Shifflett v. Commonwealth

• Decision Date: 14 January 2014
• Docket Number: Record No. 1675-12-3
• Court: Virginia Court of Appeals
• Parties: GALEN CRAIG SHIFFLETT v. COMMONWEALTH OF VIRGINIA

GALEN CRAIG SHIFFLETT v. COMMONWEALTH OF VIRGINIA

Record No. 1675-12-3

COURT OF APPEALS OF VIRGINIA

JANUARY 14, 2014

UNPUBLISHED

Present: Judges Humphreys, Beales and Senior Judge Annunziata

Argued at Salem, Virginia

MEMORANDUM OPINION^* BY

JUDGE ROSEMARIE ANNUNZIATA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

James V. Lane, Judge

W. Andrew Harding (W. Andrew Harding, PLC, on briefs), for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Galen Craig Shifflett ("appellant") was convicted in a jury trial of aggravated sexual battery. On appeal, he asserts the trial court erred in allowing the Commonwealth's attorney to cross-examine him about the nature of a prior felony conviction. Assuming, without deciding, that the trial court erred, we conclude any such error was harmless. Accordingly, we affirm appellant's conviction.

Appellant testified in his own defense, thereby placing his credibility in issue. See McCarter v. Commonwealth, 38 Va. App. 502, 506, 566 S.E.2d 868, 869-70 (2002). While "'some prejudice rises' from [the] disclosure of a defendant's felony conviction[,] . . . 'its probative value as to [credibility] outweighs the prejudicial effect.'" Payne v. Carroll, 250 Va. 336, 339, 461 S.E.2d 837, 838 (1995) (quoting Harmon v. Commonwealth, 212 Va. 442, 446, 185 S.E.2d 48, 51 (1971)). However, "[it] has long been well-settled . . . that the character of awitness for veracity cannot be impeached by proof of a prior conviction of crime, unless the crime be a felony, or one which involved moral turpitude or the character of the witness for veracity." McLane v. Commonwealth, 202 Va. 197, 203, 116 S.E.2d 274, 279-80 (1960). To impeach appellant's credibility, the Commonwealth was entitled to ask whether he had been previously convicted of a felony or a misdemeanor involving moral turpitude, i.e. lying, cheating, or stealing. See Powell v. Commonwealth, 13 Va. App. 17, 23-24, 409 S.E.2d 622, 626 (1991). Proper cross-examination regarding appellant's felony convictions was limited to the number of the convictions and whether any of them were for perjury. Id.; Code § 19.2-269.

Here, the Commonwealth's attorney asked appellant if he had been convicted of "any felonies or any misdemeanors involving moral turpitude," and he answered, "Yes, two." The Commonwealth's attorney followed up, "Okay, two felonies?" Appellant answered, "Two felonies." The prosecutor then asked if one of the felonies involved "lying, cheating, or stealing." Appellant responded, "Yes, sir."

Assuming, without deciding, that the trial court erred by allowing the Commonwealth's attorney to question appellant as to whether any of his felony convictions were for lying, cheating, or stealing, see Payne, 250 Va. at 339, 461 S.E.2d at 839, we conclude such error was harmless based upon the record before us.

Any error in the admission of evidence regarding a defendant's criminal record is "not one of constitutional dimension." See Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407 S.E.2d 910, 912 (1991) (en banc) (non-constitutional harmless error standard applied to erroneous admission of evidence that defendant had been found "not innocent" of two felonies while a juvenile). Accordingly, we apply a non-constitutional harmless error standard to the facts of this case. A non-constitutional error is harmless if

"it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does notaffect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.

Id. at 1006, 407 S.E.2d at 911 (quoting Code § 8.01-678).

Here, the record reveals that the victim's testimony was detailed and partially corroborated. K.S. testified she was thirteen years old and at home alone when appellant, her uncle, entered the house at approximately 11:30 a.m. on November 21, 2011. She was watching a video when she saw a man walking toward her trailer. Believing the man was her older brother, K.S. unlocked the front door and returned to her video. When appellant entered the trailer, K.S. was not concerned, as he frequently visited, and she had spent time with his family.

Appellant asked K.S. if her brother and her brother's girlfriend were there, and K.S. answered they were at the home of the girlfriend's mother. Appellant then asked K.S. where her cell phone was. She told him she had lost it.

Appellant asked K.S. to turn around and close her eyes, adding she was not to tell anyone about what he was going to do. K.S., who had had no prior problems with her uncle, complied. Appellant stood behind K.S., put his hands beneath her arms, and asked if he could "play with [her] titties." As appellant began to fondle his niece's breasts, K.S. screamed and tried to pull away. Appellant only held her tighter and asked "if it felt good." K.S. told him "no" and asked him to stop touching her. Instead, appellant held on to her for approximately fifteen seconds as K.S. struggled with him. When appellant finally released her, K.S. ran to the corner of the hallway and "curled up in a ball." She screamed at appellant to leave.

Appellant told K.S. he was "sorry, that that's what happens when you're on drugs." He also told her not to tell her dad "because if [she] did then he ha[d] a shotgun and he w[ould] take his life." Appellant noted he had a double-barreled shotgun.

After K.S. told appellant she forgave him and promised she would not tell anyone, he left the trailer. K.S. watched appellant walk down the driveway and enter the basement of his mother's house. She then ran to her room in search of her cell phone. When she could not find it, she ran out the back door so appellant could not see her.

Although she was asthmatic, K.S. ran through a field and over a barbed wire fence before stopping at the home of the closest neighbor. When the neighbor was not home, she continued running toward the auto repair shop where her father worked. K.S. estimated the repair shop was a mile and a half from her trailer.

When K.S. found her father, she told him appellant "tried to rape" her. Her father "got really mad" and told her to get in his truck. He told K.S. they were going to confront appellant at his mother's house and that her father "was going to hurt him." K.S. begged her father not to go because of the threat appellant had made. K.S. called "911" from the truck because she was afraid her father would "overreact." To K.S.'s relief, her father's truck ran out of gas at a post office.

Investigator Doug Miller responded to the post office and spoke with K.S. He noted she was clearly upset and was "crying" and "shaking." After speaking with K.S., Investigator Miller and several patrol units went to Katherine Shifflett's home to speak with appellant. Investigator Miller walked around the house and knocked loudly on the doors and windows, but no one responded. After the officers telephoned Mrs. Shifflett, she came home from work, entered the house, and found appellant sleeping in his bedroom.

The officers transported appellant to the sheriff's department and interviewed him after advising him of his rights. At the time he was taken into custody, appellant was wearing blue jeans, a black t-shirt with the sleeves cut out and a red insignia on the front, and black tennisshoes with a white Nike stripe. Appellant denied having left his mother's house that day or visiting K.S.

At trial, K.S. described appellant's clothing at the time of the assault. She stated he was wearing a brown jacket with a gray hood, a black shirt "with a little bit of red on it," blue jeans, and "black shoes with white on them."

Steven Comer, with whom appellant lived at the time of trial, corroborated K.S.'s testimony. He stated he was working at the repair shop when K.S. ran there on November 21, 2011. He noted he had worked with K.S.'s father for over two years, but had never seen K.S. come to the shop. He described K.S. as crying and "in a panic state." He corroborated K.S.'s testimony that her father instructed K.S. to get in the truck and that K.S. "begged him not to go." Comer noted that her father's demeanor was "normal" before K.S. arrived, but he became "very angry" after speaking with K.S.

Based on this record, we conclude appellant's testimony that one of his felony convictions involved lying, cheating, or stealing, made in response to the question challenged on appeal, did not affect the jury's verdict, that is, the verdict would have been the same even had the question not been asked and the testimony had not been elicited and admitted. As the error was harmless, we affirm appellant's conviction.

Affirmed.

Humphreys, J., concurring.

I concur with the judgment of the majority to affirm Shifflett's conviction; however, I respectfully disagree with its analysis. I write separately to clarify two points. First, the majority harmless error analysis is flawed because it fails to address how any prejudice flowing from a potential error is harmless—namely that the limiting instruction received by the jury cures any error. Second, I would hold that there is no error here, harmless or otherwise. In my view, because the Commonwealth could have properly impeached Shifflett under Code § 19.2-269 by asking him directly if he had been convicted of suborning perjury, the trial court did not err by allowing the Commonwealth to ask Shifflett whether one of his prior felony convictions involved lying, cheating, or stealing. The law permits the Commonwealth to inquire into the nature of Shifflett's conviction for suborning perjury to some degree.

I.

The majority assumes, without deciding, that the trial court erred by allowing the Commonwealth to question Shifflett as to whether any of his felony convictions were for lying, cheating, or stealing. However, it concludes that "such error was harmless based upon the...