James Earl Bender v. Commonwealth

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
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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,
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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).
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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.
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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
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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).
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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.
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