                    COURT OF APPEALS OF VIRGINIA


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


MARILYN JEAN LESTER
                                              MEMORANDUM OPINION * BY
v.   Record No. 0844-99-3                      JUDGE ROBERT P. FRANK
                                                   JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                    Donald R. Mullins, Judge

          Mark S. Gardner (Gardner, Maupin & Sutton,
          P.C., on brief), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General; Richard B.
          Smith, Senior Assistant Attorney General, on
          brief), for appellee.


     Marilyn Jean Lester (appellant) was found to have violated

the terms of her probation at a hearing before the trial court on

October 29, 1998.   On appeal, she contends that the trial court

erred in admitting the results of a polygraph test at the

probation revocation hearing.    We disagree and affirm the trial

court's judgment.

                            I.   BACKGROUND

     On March 5, 1998, appellant, pursuant to a plea agreement,

entered a plea of no contest to a single felony count of child

abuse involving her grandson.    The evidence established that

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
appellant chained her seven-year-old grandson to furniture to

prevent his running away from home.    Apparently, the child was

sexually abused by appellant's husband, an offense about which

appellant denied any knowledge.

     The trial court imposed a sentence of five years in the

penitentiary, suspended the entire sentence, placed appellant on

indefinite supervised probation, and imposed a special condition

that she enter a sex offender treatment or counseling program

offered by the court.

     A probation violation hearing was held October 29, 1998.      The

Commonwealth presented evidence that appellant violated the rules

of her probation, specifically the condition requiring her to

follow her probation officer's instructions "and be truthful and

cooperative" and that she complete the sex offender counseling.

There was evidence that she had been deceitful during the initial

assessment in counseling because she continued to deny any

knowledge of her grandson's sexual molestation and "she failed the

polygraph examination."

     At the hearing, a letter from the probation officer to the

court, which was dated September 25, 1998, was introduced and

marked as an exhibit without objection by appellant.   The letter

outlined appellant's progress on probation, particularly the

sexual offender program.   In discussing appellant's lack of

participation in the sexual offender program, the probation



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officer concluded that appellant was deceptive during the initial

assessment and stated that she failed a polygraph examination.

     The probation officer, Michael A. Montgomery, testified at

the revocation hearing.   With no objection from appellant,

Montgomery again said that appellant failed the polygraph.

     The next witness was Cheryl Clayton, a counselor for a sexual

offender program in Tazewell County.     Only when Clayton testified

that appellant failed the polygraph, did appellant object.    The

trial court allowed the testimony regarding the polygraph.

Clayton further testified that, during counseling, appellant was

very hostile and did not see a need to participate in the

counseling.   In referring to the alleged sexual attack by her

husband on her daughter, appellant contended that her husband was

the victim of their daughter's seduction of her father.    Clayton

stated that her conclusion that appellant was dishonest and

uncooperative was not solely based on the polygraph but on the

other tests and interviews.

     Montgomery supported Clayton's assessment that appellant was

not truthful and cooperative in complying with her special

conditions of probation regarding the sexual offender counseling.

                           II.    ANALYSIS

     Appellant argues that polygraph results are not admissible in

revocation hearings because they are not admissible in criminal

trials.



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     The Commonwealth argues that, even if the results of the

polygraph test are inadmissible, the trial court committed

harmless error in admitting them into evidence.

     Assuming without deciding that the admission of the polygraph

test results was error, we must determine whether the error was

harmless error.

     When improper evidence is offered to establish a fact that is

overwhelmingly established by other competent evidence, the

improper admission of the improper evidence constitutes harmless

error.   See Hall v. Commonwealth, 12 Va. App. 198, 216, 403 S.E.2d

362, 373 (1991) (citing Williams v. Commonwealth, 4 Va. App. 53,

74, 354 S.E.2d 79, 91 (1987)).    "[T]he harmless error doctrine

enables an appellate court . . . to ignore the effect of an

erroneous ruling when an error clearly has had no impact upon the

verdict or sentence in a case."    Hackney v. Commonwealth, 28 Va.

App. 288, 296, 504 S.E.2d 385, 389 (1998) (citation omitted).      An

error is harmless when 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.'"   Davies v.

Commonwealth, 15 Va. App. 350, 353, 423 S.E.2d 839, 840-41 (1992)

(quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991) (en banc)).

     In this case, we are satisfied the admission of the polygraph

results is harmless.   The objectionable evidence was already

before the court in Montgomery's letter of September 25, 1998, and

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by the direct testimony of Montgomery.   Further, the evidence was

overwhelming that appellant violated the terms of probation even

without the polygraph evidence.

     Because it is manifest that the introduction of the polygraph

evidence had no impact on the trial court's finding, any error is

harmless.   Had the polygraph results been excluded, the evidence

was sufficient to revoke appellant's suspended sentence.

     For the reasons stated, we affirm the judgment of the trial

court.

                                                           Affirmed.




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Coleman, J., dissenting.

     The majority accepts or assumes for the purpose of its

opinion that the trial court erred in the probation revocation

hearing by admitting evidence that the defendant failed a

polygraph test.   Because the results of such tests are not

considered reliable, I agree with the majority that the

admission into evidence of polygraph test results in a probation

revocation hearing is error.    See Robinson v. Commonwealth, 231

Va. 142, 341 S.E.2d 159 (1986).   However, I disagree with the

majority that on this record the error was harmless.

     The majority concludes that the error was harmless for

three reasons:    (1) because other evidence that Lester had

failed the polygraph examination had already been admitted

without objection; (2) because other evidence overwhelmingly

proved that Lester was dishonest about her having no knowledge

that her husband sexually abused their grandson; and (3) she

violated other conditions of her probation in that she did not

cooperate with counseling and the sexual abuse therapy.

Although other witnesses did allude to the fact that Lester

failed the polygraph examination, the testimony of Cheryl

Clayton, to which the defendant timely objected, directly

addressed the fact that Lester had failed the polygraph

examination.   In light of the Supreme Court's holding in

Robinson that such evidence is unreliable, the trial court

erred, in my opinion, in overruling the objection to Clayton's

                                - 6 -
testimony and in considering the polygraph test results.

Because the probation revocation hearing was before a trial

judge, not before a jury, the trial judge should have sustained

the objection to Clayton testifying that Lester failed the

polygraph test and, in light of the holding in Robinson, should

have disregarded the testimony of the other witnesses who

alluded to the polygraph test results.

     Furthermore, I do not agree that the assumed error in

admitting the polygraph evidence was harmless.   The reason that

the court revoked Lester's probation was that she was

uncooperative with the sexual abuse counselors because she was

deceitful.   The basis for their claiming she was deceitful was

that she was being untruthful when she denied knowledge that her

husband had sexually abused their grandson.   The primary basis

for their claiming she was untruthful about her knowledge of

sexual abuse was that she failed the polygraph test.    Lester

persisted in denying knowledge of the sexual abuse.    Regardless

of the fact that other evidence may have tended to prove that

Lester knew of the sexual abuse, I cannot say on this record

that the counselors did not rely upon Lester's polygraph test

results in reporting that she was untruthful or relied upon

those results in claiming that she had violated her probation or

that the trial judge, after admitting into evidence Cheryl

Clayton's testimony concerning the polygraph results, also did



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not rely upon the polygraph test results in finding that she

violated her probation.

     For these reasons, I would find that the trial judge erred

by admitting the testimony concerning the polygraph test results

and that the error was not harmless.    I would reverse the

probation revocation and remand for such further proceedings as

the Commonwealth may elect to pursue.




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