                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia


PAUL WOODROW SHIFFLETT, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 2600-98-2               JUDGE SAM W. COLEMAN III
                                            FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          C. James Summers (Summers & Anderson, on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General; Jeffrey S.
          Shapiro, Assistant Attorney General, on
          brief), for appellee.


     Paul Woodrow Shifflett, Jr. was convicted in a jury trial of

three counts of indecent exposure to a juvenile, three counts of

aggravated sexual battery, and attempted sodomy.    Shifflett argues

that the trial court erred by denying his motion for a mistrial

after portions of his statement to the police were introduced at

trial in which he acknowledged "talking to somebody about [getting

counseling]" for "messing" with children and in which the officers

asked Shifflett if he had gone to jail for sexual abuse and

whether he had been sexually abused as a child.    Because Shifflett


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
failed to redact the objectionable questions and responses when

previously given the opportunity to do so, we hold that the trial

court did not err by promptly instructing the jury to disregard

the evidence and refusing to declare a mistrial.

                              BACKGROUND

       Shifflett provided child care for a neighbor's six-year-old

son.   After several months of being cared for by Shifflett, the

child complained to his mother that Shifflett was sexually abusing

him.   In the course of the investigation, Shifflett was

interviewed by law enforcement authorities regarding the

allegations.   During the interview, Shifflett admitted that he

sexually abused the child on at least four occasions.     Shifflett

was also questioned about other child sexual abuse charges or

convictions and about his having had counseling for child sexual

abuse:

            MR. HOLMES: You ever been to counseling?
            For, for sex, messing with kids?

            MR. SHIFFLETT:   Ah I don't remember if I
            have or not.

            MR. HOLMES: Okay. You went to jail for
            that though, but did you get some help with
            it?

            MR. SHIFFLETT: I was talking to somebody
            about it but they never did get back with
            me.

            MR. HOLMES: Okay. So you tried to get some
            help for, for sexual abuse in the past,
            right?



                               - 2 -
          MR. SHIFFLETT:   Yeah.

          MR. HOLMES:   Okay.

          OFFICER COX: Have you ever been abused
          before? Were you sexually abused when you
          were growing up?

          MR. SHIFFLETT:   Yes.

          OFFICER COX: You were? By -- by a family
          member or a friend, an acquaintance or what?

          MR. SHIFFLETT:   A family member.

     Prior to trial, Shifflett filed a motion in limine seeking to

prohibit the Commonwealth from introducing those portions of his

interview with the police that mentioned his prior conviction for

indecent exposure or alluded to other incidents of sexual abuse.

The trial court granted Shifflett's motion and permitted Shifflett

to redact those portions of the interrogation which referenced his

prior conviction or other unrelated sexual offenses.    Defense

counsel identified two pages to which he had specific objections

and requested that they be redacted.    The Commonwealth identified

several additional pages that might be considered objectionable,

and those pages were redacted.     Defense counsel did not identify

that portion of the interrogation recited above, in which the

officer alluded to other incidents of child sexual abuse,

referenced Shifflett's attempt to receive counseling for sexual

abuse, or inquired about Shifflett's history of sexual abuse, as

objectionable.




                                - 3 -
     However, at trial the tape recording of the interview was

played for the jury.   When the foregoing portion was played for

the jury, defense counsel objected on the grounds that the

evidence of other sexual offenses and the references of going to

jail or receiving counseling were irrelevant and highly

prejudicial.   Defense counsel explained that he had previously

identified the dialogue as objectionable but had inadvertently

failed to designate it for redaction.    The trial court sustained

the objection, and after a brief discussion outside the presence

of the jury, the court overruled the motion for a mistrial and

promptly and expressly told the jury to disregard the

objectionable evidence and questions.

                              ANALYSIS

     Shifflett argues that the trial court erred by denying his

motion for a mistrial because the introduction of the evidence

regarding other criminal conduct and the interviewers' reference

to Shifflett spending time in jail or receiving counseling for

other sexual offenses was highly prejudicial and denied him a

fair trial.    Shifflett argues that the trial court's jury

instruction to disregard the objectionable evidence was

insufficient to mitigate the prejudice.

     "Whether improper evidence is so prejudicial as to require

a mistrial is a question of fact to be resolved by the trial

court in each particular case."    Beavers v. Commonwealth, 245


                              - 4 -
Va. 268, 280, 427 S.E.2d 411, 420 (1993).     "Thus, a trial

court's denial of a motion for a mistrial will not be reversed

on appeal unless there exists a manifest probability as a matter

of law that the improper evidence prejudiced the accused."

Mills v. Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862

(1997) (citations omitted).

     "Generally, a trial court may cure errors arising from

improperly presented evidence by immediately instructing the

jury to disregard that evidence."      Terry v. Commonwealth, 5 Va.

App. 167, 168-69, 360 S.E.2d 880, 880-81 (1987) (citing

LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657

(1983) (finding that juries are presumed to follow prompt,

explicit, and curative instructions)).     The admission of

improper evidence is "not reversible error unless there is a

'manifest probability' that the improper evidence has been

prejudicial to the adverse party."      Terry, 5 Va. App. at 169,

360 S.E.2d at 881 (quoting Coffey v. Commonwealth, 188 Va. 629,

636, 51 S.E.2d 215, 218 (1949)).      The probability of prejudice

exists when the evidence is "so impressive that it probably

remained on the minds of the jury and influenced their verdict."

Coffey, 188 Va. at 636, 51 S.E.2d at 218.      Therefore, "if the

prejudicial effect of the impropriety cannot be removed by the

instructions of the trial court, the defendant is entitled to a




                              - 5 -
new trial."   Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d

236, 238 (1970).

     Prior to trial, the court granted Shifflett's motion to

redact the portions of the interrogation and his statement that

referred to other unrelated bad acts or to prior criminal

behavior.   The trial court granted leave to defense counsel to

redact any material that he deemed to be objectionable.    On the

day of trial, the prosecutor tendered the redacted statement to

defense counsel, noting that she also had redacted portions of

the document in addition to those identified by Shifflett.

Defense counsel further reviewed the statement and did not

object to any portion of the document as redacted.   The

Commonwealth introduced the statement into evidence and it was

read to the jury.   After the objectionable portion was read to

the jury, defense counsel objected and informed the court that

he inadvertently failed to redact those additional objectionable

portions of the interview.   Shifflett initially requested a

cautionary instruction.   Following a brief conference with

counsel, the trial judge promptly and emphatically instructed

the jury to disregard the statements.   Defense counsel

subsequently took the position that a cautionary instruction was

not adequate to erase the prejudicial effect of the highly

inflammatory evidence and moved for a mistrial.   Defense counsel

conceded that he did not identify that portion of the


                             - 6 -
interrogation as objectionable prior to its having been read to

the jury, even though he had been given the opportunity to do

so.   The trial court denied the mistrial motion.

      Although the Commonwealth, as the proponent of evidence,

has the burden of establishing its relevancy and admissibility,

see 1 John Henry Wigmore, Evidence §§ 14.1, 17 (Tillers rev.

1983), when inadmissible evidence is proffered, opposing counsel

has an obligation to make a timely and specific objection.      See

Rule 5A:18.   Rule 5A:18 provides in pertinent part that "[n]o

ruling of the trial court . . . will be considered as a basis

for reversal unless the objection was stated together with the

grounds therefor at the time of the ruling . . . ."     Rule 5A:18.

"The primary function of Rule 5A:18 is to alert the trial judge

to possible error so that the judge may consider the issue

intelligently and take any corrective actions necessary to avoid

unnecessary appeals, reversals and mistrials."      Martin v.

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)

(en banc).

      Rule 5A:18, frequently referred to as the "contemporaneous

objection rule," bars appellate review of trial court rulings or

incidents of trial to which no objection was made or where the

objection was not timely.   Rules of Court which procedurally bar

consideration of an issue on appeal are looked upon with

disfavor and should not be liberally applied to prevent


                             - 7 -
consideration of the merits of an issue on appeal.

Nevertheless, where, as here, the defendant had advance notice

of the exact nature of the evidence and was given the

opportunity in limine to redact the evidence and prevent the

jury from considering it, we find that the objection was not

timely and that the trial court did not err by granting a

cautionary instruction and refusing to grant a mistrial.

        Evidence that the accused committed other crimes or bad

acts is highly prejudicial and inadmissible, unless admitted

under one of several specific exceptions not present in this

case.     See Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81,

443 S.E.2d 419, 422 (1994) (en banc).     Here, the trial court,

acknowledging that certain portions of the transcript of the

interrogation which referred to other crimes or bad acts was

highly prejudicial, granted Shifflett leave to redact any

portion of the transcript that he thought objectionable.    Prior

to trial, the prosecutor tendered the redacted transcript and

tape to Shifflett.    The transcript tendered by the Commonwealth

reflected that the two pages identified by Shifflett as

objectionable were redacted as well as several additional pages

identified by the Commonwealth.    Shifflett did not object to the

transcript as redacted.    Upon realizing that inadmissible,

prejudicial evidence was introduced, the trial court sustained




                               - 8 -
Shifflett's objection and, in emphatic terms, gave the jury a

prompt instruction to disregard the evidence.

     We accept for purposes of this opinion that the portion of

the transcript to which Shifflett ultimately objected was improper

and by its nature prejudicial; however, we find that under the

circumstances in which it was introduced, its publication to the

jury was not reversible error.   We hold that, because Shifflett

was afforded the opportunity to redact any objectionable portion

of the transcript before trial but failed to avail himself of that

opportunity, albeit inadvertently, his objection was not timely

and he is precluded from asserting that a mistrial is the only

appropriate remedy.   See generally Saunders v. Commonwealth, 211

Va. 399, 177 S.E.2d 637 (1970); Clark v. Commonwealth, 202 Va.

787, 120 S.E.2d 270 (1961); Godsey v. Tucker, 196 Va. 469, 84

S.E.2d 435 (1954); Hundley v. Commonwealth, 193 Va. 449, 69 S.E.2d

336 (1952).   The trial court gave Shifflett every opportunity to

prevent the objectionable or prejudicial evidence from being

presented to the jury.   Shifflett will not now be permitted to

challenge the admissibility of the evidence when he sat silently

and allowed the evidence to be presented to the jury, which he

considered highly prejudicial, after he was afforded every

opportunity to have the evidence excluded in the first instance

and never mentioned to the jury.   Although a trial court is not

bound by an in limine ruling and may be required to rule


                              - 9 -
differently depending upon whether the evidence is relevant or

material at trial, here Shifflett had the opportunity to object

and prevent the evidence from being mentioned to the jury.       For

Shifflett to have made a timely objection to the admissibility of

this evidence, he should have objected when first given the

opportunity to have it redacted.    By failing to object and have

redacted that which he deemed objectionable, defense counsel

permitted the interjection of the questionable evidence before the

jury at trial.   He cannot now be heard to complain that the

prompt, explicit curative instruction given by the trial court was

inadequate and deprived him of a fair trial.     We decline to

consider, in this instance, whether the curative instruction

removed the prejudicial effect of the impropriety.    We, therefore,

hold that because Shifflett failed to make a timely specific

objection to the inclusion of the objectionable material when

afforded an opportunity to do so, he is precluded from challenging

the trial court's refusal to grant a mistrial and the court's

procedure for correcting the alleged prejudice resulting from the

inadvertent admission of the evidence.

     We find that the trial court did not err by denying

Shifflett's motion for a mistrial.      Accordingly, we affirm the

judgment of the trial court.

                                                            Affirmed.




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