Argenbright v. Commonwealth Of Va.

• Decision Date: 07 September 2010
• Docket Number: Record No. 1758-09-3.
• Citation: Argenbright v. Commonwealth, 57 Va.App. 94, 698 S.E.2d 294 (Va. App. 2010)
• Court: Virginia Court of Appeals
• Parties: Calvin Lee ARGENBRIGHT, Jr.v.COMMONWEALTH of Virginia.

57 Va.App. 94

698 S.E.2d 294

Calvin Lee ARGENBRIGHT, Jr.v.COMMONWEALTH of Virginia.

Record No. 1758-09-3.

Court of Appeals of Virginia Richmond.

Sept. 7, 2010.

COPYRIGHT MATERIAL OMITTED

David C. Smith, Assistant Public Defender(Office of the Public Defender, on brief), for appellant.

Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, ALSTON, JJ., and WILLIS, Senior Judge.

ALSTON, Judge.

In April 2009, Calvin Lee Argenbright, Jr.(appellant), was convicted in a jury trial of uttering a forged writing, in violation of Code§ 18.2-172, and obtaining money by false pretenses, in violation of Code§ 18.2-178.On appeal, appellant argues that the trial court abused its discretion by excluding the testimony of all of his proffered character witnesses.We hold that the trial court did not abuse its discretion in excluding the character evidence proffered by appellant.Therefore, we affirm the judgment of the trial court.

Whether evidence is admissible falls within the broad discretion of the trial court, and this Court will not disturb the trial court's ruling absent a clear abuse of discretion.Blain v. Commonwealth,7 Va.App. 10, 16, 371 S.E.2d 838, 842(1988).

The resolution of appellant's claim on appeal is reached by determining whether or not appellant offered the testimony for a proper purpose and laid the proper foundation to support the admission of his proffered character evidence.In this regard, character evidence is admissible for two different purposes at trial.First, “ ‘[a] person on trial for a criminal offense has the right to introduce evidence of his reputation for pertinent character traits on the theory that it is improbable that a person who has a good reputation for such traits would be likely to commit the crime charged against him.’ ”Weimer v. Commonwealth,5 Va.App. 47, 52, 360 S.E.2d 381, 383(1987)(quotingZirkle v. Commonwealth,189 Va. 862, 871, 55 S.E.2d 24, 29(1949)).“Evidence of this nature may be considered and weighed by the jury in determining his guilt or innocence, and, in a proper case, the punishment to be imposed.”Zirkle,189 Va. at 871, 55 S.E.2d at 29.

On appeal, appellant argues that he offered evidence of his character for truthfulness and veracity as substantive proof of his innocence.The Supreme Court has long recognized that an individual's character for truthfulness is implicated in crimes involving the theft of another's possessions: “Evidence of larceny involves ‘the perpetrator's character for truth,’ ” and “stealing is a crime ‘of that character which men generally are not found to commit unless when so depraved as to render it extremely probable that he will not speak the truth.’ ”Bell v. Commonwealth,167 Va. 526, 535-36, 189 S.E. 441, 445-46(1937)(quotingDavidson v. Watts,111 Va. 394, 397-98, 69 S.E. 328, 329(1910)).Appellant argues that he should have been allowed to introduce proof of his reputation for truthfulness and veracity to show that it was improbable that he obtained money by false pretenses from the victim or that he uttered a forged check.

A second basis for the admission of character evidence is presented if the defendant testifies on his own behalf, and his character for truthfulness is called into question.Under these circumstances, he is entitled to present character evidence that supports his credibility as a witness.Fry v. Commonwealth,163 Va. 1085, 1087, 177 S.E. 860, 861(1935)(citingMiller v. Harless,153 Va. 228, 149 S.E. 619(1929)).Accordingly,

“whenever the character of a witness for truth is attacked, either by direct evidence of want of truth, or by cross-examination, or by proof of contradictory statements, in regard to the material facts, or by disproving by other witnesses the material facts stated by him in his examination; or in general, whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence of his general reputation for truth.”

Id.(quotingMiller,153 Va. at 241, 149 S.E. at 623).Facts are “material” if they are those facts that “ ‘the cross-examining party would be entitled to prove ... in support of [its] case.’ ”Seilheimer v. Melville,224 Va. 323, 327, 295 S.E.2d 896, 898(1982)(quotingAllen v. Commonwealth,122 Va. 834, 842, 94 S.E. 783, 786(1918)).“Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is admissible.”Id.(citingStamper v. Commonwealth,220 Va. 260, 269, 257 S.E.2d 808, 815(1979);Ry. Co. v. Golladay,164 Va. 292, 309, 180 S.E. 400, 407(1935)).

However, the prerogative of the defendant to introduce character evidence in appropriate circumstances is not unlimited.“The accused, in order to establish good character, is not permitted to prove specific acts, custom or course of conduct.”Chiles v. Commonwealth,12 Va.App. 698, 700, 406 S.E.2d 413, 414(1991)(citingZirkle,189 Va. at 871, 55 S.E.2d at 29;Fields v. Commonwealth,2 Va.App. 300, 306, 343 S.E.2d 379, 382(1986)).“The witnesses called may not testify to their own personal opinion of the accused, or to a special reputation of him formed upon a single occasion.”Id.(citing Charles E. FriendThe Law of Evidence in Virginia§ 49 (3d ed.1988));accordWeimer,5 Va.App. at 54, 360 S.E.2d at 384(“[Witnesses] may not testify that their own observation and knowledge leads them to believe that the defendant is a person of good reputation.”).Instead,

[the accused] is confined to proof of the opinion that the people of the community have about him.His specific acts, customs, conduct, etc., create this opinion.It is the sum total of all of these things-that is, the consensus of opinion of the people of the community in which [the accused] lives that is considered pertinent and proper evidence to prove character.

Zirkle,189 Va. at 871, 55 S.E.2d at 29.Essentially, “[character] witnesses are not permitted to testify about anything except hearsay....They are [only] permitted to summarize what they have heard in their community.”Weimer,5 Va.App. at 54, 360 S.E.2d at 384.In accordance with these principles, this Court has recognized that “[i]n legal parlance, where reference is made to the character of the accused, character is used as a synonym for reputation.”Byrdsong v. Commonwealth,2 Va.App. 400, 402, 345 S.E.2d 528, 529(1986)(citingZirkle,189 Va. at 871, 55 S.E.2d at 29).¹

With these principles in mind, we consider the “character evidence” proffered by appellant and ultimately excluded by the trial court during appellant's trial for uttering a forged writing and obtaining money by false pretenses.Appellant testified on his own behalf, and the Commonwealth's attorney questioned appellant's credibility during the cross-examination of appellant.Thereafter, appellant offered the testimony of five character witnesses for the purpose of showing appellant's character for truthfulness and veracity.Additionally, appellant offered the testimony of one of his five witnesses for the dual purpose of showing appellant's character for abiding the law as well as his character for truthfulness.

I.Excluded Character Evidence

A. Michelle Shank

Appellant first proffered the testimony of Michelle Shank(Shank), appellant's former probation officer, as evidence of appellant's reputation for truthfulness and veracity.Shank testified that she supervised appellant until his case file for crimes unrelated to the instant case was closed in July 2008.She stated that appellant's probation supervision case file was closed because he“had a successful adjustment to his supervision; he paid all his [c]ourt costs; he paid his restitution of approximately $3,000 in full; he didn't have any new law violations at that time; and he complied with all Office appointments and home contacts.”The trial court excluded Shank's testimony because in its view the evidence had no bearing on appellant's reputation in the community for truth and veracity and, therefore, it was irrelevant.

Based on Shank's proffered testimony, we cannot say that the trial court abused its discretion.Shank testified regarding appellant's specific conduct, rather than the “ ‘ consensus of opinion of the people of the community’ ” of appellant, and thus, the trial court properly excluded her testimony.SeeChiles,12 Va.App. at 700, 406 S.E.2d at 414(emphasis added)(quotingZirkle,189 Va. at 871, 55 S.E.2d at 29);see alsoFields,2 Va.App. at 306, 343 S.E.2d at 382.

B. Teresa Johnson

Appellant next proffered the testimony of Teresa Johnson(Johnson), who had known appellant for approximately five years.The following exchange occurred during the proffer of Johnson's testimony:

Q.Do you know [appellant] in the community in which he lives and works?

A.Yes, sir.

Q.Do you know his reputation for truthfulness and veracity?

A.Good.

Q.What is that?How do you know that?

A.Because he worked with my husband in the backyard doing cars, and they never had no problems or nothing, and they ... did everything perfect.I mean, they never had no arguments or nothing.Nothing went on.

Q.Thank you.

COURT: That's not the community.That's her husband.He may form a part of the community.

Q.Did you ever see anyone else-hear anyone else talk about [appellant]?

A.No.

Q.Other than your husband?

A.Nobody.

Considering the proffered testimony of Johnson, we cannot say that the trial court abused its discretion by excluding Johnson's testimony.By her own admission, Johnson had not heard anyone other than her husband talk about appellant, and her opinion of appellant was based entirely on her personal experience with, and observations of, appellant.Like the proffered testimony of Shank, Johnson's testimony was inadmissible because she was not able to testify regarding “the consensus of opinion of the people of the community.”Zirkle,189 Va. at 871, 55 S.E.2d at 29;...