                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, McCullough and Senior Judge Clements
PUBLISHED


            Argued at Alexandria, Virginia


            TERRY LANG DILLSWORTH
                                                                               OPINION BY
            v.     Record No. 0870-12-4                               JUDGE JEAN HARRISON CLEMENTS
                                                                               MAY 14, 2013
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF CLARKE COUNTY
                                            John E. Wetsel, Jr., Judge

                           Krystal A. Omps (William August Bassler, PLC, on brief), for
                           appellant.

                           Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Terry Lang Dillsworth (hereinafter “appellant”) was convicted of possession of a firearm

            after being convicted of a violent felony. The Commonwealth relied upon a prior Maryland

            conviction for assault with the intent to maim under Maryland Code Art. 27, § 386 (1952, 1982

            Repl. Vol.), to prove the predicate violent felony offense required by Code § 18.2-308.2. On

            appeal, appellant maintains the evidence was insufficient to support his firearm conviction

            because the Maryland conviction is not substantially similar to the Virginia offense proscribed

            by Code § 18.2-51. He also asserts the trial court erred by admitting evidence of his entire

            criminal history rather than limiting the evidence to only those records establishing a prior

            violent felony conviction. Finding no error in the trial court’s decision, we affirm appellant’s

            conviction.
                                         BACKGROUND

       In assessing the sufficiency of the evidence to support a conviction, “‘we review the

evidence in the light most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492

S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987)). However, the determination regarding whether appellant’s assault with intent

to maim conviction is “substantially similar” to the offense proscribed by Code § 18.2-51, is a

question of law, and we review the trial court’s judgment on this question de novo. See Johnson

v. Commonwealth, 53 Va. App. 608, 611, 674 S.E.2d 541, 542 (2009) (citing Colbert v.

Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d 108, 110 (2006); Rollins v. Commonwealth,

37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)).

       Appellant was charged with violating Code § 18.2-308.2. Pursuant to subsection (A) of

that statute, appellant was subject to a mandatory minimum term of five years if he was found to

have possessed a firearm after having been convicted of a “violent felony” as defined by Code

§ 17.1-805. Under Code § 17.1-805(C), a violation of Code § 18.2-51 is a violent felony. As

required by Code § 19.2-297.1(B), 1 the Commonwealth could rely on appellant’s Maryland

conviction as proof of a prior violent felony only if the Maryland offense was “substantially

similar” to a violent felony in Virginia. The trial court concluded that the provision of the

Maryland statute under which appellant was convicted was substantially similar to the offense

proscribed by Code § 18.2-51, and found appellant guilty of violating Code § 18.2-308.2. This

appeal followed.




       1
         Code § 19.2-297.1(B) provides that “[p]rior convictions shall include convictions under
the laws of any state or of the United States for any offense substantially similar to those listed
under ‘act of violence’ if such offense would be a felony if committed in the Commonwealth.”
                                                 -2-
                                             ANALYSIS

        Appellant contends the evidence was insufficient to support his conviction because his

Maryland conviction for assault with intent to maim is not substantially similar to the offense in

Code § 18.2-51. Appellant was convicted in 1985 of assault with intent to maim in violation of

Maryland Code Art. 27, § 386 (1952, 1982 Repl. Vol.). At that time, the statute provided in

pertinent part as follows 2:

                If any person shall . . . assault . . . any person, with intent to maim,
                disfigure or disable such person, or with intent to prevent the
                lawful apprehension or detainer of any party for any offense for
                which the said party may be legally apprehended or detained,
                every such offender . . . shall be guilty of a felony and, upon
                conviction thereof, be punished by confinement in the penitentiary
                for a period not less than eighteen months nor more than ten years.

        By comparison, Code § 18.2-51 states:

                If any person maliciously shoot, stab, cut, or wound any person or
                by any means cause him bodily injury, with the intent to maim,
                disfigure, disable, or kill, he shall, except where it is otherwise
                provided, be guilty of a Class 3 felony. If such act be done
                unlawfully but not maliciously, with the intent aforesaid, the
                offender shall be guilty of a Class 6 felony.

        In deciding whether the Virginia and Maryland offenses are “substantially similar,” “‘we

look to the elements of the two [offenses] rather than to the offender’s conduct.’” Dean v.

Commonwealth, 61 Va. App. 209, 215, 734 S.E.2d 673, 676 (2012) (quoting Commonwealth v.

Ayers, 17 Va. App. 401, 402, 437 S.E.2d 580, 581 (1993)). 3 “‘Only that prohibition of the other


        2
         In 1996 the Maryland General Assembly repealed this statute and other assault
provisions in Article 27, and replaced them with §§ 12, 12A, and 12A-1. These provisions were
subsequently repealed in 2002, and replaced by new sections in Title 3 of the Criminal Law
Article.
        3
          Appellant argues the trial court erred by relying on his conduct “in lieu of examining the
actual text of the statutes to determine whether they were substantially similar,” but he does not
raise this specific issue in his assignment of error. Rather, the assignment of error is limited to
the question of whether the evidence was sufficient to support his conviction because it failed to
prove his Maryland conviction was “substantially similar” to a conviction under Code § 18.2-51.
                                                  -3-
state’s law under which the [defendant] was convicted must substantially conform.’” West v.

Commonwealth, 14 Va. App. 350, 353, 416 S.E.2d 50, 51 (1992) (quoting Cox v.

Commonwealth, 13 Va. App. 328, 331, 411 S.E.2d 444, 446 (1991)). As we recently observed,

“[k]ey to our analysis . . . is the established principle that a crime in another state is not

‘substantially similar’ to the most closely corresponding crime under Virginia law if the other

state’s law ‘permits convictions for acts which could not be the basis for convictions under [the

Virginia law at issue].’” Dean, 61 Va. App. at 215, 734 S.E.2d at 676 (quoting Cox, 13 Va. App.

at 330-31, 329, 411 S.E.2d at 446, 445) (citation omitted). In Cox

                the record of appellant’s convictions . . . indicate[d] only that he
                was convicted under a state statute and a city ordinance. This
                description permit[ted] us to conclude only that the appellant
                committed the offense while operating a motor vehicle. It [did]
                not specify the specific provision of the ordinance he violated.

Cox, 13 Va. App. at 331, 411 S.E.2d at 446 (emphasis added). Accordingly, in Cox we were

“compelled” to examine the entire West Virginia ordinance to ascertain whether it permitted

convictions not permitted under the comparable Virginia statute. See Honaker v.

Commonwealth, 19 Va. App. 682, 684, 454 S.E.2d 29, 30 (1995) (explaining Cox).

        Here, by contrast, the record of appellant’s conviction includes a reference to the specific

provisions of the Maryland statute he violated. Accord id. at 685, 454 S.E.2d at 31 (substantial

similarity found where “record disclose[d] the specific prohibition of the West Virginia law --

driving and operating a motor vehicle upon a public highway in West Virginia while under the

influence of alcohol -- under which Honaker was convicted”). As appellant’s conviction record

expressly states he was convicted of assault with the intent to maim, we are not compelled to

examine the Maryland statute in its entirety to determine whether it permits convictions not

encompassed by the Virginia statute.




                                                  -4-
       Thus, in undertaking our analysis, we need not consider the intent provisions of the

Maryland statute which appellant asserts distinguish it from Code § 18.2-51, i.e. the “intent to

prevent the lawful apprehension or detainer of any party for any offense for which the said party

may be legally apprehended or detained.” 4 Based upon the record before us, the provisions of

the Maryland statute under which appellant was convicted included the intent to maim. As a

result, the provision under which appellant was convicted in Maryland criminalized the same

behavior as Code § 18.2-51. Cf. Dean, 61 Va. App. at 222, 734 S.E.2d at 680 (Maryland robbery

offense was not substantially similar to robbery in Virginia because, “based on a comparison of

the elements of the crimes in these two states, appellant could have been convicted in Maryland

of behavior which would not have been a crime in Virginia . . . .”).

       Accordingly, we hold that the trial judge did not err in finding that the “prohibition” of

Maryland law under which appellant was convicted substantially conformed to Code § 18.2-51,

and, therefore, appellant’s Maryland conviction could be used as a predicate offense to establish

he had a prior violent felony conviction in violation of Code § 18.2-308.2(A).

       Appellant also contends that the trial court erred by admitting documents pertaining to his

entire criminal history in Maryland, as opposed to limiting the evidence to those records

establishing a prior violent felony conviction. We review a trial court’s decision regarding the

admissibility of evidence for abuse of discretion. Juniper v. Commonwealth, 271 Va. 362, 412,

626 S.E.2d 383, 415 (2006).

       Appellant argues that the admission of his entire criminal file was error because it

included “irrelevant and extremely prejudicial material” that was “likely a driving force in the

Court’s finding that [he] was previously convicted of a violent felony.” However,


       4
          As appellant argues only that the intent requirements in the Maryland statute distinguish
it from Code § 18.2-51, we do not address whether the elements of the offenses are substantially
different in any other respect.
                                                -5-
                “[a] judge, unlike a juror, is uniquely suited by training, experience
                and judicial discipline to disregard potentially prejudicial
                comments and to separate, during the mental process of
                adjudication, the admissible from the inadmissible, even though he
                has heard both.” Eckhart v. Commonwealth, 222 Va. 213, 216,
                279 S.E.2d 155, 157 (1981). Consequently, we presume that a trial
                judge disregards prejudicial or inadmissible evidence . . . . “[T]his
                presumption will control in the absence of clear evidence to the
                contrary.”

Cole v. Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305 (1993) (citation omitted)

(quoting Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc)).

This is particularly true where “the trial court’s statements clearly establish its awareness of this

responsibility.” Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997).

        In countering this presumption, appellant cites the trial judge’s comments during the

hearing on his motion to set aside the verdict. During the hearing, the trial judge read the

following excerpt from the Maryland documents:

                Petitioner Terry Lang Dillsworth after conviction by an Allegheny
                County jury was sentenced to consecutive terms for assault with
                intent to maim, disfigure, or disable and 3rd degree sexual assault.
                At the trial the victim testified that when Dillsworth attacked her
                he said he was going to “rip out her vagina.” [S]he further said
                “He put his hand inside me and threatened to pull and tear at me.”
                Next Dillsworth threatened to rip out the victim’s throat. He
                placed two or three fingers down her throat and choked her.

        While the trial judge read this passage from the Maryland record, he also consistently

stated that his decision finding the Maryland statute in substantial conformity to the offense

proscribed by Code § 18.2-51 was based upon his comparison of the two states’ laws. At the

same hearing in which the trial judge referred to the victim’s testimony, he explained his ruling

at trial as follows:

                But I am saying this [the statute] is in the disjunctive. If any
                person shall lawfully shoot at any person or shall in any manner
                unlawfully and maliciously attempt or shall unlawfully and
                maliciously stab or wound or cut any person with the intent to
                maim or disfigure. Now that is the operative provision I found. So

                                                 -6-
               as a practical matter this statute, as I read it, has three acts that are
               potentially covering. So you are right on that point. But as I
               understood it from parsing the record the last time it was under the
               shall unlawfully and maliciously stab, cut, or wound any person or
               shall assault or beat any person with the intent to maim, disfigure,
               or disable such person. That is the operative provision that I found
               was like our malicious or unlawful wounding statute.

(Emphasis added.) 5

       Assuming, without deciding, however, that the trial judge erred by considering the

victim’s testimony in the Maryland record, such error was harmless. “An error is harmless ‘[i]f,

when all is said and done, the conviction is sure that the error did not influence the jury, or had

but slight effect . . . .’” Burnette v. Commonwealth, 60 Va. App. 462, 481 n.4, 729 S.E.2d 740,

749 n.4 (2012) (quoting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32

(2001)). Here, once the Commonwealth proved appellant possessed a firearm after having been

convicted of a violent felony, the trial judge had no discretion in sentencing because appellant

was subject to a mandatory five-year sentence under Code § 18.2-308.2.

       Accordingly, the trial court did not commit reversible error by admitting the Maryland

records. For all of the aforesaid reasons, we affirm appellant’s conviction.

                                                                                           Affirmed.




       5
         In addition, when the trial judge began his review of appellant’s criminal records from
Maryland, he indicated he would consider only those records establishing a prior violent felony
substantially similar to one in Virginia. He stated, “I only need to find one. And I will say this, I
am only going to find one. After I find one, that is it. I mean this is like everything else is
cumulative.”
                                                -7-
