                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


GREGORY BOYD
                                            MEMORANDUM OPINION * BY
v.   Record No. 2947-99-4                JUDGE JEAN HARRISON CLEMENTS
                                                 APRIL 17, 2001
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                     William T. Newman, Jr., Judge

          Janell M. Wolfe for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Appellant Gregory Boyd was convicted in a jury trial of

robbery in violation of Code § 18.2-58.    On appeal, he contends

the trial court erred in allowing the Commonwealth to

cross-examine him about the nature of his prior felony offenses.

After examining the record, we conclude that, although the trial

court did err, that error was harmless.    Accordingly, we affirm

appellant's conviction.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Boyd's sole contention on appeal is that the trial court

erred in permitting the Commonwealth to question him on

cross-examination about the nature of his prior felony

convictions.

     In reviewing Boyd's claim, we are guided by several

established principles.   When a defendant testifies in his own

defense, he puts his credibility in issue.    Smith v. Commonwealth,

212 Va. 675, 676, 187 S.E.2d 191, 192 (1972) (per curiam).    The

defendant's credibility may then be impeached by evidence of prior

convictions.   Sadoski v. Commonwealth, 219 Va. 1069, 1071, 254

S.E.2d 100, 101 (1979).   The Commonwealth may ask the defendant on

cross-examination "the number of times he has been convicted of a

felony, but . . . not the names of the felonies, other than

perjury, and not the nature or details thereof."   Id.; see also

Code § 19.2-269; Jewel v. Commonwealth, 30 Va. App. 416, 425-26,

517 S.E.2d 264, 269 (1999) (construing Code § 19.2-269 to mean

that the Commonwealth may show the fact of defendant's felony

convictions but not the names, other than perjury, and details

thereof), aff'd, 260 Va. 430, 536 S.E.2d 905 (2000).   Likewise,

when the defendant "testifies on direct examination that he has

been convicted previously of a certain number of felonies, he may

be cross-examined only with respect to the correctness of the

number stated and, if his answers are truthful, not with regard to

the names or the nature of the offenses."    McAmis v. Commonwealth,

225 Va. 419, 422, 304 S.E.2d 2, 4 (1983).    Furthermore, a

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defendant's credibility may be impeached by evidence of his prior

misdemeanor convictions involving moral turpitude.    Chrisman v.

Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

     Here, Boyd testified on his own behalf at trial.      He

testified on direct examination that he had been convicted of "six

or maybe seven" felonies.    He did not identify on direct

examination the name or nature of any of his felony convictions.

He also testified that he had been convicted of misdemeanors

involving moral turpitude.

     On cross-examination, the following exchange took place

between the prosecutor and Boyd:

               Q. And defense counsel had asked you
          about your criminal record. You have
          approximately eight felony convictions. Is
          that right?

               A.   Yes, sir — I mean, yes ma'am.

               Q. Okay. And some of those are for
          lying, cheating or stealing. Is that
          correct?

               A. I wouldn't say – I wouldn't say it
          exactly like that, lying, cheating or
          stealing. They was petit larcenies. You
          know what I mean? It was grand larceny, you
          know, but now — it wasn't for lying, cheating
          and stealing. That's what you trying to say.

               Q. Lying, cheating or stealing. Let's
          focus on stealing. Were any of the felonies
          for any stealing kinds of crimes?

               A.   Yes.    It was for petit larceny, yes.

               Q. The felonies?     You know a felony is
          a more serious crime?


                                 - 3 -
               A.    Yes.

                Q. When your counsel asked you about
           felonies, do you understand what a felony is?

                A.   Yes, I do.

                Q. Now, thinking back on your record,
           were any of those felonies, the serious ones,
           for involved — did those involve stealing?

               A.    No.

     Boyd's counsel then objected, asserting that the Commonwealth

could not ask about the nature of Boyd's previous offenses.     The

trial court overruled the objection, ruling that the Commonwealth

could ask Boyd if he had been convicted of a felony involving

lying, cheating, or stealing.      The cross-examination continued as

follows:

                Q. I'm going to ask again about the
           felonies, the serious crimes.

               A.    Yes, ma'am.

                Q. Any of those crimes, not the petit
           larcenies or misdemeanors but the serious
           crimes, has to do with stealing?

                A. No, ma'am. It was a drug offense,
           my serious charge that I went to the
           institution for.

                Q. Okay. Would it refresh your
           recollection, or do you just not remember or
           are you just saying no, I had no felony
           crimes involving stealing?

               A.    I'm not saying that.

                Q. But if you looked at your criminal
           record, might you remember if you had any
           crimes involving stealing that were serious
           crimes?

                                   - 4 -
              A. Well, okay.       Yes, I did.    Yes, I
          did. Okay.

                Q.    Do you remember now?

               A. I'm just saying for to answer your
          question correctly, you know what I mean, you
          saying did I have any felonies that is for
          lying, cheating or stealing. And as far as
          my recollection as do I have it? Yes, I do.

               Q. Okay. And do you think there is
          probably three or four of those?

                A.    It may be, yes.

     Because Boyd testified on direct examination that he had been

convicted previously of six or seven felonies, the Commonwealth

was permitted to question Boyd on cross-examination regarding the

correctness of the number stated.       McAmis, 225 Va. at 422, 304

S.E.2d at 4.   Once, however, Boyd testified truthfully that he had

been convicted of eight felonies, the Commonwealth was not

permitted to subsequently ask about the nature of his previous

felony convictions.    Id.   We hold, therefore, that the trial court

erred in allowing the Commonwealth to pursue its questioning of

Boyd regarding the nature of his previous felony convictions.

     However, our inquiry does not end there.       We must decide

whether the error requires reversal of Boyd's conviction.       A

non-constitutional error by the trial court 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
          not affect a verdict if a reviewing court
          can conclude, without usurping the jury's
          fact finding function, that, had the error

                                 - 5 -
          not occurred, the verdict would have been
          the same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d

910, 911 (1991) (en banc) (quoting Code § 8.01-678).   "Each case

must . . . be analyzed individually to determine if an error has

affected the verdict."   Id. at 1009, 407 S.E.2d at 913.

     In this case, it plainly appears from the record and the

evidence given at the trial that the error did not affect the

jury's verdict.   The victim unequivocally identified Boyd as the

person who robbed him.   Furthermore, Boyd told the jury that he

had eight previous felony convictions and that he had been

convicted of misdemeanors involving moral turpitude.   The

improperly elicited evidence was limited to Boyd's disclosure

that, of his eight felony convictions, one was for a drug

offense and three or four involved lying, cheating, or stealing.

No other details of those convictions were revealed.

     Moreover, the trial court gave a limiting instruction that

told the jury that the evidence of other offenses could only be

considered for impeachment of the defendant and could not be

considered as evidence of his guilt.   When, as here, the record

does not show otherwise, "it is to be presumed that the jury

followed an explicit cautionary instruction."   Albert v.

Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986).

     We can conclude, therefore, without usurping the jury's fact

finding function, that, had the erroneously permitted questions


                               - 6 -
propounded to Boyd on cross-examination over defense counsel's

objection not been asked, the verdict would have been the same.

Accordingly, the error was harmless, and we affirm appellant's

conviction.

                                                        Affirmed.




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