                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


RALPH BAILEY GORMUS
                                         MEMORANDUM OPINION * BY
v.   Record No. 0982-99-3                 JUDGE LARRY G. ELDER
                                               MAY 2, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                  J. Samuel Johnston, Jr., Judge

          George W. Nolley for appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Ralph Bailey Gormus (appellant) appeals from his jury trial

convictions for misdemeanor hit-and-run pursuant to Code

§ 46.2-894 and driving under the influence of alcohol pursuant

to Code § 18.2-266.   Appellant's sole defense at trial was that

he was merely a passenger at the time of the accident and that

his cousin, Cleveland Taylor, was driving.   On appeal, appellant

contends the trial court erroneously refused to allow him to

cross-examine Taylor about his two prior convictions for driving

under the influence of alcohol and his fear that a third

conviction would result in heightened punishment, thereby

denying him the opportunity to fully develop Taylor's bias.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Appellant also contends the trial court erroneously instructed

the jury on the inference that a person intends the natural and

probable consequences of his acts, arguing that this instruction

improperly shifted to him the burden of proving a lack of

intent, improperly emphasized a portion of the evidence and

confused the jury.   We hold that the court erroneously

restricted cross-examination of Taylor but that the error was

harmless.   We also hold the giving of the challenged jury

instruction was not error because it created a permissive

inference rather than a mandatory presumption and was supported

by the evidence.    Therefore, we affirm appellant's convictions.

                                 I.

             PRIOR DUI CONVICTIONS AS EVIDENCE OF BIAS

     The rules for impeaching the veracity of a witness with

prior convictions differ depending on the method used.     "Where

the purpose of the inquiry is [a direct attack on] a witness'

veracity based on prior convictions, cross-examination

concerning a witness' prior convictions is limited to prior

felony convictions and convictions for misdemeanors involving

moral turpitude."    Scott v. Commonwealth, 25 Va. App. 36, 41,

486 S.E.2d 120, 122 (1997).   However, where the purpose of the

"cross-examination [is an indirect attack on veracity] designed

to demonstrate a witness' bias or motive to testify" falsely, it

is error to limit the cross-examination to prior felony

convictions and crimes of moral turpitude.    See id.    "An accused

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has a right to cross-examine prosecution witnesses to show bias

or motivation and that right, when not abused, is absolute.       The

right emanates from the constitutional right to confront one's

accusers."     Brown v. Commonwealth, 246 Va. 460, 463-64, 437

S.E.2d 563, 564-65 (1993).

     "Such an inquiry is always relevant, and the jury should

consider the evidence of bias in deciding what weight to give to

the testimony of the witness."    1 Charles E. Friend, The Law of

Evidence in Virginia § 4-4(a), at 131 (4th ed. 1993) (footnote

omitted).    Further, "[t]he issue of bias is never collateral,

and cross-examining counsel is therefore never precluded from

producing extrinsic evidence if the bias is denied."        Id. at 132

(footnote omitted).

             So absolute is this right to cross-examine
             for bias that it takes precedence over other
             rules of evidence and even over statutory
             enactments. Thus, . . . it is error to
             limit an accused's cross-examination of
             prosecution witnesses as to juvenile
             offenses, even though a statute protects
             such matters from disclosure[, where that
             cross-examination relates to bias].

Id.; see Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39

L. Ed. 2d 347 (1974) (cross-examination regarding juvenile court

record).    Other types of evidence probative of bias include the

existence of a plea bargain between the witness and the

prosecution or other expectation of favorable consideration at

trial or in sentencing for the witness' own crime.     See Brown,

246 Va. at 464, 437 S.E.2d at 565; Davis v. Commonwealth, 215

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Va. 816, 822, 213 S.E.2d 785, 789 (1975); Scott, 25 Va. App. at

40-42, 486 S.E.2d at 121-22; see also 1 Friend, supra, § 4-4(a),

at 132.

     Here, evidence that Commonwealth's witness Cleveland Taylor

had twice previously been convicted for driving under the

influence of alcohol and knew that a third conviction likely

would result in a greater punishment or longer license

suspension was probative of his bias in testifying that

appellant was behind the wheel at the time of the accident.

Taylor arguably had a motive to implicate appellant in order to

exonerate himself, and appellant was entitled to put this

evidence before the jury for its use in determining what weight

to give Taylor's testimony.   This evidence was relevant and

material to Taylor's credibility and was not collateral.

Therefore, the trial court erred in excluding it.

     The Commonwealth contends that the exclusion, if error, was

harmless.   Even if the jury had disregarded Taylor's testimony,

it contends, the verdicts would have been the same based on the

other evidence before the jury, which included the testimony of

independent witness Robert Dodson, who identified appellant as

the driver and heard appellant admit he was the driver, and

appellant's flight from the scene.     Furthermore, it argues,

although Taylor was sufficiently impeached by his prior

convictions for felonies, crimes of moral turpitude and one DUI

offense, the jury still rejected appellant's claim that Taylor

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was the driver.   We hold that the exclusion of the proffered

bias evidence was harmless under the facts of this case.

     In evaluating a court's erroneous restriction of

cross-examination, "'[t]he correct inquiry is whether, assuming

that the damaging potential of the cross-examination were fully

realized, [we] might nonetheless say that the error was harmless

beyond a reasonable doubt.'"    Maynard v. Commonwealth, 11 Va.

App. 437, 448, 399 S.E.2d 635, 641 (1990) (en banc) (quoting

Delaware v. Van Ardsall, 475 U.S. 673, 684, 106 S. Ct. 1431,

1438, 89 L. Ed. 2d 674 (1986)).   This analysis "is akin to

harmless error review in cases of improperly admitted evidence,

where the error is held harmless if the record contains

'overwhelming' evidence of guilt. . . . [Taylor's] testimony is

the 'improper' evidence we evaluate, to determine its effect, if

any, on the verdict."   Scott, 25 Va. App. at 42-43, 486 S.E.2d

at 123 (citations omitted).    In performing such analysis, we

evaluate "'the importance of [Taylor's] testimony in the

prosecution's case, whether [Taylor's] testimony was cumulative,

the presence or absence of evidence corroborating or

contradicting [Taylor's] testimony on material points, the

extent of cross-examination [of Taylor] otherwise permitted and,

of course, the overall strength of the prosecution's case.'"

Williams v. Commonwealth, 4 Va. App. 53, 78-79, 354 S.E.2d 79,

93 (1987) (quoting Van Ardsall, 475 U.S. at 684, 106 S. Ct. at

1438).   "An error does not affect a verdict if a reviewing court

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can conclude, without usurping the jury's fact finding function,

that, had the error not occurred, the verdict would have been

the same."   Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,

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

     We conclude first that the extent of cross-examination of

Taylor otherwise permitted was insufficient to allow appellant

to establish his bias.    We reject the Commonwealth's argument

that Taylor's admission to one prior DUI conviction before the

trial court sustained appellant's objection rendered the

exclusion of further evidence harmless.    Because the trial court

sustained the Commonwealth's objection to this line of

questioning, appellant was not permitted to argue to the jury

that the prior DUI conviction to which Taylor admitted provided

him with a motive to lie about who was driving in order to

exonerate himself.    Thus, appellant was deprived of the ability

to use effectively a potentially significant piece of impeaching

evidence.

     This case is distinguishable from Fitzgerald v. Bass, 6 Va.

App. 38, 366 S.E.2d 615 (1988) (en banc), cited by the

Commonwealth. 1   In Fitzgerald, the witness was merely a cellmate


     1
       Although Fitzgerald involved review of a petition for a
writ of habeas corpus, the Court observed that the applicable
standard of review was "equivalent to the 'harmless beyond a
reasonable doubt' standard," Fitzgerald, 6 Va. App. at 53, 366
S.E.2d at 623, which is applied in evaluating alleged
constitutional error on direct appeal, see Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc).

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to whom the accused confessed.     See id. at 47, 366 S.E.2d at

620.   The cellmate admitted to one felony conviction and said

that he had one charge pending against him when he met the

accused but that it had been reduced to a misdemeanor.        See id.

at 49, 366 S.E.2d at 621.   In fact, he had three prior felony

convictions and two pending felony charges in another

jurisdiction, and was a paid informant for the state police on a

matter not involving the accused.        See id. at 47, 49, 366 S.E.2d

at 620, 621.   The court acknowledged that the cellmate provided

testimony key to the accused's conviction, but noted that the

jury knew the cellmate was a convicted felon, had committed

misdemeanor offenses involving moral turpitude, and was

incarcerated when he met the accused.        See id. at 54-55, 366

S.E.2d at 624.   Under those circumstances, it held, "given the

extent to which [the cellmate's] credibility was impeached, it

is doubtful that additional evidence in this regard would have

made a difference in the jury's opinion of his credibility."

Id. at 55, 366 S.E.2d at 624-25.

       In appellant's case by contrast, Taylor, the witness whose

bias appellant sought to show, was a direct participant in the

events for which appellant was on trial, not merely an

uninvolved cellmate to whom appellant later confessed.       Further,

the prior convictions appellant sought to prove related to more

than just a general propensity for untruthfulness or a desire to

lessen his sentence for an unrelated offense.       Rather, Taylor's

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two prior convictions--which were for driving under the

influence--went directly to Taylor's motive to lie about whether

he was driving at the time of the accident, a key element of

appellant's hit-and-run conviction.    Under appellant's theory,

Taylor was seeking not simply to lessen his punishment for an

unrelated offense, as the cellmate in Fitzgerald may have been;

rather he was seeking to exonerate himself for the precise

behavior key to appellant's hit-and-run conviction--the same act

of driving.

     Nevertheless, the error in restricting appellant's

cross-examination of Taylor clearly was harmless beyond a

reasonable doubt as to both convictions.   Appellant challenged

only the evidence that he was driving at the time of the

accident.   He did not challenge Dodson's testimony that he

attempted to remove the vehicle from the ditch shortly

thereafter.   Even if appellant was not driving at the time of

the accident, this second act of driving was sufficient to

support his conviction for driving under the influence.      See,

e.g., Gallagher v. Commonwealth, 205 Va. 666, 668-70, 139 S.E.2d

37, 39-40 (1964).   Therefore, the trial court's erroneous

restriction of appellant's ability to cross-examine Taylor was

harmless in relation to appellant's DUI conviction.

     The error also clearly was harmless as to the hit-and-run

conviction because, even without Taylor's testimony, the record

contained overwhelming evidence that appellant was driving at

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the time of the accident.   Appellant admitted to Dodson, a

witness with no known motive to fabricate, that he was driving

at the time of the accident.   Within a minute of the accident,

Dodson saw appellant in the driver's seat of the vehicle

attempting to extricate it from the ditch.   Appellant posed no

challenge at trial to the accuracy of Dodson's observations and

admitted that Dodson's observations were sufficient to permit

appellant's conviction for driving under the influence.

Finally, appellant fled the scene of the accident when Dodson

left briefly to obtain help.   Taylor, whom Dodson saw in the

passenger seat a minute after the accident, was pinned in the

vehicle and had to be cut out.    The only evidence in the record

tending to indicate that appellant was not driving at the time

of the accident came from Katherine Christiansen, who believed

she had seen appellant in the passenger seat immediately after

the accident.   However, Christiansen admitted that it was dark

and that her identification was based on her seeing the

passenger's neck and nose only.    In light of appellant's

admission that he was driving, his flight from the scene and the

fact that Taylor was pinned in the passenger seat immediately

following the accident, we hold that overwhelming evidence

established that appellant was driving, which supported a

finding that appellant was guilty of both offenses.   Therefore,

we hold the error in restricting cross-examination of Taylor was

harmless.

                                 - 9 -
                                 II.

                          JURY INSTRUCTION

       Appellant contends the court erred in instructing the jury

that it could infer he intended the natural and probable

consequences of his acts.   We disagree.

       In Kelly v. Commonwealth, 8 Va. App. 359, 373-74, 382

S.E.2d 270, 278 (1989), we approved the precise jury instruction

at issue in appellant's case.    We distinguished that instruction

from the one held unconstitutional in Sandstrom v. Montana, 442

U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).    "The

Sandstrom instruction created a mandatory presumption whereas

[the challenged Virginia Model Jury Instruction] created a

permissive inference."    Kelly, 8 Va. App. at 374, 382 S.E.2d at

278.   Therefore, here, as in Kelly, the instruction, taken in

the abstract, was appropriate.

       Although the trial court may have believed the instruction

was "unnecessary," we do not believe that giving it constituted

error.   A court should give a proffered jury instruction which

finds support in the evidence so long as it does not confuse the

jury or place undue emphasis on a particular piece of evidence.

See Alexander v. Commonwealth, 28 Va. App. 771, 775, 508 S.E.2d

912, 914 (1999); Terry v. Commonwealth, 5 Va. App. 167, 170, 360

S.E.2d 880, 882 (1987).   We also conclude that the instruction

was appropriate in light of the facts of the case.   A conviction

for "hit-and-run" pursuant to Code § 46.2-894 requires proof of

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knowledge:   "'[T]he driver must be aware that harm has been

done; it must be present in his mind that there has been an

injury [to person or property]; and then, with that in his mind,

he must deliberately go away without making himself known.'"

Herchenbach v. Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328,

329 (1946) (citation omitted).   The Commonwealth, therefore, was

required to prove that appellant intended to leave the scene

with knowledge of the damaged property.   The challenged

instruction permitted the jury to make such a finding.

     For these reasons, we affirm appellant's convictions.

                                                           Affirmed.




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