                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference


ERNIE C. WILLIAMS, JR.
                                         MEMORANDUM OPINION * BY
v.        Record No. 2704-96-3          JUDGE SAM W. COLEMAN III
                                            JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                   Charles H. Smith, Jr., Judge
          Gray Robinson (Jackson & Robinson, on
          briefs), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Richard Cullen, Attorney General; Monica S.
          McElyea, Assistant Attorney General, on
          brief), for appellee.



     Ernie Williams, who had been declared an habitual offender,

was driving his pickup truck in Washington County when he veered

off the road, causing the accidental death of Jeremy Harless, a

passenger in the truck.    Williams was charged with driving after

having been adjudged an habitual offender (second offense) and

second degree felony murder.   At trial, the judge granted

Williams' motion to strike the evidence on the second degree

felony murder charge, and a jury convicted Williams of driving

after having been declared an habitual offender.

     On appeal, Williams contends the trial judge erred by

admitting evidence that he was reaching for a beer when the

accident occurred and that he had consumed four beers on the day
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
of the accident.    We hold that the trial judge did not abuse his

discretion by admitting evidence that when the accident occurred

Williams was reaching for a beer.   Further, assuming, without

deciding, that the judge erred by admitting evidence that

Williams had consumed four beers earlier during the day of the

accident, we hold that on the facts of this case any such error

was harmless.   Accordingly, we affirm the conviction for driving

after having been declared an habitual offender.
     Williams was driving his pickup truck down a narrow, country

road with Gerald and Jeremy Harless as passengers.   Gerald rode

in the cabin next to Williams, and Jeremy sat in a chair in the

truck's open bed.   As Williams reached for an open beer, the

truck veered off the road and struck a column of concrete steps

protruding from the ground near the roadside.   The collision

threw Jeremy from the truck, and he later died of the severe

injuries that he suffered in the fall.   The investigating officer

testified that he could not detect that Williams' physical

condition was impaired.

     Williams contends the trial judge erred by admitting the

evidence that he drank four beers earlier during the day and that

he was reaching for a beer when the accident occurred.   He argues

that such evidence was irrelevant to prove the charged offenses

of whether he was driving after having been declared an habitual

offender and of whether Jeremy Harless was killed as a result of

his driving after having been declared an habitual offender.




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     The evidence that Williams was reaching for a beer when the

accident occurred was admissible as part of the res gestae of the

offenses for which he was tried.    "Facts which constitute the res

gestae must be such, as are so connected with the very

transaction or fact under investigation as to constitute a part

of it."     Jones v. Commonwealth, 11 Va. App. 75, 83, 396 S.E.2d

844, 848 (1990).    Limited reference to such evidence is

admissible where it is "so inseparably connected with [the

offense] as to make the avoidance of all reference to it

practically impossible."     Compton v. Commonwealth, 190 Va. 48,

55, 55 S.E.2d 446, 450 (1949).    Here, the fact that Williams was

reaching for a beer moments before the accident explained how the

accident occurred; that fact was "inseparably connected" to the

accident.    Because the evidence was an integral part in

explaining the accident, Williams was not entitled to sanitize

the facts underlying the incident.       Accordingly, the trial court

did not abuse its discretion in admitting evidence that Williams

reached for a beer while driving the truck.       See McWilliams v.

Commonwealth, 177 Va. 933, 941, 15 S.E.2d 70, 73 (1941) ("Whether

or not a [fact] is a part of the res gestae rests within the

sound judicial discretion and judgment of the trial court.").

     As to Williams' contention that the trial court erred by

admitting evidence that was irrelevant, which was that Williams

had drunk four beers earlier on the day of the accident, we hold

that on the facts of this case, any such error was clearly




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harmless as to the conviction for driving after having been

declared an habitual offender.    Appellate review of

nonconstitutional error required that:
          the conviction must be reversed unless 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 the 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.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (emphasis added).     Unless it plainly appears

that the inadmissible evidence did not affect either the finding

of guilt or the sentence, the verdict must be set aside.

        Here, we are only concerned with whether the evidence had a

prejudicial effect upon Williams' conviction or sentence for

driving after having been declared an habitual offender since the

trial judge struck the murder charge.    The evidence was

overwhelming that Williams was driving his truck at the time of

the accident and that he did so after having been declared an

habitual offender.    Gerald Harless testified that Williams was

driving the truck.    Furthermore, Williams admitted to the

investigating state trooper and to the witness Jewell Musick that

he was the driver.    Also, Williams admitted to the trooper that

he was an habitual offender and the documentary evidence proved

that.    Based upon this evidence, it clearly appears to us that

the jury would have reached the same verdict that Williams was



                                 - 4 -
guilty of driving after having been declared an habitual offender

had the evidence not been admitted that he consumed four beers

earlier in the day.   Thus, we find that the error, if any, in

admitting the evidence did not affect and was harmless as to the

issue of guilt.

     Evaluating the effect that such inadmissible evidence may

have had upon the jury's determination of punishment is more

problematic.   In doing so, we cannot substitute our judgment for

that of the jury or usurp their function of weighing the

evidence; we must be able to say with conviction that on these

facts a jury would not have reached a different result had the

offending evidence been excluded.   Although the jury in this case

recommended the maximum sentence, in view of Williams' extensive

prior criminal record and upon the facts of this case, we do not

believe that another jury would have recommended another sentence

had the fact that Williams drank four beers been excluded.   The

evidence proved that Williams had three prior convictions for

driving on a revoked or suspended license, that he had five prior

convictions of driving under the influence, and two prior

convictions for driving after having been declared an habitual

offender.   On the occasion which gave rise to this case that

Williams drove while having been declared an habitual offender

and ordered to not drive, he crashed and killed Jeremy Harless.

The range of punishment that a jury could have recommended was a

mandatory sentence of not less than one year or more than five



                               - 5 -
years in the penitentiary.   On these facts we do not believe that

had the evidence been excluded that Williams had earlier consumed

four beers the jury would have imposed less than the maximum

penalty.   Accordingly, any error in admitting this evidence was

harmless as to the issue of punishment.

     For these reasons, we affirm the conviction.

                                                        Affirmed.




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