                              COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Haley and Alston
Argued at Alexandria, Virginia


JAMAL MAHMOUDZEDEH, S/K/A
 JAMAL MAHMOUDZADEH
                                                             MEMORANDUM OPINION ∗ BY
v.     Record No. 2973-07-4                                  JUDGE JAMES W. HALEY, JR.
                                                                    JUNE 16, 2009
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                             Benjamin N. A. Kendrick, Judge

                W. Mark Dunn (Jennifer J. Flanagin; John A. Boneta & Associates,
                on brief), for appellant.

                Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
                Attorney General; Karen Misbach, Assistant Attorney General II, on
                brief), for appellee.


                                       I. INTRODUCTION

       Appealing his jury convictions for computer solicitation of a minor in violation of Code

§ 18.2-374.3 and attempted indecent liberties with a minor in violation of Code § 18.2-370,

Jamal Mahmoudzedeh argues the trial court erred in precluding him from eliciting testimony

from three witnesses that after Mahmoudzedeh showed them a photograph of the female he

believed he was chatting with on the internet, they told him the female was likely in her

mid-twenties. Mahmoudzedeh contends this testimony would have shown he lacked the

requisite criminal intent. We hold that, assuming without deciding the trial court erred, any error

was harmless since Mahmoudzedeh told the police after his arrest he thought the woman was




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fourteen to fifteen years old and the female had advised in email traffic she was thirteen.

Accordingly, we affirm.

                                       II. BACKGROUND

       In the fall of 2006, police officer Chris Feltman conducted an undercover investigation of

sexual predators on the internet. He did this by logging into a public internet chat room

identified for romance and, while posing as Brooke Angelo with the screen name

Dreamin2Cheer, waiting for someone to contact him via instant messaging.

       Mahmoudzedeh contacted Feltman on November 15, 2006. Feltman told him Angelo

was thirteen years old and living in Arlington, Virginia. Feltman also provided Mahmoudzedeh

photos supposed to represent Angelo. In fact, the photos depicted a female Stafford County

police officer between twenty-eight to thirty years old. During the first discussion and some of

the ensuing chats, Mahmoudzedeh proposed to engage in sexually oriented behavior with

Angelo, aside from actual sexual intercourse. It is unnecessary to repeat the details in this

opinion. We note Mahmoudzedeh was also repeatedly told Angelo was only thirteen years old

during internet conversation and that he acknowledged this in the internet chats.

       Mahmoudzedeh requested to meet Angelo in the first chat. He also requested to see her

on November 27 and November 30. Feltman eventually had Angelo agree to meet

Mahmoudzedeh at a pre-determined location and time. When Mahmoudzedeh arrived, he was

arrested.

       A grand jury indicted Mahmoudzedeh for computer solicitation of a minor and attempted

indecent liberties with a minor. A jury trial was held on July 30-31, 2007, during which Feltman

testified and the Commonwealth introduced transcripts of the internet chats between Feltman and

Mahmoudzedeh.




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       In response, Mahmoudzedeh attempted to have three witnesses testify he showed them a

photo of Angelo, asked how old they believed she was, and that each responded she was in her

mid-twenties. Mahmoudzedeh maintained this would demonstrate his state of mind as lacking a

criminal intent to engage in sexual activity with a minor. However, the Commonwealth objected

that the proposed testimony was irrelevant and hearsay. The trial court held Mahmoudzedeh

could inquire of the witnesses whether he showed them a photo of Angelo and asked how old she

was, but could not ask the witnesses about how they responded. The court held the responses

constituted inadmissible hearsay since “no nexus” existed between the witnesses’ testimony and

Mahmoudzedeh’s “actual state of mind” without prior testimony by Mahmoudzedeh. Yet

Mahmoudzedeh did not wish to testify. Based on the trial court’s ruling, Mahmoudzedeh called

the three witnesses, each of whom confirmed Mahmoudzedeh had shown them a photo and had

inquired about the age of the person depicted in it. Pursuant to the trial court’s instructions,

defense counsel did not elicit how the witnesses responded.

       In rebuttal, the Commonwealth recalled Feltman, who testified that after the arrest,

Mahmoudzedeh told him he thought Angelo was fourteen or fifteen years old. This occurred

after Feltman informed Mahmoudzedeh of his Miranda rights and had him sign a form

acknowledging receipt of that information. Feltman also testified that while Mahmoudzedeh is

clearly not a native English language speaker, there were never “any problems during the

interview that were not clarified, nor during any [internet] chats.”

       The jury convicted Mahmoudzedeh of both charges. He now appeals the trial court’s

decision to exclude his witnesses’ testimony as to what they told him concerning the probable

age of Angelo.




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                                          III. ANALYSIS

       As courts have often stated, a defendant “is entitled to a fair, but not perfect, trial, as there

are no perfect trials.” Blevins v. Commonwealth, 267 Va. 291, 297, 590 S.E.2d 365, 368 (2004).

Where a defendant alleges the trial court erred concerning hearsay testimony, we may assume

without deciding the error occurred, apply a harmless error analysis, and affirm if we conclude

the error was harmless. Adams v. Commonwealth, 275 Va. 260, 277, 657 S.E.2d 87, 97 (2008).

       Our Supreme Court has adopted the test of the United States Supreme Court for

determining non-constitutional harmless error. Billips v. Commonwealth, 274 Va. 805, 810, 652

S.E.2d 99, 102 (2007). That test has been stated as follows:

                       “If, when all is said and done, the conviction is sure that the
               error did not influence the jury, or had but slight effect, the verdict
               and the judgment should stand . . . . But if one cannot say, with fair
               assurance, after pondering all that happened without stripping the
               erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude that
               substantial rights were not affected. . . . If so, or if one is left in
               grave doubt, the conviction cannot stand.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)). “Under this standard, non-constitutional error is

harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by

comparison that we can conclude the error ‘failed to have any “substantial influence” on the

verdict.’” Schwartz v. Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66 (2005) (quoting

United States v. Lane, 474 U.S. 438, 450 (1986)).

       The Virginia Supreme Court considered harmless error under facts relevant to this case in

Deavers v. Commonwealth, 220 Va. 14, 255 S.E.2d 458 (1979). The prosecution alleged the

defendant, with the help of two accomplices, committed burglary and grand larceny. Id. at 15,

255 S.E.2d at 458. At trial, the court improperly precluded the defendant from questioning one

of the accomplices about whether he had received leniency in exchange for testifying against the

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defendant. Id. at 15-16, 255 S.E.2d at 459. Yet the Court held that given the presence of

statements by the defendant to police whereby the defendant admitted his guilt, the error was

harmless. Id. at 16, 255 S.E.2d at 459.

          This Court evaluated another relevant situation in Abney v. Commonwealth, 51 Va. App.

337, 657 S.E.2d 796 (2008). The defendant argued the trial court violated his Confrontation

Clause rights by admitting an autopsy report prepared by a deceased physician and permitting

another physician to testify about the report. Id. at 352-53, 657 S.E.2d at 803-04. The allegedly

improper evidence revealed how the victim, who was the defendant’s wife, died. Id. at 352, 657

S.E.2d at 803. We held any error harmless since the defendant admitted killing his wife; he

simply claimed it was an accident. Id. at 354, 657 S.E.2d at 804. As no dispute existed

concerning the allegedly improper evidence, any error was harmless. Id. at 354-55, 657 S.E.2d

at 804-05.

          In this case, a conviction for computer solicitation of a minor under Code

§ 18.2-374.3(B) required the prosecution to prove Mahmoudzedeh acted for “procuring or

promoting the use of a minor for” certain illegal activities. A conviction for attempted indecent

liberties with a minor under Code § 18.2-370 required the Commonwealth to prove

Mahmoudzedeh attempted to commit sexually related acts with a person “under the age of 15

years.”

          We conclude that assuming without deciding the trial court erred in precluding

Mahmoudzedeh from inquiring of his three witnesses what they said concerning Brooke

Angelo’s age, any error was harmless since Mahmoudzedeh told the police after his arrest that he

believed Angelo was only fourteen to fifteen years old. Mahmoudzedeh proffered that each

witness would have testified Angelo appeared between twenty-four to twenty-six years old.

Officer Feltman testified that when he interviewed Mahmoudzedeh after the arrest,


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Mahmoudzedeh stated “that he believed that girl to be fourteen or fifteen years old.” While

Officer Feltman conceded it was obvious Mahmoudzedeh was not a native English language

speaker, he also testified he never “encounter[ed] any problems during the interview that were

not clarified, nor during any [prior internet] chats.” This evidence plainly rebutted any inference

that Mahmoudzedeh thought he was pursuing an adult. Furthermore, while Code § 18.2-370

concerns acts with persons under fifteen years old, we have confidence that given

Mahmoudzedeh’s admission that he thought Angelo may have been fourteen, along with the

repeated references during internet chats to Angelo’s age of thirteen, any error did not affect the

jury verdict. Accordingly, any error by the trial court was harmless.

       For the foregoing reasons, we affirm the judgment of the trial court.

                                                                                          Affirmed.




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