                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


MARTEL LAMON JOFFRION
                                           MEMORANDUM OPINION * BY
v.   Record No. 2183-99-1               JUDGE JEAN HARRISON CLEMENTS
                                              DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                  Frederick H. Creekmore, Judge

          Peter J. Jankell (Peter J. Jankell, P.C., on
          brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Appellant Martel Lamon Joffrion was convicted in a jury trial

of robbery, attempted robbery, and two counts of using a firearm

in the commission of a felony.    On appeal he contends the trial

court erred (1) in admitting into evidence an assault-rifle-styled

pellet gun that, while found in the vehicle in which appellant was

a passenger, was not used in the commission of the crimes for

which appellant was being tried, (2) in admitting testimony

regarding appellant's prior offenses, and (3) in allowing the

Commonwealth to impeach appellant on collateral matters.    For the

reasons that follow, we affirm appellant's convictions.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.   "Upon familiar principles, we review

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom."   Pavlick v. Commonwealth, 27 Va. App. 219, 223, 497

S.E.2d 920, 922 (1998) (en banc).

                   A.   ADMITTANCE OF PELLET GUN

     Appellant contends that the trial court erred in admitting

into evidence a pellet gun that looked like an assault rifle.

Joffrion asserts the weapon was inadmissible because, even

though it was found in the car in which he was riding, it was

unrelated to the offenses for which he was being tried and was

extremely prejudicial. 1

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."


     1
       Joffrion also asserts, in arguing this claim of error,
that there was no evidence that he knew of the existence of the
pellet gun. In viewing the evidence in the light most favorable
to the Commonwealth, however, we cannot find that the evidence
supports such an assertion. The officer who found the weapon
stated that he saw it and was able to identify it as an apparent
R-15 assault rifle as soon as he opened the back door where the
appellant was seated. The fact finder could reasonably have
inferred from such evidence that appellant knew of its
existence. Nevertheless, whether appellant knew or did not know
the pellet gun was there has no bearing on our determination of
this issue on appeal.

                                - 2-
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988).   "'[A] trial court by definition abuses its discretion

when it makes an error of law.'"    Taylor v. Commonwealth, 28 Va.

App. 1, 9, 502 S.E.2d 113, 117 (1998) (en banc) (alteration in

original) (quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498

S.E.2d 437, 441 (1998) (internal quotations omitted)).

     "Evidence is admissible if it tends to prove a matter that

is properly at issue in the case and if its probative value

outweighs policy considerations."     Blain, 7 Va. App. at 17, 371

S.E.2d at 842.   "Evidence which 'tends to cast any light upon

the subject of the inquiry' is relevant."     Cash v. Commonwealth,

5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988) (quoting McNeir

v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165,

169 (1953)).   However, "[i]f the prejudicial effect of nominally

relevant evidence outweighs its probative value, the evidence is

inadmissible."   Singleton v. Commonwealth, 19 Va. App. 728, 734,

453 S.E.2d 921, 925 (1995) (en banc).

     Assuming without deciding that the pellet gun was

inadmissible, we must determine whether its admission into

evidence was harmless error.   A non-constitutional error by the

trial court is harmless if "'it plainly appears from the record

and the evidence given at the trial that' the error did not

affect the verdict."   Lavinder v. Commonwealth, 12 Va. App.

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code

§ 8.01-678).   "An error does not affect a verdict if a reviewing

                               - 3-
court can conclude, without usurping the jury's fact finding

function, that, had the error not occurred, the verdict would

have been the same."   Id.   "Each case must . . . be analyzed

individually to determine if an error has affected the verdict."

Id. at 1009, 407 S.E.2d at 913.

     In this case, it plainly appears from the record and the

evidence given at trial that the error did not affect the jury's

verdict.   The gun used in the commission of the robbery and

attempted robbery, a .38 caliber handgun, had already been

introduced into evidence.    Further, the police officer who found

the pellet gun in the car in which appellant was riding

explained at trial that, while it resembled an assault rifle,

the pellet gun was actually an air gun ("operated by CO2 gas

cartridges") that fired pellets rather than bullets.   It was

never suggested to the jury that the pellet gun was used to

commit the offenses for which Joffrion was being tried.   In

fact, other than the officer's brief description of it and of

his seeing it in the car and its subsequent admission into

evidence, the pellet gun was not referred to at trial in the

jury's presence.   Cf. Conway v. Commonwealth, 12 Va. App. 711,

716, 407 S.E.2d 310, 313 (1991) (en banc) (finding that the

admission of an inadmissible recording, which undercut the

defendant's credibility, was harmful error based, in part, on

the Commonwealth's emphasis on the recording's import in closing

argument).

                                - 4-
     We can conclude, therefore, without usurping the jury's

fact finding function, that, had the pellet gun not been

admitted, the verdict would have been the same.      Accordingly,

its admission was harmless error.

                    B.    PRIOR OFFENSES EVIDENCE

     Appellant also asserts that the trial court erred when it

permitted the Commonwealth to present evidence of his activities

earlier that same night in Virginia Beach, including a possible

attempted robbery and shooting the gun used in the commission of

the instant charges.     Appellant contends that the evidence of

those prior activities was "wholly unrelated" to the crimes

occurring in Chesapeake for which he was on trial and that its

prejudicial impact outweighed its probative value.    We disagree.

     Generally, evidence of prior offenses is inadmissible to

prove the accused is guilty of the crime charged.    Guill v.

Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998).     Such

evidence is inadmissible because "it may confuse the issues being

tried and cause undue prejudice to the defendant."    Id.

     However, evidence of prior offenses is admissible if it is

"relevant to a material issue or element of consequence in the

case."   Foster v. Commonwealth, 5 Va. App. 316, 319, 362 S.E.2d

745, 747 (1987).   Such evidence is admissible, "for example, where

the motive, intent or knowledge of the accused is involved, or

where the evidence is connected with or leads up to the offense

for which the accused is on trial."     Barber v. Commonwealth, 5 Va.

                                 - 5-
App. 172, 180, 360 S.E.2d 888, 892 (1987).    "Also, evidence of

other crimes is admissible where the other crimes constitute a

part of the general scheme of which the crime charged is a part."

Id.   Such evidence, though, even if otherwise admissible as an

exception to the general rule of exclusion, may not be admitted if

its prejudicial impact outweighs its probative value, a

determination which is within the trial court's discretion and one

that will not be overturned absent an abuse of discretion.    See

Robbins v. Commonwealth, 31 Va. App. 218, 222-23, 522 S.E.2d 394,

396 (1999).

      In the present case, appellant asserted at trial the common

law affirmative defense of duress.     Duress excuses the defendant's

criminal conduct where that conduct "was the product of an

unlawful threat that caused him reasonably to believe that

performing the criminal conduct was his only reasonable

opportunity to avoid imminent death or serious bodily harm, either

to himself or to another."   Sam v. Commonwealth, 13 Va. App. 312,

324, 411 S.E.2d 832, 839 (1991).   "Where the defendant fails 'to

take advantage of a reasonable opportunity to escape, or of a

reasonable opportunity to avoid doing the acts without being

harmed, he may not rely on duress as a defense.'"    Graham v.

Commonwealth, 31 Va. App. 662, 674-75, 525 S.E.2d 567, 573 (2000)

(quoting Pancoast v. Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d

833, 836 (1986)).



                                - 6-
     In support of his asserted defense of duress, Joffrion

testified at trial that, while not expressly threatened by his

cohort who had the gun during the commission of the crimes, he

committed the crimes only because he felt threatened and was

afraid his cohort would kill him if he did not.   He further

testified that he did not escape from his cohorts before

committing the charged crimes because he did not know until

shortly before the commission of the crimes themselves that one of

his cohorts had a gun with him and that his cohorts planned to rob

someone to get money.   And once he knew about his cohorts'

intention and about the gun, he did not escape from them despite

having the opportunity to do so because he could have gotten "shot

in the back" and because his cohorts knew where he lived.

Accordingly, whether appellant was an unwilling participant in the

charged crimes acting under duress, had prior knowledge of the

gun, and knew beforehand of his companions' plan to commit robbery

were material facts at issue in this case.

     To refute appellant's claims, the Commonwealth offered, over

Joffrion's objection, the testimony of the Virginia Beach police

officer who took Joffrion's statement about events that occurred

earlier that same night in Virginia Beach.   Viewed in the light

most favorable to the Commonwealth, that evidence established

that, before going to Chesapeake that night, Joffrion and his

cohorts in the charged crimes first went to Virginia Beach, where

one of Joffrion's cohorts gave him the handgun later used in the

                                - 7-
Chesapeake robbery.   Joffrion and his cohorts planned to confront

a group of people so that one of Joffrion's companions could get

money from a person who had apparently just been paid for

construction work he had done.   Upon confronting the group of

people, Joffrion told them "to get down on the ground."   When

instead everyone started running away, Joffrion fired the gun

three times.   He then ran to his friend's car and returned the gun

to one of his cohorts, who, rather than returning it to the person

who gave it to him originally, kept it.   Joffrion and his cohorts

then drove to Chesapeake.   At no point during his statement

regarding the Virginia Beach incidents did Joffrion indicate that

his cohorts had threatened him or that he was afraid of them.

     We find that the Virginia Beach police officer's testimony

was fully relevant and probative as to the issue of duress.    It

tended to show that Joffrion, having just participated in a failed

robbery, knew of his cohorts' general scheme to rob someone to get

money before going to a nightclub in Chesapeake; that Joffrion

knew one of his cohorts still had the gun he had just fired three

times; and that Joffrion, having willingly participated in the

first robbery attempt, was not acting under duress during the

robbery in Chesapeake.   Accordingly, the evidence of Joffrion's

earlier activities that night was admissible as an exception to

the general rule of exclusion.

     Furthermore, we cannot say that the evidence's inherent

prejudicial impact outweighed its probative value.   Thus, we find

                                 - 8-
that the trial court did not abuse its exercise of discretion in

admitting the challenged evidence of appellant's prior offenses. 2

              C.   IMPEACHMENT ON COLLATERAL MATTERS

     Appellant further asserts that the trial court erred in

allowing the Commonwealth to impeach him on collateral matters.

Specifically, he maintains that, because the prior offenses that

occurred in Virginia Beach were "wholly unrelated" to the events

for which he stood trial, they were collateral matters.    The

Commonwealth, therefore, should not have been permitted to

cross-examine him regarding those prior offenses and should not

have been allowed to present the Virginia Beach police officer




     2
       Appellant also suggests by implication in his argument on
this claim that the evidence regarding Joffrion's statement to
the Virginia Beach police was inadmissible because he was not
prepared at trial to defend himself relative to the earlier
incidents. While it is well settled that "[e]vidence that
implicates an accused in other crimes unrelated to the offense
for which the accused is being tried is inadmissible because it
creates confusion of issues, causes unfair surprise, and causes
undue prejudice," Singleton v. Commonwealth, 19 Va. App. 728,
742, 453 S.E.2d 921, 929 (1995) (en banc) (Benton, J.,
dissenting) (emphasis added), here we have found that the
evidence of the prior offense was admissible because the prior
offense was related to the offense for which Joffrion was being
tried, that the evidence of the prior offense was relevant to
prove a material fact, and that the relevance of the challenged
evidence outweighed its prejudicial effect. Furthermore, we
would also echo the trial court's admonishment that, given the
close connection between the prior misconduct and the facts at
issue in this case, the accused was responsible for sharing all
known and accessible information pertinent thereto with his
counsel prior to trial to enable the full preparation of his
defense. That he did not fails to justify his claim of surprise
and lack of preparation.


                               - 9-
as a witness to impeach his testimony on those collateral

matters, Joffrion argues.   Again we disagree.

     Appellant is correct in stating,

          [n]o question respecting any fact irrelevant
          to the issue can be put to a witness on
          cross-examination for the mere purpose of
          impeaching his credit by contradicting him.
          And if any such question be inadvertently
          put and answered, the answer of the witness
          will be conclusive. . . . [H]e cannot be
          asked as to any collateral independent fact
          merely with a view to contradict him
          afterwards by calling another witness.

Allen v. Commonwealth, 122 Va. 834, 842, 94 S.E. 783, 785-86

(1918) (internal quotations omitted).   However, if the evidence

in question "tends, even slightly, to throw light upon the main

fact in issue, it is not collateral, but probative."     Seilheimer

v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898 (1982).

"Every fact, however remote or insignificant, that tends to

establish the probability or improbability of a fact in issue,

is admissible."   Id.

     Having already found that Joffrion's bad acts in Virginia

Beach preceding the charged crimes were relevant to material

facts at issue in this case, we hold that the prior offenses

were not collateral matters.   The principle disallowing the

impeachment of a witness on collateral matters does not,

therefore, apply here.   Accordingly, the trial court correctly

allowed the cross-examination and testimony in contention.




                               - 10-
     For the reasons stated herein, we affirm appellant's

convictions.

                                                       Affirmed.




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