Gardner v. Commonwealth

• Citation: 758 S.E.2d 540
• Decision Date: 05 June 2014
• Docket Number: Record No. 131166.
• Court: Virginia Supreme Court
• Parties: Michael Armin GARDNER v. COMMONWEALTH of Virginia.

758 S.E.2d 540

Michael Armin GARDNER

v.COMMONWEALTH of Virginia.

Record No. 131166.

Supreme Court of Virginia.

June 5, 2014.

Peter D. Greenspun, Fairfax (Jonathan Shapiro; Mikhail N. Lopez; Greenspun Shapiro, on briefs), for appellant.

Benjamin H. Katz, Assistant Attorney Genral (Mark R. Herring, Attorney General, on brief), for appellee.

Present: All the Justices.

Opinion by Justice S. BERNARD GOODWYN.

In this appeal, we consider whether the Court of Appeals erred in affirming the circuit court's exclusion of evidence of good character sought by the defendant.

Procedural and Factual Background ¹

In the Circuit Court of Arlington County, Michael Armin Gardner (Gardner) was charged with three counts of aggravated sexual battery in violation of Code § 18.2–67.3 and one count of object sexual penetration in violation of Code § 18.2–67.2. The charges arise from events alleged to have taken place during sleepovers at his home on June 16 and June 18, 2011, and involve pre-teen girls who were friends of his daughter. After a jury trial, Gardner was found guilty of two counts of aggravated sexual battery and one count of object sexual penetration.²

Gardner appealed his convictions to the Court of Appeals, which denied his petition for appeal. Gardner v. Commonwealth, Record No. 1831–12–4 (June 21, 2013). This Court granted Gardner's petition for appeal. The dispositive issue for purposes of this appeal is whether the Court of Appeals erred in affirming the judgment of conviction despite the circuit court's refusal to permit Gardner to elicit evidence of his good character through two witnesses. ³

While presenting its case at trial, the defense called six character witnesses. In addition to presenting evidence of Gardner's character for truth and veracity, Gardner also attempted to question two of those character witnesses, Laurie Ombrembt (Ombrembt) and Katherine Allan (Allan), about his reputation in the community for being a good caretaker of children and for not being sexually assaultive or abusive toward them.

Specifically, Gardner's counsel asked Ombrembt, “Do you know if Mr.—what Mr. Gardner's reputation is, among those who know him as well, for being someone who would be a good caretaker of children as opposed to someone who would harm or abuse or be neglectful of them?” The Commonwealth objected and argued that Gardner was limited to presenting character evidence relating to “a reputation for truthfulness and veracity or for peacefulness.” In response, Gardner argued to the circuit court that he was entitled to present evidence regarding his reputation for possessing traits related to the crimes charged and that reputation evidence could be in the form of negative testimony regarding his not having a reputation for possessing a certain trait.

The Commonwealth then argued that

it is the defendant's reputation at the time of the incident which is at issue here, so if the neighbors had a discussion that he's never known to be a pedophile, that would be one thing if they had a discussion in the neighborhood about that, but I doubt that they did until after the incident and I don't think he can prove that up through this witness or any other.

Immediately thereafter, the circuit court stated, “I agree,” and sustained the Commonwealth's objection to the character evidence sought by Gardner.

Gardner then proffered the following:

Your Honor, we would proffer, then, that Ms. Ombrembt ... would testify that—beyond what she's already testified to—that there is no evidence of a negative sort that Mr. Gardner has been involved in any sort of abusive, physical, sexual, neglectful behavior with children.

That that is current and that that is including the time period of mid-June of 2011 and the time frame leading up to that; that she has knowledge of that, of people's involvement with Mr. Gardner; that they have expressed that they allow and would allow [their] kids to be with him, to be supervised with him; and that they have no evidence, no indication, of any sort of bad conduct, sexual conduct, with minor children during that time.... And she's never heard any of that.

Gardner called Allan as his next witness. After establishing her knowledge of Gardner's reputation in the community and questioning Allan about Gardner's reputation for truth and veracity, Gardner, without objection, asked the circuit court to incorporate his earlier questions to Ombrembt and proffer as part of Allan's testimony.

In its order denying Gardner's appeal and affirming the circuit court's ruling regarding the Commonwealth's objection to Gardner's character evidence inquiry, the Court of Appeals stated that there was no evidence that the witnesses had discussed the characteristic of being a good caretaker of children and not being abusive or assaultive toward them prior to Gardner's being charged with the offenses. The court noted that the proffered testimony of the reputation witnesses focused on the suggestion that Gardner had not been involved previously in any sort of abusive, physical, sexual or neglectful behavior with children and that these witnesses knew individuals who would allow Gardner to supervise their children. The Court of Appeals then concluded that the circuit court did not preclude testimony as to the general reputation evidence that existed regarding Gardner prior to his being charged with the offenses and affirmed the judgment of the circuit court. Considering the Commonwealth's objections and Gardner's proffer in the context in which they were presented at trial, we conclude that this ruling of the Court of Appeals was erroneous.

Analysis

Gardner claims that the circuit court misapplied the law by ruling that truth and veracity were the only admissible traits or, alternatively, that the reputational evidence sought was not within a relevant time period. Gardner claims the Court of Appeals erred in not reversing the convictions and by ruling that the circuit court did not preclude testimony as to Gardner's general reputation prior to his being charged with the offenses.

By asking Ombrembt and Allan to testify about their personal knowledge of his “reputation in the community for a character trait at issue in the case,” Gardner maintains he laid the proper foundation for admission of the additional character testimony he sought from them. He claims his proffer addressed the Commonwealth's claim that the character testimony he sought did not relate to his reputation prior to being charged with the offenses. Gardner proffered that the reputation evidence he sought from the witnesses included “the time period of mid-June of 2011 and the time frame leading up to it.” According to Gardner, the proffer also provided additional foundational information to support the reputational evidence he wanted admitted.

The Commonwealth acknowledges Gardner's proffer “reference[d] the relevant time period.” However, it argues that “though [Gardner] asserted Ombrembt and Allan were aware of the assessment of Gardner by particular individuals as it related to their children, [he] failed to place this proffer into the larger context of community opinion.” The Commonwealth disagrees that Gardner's proffer was merely laying a foundation. According to the Commonwealth, Gardner's proffer focused on Ombrembt's and Allan's own personal knowledge, which is impermissible as character evidence.

A trial court exercises its sound discretion when it decides whether to admit character evidence in the form of witness testimony in a criminal trial. See Zirkle v. Commonwealth, 189 Va. 862, 872, 55 S.E.2d 24, 30 (1949). However, although a trial court exercises its discretion in admitting or excluding evidence, the court may not exercise its discretion to exclude admissible evidence.See Gray v. Rhoads, 268 Va. 81, 86, 597 S.E.2d 93, 96 (2004). This is because admissibility of evidence is determined by legal principles. Id.

At trial, the Commonwealth objected, on two grounds, to Gardner's question that sought the disputed character evidence. It first objected to the question because the Commonwealth believed Gardner was limited to character evidence concerning reputation for truthfulness, veracity or peacefulness. Secondly, the Commonwealth claimed that the question sought inadmissible reputation evidence because the evidence did not exclusively concern Gardner's reputation before the incident. As a matter of law, neither ground was a proper basis for sustaining the Commonwealth's objection to Gardner's question that sought the proposed character evidence.

We have repeatedly stated that a defendant is not limited solely to reputation evidence regarding truthfulness, but may offer evidence to prove good character for any trait relevant in the case. See Barlow v. Commonwealth, 224 Va. 338, 340, 297 S.E.2d 645, 646 (1982); Zirkle, 189 Va. at 871, 55 S.E.2d at 29;see also Va. R. Evid. 2:404(a)(1) (permitting character evidence in the form of “[e]vidence of a pertinent character trait of the accused offered by the accused”). Character is used as a synonym for reputation. Zirkle, 189 Va. at 871, 55 S.E.2d at 29. “A person on trial for a criminal offense has the right to introduce evidence of his good character, on the theory that it is improbable that a person who bears a good reputation would be likely to commit the crime charged against him.” Id. For this reason, the circuit court erred as a matter of law to the extent it sustained the Commonwealth's objection and excluded Gardner's character evidence based upon the Commonwealth's stated objection that character evidence is limited to a defendant's character for truth and veracity or for peacefulness.

Likewise, case law does not support the Commonwealth's argument at trial, accepted by the circuit court and affirmed by the Court of Appeals, that Gardner's character evidence was restricted to his reputation before being criminally charged. The Commonwealth cites no Virginia case that supports...