Smith-Aaron’s preliminary hearing testimony to refresh her recollection.
When asked if reviewing the transcript refreshed her memory, Smith-Aaron responded, “Not
really.” She continued to say that she did not remember what happened. When confronted with
her prior statement, she answered, “That’s what [the] paper says.”
The Commonwealth moved to introduce the transcript of Smith-Aaron’s preliminary
hearing testimony into evidence. The trial court stated that it would first have to find
Smith-Aaron “unavailable,” and it questioned her about her inability to remember her prior
testimony. The trial court informed Smith-Aaron that it could hold her in contempt and send her
to jail if it determined she was feigning her memory loss. Smith-Aaron said she understood, but
explained that it had been a long time and she could not remember “the exact events.” The trial
court found that she was unavailable and granted the Commonwealth’s motion to admit the
preliminary hearing transcript.
1
Because the details of the incident are immaterial to the issues on appeal, we recite only
those facts that are necessary to the consideration of the issues.
-2-
Carter objected, arguing that Smith-Aaron’s answers to the trial court’s questions were
equivocal because she only denied knowing the “exact detail[s].” The trial court required the
Commonwealth to question Smith-Aaron further. When the Commonwealth resumed
questioning, Smith-Aaron continued to answer with variations of “I don’t remember” or “I don’t
know.” When asked if she could recall anything, Smith-Aaron said she only remembered the
end of the incident when Carter pulled over the car.
The trial court again ruled the preliminary hearing transcript was admissible. The trial
court reminded Smith-Aaron that it could hold her in contempt, but she still stated that she could
not remember. Carter’s counsel was permitted to cross-examine Smith-Aaron. She continued to
state that she could not remember, and, at best, she could only tell them what she was reading
from the preliminary hearing transcript.
The trial court continued the case.2 When it resumed, the Commonwealth again
attempted, unsuccessfully, to refresh Smith-Aaron’s memory. The trial court ruled that
Smith-Aaron was unavailable. Carter objected, and his attorney was again permitted to
cross-examine her.
The trial court found that Smith-Aaron was refusing to testify, and it held her in contempt
of court. Smith-Aaron explained that she truly did not remember because the abuse “happened
for hours,” and she did not remember the details. The trial court allowed the Commonwealth to
question her again. Smith-Carter answered some questions that she had not answered before, but
was still unable to give many details.
2
The Commonwealth attempted to introduce records of text messages, and Carter
objected on best evidence grounds. The trial court continued the case to allow Smith-Aaron to
retrieve her cellphone in order to determine if the original text messages could be obtained from
the cellphone.
-3-
The Commonwealth then read into evidence portions of the preliminary hearing
testimony that related to the subjects Smith-Aaron was unable to remember. Smith-Aaron
provided some additional details on cross-examination.
After the Commonwealth rested its case, Carter renewed his motion to strike the
preliminary hearing transcript from evidence. After arguments, the trial court granted Carter’s
motion and struck the preliminary hearing testimony from the record.
In closing, Carter argued that the evidence was insufficient to convict him, though he
noted that “he was not going to argue with regards to the assault and battery” charge. The trial
court found Carter guilty of all four charges against him. This appeal followed.
II. ANALYSIS
A. Admissibility of the Preliminary Hearing Testimony
Carter assigns error to the trial court’s decision to admit the preliminary hearing
transcript into evidence.
An appellant must point to the specific error(s) in the trial court’s ruling upon which he or
she intends to rely. Rule 5A:12(c)(1). If the assignment of error “does not address the findings
or rulings in the trial court,” the assignment of error is not sufficient. Rule 5A:12(c)(1)(ii).
Therefore, if the assignment of error does not address an actual ruling made by trial court, we
will not consider it on appeal. Teleguz v. Commonwealth, 273 Va. 458, 471 (2007).
Carter’s assignment of error alleges that the trial court improperly admitted the transcript
of Smith-Aaron’s preliminary hearing testimony into evidence at the trial. Although the trial
court initially admitted the transcript into evidence, it subsequently granted Carter’s motion to
strike the preliminary hearing transcript from the record. Thus, despite Carter’s argument, the
preliminary hearing transcript was not admitted into evidence. Because the trial court did, in
fact, grant Carter’s motion to strike, Carter’s assignment of error refers to an alleged error
-4-
corrected by the trial court and does not address the final ruling of the trial court. Consequently,
we will not consider this argument on appeal.
B. Sufficiency of the Evidence
Carter argues that the evidence was insufficient to convict him of the crimes for which he
was charged. Specifically, he argues that the testimony of Smith-Aaron, even if admissible, was
not credible as a matter of law.
Rule 5A:20(e) requires that an opening brief contain the argument, principles of law, and
authorities relating to each assignment of error. “Unsupported assertions of error ‘do not merit
appellate consideration.’” Bartley v. Commonwealth, 67 Va. App. 740, 744 (2017) (quoting
Jones v. Commonwealth, 51 Va. App. 730, 734 (2008)). “The appellate court is not a depository
in which the appellant may dump the burden of argument and research.” Fadness v. Fadness, 52
Va. App. 833, 850 (2008) (quoting Jones, 51 Va. App. at 734-35). “‘[W]hen a party’s “failure to
strictly adhere to the requirements of Rule 5A:20(e)” is significant,’ this Court may treat the
question as waived.” Bartley, 67 Va. App. at 744 (quoting Parks v. Parks, 52 Va. App. 663, 664
(2008)).
Here, Carter’s argument that the evidence is insufficient consists solely of two conclusory
sentences. Further, Carter does not present a single citation or legal authority to support his
contention. Because we consider Carter’s failure to comply with Rule 5A:20(e) significant, we
consider this assignment of error waived.
III. CONCLUSION
Because Carter did not meet his burden to prove the trial court committed reversible
error, we affirm his convictions.
Affirmed.
-5-