                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia


CLARENCE MILTON THOMAS
                                         MEMORANDUM OPINION * BY
v.   Record No. 1883-99-4                 JUDGE RICHARD S. BRAY
                                            SEPTEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                 William Shore Robertson, Judge

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr., on briefs), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Clarence Milton Thomas (defendant) was convicted by a jury

for operating a motor vehicle after having been declared an

habitual offender, a second or subsequent offense, in violation

of Code § 46.2-357.   On appeal, defendant complains that the

trial court erroneously (1) admitted evidence of his earlier

guilty plea to "drunk driving," an offense arising from conduct

related to the instant prosecution; (2) permitted testimony he

was "staggering" at the time of arrest and was "previously known

to law enforcement"; and (3) excluded from the sentencing phase

of the proceedings evidence of his "medical condition" and


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"mental state at the time of the offense."    Finding no

reversible error, we affirm the conviction.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.   In accordance with well established

principles, we view the evidence in the light most favorable to

the Commonwealth.

     At approximately 12:03 a.m. on November 13, 1998, Warrenton

Police Officer Warren Michael Sager, while operating an

"unmarked vehicle" on "routine patrol," stopped in the roadway

to permit his companion, Officer Steven Alleman, to issue a

parking ticket.   Sager remained in the car and noticed a white

pickup truck approach, "pull[] to the right shoulder," and park

"approximately 5 to 6 car lengths behind."    Within several

minutes, Sager heard "glass break as the [truck] door open[ed],"

and observed an individual exit the passenger side, and "walk[]

down the street" toward the police vehicle, "staggering very

bad[ly]."   Alleman then identified defendant by name and Sager

testified he "recognize[d] [him] from . . . 18 years of law

enforcement" as a man he had "seen . . . and had dealings with

before."

     While Alleman detained defendant, Sager approached the

truck and discovered "no one else in the vehicle," broken glass

"laying on the sidewalk," and a key in a "secondary ignition

switch."    Following further investigation, Sager charged

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defendant with the instant offense and "driving under the

influence (DUI)."   During the subject trial, Sager was permitted

to testify that defendant later pled guilty to the DUI.

     At the sentencing phase of the prosecution, the

Commonwealth introduced into evidence a 1981 order of the

Fauquier County Circuit Court adjudicating defendant an habitual

offender.   Additional circuit court orders, also in evidence,

memorialized subsequent convictions of defendant for "operating

a vehicle after having been declared an habitual offender" in

1983, 1984, 1985, 1988, 1991 and 1994, "statutory burglary" in

1969, felonious possession of a firearm in 1991, and, in 1998,

petit larceny and the DUI offense in issue.

     During defendant's testimony at sentencing, his counsel

inquired into his "medical condition" at the time of the instant

offense.    When the Commonwealth challenged the relevancy of such

evidence, counsel explained that defendant "had full-blown

AIDS," resulting in a "mental state . . . that he basically

didn't care, that he was under basically a suicide mission,"

circumstances counsel described as "mitigating factor[s]."    The

court precluded the evidence but permitted counsel to proffer

the testimony for the record. 1


     1
       Counsel proffered that defendant was diagnosed with HIV in
1992, and thereafter resided with his mother until, fearful that
he would "spread [the] disease" to her, he "isolated himself
from his family," "moved . . . to Washington, D.C." and
"basically lived on the street." Following a conviction for
driving as an habitual offender in 1994, defendant "was placed

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                                I.

     Defendant first contends that the court erroneously allowed

the Commonwealth to introduce "irrelevant" and "prejudicial"

evidence of his guilty plea to the DUI offense.   In response to

defendant's objection at trial, the Commonwealth explained that

such evidence was relevant to prove defendant operated the

vehicle at the time of the subject offense, an indispensable

element of the crime.   The trial court agreed and permitted the

testimony, but instructed the jury that such evidence "has to do

only with whether or not the Defendant was driving the vehicle

at the time of the offense before you today" and "should not

prejudice the Defendant because of the nature of the violation."

     "Evidence is relevant if it has any logical tendency,

however slight, to establish a fact at issue in the case."

Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,

678 (1993).   "Upon finding that certain evidence is relevant,

the trial court is then required to employ a balancing test to

determine whether the prejudicial effect of the evidence sought


in the Crossroads Program" and "did well . . . because he found
a sense of community." Upon release, however, "he lost that
sense of community" and began "a suicide mission." "He began to
drink . . . [and] use illegal drugs" and, "on the day this
happened, . . . was in that suicide mode."
       Counsel further proffered that, during incarceration for
the subject offense, defendant's "self-esteem" increased upon
learning that HIV cannot be transmitted through "casual
contact." Counsel added that "the stress of living in [jail]
causes some harm to [defendant] in the course of his disease and
can cause the disease to progress more rapidly."


                               - 4 -
to be admitted is greater than its probative value."         Wise v.

Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988).

"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."        Blain v. Commonwealth,

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

     "Virginia law . . . establishes that a plea of guilty" is

an admission of guilt "'by the defendant that he committed the

particular acts claimed to constitute the crime charged in the

indictment.'"   Jones v. Commonwealth, 29 Va. App. 503, 510, 513

S.E.2d 431, 435 (1999) (quoting North Carolina v. Alford, 400

U.S. 25, 32 (1970)).    "An out-of-court statement by [a]

defendant that admits . . . a fact or facts tending to prove

guilt is admissible in evidence."        Elmore v. Commonwealth, 22

Va. App. 424, 429, 470 S.E.2d 588, 590 (1996).       Thus,

defendant's acknowledgment that he operated the vehicle in the

commission of the DUI offense was admissible and clearly

relevant evidence that he simultaneously drove the truck in

violation of Code § 46.2-357.

     Manifestly, the probative value of such evidence outweighed

any prejudicial effect.    To successfully prosecute defendant for

a violation of Code § 46.2-357, the Commonwealth was required to

prove each element of the offense, including operation of the

vehicle by defendant.     See Martin v. Commonwealth, 13 Va. App.

524, 529, 414 S.E.2d 401, 403 (1992) (en banc) (prosecution must

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prove every element of a crime beyond a reasonable doubt).

Without defendant's admission, only circumstantial evidence

addressed the driving component of the offense.    Any incidental

prejudicial effect arising from reference to the DUI was

minimized by the court's cautionary instruction.    "Juries are

presumed to follow prompt cautionary instructions regarding the

limitations placed upon evidence."     Burley v. Commonwealth, 29

Va. App. 140, 147, 510 S.E.2d 265, 269 (1999).

                                II.

     Defendant next complains that the court improperly

permitted Sager to testify that defendant was "staggering very

bad[ly]" and was previously known to Sager through "18 years of

law enforcement . . . dealings with [defendant] before,"

evidence that suggested defendant was a "danger on the roads"

and of "bad character."   However,

           [w]here a course of criminal conduct is
           continuous and interwoven, consisting of a
           series of related crimes, the perpetrator
           has no right to have the evidence
           "sanitized" so as to deny the jury knowledge
           of all but the immediate crime for which he
           is on trial. The fact-finder is entitled to
           all of the relevant and connected facts,
           including those which followed the
           commission of the crime on trial, as well as
           those which preceded it; even though they
           may show the defendant guilty of other
           offenses.

Scott v. Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577

(1984).   Accordingly, defendant cannot insulate himself from

evidence of the interrelated circumstances that attended the

                               - 6 -
subject arrest and prosecution, notwithstanding prejudicial

implications.

                               III.

     Code § 19.2-295.1 provides that "the defendant may

introduce relevant, admissible evidence related to punishment"

during the sentencing phase of a non-capital bifurcated trial.

In Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232,

236 (1999), the Supreme Court of Virginia instructed that "[t]he

kind of evidence contemplated by § 19.2-295.1 bears upon the

record of the defendant and the nature of his crime.   Evidence

of a good previous record, and extenuating circumstances tending

to explain, but not excuse, the commission of the noncapital

crime is admissible mitigating evidence."   The Court also noted

that "a trial court, in determining what evidence is relevant to

punishment under Code § 19.2-295.1 may be guided in the exercise

of its discretion, subject to the rules of evidence governing

admissibility, by the factors set forth in Code

§ 19.2-264.4(B)[.]"   Id. at 44, 510 S.E.2d at 236.

     Code § 19.2-264.4(B), in pertinent part, provides:

          Evidence which may be admissible, subject to
          the rules of evidence governing
          admissibility, may include the circumstances
          surrounding the offense, the history and
          background of the defendant, and any other
          facts in mitigation of the offense. Facts
          in mitigation may include, but shall not be
          limited to, the following: . . . (ii) the
          . . . felony was committed while the
          defendant was under the influence of extreme
          mental or emotional disturbance, . . . (iv)

                               - 7 -
          at the time of the commission of the . . .
          felony, the capacity of the defendant to
          appreciate the criminality of his conduct or
          to conform his conduct to the requirements
          of law was significantly impaired . . . .

Defendant asserts the proffered evidence addressed "extenuating

circumstances" of "extreme mental and emotional disturbance" at

the time of the offense.

     Assuming, without deciding, that the court erroneously

excluded such evidence, we find the resulting error harmless. 2

          [N]onconstitutional error is presumed to be
          harmful "unless 'it plainly appears from the
          record and the evidence' that the verdict
          was not affected by the error." "An error
          does not affect a verdict if a reviewing
          court can conclude, without usurping the
          jury's fact finding function, that, had the
          error not occurred, the verdict would have
          been the same."

Byrd v. Commonwealth, 30 Va. App. 371, 377, 517 S.E.2d 243, 246

(1999) (citation omitted).

     Here, the record of convictions properly before the jury

established the commission of six prior felonies by defendant,

exclusive of the subject offense, for driving after being

declared an habitual offender, spanning a period of sixteen

years, together with convictions for several other crimes,

including two additional felonies.    Five among the six habitual


     2
       Our premise of error does not include defendant's proffer
relating to the adverse effects of incarceration, a circumstance
irrelevant to the sentencing function of a jury. See Runyon v.
Commonwealth, 29 Va. App. 573, 577, 513 S.E.2d 872, 874 (1999)
(court did not err in excluding testimony concerning effect of
incarceration on defendant during sentencing).

                              - 8 -
offender violations occurred prior to 1992, the year defendant

first learned of the illness that prompted his mental distress.

The related conviction orders, including those punishments fixed

by the juries, reflected prior sentences ranging from twelve

months in jail to three and one-half years in prison.

     Such evidence clearly demonstrated that defendant persisted

in feloniously operating motor vehicles, notwithstanding

successive convictions and incarceration for such misconduct.

Defendant's suicidal mindset on the evening of the subject

offense offered an insubstantial explanation for his behavior,

on that occasion or previously.   Under such circumstances, the

omission and the proffered evidence clearly had no effect on the

jury's determination of sentence and, therefore, if error, was

harmless.

     Accordingly, we affirm the trial court.

                                                        Affirmed.




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