                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia


JERRI LYNN SCEARCE
                                                    OPINION BY
v.      Record No. 0638-01-3                JUDGE JAMES W. BENTON, JR.
                                                   APRIL 9, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                         James F. Ingram, Judge

             Jon Ian Davey for appellant.

             John H. McLees, Jr., Senior Assistant
             Attorney General (Randolph A. Beales,
             Attorney General, on brief), for appellee.


        The trial judge convicted Jerri Lynn Scearce of attempting

to procure a witness to commit perjury.       On appeal, Scearce

contends the trial judge erred in ruling that the prosecutor

laid a proper foundation to admit into evidence a statement

under the past recollection recorded exception to the hearsay

rule.     For the reasons that follow, we reverse the conviction

and remand the case for a new trial.

                                 I.

        The evidence proved that a police officer arrested

Scearce's fiancé, Henry Tickle, for driving on September 30,

2000 between 4:00 a.m. and 4:30 a.m., which was outside the

restricted hours of Tickle's driving permit.       A grand jury later

indicted Scearce for attempting to induce or procure William
Wesley Hyler to commit perjury, in violation of Code §§ 18.2-26

and 18.2-436.

     At Scearce's trial, which occurred February 2, 2001, Hyler

testified that Scearce asked him to testify in court that Tickle

had been asleep on Hyler's sofa at 4:00 a.m.   Hyler testified

that he "can't remember the exact date or month" he talked to

Scearce and that he "believe[d] it was a Saturday or something

like that," but "ain't sure."   Although Hyler testified that he

later told a police officer about Scearce's request, Hyler could

not recall, in relation to his conversation with the officer,

when he had spoken with Scearce.

     The prosecutor informed the trial judge that immediately

prior to trial the police officer read to Hyler, who cannot

read, the statement the officer had transcribed on October 9,

2000, when Hyler spoke to the officer.   Upon the prosecutor's

motion, the trial judge permitted the bailiff to leave the

courtroom with Hyler and refresh Hyler's memory again by reading

to Hyler the statement the police officer had written.   When

questioned by the prosecutor after this attempt to refresh his

memory, Hyler testified that Scearce had come to his home "that

Saturday before last, on October the 9th."   The prosecutor then

asked, "[t]he Saturday . . . before last, when you talked to the

police on October the 9th?"   After Hyler responded, "yes sir,"

the prosecutor asked the judge to take "judicial notice of the



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calendar . . . that would have been Saturday before last, from

October the 9th, would have been September the 30th."

     In response to further questions by the prosecutor, Hyler

testified twice that Scearce "didn't say what date" she wanted

him to say Tickle was asleep on his sofa.       The prosecutor

requested leave to prove, as a past recollection recorded, the

statement Hyler gave to the officer and then asked Hyler the

following questions:

          Q. [T]his is a statement that you gave to
          Officer Pace on October the 9th? Is that
          correct?

          A.   Yes sir.

          Q. [W]as your memory better then or is it
          better now?

          A.   My memory has never been real good.

          Q.   It's never been real good?

          A.   Yes sir.    I'll be honest with you?

          Q. Well, would you say it was better on
          October the 9th, than it was today, about
          what happened on September 30th?

          A.   No . . . I couldn't say.

          Q.   You couldn't say?

                *      *    *    *    *     *     *

          A. . . . like if somethin[g] happened today
          . . . say somethin[g] happened on Monday
          . . . if I had to go the next day and do
          somethin[g], then I mean I can remember it.

          Q. Well, but do you remember what [Scearce]
          told you that day she came to your house?




                                 - 3 -
          A. Yeah, she said she wanted me to go . . .
          go to Court and tell that [Tickle] was sleep
          on my couch.

          Q. Okay. Do you remember what time she
          said Henry would have been asleep on your
          couch?

                  *    *     *    *      *    *     *

          A.     4:00 A.M.

          Q. 4:00 A.M. All right, but you don't
          remember what date she said that?

          A.     No sir.

          Q. But you told the police all of this on
          October the 9th, is that correct?

          A.     Yes sir.

          Q. And Officer Pace reduced your statement
          to writing?

          A.     Yes sir.

          Q. And he read it back to you?          Is that
          correct?

          A.     Yes sir.

          Q.     Well, was it correct at that time?

          A.     Yes sir.

     On cross-examination, Hyler admitted that his memory was

such that he might not remember on Wednesday something that

happened on Monday.    Scearce's counsel asked, "so if somebody

came to you and told you something, or suggested something, on

one day, then certainly nine days later, you may not remember

accurately, would you?"      Hyler testified that he would "mostly

not" remember.

     The prosecutor then recalled as a witness the officer who

transcribed Hyler's statement.        The officer testified that he

                                  - 4 -
spoke to Hyler on October 9, that Hyler was "clear" in relaying

information on that day, that he wrote what Hyler told him, that

he read his writing to Hyler, and that Hyler signed it.     The

officer was then permitted, over the hearsay objection of

Scearce's counsel, to read the statement into evidence.     In

pertinent part, the statement was as follows:

          "I give the following statement . . . on
          10/9/2000 at 11:30 A.M., about a
          conversation between myself and Jerri
          Scearce. The Saturday before last, around
          6:00 o'clock, to 6:30 P.M., Jerri Scearce,
          and . . . . I went into my kitchen, where
          Jerri asked me to go to Court with her, to
          tell that Henry Tickle was asleep on my
          couch, at around 4:00 o'clock A.M. that
          morning. I told Jerri that I could not do
          that. I won't lie for my own brother. I
          ain't going to lie for anyone. I know
          that's perjury, and that's wrong." Signed
          by William Wesley Hyler . . . .

     Scearce presented testimony by an agent of a bonding service

that she went to the magistrate's office prior to      5:00 p.m. on

September 30 and remained there until after      7:00 p.m.   Tickle

also testified that he left the jail with Scearce after 7:00 p.m.

and remained with her until 8:00 p.m.   Scearce testified that she

did not see Hyler on September 30 and that she was at the

magistrate's office between 5:00 p.m. and       7:00 p.m.   She also

testified that she never asked Hyler to




                              - 5 -
testify about Tickle and would not have done so because Tickle

and Hyler were antagonistic to each other.

     The trial judge convicted Scearce of attempted subordination

of perjury.   This appeal followed.

                                 II.

     "The general rule of past recollection recorded allows, over

a hearsay objection, a witness with no independent recollection

of an incident to testify directly from notes or reports if

certain requirements are met."     James v. Commonwealth, 8 Va. App.

98, 102, 379 S.E.2d 378, 380 (1989).     We have held that the

memorandum of past recollection recorded need not be made by the

witness whose memory is at issue.

          "[T]he general rule [among courts
          nationwide] is that it is not essential that
          the record of past recollection shall have
          been made by the witness, if he knows that
          it is true as written. It is sufficient if
          the memorandum was made by someone else but
          has been examined by the witness and is
          known by him to be correct."

Bailey v. Commonwealth, 20 Va. App. 236, 241, 456 S.E.2d 144, 146

(1995) (citation omitted).

     Under the past recollection recorded exception, the

proponent of the statement also must establish each of the

following circumstances:

          "(1) [T]he witness must have had firsthand
          knowledge of the event, (2) the written
          statement must be an original memorandum
          made at or near the time of the event and
          while the witness had a clear and accurate
          memory of [the event], (3) the witness must
          lack a present recollection of the event,
          and (4) the witness must vouch for the
          accuracy of the written memorandum."


                                 - 6 -
Scott v. Greater Richmond Transit Co., 241 Va. 300, 304, 402

S.E.2d 214, 217 (1991) (emphasis added and citation omitted).

Scearce challenged at trial and now on appeal whether on October

9 Hyler had a clear and accurate memory of the events contained

in the officer's memorandum and whether Hyler was able to vouch

for the accuracy of the memorandum.      We address Scearce's first

contention that the evidence failed to prove Hyler's memory was

clear and accurate on October 9.

        When accepting testimony under the past recollection

exception, the trial judge relies heavily on the witness' pledge

that the witness' memory was accurate at the time the memorandum

was written.    The record clearly proves, however, that the

prosecutor was unable to establish that Hyler's memory was clear

and accurate on October 9, when the officer's memorandum

indicated that Hyler's statement was made.     Hyler's own testimony

was that he could not say that his memory was accurate on that

date.    Indeed, Hyler testified that his memory is not good more

than one or two days past the happening of an event.     Based on

Hyler's own testimony, had Scearce approached him on September

30, he would "mostly not" remember the event on October 9 in

order to relay it accurately to the officers.     Indeed, Hyler

specifically testified that he could not say his memory about the

events at issue was better on October 9 than it was at trial.

The officer's testimony that Hyler was "clear" in his statement

cannot supplant Hyler's own testimony about his deficient memory.

Thus, we hold that, although Hyler testified that the officer

wrote his statement, the evidence fails to establish that Hyler's

memory of his conversation with Scearce was clear and accurate

                                 - 7 -
when he spoke to the officer.

        Furthermore, the trial judge's error in permitting the

officer to read the statement into evidence was not harmless.

The defense presented evidence that Hyler had a motive to

fabricate his testimony that Scearce wanted him to perjure

himself.    Scearce presented evidence that Hyler, whom she had

dated twenty years ago, disliked Tickle, her fiancé.    Scearce

also attempted to discredit Hyler with his admission that he

sometimes drank heavily and that he had drunk beer on both

September 30 and October 9.    Critically, Hyler was not able to

testify without some aid as to the date of his conversation with

Scearce.    In addition, Hyler testified twice that Scearce did not

say what day she wanted him to say Tickle was asleep on the sofa,

and Hyler did not testify that Tickle had never slept on his

sofa.    Hyler's credibility was at issue.
        The officer who transcribed Hyler's statement also testified

that after he asked Hyler "a few questions . . . as to the date

and time [the conversation] had happened, . . . [he] checked

[his] notes to make sure that that was the same date that [he]

had seen Mr. Tickle driving.    Then . . . [he] wrote the

statement."    In assessing whether Hyler fabricated the story, the

trier of fact clearly could have substantially relied upon the

officer's memorandum of Hyler's statement to determine that Hyler

knew the details of the event.    Thus, we cannot say that the

conviction was not substantially affected by the admission of the

statement.     Clay v. Commonwealth, 262 Va. 253, 261, 546 S.E.2d

728, 732 (2001).

                                 III.


                                 - 8 -
     Scearce also challenges whether the evidence was sufficient

to support the conviction.   "When an appellant challenges the

sufficiency of the evidence to sustain his conviction, we review

the evidence in the light most favorable to the Commonwealth and

grant to it 'all reasonable inferences fairly deducible

therefrom.'"   Kelley v. Commonwealth, 17 Va. App. 540, 548, 439

S.E.2d 616, 621 (1994) (citation omitted).     So viewed, Hyler

provided testimony from which a trier of fact could find that

Scearce had sought to have him give testimony in court on

Tickle's behalf.   Scearce's "argument is based entirely on the

issue of witness credibility."     Walker v. Commonwealth, 258 Va.

54, 70, 515 S.E.2d 565, 575 (1999).      The critical issue was

whether the finder of fact could be persuaded that Hyler was

truthful and could accurately recall the events.     That is a

matter for the finder of fact to consider upon properly admitted




                                 - 9 -
evidence.   Accordingly, we cannot say the evidence was

insufficient. 1

     For these reasons, we reverse the conviction and remand the

case for a new trial.

                                         Reversed and remanded.




     1
       We do not address Scearce's argument that she was
improperly convicted of an attempted inchoate crime. She failed
to properly preserve this issue for review.


                              - 10 -
