                   COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia

OLEN A. LEBBY

v.       Record No. 0617-94-4           MEMORANDUM OPINION * BY
                                     JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                   AUGUST 22, 1995


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Michael P. McWeeny, Judge

     Crystal A. Meleen, Assistant Public Defender (Office of the
     Public Defender, on brief), for appellant.
     Michael T. Judge, Assistant Attorney General (James S.
     Gilmore, III, Attorney General, on brief), for appellee.



     Olen A. Lebby (appellant) was convicted in a jury trial of

possession of a firearm after having been convicted of a felony

in violation of Code § 18.2-308.2(A).   On appeal, he argues that

the trial court erred in:   (1) admitting into evidence the

identity of the victim of his prior felony as a Washington, D.C.

police officer, and (2) finding that the evidence was sufficient
                                            1
to establish his prior felony conviction.       For the reasons that

follow, we reverse the conviction and remand the case for

retrial.

     On October 21, 1993, Officer William Haire (Haire) of the

Fairfax County Police Department received information that a
     *
      Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
     1
      Appellant raises several other issues, including whether
the evidence was sufficient: (1) to establish that the gun found
in the jacket was a firearm under Code § 18.2-308.2, and (2) to
show that appellant possessed the gun. We hold that the evidence
was sufficient to prove that appellant possessed a firearm.
suspect had brandished a handgun.     A radio transmission described

the suspect and his car, and stated that he was travelling to the

Alexandria Motel.   Haire went to the motel and saw the suspect

vehicle arrive twelve to fifteen minutes later.    Haire searched

the vehicle and found a brown leather jacket between the front

bucket seats.   He felt a hard object inside the jacket and pulled

out a loaded 9 mm. Beretta handgun.

     Haire advised appellant of his rights and told him that he

was charging him with possession of a firearm after being

convicted as a felon.   Haire said:   "I have reason to believe

that you were charged and convicted in the homicide death of a

[Washington,] D.C. police officer . . . ."    Appellant responded:

"Yeah, I killed a D.C. cop."   Before trial, appellant made a

motion in limine to exclude the murder victim's employment as a

D.C. police officer because of its highly prejudicial nature and

lack of relevance to any issue at trial.    The Commonwealth

asserted that appellant's statement was necessary to show "that

the person listed on the indictment in the District of Columbia

. . . was in fact this person," even though nothing on the

indictment indicated that the victim was a police officer.     The

trial judge refused to exclude the statement or redact it to

delete the victim's occupation as a police officer.

     At trial, the Commonwealth's attorney did not limit the use

of the statements and emphasized the murder victim's identity as

a District of Columbia police officer in opening argument:
          [Haire told appellant that] [y]ou're being


                                 2
           arrested because it's my impression that you
           shot and killed, in nineteen-seventy-five, a
           District of Columbia police officer. And the
           defendant's response was yes, I shot and
           killed a cop.

Similarly, the Commonwealth's attorney argued in closing:

                April second, nineteen-seventy-five, the
           Grand Jury of the District of Columbia
           charged this defendant with malice
           aforethought for shooting Vernon Johnson, a
           District of Columbia police officer, with a
           pistol, thereby causing injuries from which
           the said Vernon Johnson died on or about
           April second, nineteen-seventy-five.
                It doesn't say he was a District of
           Columbia police officer in the Grand Jury
           indictment, defendant admitted that to
           Officer Haire.


     At the in limine hearing, appellant also objected to

Commonwealth's Exhibit 1, documentary evidence including two

pages:   (1) the second-degree murder indictment, listing the

murder victim as "Vernon Johnson" and designating the count as

"B," and (2) a form indicating a guilty judgment for count "B."

Appellant argued that the two pages were not an adequate record

of conviction.   However, the trial judge allowed the use of these

documents and stated:   "I find that the document as presented is

a record of conviction according to them.   And I think that is

sufficient at this point."   Appellant was found guilty and

sentenced to the maximum penalty of five years in the

penitentiary.
             ADMISSIBILITY OF MURDER VICTIM'S IDENTITY

     Appellant argues that the trial court erred in admitting



                                 3
into evidence his response to Haire's question that he had killed

a District of Columbia police officer.    He contends that the

admission of the murder victim's identity as a police officer was

highly prejudicial and had little, if any, probative value.

     "As a general rule, proof of other crimes is incompetent and

inadmissible to show commission of the crime charged."    Tuggle v.

Commonwealth, 228 Va. 493, 506, 323 S.E.2d 539, 547 (1984),

vacated and remanded on other grounds, 471 U.S. 1096 (1985).

"[E]vidence of other crimes may be admissible if introduced to
prove an element of the offense charged, or to prove any number

of relevant facts, such as motive, intent, agency, or knowledge."

 Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,

234 (emphasis added), aff'd on reh'g, 17 Va. App. 248, 436 S.E.2d

193 (1993) (en banc).   "Even if the other crime falls within an

exception to the general rule, it only is admissible '[w]henever

the legitimate probative value outweighs the incidental prejudice

to the accused.'"   Tuggle, 228 Va. at 506, 323 S.E.2d at 547

(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890,
893 (1983)).

     We hold that the trial court properly admitted the fact that

appellant's prior felony was murder.     See Essex v. Commonwealth,

18 Va. App. 168, 171-72, 442 S.E.2d 707, 709-10 (1994).    To prove

that appellant violated Code § 18.2-308.2(A), the Commonwealth

had to show that appellant had been convicted of a felony and

possessed a firearm.    However, the trial court erred in allowing




                                  4
into evidence the identity of the murder victim as a District of

Columbia police officer.    The issue at trial was not who was the

victim of the prior felony, but rather only whether appellant had

committed a felony.

     We recognize that "the admissibility of evidence is within

the broad discretion of the trial court."    Blain v. Commonwealth,

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).   However, the

statements as submitted had minimal probative value and were

highly prejudicial in that the natural inference to be drawn was

that appellant had killed a police officer in the line of duty,

which was not the case.    Furthermore, the statements did not

provide a necessary link between the indictment and appellant

because the indictment did not indicate that Vernon Johnson was a

police officer.   Additionally, the jury could have inferred that

it was the same Olen Lebby in the indictment and on trial without

the statements being introduced into evidence.   At the in limine
hearing, the Commonwealth proffered to the court that use of the

statement would establish that appellant was the same Olen Lebby

listed in the District of Columbia murder indictment and would be

used for that limited purpose.   However, in both opening and

closing arguments, the statements were used to highlight the

murder victim's identity as a police officer.    The trial court

erred in admitting the statements of Haire and appellant without

attempting to redact the portions identifying the murder victim

as a District of Columbia police officer.



                                  5
     "Where the 'objectionable portion of the statement [could]

easily be separated from the remainder of the admission without

adverse effect,' it is error for the trial court not to do so,

and if the prejudice caused by admitting the evidence outweighs

its probative value, the error will be reversible."    Ascher v.

Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906, 915 (1991)

(quoting Pierce v. Commonwealth, 2 Va. App. 383, 391, 345 S.E.2d

1, 5 (1986)), cert. denied, 113 S. Ct. 190 (1992).    "Error will

be presumed prejudicial unless it plainly appears that it could

not have affected the result."    Bruce v. Commonwealth, 9 Va. App.

298, 301, 387 S.E.2d 279, 280 (1990) (quoting Joyner v.

Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951)).    As

in Bruce, appellant received the maximum sentence of five years

in the penitentiary.    Thus, we are unable to hold that the

admission of the murder victim's identity did not affect the

penalty.
                   SUFFICIENCY OF THE EVIDENCE

     Appellant also argues that the trial court erred in finding

the demonstrative record of conviction adequate.   "When

sufficiency of the evidence is at issue on appeal, the evidence

must be viewed in the light most favorable to the Commonwealth,

and the evidence must be accorded all reasonable inferences

deducible therefrom."    Pugliese v. Commonwealth, 16 Va. App. 82,

92, 428 S.E.2d 16, 24 (1993) (citing Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).




                                  6
Viewed in the light most favorable to the Commonwealth, the

record in this case, including the possible use of appellant's

redacted statement, was sufficient to show a murder conviction.

We do not decide whether the evidence without the exchange

between Haire and appellant would be sufficient to show a prior

conviction because we do not know whether any portions of the

statements will be admitted at the new trial.

     Accordingly, the decision of the trial court is reversed and

the case remanded for a new trial if the Commonwealth be so

advised.

                                        Reversed and remanded.




                                7
