                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia


KENNETH EDWARD BROWN
                                         MEMORANDUM OPINION * BY
v.   Record No. 0695-98-3               JUDGE SAM W. COLEMAN III
                                              JUNE 15, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRY COUNTY
                     Charles M. Stone, Judge

          James R. McGarry (Young, Haskins, Mann,
          Gregory & Smith, P.C., on brief), for
          appellant.

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


     Kenneth Edward Brown was convicted by a jury of aggravated

malicious wounding and robbery.   On appeal, Brown contends that

the trial court erred by denying his motions (1) for a new trial

on the ground that the Commonwealth violated the court’s discovery

order by withholding from him the fact that a Commonwealth’s

witness had a felony conviction, (2) for a mistrial because the

Commonwealth introduced inadmissible evidence that he used




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
cocaine, and (3) to strike the evidence as insufficient to support

the robbery conviction.   Finding no error, we affirm the

convictions.

                               BACKGROUND

     Grogan’s Grocery is a country store located in Henry County

owned and operated by Arnie Grogan.    During the early morning

before the store opened, Brown knocked on the front door under the

pretense of needing to purchase kerosene.   Grogan opened the store

for Brown and as Grogan turned around, Brown struck him on the

head until he became unconscious.

     Grogan’s billfold, which had been in the cash register before

Brown entered the store, contained approximately $1,000 in $100

bills.   After Grogan regained consciousness, the billfold was

missing.

     At trial, Grogan positively identified Brown as his

assailant.   On cross-examination, Grogan admitted that he was not

wearing glasses on the morning of the attack, that he only saw the

assailant for a “short time,” and that he had difficulty

identifying Brown as his assailant in a previous identification.

Nevertheless, he testified that he was “sure” about the

identification.

     The Commonwealth also proved that Brown’s vehicle was at

Grogan’s Grocery on the morning when the crime occurred.    Jason

Dodd testified that on the morning of the robbery he saw a vehicle




                               - 2 -
in the middle of the road near Grogan’s store.      In the vehicle was

a man whom Dodd identified as Brown.       Additionally, Dodd

identified pictures of Brown’s car as the vehicle he saw that

morning. 1

       John Wilson, who also drove by Grogan’s store that morning,

testified that he saw a car parked there that had no license

plates, which he later identified from the pictures as Brown’s

car.       Wilson pointed out that he recognized the rust spot on the

fender.       After trial, but before sentencing, the Commonwealth

informed Brown that Wilson had been convicted in 1983 of

involuntary manslaughter, a felony.

       The evidence further proved that on April 26, Jerry Morgan,

Brown’s landlord, had notified Brown that he and his family were

to vacate their residence on May 26 for nonpayment of rent.

Grogan’s store was robbed on the morning of May 25.      Between 7:00

and 7:30 on the morning of May 25, Morgan drove by Brown’s

residence and noticed that his car was not there.      Morgan

testified that before the robbery, Brown had no money.


       1
      Brown asserts that his counsel impeached Dodd’s testimony.
On cross-examination, Dodd confirmed that after the robbery he
told investigators he remembered a hole in the car’s gas tank
like the hole in the defendant’s car. Assuming that Dodd was
referring to a hole in the gas cap cover, counsel for Brown
asked Dodd if he had a view of that side of the vehicle on the
morning of the robbery. Dodd admitted that he had no view of
that side of the vehicle, but clarified that he was referring to
the rusted-out hole in the vehicle’s fender rather than the hole
in the gas cap.




                                   - 3 -
     However, Renee Martin testified that on May 26 at 1:30 p.m.,

Brown and his wife rented a trailer from her and for a security

deposit and one-week’s rent Brown’s wife paid $350 with three $100

bills and one fifty dollar bill.    Then, on June 8, she paid $250

in rent with two $100 bills and other denominations.

     Jesse Norris, a convicted felon who was in jail with the

defendant after the robbery, testified that Brown admitted to him

that he committed the robbery.    Brown told Norris that he hit

Grogan with a tire iron, took his wallet, and left the store.

Brown also said that as he turned his car around, several people

drove past him.   He noted that he had removed the tags from the

vehicle to avoid identification and had thrown the tire iron into

the water.   Brown had asked Norris whether stains and fingerprints

could be taken from a tire iron that had been under water.      Brown

also asked Norris whether he knew how to remove a distinctive rust

spot from a vehicle.

     During rebuttal, Brown’s wife testified that “things weren’t

going very well” regarding their marriage.      On cross-examination

the Commonwealth asked her whether she ever had “any problem with

what [Brown] did with the money that he did have.”      When she

responded that she did not, the Commonwealth asked whether she

recalled making a statement to Renee Martin regarding her concerns

about how her husband spent money.       When she replied that she did

not recall, the Commonwealth asked:      “Did you tell her [Brown] was

spending the money on cocaine?”    Over Brown’s objection, and


                                 - 4 -
pursuant to the trial court’s ruling, the Commonwealth re-phrased

the question:    “Did you ever tell Renee Martin that your husband,

Kenny, was spending money, family money, on cocaine?”      Brown’s

wife did not deny the statement but could not recall having ever

made it.   The trial court cautioned the jury not to consider the

statement as evidence of drug use but only with regard to its

impact, if any, on the witness’ credibility.    The Commonwealth did

not thereafter introduce evidence from Renee Martin that Brown’s

wife had stated that Brown was spending family money on cocaine.

                               ANALYSIS

                Failure to Disclose Exculpatory Evidence

     “[S]uppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”    Brady v. Maryland,

373 U.S. 83, 87 (1963).    “[A] person convicted of a felony . . .

shall not be incompetent to testify, but the fact of conviction

may be shown in evidence to affect his credit.”    Able v.

Commonwealth, 16 Va. App. 542, 546, 431 S.E.2d 337, 339 (1993)

(quoting Code § 19.2-269).    “Favorable evidence is material ‘only

if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have

been different.    A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome.’”       Soering v.

Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting


                                 - 5 -
United States v. Bagley, 473 U.S. 667, 682 (1985)).   Therefore,

Brown “must show that when the case is evaluated in the context of

the entire record, including the omitted evidence, a jury would

have entertained a reasonable doubt” as to Brown’s guilt.      Id.

     The Commonwealth violated the court’s discovery order by

failing to reveal Wilson’s prior convictions.   Had the

Commonwealth revealed Wilson’s conviction for involuntary

manslaughter, Brown could have impeached Wilson’s credibility with

that information.   However, we find that there is no reasonable

probability that had the conviction been disclosed, the jury would

have come to a different conclusion.   Therefore, the trial court

did not err in denying the motion for a new trial.

     Wilson’s testimony that he saw Brown’s car at Grogan’s store

on the morning of the robbery was circumstantial evidence which

corroborated the other overwhelming evidence of Brown’s guilt.

Moreover, the testimony was cumulative of Dodd’s testimony who

also identified Brown’s vehicle.   Furthermore, Wilson’s

identification of Brown’s car was much less incriminating than

Grogan’s and Dodd’s testimony identifying Brown.   Additional

testimony made the evidence of guilt overwhelming:    Norris

testified that Brown confessed to him; Moore testified that prior

to the robbery Brown had no money; and Martin testified that after

the robbery Brown’s wife had a large sum of cash in $100 bills,

the same denomination taken with Grogan’s billfold.   Thus, absent

Wilson’s testimony, we find the Commonwealth’s evidence of Brown’s


                               - 6 -
guilt to be overwhelming on both charges.   Accordingly, we find

that the trial court did not err in denying Brown’s motion for a

new trial.

                   Prior Inconsistent Statement

     “On appeal[,] the denial of a motion for a mistrial will not

be overruled unless there exists a manifest probability that the

denial of a mistrial was prejudicial.”   Harward v. Commonwealth,

5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988).   “If a witness

gives testimony that is inconsistent with a prior statement, or

testifies that he does not recall making the prior statement, a

sufficient foundation for impeachment has been laid, and opposing

counsel may cross-examine the witness as to the inconsistency.”

Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98

(1992).

     Evidence establishing that the Browns were in pressing need

of money was relevant to prove that Kenneth Edward Brown had a

motive to commit the crimes.   The Commonwealth introduced evidence

showing that the Browns lacked sufficient financial resources to

pay their rent prior to the robbery.   The defendant offered his

wife’s testimony in rebuttal to prove that despite some financial

difficulty, they had sufficient income prior to the robbery.   In

her rebuttal testimony, Paula Brown accounted for the money that

the Browns spent immediately after the robbery and testified that




                               - 7 -
the money was under her control prior to and during the time when

the Commonwealth alleged defendant obtained the money by robbing

Grogan’s store.

     In cross-examining Paula Brown, the Commonwealth asked her

whether she had problems with the way her husband spent money.    In

response, she testified that she had no complaints regarding how

her husband spent their money.    The Commonwealth then attempted to

impeach her by asking, “Did you ever tell Renee Martin that your

husband, Kenny, was spending . . . family money, on cocaine?”

     By asking this question, the Commonwealth sought to elicit

testimony tending to impeach Paula Brown in two ways.   First, the

Commonwealth sought to refute the substance of her prior testimony

by having her acknowledge that her husband was financially

irresponsible and had depleted family resources.   Second, the

Commonwealth sought to impeach her credibility as a witness by

proving that she had made a prior statement inconsistent with her

testimony under oath.

     The Commonwealth’s question called for information relevant

to establish the lack of funds as a motive to commit the crimes.

However, in order for the trial court to determine whether the

question was proper, the trial court had to weigh the probative

value of the evidence against its prejudicial impact.   See Cumbee

v. Commonwealth, 219 Va. 1132, 1137-38, 254 S.E.2d 112, 116

(1979).




                                 - 8 -
     Clearly, the question had a prejudicial effect in that it

implied that Brown used cocaine.   Here, the trial court had no

opportunity to weigh the probative value against the prejudicial

effect because the Commonwealth had asked the question in the

jury’s presence.   The trial court, apparently assuming that Paula

Brown would admit having made the statement, admonished the jury

only to consider the fact that she may have made the statement to

the extent that it impeached her testimony and credibility.     The

judge instructed the jury not to consider her statement as

evidence of Brown’s drug use and in doing so, the judge limited

the question’s prejudicial effect.      A jury is presumed to follow a

judge’s instruction regarding the limitation placed on a specific

piece of evidence, see Lawson v. Commonwealth, 13 Va. App. 109,

112, 409 S.E.2d 466, 467 (1991), and nothing in the record rebuts

the presumption that the jury followed the judge’s admonition.

Additionally, Paula Brown did not acknowledge having made the

prior statement; she replied instead, that she did not recall

having made the statement.   Although the question called for a

potentially prejudicial response, the response was not

prejudicial, and the Commonwealth never introduced the allegedly

prior inconsistent statement.   Thus, assuming without deciding

that the question was more prejudicial than probative and should

have been disallowed, the trial judge’s procedure for handling the

question was nevertheless harmless.      Because the evidence of guilt

was overwhelming, and the trial court instructed the jury to


                                - 9 -
disregard any prejudicial impact from the question, we conclude

that the jury was not affected by the question.    Therefore, we

cannot say that there is a manifest probability that the denial of

appellant’s motion for a mistrial was prejudicial.

                            Sufficiency

     “On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.”   Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     As noted, we find the Commonwealth’s evidence was

overwhelming, thus, it was sufficient to convict Brown of

malicious wounding and robbery.   Grogan identified Brown as the

assailant, and two other witnesses placed Brown’s vehicle at the

crime scene.   Grogan testified that when he regained

consciousness, his wallet containing approximately ten $100 bills

was missing.   The evidence showed that Brown was experiencing

financial difficulty, that the crime occurred the day before he

and his family had to vacate their leased residence for

non-payment of rent, and that on the afternoon after the robbery

the Browns entered into a new lease paying the security deposit

and one-week’s rent in $100 bills.   While in jail, Brown admitted

to Norris that he struck Grogan with a tire iron and stole

Grogan’s billfold.




                               - 10 -
     At trial, Brown denied guilt and produced evidence to impeach

the credibility of Grogan, Wilson, 2 Dodd, and Norris.   However,

“[t]he weight which should be given to evidence and whether the

testimony of a witness is credible are questions which the fact

finder must decide.”   Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986).   The evidence is not inherently

incredible and is sufficient to support the convictions.

     In conclusion, we find that the Commonwealth’s failure to

disclose Wilson’s conviction record was not material to the jury’s

conviction, that the trial court did not err by allowing the

Commonwealth to question Paula Brown regarding her prior

inconsistent statement, and that the evidence was sufficient to

support the convictions.   Accordingly we affirm the convictions.

                                                           Affirmed.




     2
      On appeal, Brown asserts that Wilson’s evidence was
unimpeached. However, on cross-examination, he admitted that he
did not see the car for very long, that he was really only
concerned with the missing tags, that he did not pay attention
to the make or model of the car, that he did not remember
whether the car had a roof rack, and that the allegedly
identifying rust was not an uncommon feature of cars in the
area.


                               - 11 -
