                                            COURT OF APPEALS OF VIRGINIA


              Present: Judges Russell, Malveaux, and Senior Judge Clements
UNPUBLISHED


              Argued by teleconference


              CHARLES ALLEN MOFFETT
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0966-19-4                               JUDGE MARY BENNETT MALVEAUX
                                                                                 JULY 7, 2020
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                               Charles S. Sharp, Judge

                             Gowri Janakiramanan, Assistant Public Defender, for appellant.

                             Leanna C. Minix, Assistant Attorney General (Mark R. Herring,
                             Attorney General, on brief), for appellee.


                     Charles Allen Moffett (“appellant”) was convicted of grand larceny, in violation of Code

              § 18.2-95, and statutory burglary, in violation of Code § 18.2-91. On appeal, he argues that the trial

              court erred in admitting evidence of prior bad acts. For the following reasons, we affirm.

                                                      I. BACKGROUND

                     The Offense

                     In April 2018, Paula Johnson was living on Mountain View Road in Stafford County

              with her mother, Jewel Kelly. Their home and garage were not visible from the road and could

              only be seen by walking up the driveway.

                     Johnson owned a Harley-Davidson Road King motorcycle, which she stored in the

              garage. Her brother, Kevin Johnson, stored an antique Toyota Land Cruiser and some other

              antiques and tools in the garage as well. The only individuals with keys to the garage were

              Johnson, her brother, and a neighbor, Victor Germaine. The garage had two doors, which were
secured by a door lock, but Johnson testified that the garage could be opened without a key if

“you . . . jimmy the lock a little bit” by “pop[ping] it with a credit card or something.”

       Johnson and Kelly had known appellant for more than thirty years and considered him a

family friend. On Sunday, April 22, 2018, Johnson arrived home and found appellant sitting on

the front porch. He asked to stay at the home because he had a “pool job” to do in

Fredericksburg. He originally asked to stay for one night but ended up staying for four nights,

because the person who was supposed to pick him up did not arrive.

       On Thursday, April 26, 2018, Johnson accompanied Kelly to her chemotherapy

appointment. They arrived at the hospital in the morning and stayed for thirteen hours, leaving

around 7:30 p.m. Kelly attempted to call appellant twice that day to ask him to check on her

dogs, but she was unable to get in touch with him. Both Johnson and Kelly described this as

“unusual” because appellant would typically answer Kelly’s phone calls right away.

       When Johnson and her mother arrived home, appellant was gone and had not left a note.

Johnson noticed that night that her Coach watch was missing from the top of her nightstand. The

next day, she looked through her nightstand and discovered that in addition to the watch, she was

missing another watch, a bracelet, and a ring.

       Sometime on Thursday, April 26, 2018, Germaine looked out his kitchen window and

noticed that Johnson’s garage door was open. He also saw someone on a Harley-Davidson

motorcycle pushing it toward the house. Germaine called Kevin Johnson and asked him if he

was getting on the motorcycle. Kevin Johnson replied that it was probably his sister. About a

half hour later, Germaine saw the man on Johnson’s motorcycle come up the driveway and make

a left-hand turn onto Mountain View Road.

       Two days later, on April 28, 2018, Johnson left town to attend a work conference. That

day, Kevin Johnson went to work on items in the garage. He noticed that his sister’s motorcycle

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was missing. He called Johnson and told her that her motorcycle was missing from the garage.

The next day, Johnson went to the garage and found the motorcycle cover on the floor. She also

found a handmade cross necklace that fell out of the motorcycle cover when she picked it up.

Both Johnson and Kelly testified that they had previously seen appellant wearing the necklace.

       Johnson testified that her motorcycle had an alarm on it so that it could not be “hot

wired” and had “to have something to start it or shut off an alarm.” A key fob on the key to the

motorcycle would shut off the alarm. Johnson had two keys to her motorcycle which she kept in

her nightstand along with her jewelry. When she checked her nightstand, she found that one of

the two keys was missing. No other valuables were taken from the home or the garage.

       After discovering that the motorcycle was missing, both Johnson and Kelly attempted to

contact appellant, but he never responded to their attempts. Johnson’s motorcycle was never

recovered. Johnson had not given appellant permission to take her jewelry, her motorcycle, or

her keys.

       Evidence of Prior Bad Acts

       At trial, the Commonwealth’s attorney asked Johnson whether appellant had told her

“about his past with taking motorcycles.” Counsel for appellant objected, arguing that the

testimony Johnson was going to provide—that appellant “ha[d] previously stolen and disposed of

motorcycles in Philadelphia”—was inadmissible prior bad acts testimony. The

Commonwealth’s attorney proffered that Johnson’s testimony would be that appellant “told her

in the past he was affiliated with a motorcycle club, he would take motorcycles up to

Philadelphia, he would sell the motorcycles to them where they would . . . part-out the parts,

where they would basically chop it up.” The Commonwealth’s attorney argued that the

testimony was admissible as “it goes to lack of mistake, motive, scheme or plan.” In response,




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counsel for appellant argued that the evidence was not admissible as a common scheme or plan

and that it was more prejudicial than probative.

       The trial court ruled that

               [appellant’s] statements related to prior bad acts, those prior bad
               acts happen to be ostensi[b]ly remarkably in similar nature to
               what’s being charged in this particular indictment, the [c]ourt finds
               that the evidence is sufficient to make it admissible, and I do not
               find that the prejudice outweighs the probative value. So the
               objection is overruled.

       Johnson then testified that appellant told her “that he worked for a motorcycle gang in

Philadelphia and he used to steal motorcycles and take them and part them out.” She

“assum[ed]” that “part them out” meant taking parts off of motorcycles and selling the parts to

other people as opposed to selling the whole motorcycle because the motorcycle had an

identification number on it. Johnson specifically stated that appellant told her he worked for a

motorcycle gang but was not a part of a motorcycle gang. She testified that appellant had made

statements like these several times over the years she had known him and had probably last made

similar statements in 2017. When asked when appellant had worked for the motorcycle gang,

Johnson stated that she did not “have the exact year” but that it was “when he was on the run

from the state of Virginia.”

       On cross-examination of Kelly, counsel for appellant asked whether appellant had ever

told Kelly about being in a in a gang in Philadelphia or working for a motorcycle gang. Kelly

responded, “He told me that he knew people there. . . . That had a motorcycle gang, yeah.” On

re-direct, the Commonwealth’s attorney asked Kelly, without objection, about the “motorcycles

up in Philadelphia,” and she stated that appellant had told her that he had taken motorcycles to

Philadelphia where “they chopped them up and resold them.”

       Appellant was convicted of grand larceny, in violation of Code § 18.2-95, and statutory

burglary, in violation of Code § 18.2-91. This appeal followed.
                                               -4-
                                          II. ANALYSIS

       On appeal, appellant argues that the trial court erred in admitting evidence of prior bad

acts. He contends that Johnson’s and Kelly’s testimony regarding his past statements that he had

taken motorcycles to Philadelphia and resold them for parts was introduced solely to demonstrate

his predisposition to steal motorcycles, was not probative of any of the exceptions to the general

rule prohibiting the introduction of prior bad acts evidence, and that any probative value of the

statements was outweighed by their prejudicial effect.

       However, the Commonwealth argues that appellant has waived any challenge to the

admission of his statements because he failed to object to Kelly’s testimony at trial.

               It is a well settled and obviously sound general rule that an
               objection to evidence cannot be availed of by a party who has, at
               some other time during the trial, voluntarily elicited the same
               evidence, or has permitted it to be brought out by his adversary
               without objection. The rule finds its most frequent application in
               cases where the party making the objection afterwards introduces
               the same evidence. . . .

Burns v. Bd. of Supervisors, 227 Va. 354, 363 (1984) (quoting Whitten v. McClelland, 137 Va.

726, 741 (1923)) (emphasis omitted). An unsuccessful objection “to the admissibility of certain

evidence [is] waived by the failure to object to the same evidence subsequently introduced.”

Philip Greenberg, Inc. v. Dunville, 166 Va. 398, 404 (1936). This is true even if “precisely the

same fact” was involved and the trial court had earlier rejected the same objection. Id.; see also

Portner v. Portner’s Ex’rs, 133 Va. 251, 263 (1922) (holding that, “if it had been error to admit

[the challenged evidence] in the first place, subsequent introduction of the same evidence

without objection constituted a waiver of the previous objection”); see also Charles E. Friend,

The Law of Evidence in Virginia § 8-4, at 295 (6th ed. 2003) (“Waiver is found where . . . [t]he

objecting party fails to object to the same evidence when subsequently introduced by the

opponent.” (emphasis omitted)).

                                                -5-
       It is clear from the record in this case that appellant objected to the evidence regarding his

prior bad acts when that evidence was first elicited at trial during Johnson’s testimony. He

failed, however, to object when the Commonwealth’s attorney subsequently elicited the same

evidence during Kelly’s testimony. Like Johnson, Kelly testified that appellant had told her that

he had taken motorcycles to Philadelphia where “they chopped them up and resold them.” In

addition, appellant himself elicited testimony from Kelly regarding his prior bad acts. Counsel

for appellant asked Kelly on cross-examination whether appellant had ever told her about being

in a gang in Philadelphia or working for a motorcycle gang, and Kelly replied, “He told me that

he knew people there. . . . That had a motorcycle gang, yeah.” In the instant case, by failing to

restate his initial objection to the introduction of the prior bad acts evidence and by himself

eliciting testimony regarding those prior bad acts, appellant permitted the introduction of the

evidence he now challenges on appeal. Therefore, we conclude that appellant waived his

objection to the admission of the Commonwealth’s evidence regarding his past statements about

stealing motorcycles and then reselling them for parts.

                                        III. CONCLUSION

       We hold that appellant waived his challenge to the admission of the evidence of prior bad

acts. Accordingly, we affirm.

                                                                                           Affirmed.




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