                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, McCullough and Senior Judge Clements
PUBLISHED


            Argued at Richmond, Virginia


            TEVEIN DEWAYNE HARVEY
                                                                                 OPINION BY
            v.     Record No. 2037-14-2                                 JUDGE STEPHEN R. McCULLOUGH
                                                                               OCTOBER 13, 2015
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                                           Leslie M. Osborn, Judge

                           N. Garrison Elder (Hawthorne & Hawthorne, P.C., on brief), for
                           appellant.

                           Michael T. Judge, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General; Susan Mozley Harris, Assistant Attorney
                           General, on brief), for appellee.


                   Tevein Dewayne Harvey argues that the trial court erred in permitting a victim of his crimes

            to testify at sentencing concerning the details of those crimes. He contends that such testimony

            exceeded the scope of permissible testimony under Code §§ 19.2-295.3 and 19.2-299.1. He also

            argues that the trial court committed an abuse of discretion by permitting the victim to testify about

            one of the charges that was “nol prossed.” We find no error and affirm.

                                                      BACKGROUND

                   Appellant pled guilty to two charges of attempted murder, possession of a firearm by a

            nonviolent felon, burglary, robbery of a residence with the use of a gun, abduction for pecuniary

            gain, strangulation, abduction by force, threat, intimidation, conspiracy to commit armed
robbery, and three charges of use of a firearm in the commission of a felony.1 In exchange, the

Commonwealth, among other things, agreed to nolle prosequi a number of charges.

       Heather Brown, one of the victims, submitted a victim impact statement prior to the

sentencing hearing. At the sentencing hearing, the prosecution asked Brown’s mother if she had

found out what happened to her daughter and grandson. As she began to answer, the defense

objected, contending that “the line of questioning is recounting the facts of the case to which

we’ve already entered pleas and stipulated.” The court sustained the objection, stating that

“[s]ince this is victim testimony, you can ask her what was related to her and how did that affect

her. That’s the area you can get into. I don’t want to go through all the details.”

       The prosecution asked the next witness, Heather Brown, to “tell the Court what happened

to [her] on December 9, 2013.” Counsel immediately objected on the basis that “[w]e’ve entered

guilty pleas. We’ve stipulated. I think the Commonwealth has liberty to ask how those events

have affected folks, but,” whereupon the court interjected, “What happened in this crime is the

evidence and I’m going to overrule your objection. She is the victim. She can tell what

happened.”

       The victim proceeded to relay what transpired. She testified to a violent robbery that

took place in her home. She heard a loud knock on the door and soon afterwards the door burst

open. A man wearing a bandana and carrying a gun entered her home. He pointed the gun at her

head, grabbed her by the hair, and demanded money. He struck her with the butt of the gun and

with his fists. According to Brown, when she failed to produce her wallet, the man grabbed her

one-year-old son by the throat and put his gun to the baby’s head, stating that he would count to

twenty, and if she did not produce the money, he would “blow [her] son’s brains out.” At one



       1
         Appellant entered an Alford plea to one of the attempted murder charges and to the
strangulation charge. See North Carolina v. Alford, 400 U.S. 25 (1970).
                                              -2-
point, he dropped the child to the floor. She also noticed the presence of a second man in her

home as the robbery unfolded.

       The defense presented two witnesses in mitigation, appellant and his mother. Appellant

contested the victim’s account in part, stating that “a lot of stuff [she] is exaggerating didn’t

happen, Your Honor.” The court inquired, “Sir, you just told me that some of the things she said

were not true and that the father of the child had a part in this. I don’t know what you’re talking

about. If you want me to consider that[,] you’ve got to tell me what you’re talking about.”

Appellant then testified, among other things, that the victim and her husband were dealing drugs,

and he denied harming Brown’s infant son.

       Before pronouncing a sentence, the court mentioned the appellant’s criminal record, the

violence of appellant’s actions, and the mitigation evidence contained in the presentence report.

The court concluded that appellant’s sentence should be one that exceeded the sentencing

guidelines. The court imposed a total sentence of 133 years, with 87 years suspended, for a total

active sentence of 46 years.

                                            ANALYSIS

       This case presents a matter of statutory construction. We review such a question de novo.

Jay v. Commonwealth, 275 Va. 510, 517, 659 S.E.2d 311, 315 (2008).

       Under longstanding practice,

               “both before and since the American colonies became a nation,
               courts in this country and in England practiced a policy under
               which a sentencing judge could exercise a wide discretion in the
               sources and types of evidence used to assist him in determining the
               kind and extent of punishment to be imposed within limits fixed by
               law.”

McClain v. Commonwealth, 189 Va. 847, 859-60, 55 S.E.2d 49, 55 (1949) (quoting Williams v.

New York, 337 U.S. 241, 246 (1949)); see also Prieto v. Commonwealth, 283 Va. 149, 168, 721

S.E.2d 484, 496 (2012) (“The scope of testimony in the sentencing phase is wide, and the
                                                 -3-
standard for exclusion of relevant evidence is whether the prejudicial effect substantially

outweighs its probative value. This is a matter of discretion for the circuit court and is properly

reviewed under an abuse of discretion standard.” (citation omitted)).

        For example, for many crimes, courts must order the preparation of a presentence report

that contains the results of a “thorough[] investigat[ion]” and includes the convict’s criminal

history and “all other relevant facts.” Code § 19.2-299. Courts are also directed in all felony cases

such as this one to consult sentencing guidelines. Code § 19.2-298.01. Defendants, of course, can

testify and offer mitigation evidence from a variety of sources, including relatives, employers,

friends, religious figures, and others.

        The Code also ensures that victims of crime have a voice in the process. Code § 19.2-295.3

provides in relevant part:

                        Whether by trial or upon a plea of guilty, upon a finding
                that the defendant is guilty of a felony, the court shall permit the
                victim, as defined in § 19.2-11.01, upon motion of the attorney for
                the Commonwealth, to testify in the presence of the accused
                regarding the impact of the offense upon the victim. The court
                shall limit the victim’s testimony to the factors set forth in clauses
                (i) through (vi) of subsection A of § 19.2-299.1. In the case of trial
                by jury, the court shall permit the victim to testify at the sentencing
                hearing conducted pursuant to § 19.2-295.1 or in the case of trial
                by the court or a guilty plea, the court shall permit the victim to
                testify before the court prior to the imposition of a sentence.

        Code § 19.2-299.1, which governs victim impact statements, provides in relevant part:

                A Victim Impact Statement shall be kept confidential and shall be
                sealed upon entry of the sentencing order. If prepared by someone
                other than the victim, it shall (i) identify the victim, (ii) itemize any
                economic loss suffered by the victim as a result of the offense,
                (iii) identify the nature and extent of any physical or psychological
                injury suffered by the victim as a result of the offense, (iv) detail
                any change in the victim’s personal welfare, lifestyle or familial
                relationships as a result of the offense, (v) identify any request for
                psychological or medical services initiated by the victim or the
                victim’s family as a result of the offense, and (vi) provide such
                other information as the court may require related to the impact of
                the offense upon the victim.
                                                  -4-
         Appellant argues that Code § 19.2-295.3 and the six factors it cross-references from Code

§ 19.2-299.1 limit the scope of a victim’s testimony at a sentencing hearing to victim impact

evidence.2 Therefore, the victim may not testify concerning the facts of the crime itself. He also

argues that the prejudicial effect of Brown’s testimony substantially outweighed its probative

value.

         “We apply the plain meaning of the language appearing in the statute unless it is

ambiguous or applying the plain language leads to an absurd result.” Commonwealth v. Amos,

287 Va. 301, 305-06, 754 S.E.2d 304, 306-07 (2014) (citation omitted). First, Code § 19.2-295.3

requires trial courts to permit victims to testify concerning the impact of the crime on the victim.

The statute thus limits a trial court’s broad discretion to exclude such testimony, and it clarifies that

a jury may hear such evidence during the sentencing phase of a jury trial. See Rock v.

Commonwealth, 45 Va. App. 254, 259, 610 S.E.2d 314, 316 (2005) (“By explicitly providing that

victims shall be allowed to testify regarding the impact of the offense on them when the

defendant is found guilty of a felony, Code § 19.2-295.3 establishes the victim’s right to testify

. . . .”). Second, Code § 19.2-295.3, by referencing the six factors found in Code § 19.2-299.1,

limits the scope of victim impact testimony to those factors. Both Code § 19.2-295.3 and the factors

it references from Code § 19.2-299.1 expressly apply to victim impact testimony. They do not, by

their text or by implication, preclude a trial court from considering testimony from a victim at the

sentencing hearing about the underlying facts of the crime, provided that the trial judge concludes,

within his broad discretion, that such evidence would help the court fashion an appropriate sentence.



         2
         We acknowledge the Commonwealth’s argument that this issue is procedurally
defaulted under Rule 5A:18. As an appellate court, we seek ‘“the best and narrowest ground
available”’ for our decision. Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d
561, 564 (2010) (quoting Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2, 653 S.E.2d 600,
603 n.2 (2007)). With respect to this assignment of error, we conclude that resolving the merits
of the question presented constitutes the narrowest and best ground.
                                               -5-
        This conclusion is not only in accord with the plain language of Code §§ 19.2-295.3 and

19.2-299.1; it is also consistent with a stated objective of Virginia’s foundational charter of

government. The General Assembly and the people of Virginia amended the Constitution to

ensure that victims of crime have a voice in the process. Section 8-A of the Constitution of

Virginia, entitled “Rights of victims of crime,” provides that crime victims must be provided

with “access to a meaningful role in the criminal justice process,” including, among other things,

“[t]he right to address the circuit court at the time sentence is imposed.” Va. Const. art. I, § 8-A.

Our interpretation is also consistent with one of the stated policy goals of the Crime Victim and

Witness Rights Act, Code §§ 19.2-11.01 to -11.4, which is to “ensure that the full impact of crime is

brought to the attention of the courts of the Commonwealth.” Code § 19.2-11.01(A).

        We do not hold that any and all evidence concerning the facts of the crime must be

admitted at sentencing. Circuit court judges are vested with broad discretion in admitting

evidence, Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988), and can be

expected to exercise that discretion to exclude evidence that does not aid the court in the

sentencing phase. We simply hold that Code §§ 19.2-295.3 and 19.2-299.1 do not compel courts

to exclude testimony from victims concerning the circumstances of the crime when that testimony

would assist the court as it considers what sentence to impose. And, of course, such testimony is

subject to cross-examination by the defendant, as well as any rebuttal evidence from the defendant.

        Finally, we perceive no abuse of discretion in the trial court’s weighing of the probative

value of the evidence against its prejudicial effect. “Such weighing is left to the discretion of the

trial court and will not be disturbed on appeal, absent an abuse of discretion.” Teleguz v.

Commonwealth, 273 Va. 458, 482, 643 S.E.2d 708, 723 (2007).

        With respect to Harvey’s second assignment of error, that the trial court erred by

permitting the victim to testify about one of the charges that was nolle prosequied, we conclude

                                                  -6-
that this argument is barred by Rule 5A:18. Rule 5A:18 provides that “[n]o ruling of the trial

court . . . will be considered as a basis for reversal unless an objection was stated with reasonable

certainty at the time of the ruling.” Appellant did not object at trial that the victim impermissibly

strayed in her testimony when she mentioned a charge that was dismissed by nolle prosequi.

Accordingly, we hold that Rule 5A:18 precludes us from reaching this assignment of error.

                                          CONCLUSION
       We affirm the judgment of the trial court.


                                                                                     Affirmed.




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