                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


FLOYD MILES
                                          MEMORANDUM OPINION * BY
v.   Record No. 0692-00-4                  JUDGE LARRY G. ELDER
                                               APRIL 10, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                       Thomas D. Horne, Judge

           S. Jane Chittom, Appellate Defender (Public
           Defender Commission, on brief), for
           appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Floyd Miles (appellant) appeals from his jury trial

convictions for breaking and entering, rape, forcible sodomy and

animate object penetration.   On appeal, he contends the trial

court erroneously (1) refused to admit evidence from unrelated

cases of an alleged pattern by the Commonwealth of failing to

comply with discovery orders in order to cause a mistrial; (2)

admitted the expert testimony of a sexual assault nurse that the

victim's injuries were inconsistent with consensual intercourse;

and (3) refused to give appellant's proffered jury instruction


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
on the abolition of parole, even after the jury inquired

specifically about the computation of appellant's sentence.    We

hold the trial court's error, if any, in excluding evidence of

alleged discovery violations in other cases does not provide a

basis for reversal because appellant has established no

prejudice.   We also hold that the testimony that the victim's

injuries were inconsistent with consensual intercourse did not

constitute impermissible testimony on the ultimate issue.    We

conclude, however, as the Commonwealth concedes, that the court

erroneously refused to instruct the jury on the abolition of

parole.   Therefore, we affirm appellant's convictions but remand

for resentencing in compliance with Fishback v. Commonwealth,

260 Va. 104, 532 S.E.2d 629 (2000).

                                I.

                                A.

     EVIDENCE OF ALLEGED DISCOVERY VIOLATIONS IN OTHER CASES

     "Evidence is admissible if it is both relevant and

material."   Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,

361 S.E.2d 436, 441 (1987).   "Evidence is material if it relates

to a matter properly at issue" and "'relevant if it tends to

establish the proposition for which it is offered.'"   Id.

(quoting Charles E. Friend, The Law of Evidence in Virginia

§ 134 (2d ed. 1983)).   "The admissibility of evidence is within

the broad discretion of the trial court, and a ruling will not

be disturbed on appeal in the absence of an abuse of

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discretion."   Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988).

     When the Commonwealth fails "to adequately and fully

provide discovery . . . under Rule 3A:11, . . . the court may

order the Commonwealth to permit the discovery or inspection,

grant a continuance, or prohibit the Commonwealth from

introducing the evidence not disclosed, or the court may enter

such other order as it deems just under the circumstances."

Code § 19.2-265.4 (emphasis added).

           [W]hen it appears to a trial court that a
           party has deliberately attempted to
           introduce evidence which it knows is
           improper or inadmissible, either because it
           was not disclosed during discovery or
           because it otherwise is inadmissible under
           rules of evidence, it is the duty and
           responsibility of the court to deter such
           inappropriate tactics by taking such action,
           imposing such sanctions, or granting such
           relief as it deems appropriate.

Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 41

(1986).   However, when an accused alleging a discovery violation

"shows no prejudice, he can claim no [reversible] error."

Hughes v. Commonwealth, 18 Va. App. 510, 529, 446 S.E.2d 451,

463 (1994) (en banc) (citing Davis v. Commonwealth, 230 Va. 201,

205, 335 S.E.2d 375, 378 (1985)).   Thus, a defendant who alleges

the remedy fashioned for any discovery violation is insufficient

also must show prejudice in order to claim entitlement to

relief.



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     Here, we assume without deciding that evidence of the

Commonwealth's alleged discovery violations in unrelated cases

was relevant to the trial court's determination of the

appropriate sanction, if any, to be imposed for the challenged

discovery violation in this case--the Commonwealth's failure

timely to provide appellant with a copy of the letter revealing

the results of the herpes test performed on appellant's blood. 1

We also assume without deciding that the trial court abused its

discretion in failing to consider that evidence.   However, even

assuming error in the exclusion of such evidence, the record

fails to reveal any prejudice to appellant as a result, and

thus, any such error does not require reversal.

     The record shows the trial court granted appellant's

request for a mistrial because it believed the late disclosure

of the herpes blood test results could not be remedied in any

other fashion once the jury became aware of the existence of a

second vial of blood.   In response to appellant's first motion

to dismiss, which was based on an alleged double jeopardy

violation, the court noted the herpes test results were not

exculpatory and fashioned a remedy less drastic than dismissal


     1
       Although appellant's second motion to dismiss alleged
numerous other discovery violations in this case, the issue
presented to us by appellant and on which we granted this appeal
relates only to "the conduct that caused a mistrial in this
case." The conduct which caused the mistrial was the
Commonwealth's questioning of Investigator Grigsby about the
second vial of blood after failing to disclose the herpes test
results during discovery.

                               - 4 -
of the indictment:   It precluded the Commonwealth from offering

into evidence the results of the late-disclosed herpes test or

any new test.   In ruling on appellant's second motion to

dismiss, which was based on numerous alleged discovery

violations, the court noted likely violations in the form of the

Commonwealth's unexplained delay in producing certain "Brady

materials," but even as to those likely violations, the court

concluded appellant had "ample time" to make use of them and

that it was inappropriate "to sanction [the Commonwealth] by

having a potential criminal go free."   The only claim of

prejudice appellant made in association with the discovery

violation which necessitated the mistrial was that it extended

the length of his pretrial incarceration.   However, he did not

assert a speedy trial claim, and he made no allegation that the

late disclosure of the herpes test and resulting mistrial

rendered unfair the trial in which he ultimately was convicted.

The record demonstrates, therefore, that the trial court

fashioned a remedy for the challenged discovery violation,

non-disclosure of the inculpatory herpes test results, which

preserved appellant's right to a fair trial and that, even as to

late-produced exculpatory evidence, the trial court thought the

remedy of dismissal too extreme.   Thus, because appellant failed

to show any prejudice from the late disclosure of the herpes

test results, we affirm the trial court's denial of his motion

to dismiss the indictment.

                               - 5 -
                                B.

           TESTIMONY OF SEXUAL ASSAULT NURSE EXAMINER

     Appellant contends the testimony of Nurse Suzanne Brown

that the victim's injuries were inconsistent with consensual

intercourse constituted improper testimony on an ultimate issue.

For the reasons set forth in Hussen v. Commonwealth, 257 Va. 93,

511 S.E.2d 106 (1999), and Velazquez v. Commonwealth, ___ Va.

App. ___, ___ S.E.2d ___ (2001), we disagree.

     As we held in Velazquez, relying on Hussen, the statement

that an alleged rape victim's injuries are "'inconsistent with

consensual intercourse' . . . is 'not a comment on one of the

ultimate issues of fact to be determined by the jury, that is,

whether the defendant's conduct was against the victim's will."

Velazquez, ___ Va. App. at ___, ___ S.E.2d at ___ (quoting

Hussen, 257 Va. at 99, 511 S.E.2d at 109).   Here, as in both

Velazquez and Hussen, the expert witness' testimony "dealt

[only] with consistencies and inconsistencies.   [The expert] did

not testify that, in her opinion, [the defendant] engaged in

sexual intercourse with [the victim] against [the victim's]

will, the ultimate issue in the case."   Velazquez, ___ Va. App.

at ___, ___ S.E.2d at ___.   Thus, the trial court did not err in

admitting the testimony.




                               - 6 -
                                  C.

                          PAROLE INSTRUCTION

        Appellant contends he is entitled to resentencing on all

offenses because the trial court erroneously refused to instruct

the jury on the abolition of parole in violation of the holding

subsequently rendered in Fishback, 260 Va. 104, 532 S.E.2d 629.

The Commonwealth concedes that Fishback entitles appellant to a

remand for resentencing, and we agree.

        Here, as in Fishback, appellant proffered an instruction on

parole, which the trial court refused to give.       See id. at 109,

532 S.E.2d at 630.    The court then failed to answer the jury's

specific question about the method of computing appellant's

sentence.     See id. at 109-10, 532 S.E.2d at 630-31.   Because

appellant committed the charged offenses on or after January 1,

1995, and because his case was not yet final when Fishback was

decided, he is entitled to a new sentencing hearing before a new

jury.     See id. at 115-17, 532 S.E.2d at 634-35.

                                  II.

        For these reasons, we hold that any error resulting from

the trial court's refusal to admit evidence of other alleged

discovery violations by the Commonwealth did not constitute

reversible error because appellant has not proved prejudice.       We

also hold that the court's admission of testimony that the

victim's injuries were inconsistent with consensual intercourse

did not constitute impermissible testimony on an ultimate issue

                                 - 7 -
of fact.   However, we conclude that the trial court committed

reversible error in refusing to instruct the jury on the

abolition of parole and its impact on appellant's sentence.

Therefore, we affirm appellant's underlying convictions but

remand for resentencing.

                                       Affirmed on the merits
                                       and reversed and remanded
                                       for resentencing.




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