                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Russell and Malveaux
UNPUBLISHED


              Argued at Norfolk, Virginia


              RONALD LEE GREEN
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0373-19-1                                JUDGE MARY BENNETT MALVEAUX
                                                                                  MARCH 10, 2020
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                             William R. Savage, III, Judge

                                Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.

                                Mason D. Williams, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Ronald Lee Green (“appellant”) was convicted of three counts of assault and battery on a

              law enforcement officer, in violation of Code § 18.2-57(C), and one count of assault and battery, in

              violation of Code § 18.2-57. On appeal, he argues that the trial court abused its discretion during

              the sentencing phase of his jury trial when it allowed the Commonwealth, through

              cross-examination of appellant, to introduce his criminal record into evidence, because his direct

              testimony had not opened the door for the Commonwealth to question him about his prior record.

              Appellant further argues that the trial court abused its discretion by allowing this questioning

              because the Commonwealth had not complied with the requirements of Code § 19.2-295.1. For the

              following reasons, we affirm.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       The evidence adduced at trial established that appellant, while an inmate at a correctional

facility, threw a cup of what appeared to be fecal matter at three sheriff’s deputies and a nurse.

       Appellant, representing himself pro se at trial with standby counsel, was convicted by a

jury of three counts of assault and battery on a law enforcement officer and one count of assault

and battery. During the sentencing phase of the trial, the Commonwealth presented no evidence.

Appellant then testified on his own behalf, stating in total as follows:

                       My evidence is that I’ve been – I’ve already spent too
               much invested in these proceedings and being found guilty, I’m
               going to spend even more time invested in these proceedings.
               Before I got locked up, I turned myself in for these charges. I had
               a ten-day sentence for a prior charge of driving. I turned myself in
               because I had a failure to appear in Virginia Beach on a driving
               charge.
                       I haven’t missed a work -- a day of work in five straight
               years, not one day of work have I missed. I have a twenty-one
               year[-]old son in college and I’ve got an eight-year-old son. I
               work every day. I’ve been to college twice. I have two college
               degrees, one in early childhood development and one in business
               administration, so I wasn’t just doing anything on the street. I
               turned myself in the day of working. We was painting the Norfolk
               jail, Phase I, II, and III.
                       This is a waste of my time, taxpayer’s money, your time.
               I’ve been locked up since May of last year. I ask that the
               minimum -- the basic minimum on these charges be allowed to be
               already served, which I have. Thank you.

       The Commonwealth then cross-examined appellant, and the following exchange

occurred:

               COMMONWEALTH’S ATTORNEY: Sir, we’re at the
               sentencing phase now so I think the jury gets to consider your
               character and all relevant evidence to punishment. You talked
               about your prior charge. It was a suspended driver’s --

               [APPELLANT]: No. I didn’t say talk -- I didn’t say nothing
               about --

               COMMONWEALTH’S ATTORNEY: You did, sir. So let’s talk
               about your prior charges.
                                                -2-
               [APPELLANT]: No. I don’t want talk about my prior –

               COMMONWEALTH’S ATTORNEY: Okay. Well, I’m -- . . .
               going to talk about it then. Judge, I’m permitted --

               [APPELLANT]: Objection.

               COMMONWEALTH’S ATTORNEY: He put his character into --

               [APPELLANT]: Objection. I didn’t pull my character into -- I
               didn’t pull my character into it. I was only informing them --

               COMMONWEALTH’S ATTORNEY: Sir, were you convicted
               of --

               [APPELLANT]: Objection.

               COMMONWEALTH’S ATTORNEY: -- family violence, battery
               -- . . . simple battery, four counts -- . . . -- child cruelty, two counts
               -- . . . -- obstruction of justice in Gwin[n]ett, Georgia on . . . June
               6th of 2001?

               [APPELLANT]: Objection.

               THE COURT: The objection is overruled, sir.

       The Commonwealth’s attorney then asked appellant if he had been convicted of several

other offenses on specific dates: possession of cocaine in Clayton County, Georgia, on April 16,

2003; making terroristic threats in Gwinnett County, Georgia, on September 10, 2004; felony

interference with government property in Gwinnett County, Georgia, on May 23, 2006; and

domestic assault in Norfolk on February 9, 2010. When asked about each offense, appellant

replied, “[o]bjection,” and was overruled by the trial court.

       Appellant then asked the court if the prior offenses were “relevant to this case” as the

offenses “were years ago and . . . were in another state.” Appellant argued that his “past history

of everything [he had] done since [he had] been alive” did not “apply to this case” and had “no

relevance to this case.” The court overruled this objection, stating that “[t]he Commonwealth




                                                  -3-
has a right to put on -- . . . for the jury’s consideration your prior criminal record. . . . That’s

what he’s doing.”

        The Commonwealth’s attorney then asked appellant if he had been convicted of other

offenses in Norfolk on specific dates: two counts of assault and battery against a family

member, third or subsequent offense, on October 25, 2011; tampering with or destroying or

disabling a fire suppression unit, on May 31, 2015; and domestic assault and destruction of

property, on August 29, 2016.1 When asked about each offense, appellant only replied,

“[w]rong.”

        At that point, the Commonwealth’s attorney stated, “Judge, I’d like to offer -- since he’s

denying all these, I’d like to offer all of his prior convictions, which I’ve just listed off . . . as

Commonwealth’s Number 2 -- . . . for the sentencing phase.”2 Appellant objected, arguing that

he had not “open[ed] the door” for the Commonwealth to “bring in” his prior criminal record.

Appellant further asserted that the Commonwealth was not allowed to admit the offenses

because it had not given him prior notice as required under Code § 19.2-295. The

Commonwealth acknowledged that it had not provided notice pursuant to that statute but argued

that appellant had “put his credibility and his character at issue when he talked about his priors.

He opened the door to bring in all those prior convictions.” The Commonwealth also contended

that during sentencing, the jury was to consider “all relevant evidence which includes criminal

convictions.”




        1
          During this portion of cross-examination, the Commonwealth’s attorney also questioned
appellant about a prior assault and battery conviction but did not state either the conviction date
or the relevant jurisdiction.
        2
          At this point, the jury was excused for the court to hear the Commonwealth’s argument
as to the introduction of the criminal convictions. The jury reentered after the court denied the
Commonwealth’s motion.
                                                -4-
       The court overruled appellant’s objection. The Commonwealth then again asked to

introduce appellant’s prior criminal convictions, noting that appellant had “denied every one of

them.” The Court denied the motion, stating that the jury had “heard it.” Neither party presented

any additional evidence.

       The jury recommended a sentence of twelve months’ imprisonment for each conviction

for assault and battery on a law enforcement officer and twelve months’ imprisonment for the

assault and battery conviction.

       Following trial, appellant and the Commonwealth entered into an agreement regarding

sentencing in accordance with the jury’s recommendations—appellant would receive one year’s

imprisonment on each offense of assault on a law enforcement officer, and twelve months’

imprisonment on the assault and battery offense. Further, appellant would receive credit for his

time served. The trial court entered a sentencing order reflecting this sentence.

       Appellant appealed to this Court.

                                           II. ANALYSIS

       On appeal, appellant argues that the trial court abused its discretion in allowing the

Commonwealth to introduce, through cross-examination of appellant, his prior criminal

offenses.3


       3
          As an initial matter, the Commonwealth argues that appellant’s assignment of error fails
to address the ruling of the trial court and as such is insufficient. See Rule 5A:12(c)(1)(ii)
(providing that “[a]n assignment of error which does not address the findings, rulings, or failures
to rule on issues in the trial court . . . from which an appeal is taken . . . is not sufficient”).
Appellant’s assignment of error states that “[t]he trial court abused its discretion in the
sentencing phase of the jury trial when it allowed the Commonwealth to introduce into evidence,
through cross examination of Appellant, the criminal record of Appellant . . . .” (Emphasis
added). Appellant notes that the trial court specifically denied the Commonwealth’s motion to
introduce the conviction orders; thus, appellant’s assignment of error fails to assign error to an
actual ruling of the trial court. However, we find that appellant’s assignment of error does
sufficiently alert this Court to the trial court’s ruling that appellant’s prior criminal history could
be used during cross-examination. Thus, we reject the Commonwealth’s contention that
appellant’s assignment of error violates Rule 5A:12(c)(1)(ii).
                                                    -5-
        A trial court has broad discretion in determining the admissibility of evidence during

sentencing proceedings. Runyon v. Commonwealth, 29 Va. App. 573, 576 (1999). “[T]o the

extent the trial court makes an error of law in the admission of evidence, ‘an abuse of discretion

occurs,’” Abney v. Commonwealth, 51 Va. App. 337, 345 (2008) (quoting Bass v.

Commonwealth, 31 Va. App. 373, 382 (2000)), and thus, “evidentiary issues presenting a

‘question of law’ are ‘reviewed de novo by this Court,’” id. (quoting Michels v. Commonwealth,

47 Va. App. 461, 465 (2006)).

        Code § 19.2-295.1, the statute that governs sentencing proceedings by a jury after

conviction, states, in pertinent part, as follows:

                In cases of trial by jury, upon a finding that the defendant is guilty
                of a felony . . . a separate proceeding limited to the ascertainment
                of punishment shall be held as soon as practicable before the same
                jury. At such proceeding, the Commonwealth . . . shall present the
                defendant’s prior criminal history, including prior convictions and
                the punishments imposed, by certified, attested or exemplified
                copies of the final order, including adult convictions and juvenile
                convictions and adjudications of delinquency. . . . The
                Commonwealth shall provide to the defendant 14 days prior to trial
                notice of its intention to introduce copies of final orders evidencing
                the defendant's prior criminal history, including prior convictions
                and punishments imposed. . . . Prior to commencement of the trial,
                the Commonwealth shall provide to the defendant photocopies of
                certified copies of the final orders which it intends to introduce at
                sentencing. After the Commonwealth has introduced in its
                case-in-chief of the sentencing phase such evidence of prior
                convictions or victim impact testimony, or both, or if no such
                evidence is introduced, the defendant may introduce relevant,
                admissible evidence related to punishment. Nothing in this section
                shall prevent the Commonwealth or the defendant from
                introducing relevant, admissible evidence in rebuttal.

        This statute makes clear the procedures governing a sentencing proceeding following a

conviction by jury. Relevant here, the Commonwealth “shall present the defendant’s prior

criminal history” after it has provided notice to him fourteen days prior to trial of its intention to

introduce copies of final conviction orders. Code § 19.2-295.1 The defendant may then

                                                 -6-
“introduce relevant, admissible evidence related to punishment.” Id. Of importance to this case,

Code § 19.2-295.1 also provides in its final sentence that both the Commonwealth and the

defendant may introduce “relevant, admissible evidence in rebuttal.” See Commonwealth v.

Shifflett, 257 Va. 34, 43-44 (1999) (“The statute . . . permits the Commonwealth to introduce

‘relevant, admissible evidence in rebuttal’ to that offered by the defendant.”).

       Appellant argues that the trial court abused its discretion by allowing the Commonwealth

to question him about his prior offenses during cross-examination, because his testimony had not

opened the door for the Commonwealth to question him about his prior criminal record.

       However, the Commonwealth argues that its questions during cross-examination about

appellant’s prior criminal convictions were proper, as the Commonwealth was entitled to

cross-examine appellant about specific acts in order to rebut his testimony regarding his good

character. We agree.

       During the guilt phase of a trial, it is well established that “[e]vidence of a prior

independent crime, though tending to show a defendant’s bad moral character, is generally

inadmissible.” Poole v. Commonwealth, 211 Va. 262, 265 (1970). “But the prosecution may

introduce evidence of a prior crime to attack a defendant’s character if he has attempted to show

his good character or has testified in his own behalf and opened the door to impeachment.” Id.

Our Supreme Court “has uniformly held that even in the guilt phase of a trial where a defendant

attempts to present evidence regarding his good character or history, which may mislead the fact

finder, the Commonwealth is entitled to rebut the false impression and misleading evidence.”

Pughsley v. Commonwealth, 33 Va. App. 640, 646 (2000).

       In addition, this Court has specifically addressed the introduction of evidence of a

defendant’s bad character in the context of sentencing proceedings under Code § 19.2-295.1. In

Pughsley, during the sentencing phase of trial, the Commonwealth introduced evidence of

                                                -7-
defendant’s twelve prior juvenile convictions. Id. at 643. Several witnesses then testified on

defendant’s behalf that he was a “sweet,” “caring,” “real fine,” “very intelligent,” and

“respectable” person, who was remorseful for the crimes he had committed. Id. at 643-44. In

rebuttal, the Commonwealth introduced evidence to rebut defendant’s character by introducing

evidence of his behavior while in juvenile detention, including testimony that defendant had

repeatedly intimidated and threatened staff and other detainees and had at times been violent to

staff. Id. at 644. In addition, the Commonwealth introduced testimony relating to facts of

defendant’s unadjudicated criminal behavior, including testimony that once while in a

convenience store, defendant had pulled out and brandished a .25 caliber semiautomatic pistol,

waving it in a threatening manner in front of the cashier merely because had she “looked” at him.

Id. On appeal, defendant argued that the trial court erred “in permitting the Commonwealth to

introduce prejudicial rebuttal evidence and evidence that went beyond and did not specifically

rebut his witnesses’ character evidence.” Id. at 645.

       This Court rejected defendant’s argument, holding that

               where a defendant puts on evidence that he has been of good
               character or has a “history and background” of being a good,
               law-abiding, caring, or remorseful person, the Commonwealth
               may, subject to the trial court’s sound discretion, introduce
               evidence of specific acts in the defendant’s “history and
               background” which rebuts the defendant’s contention or proves
               that the defendant has a history or background of criminal or bad
               acts or is not of good character. . . . Once the defendant has
               offered proof of his character, history, or background, the
               Commonwealth is entitled to prove, subject to the sound discretion
               of the trial judge, that the defendant has a history of misconduct
               different from the picture he or she has painted.

Id. at 647. Our Court held that evidence of defendant’s behavior at the juvenile detention center

and actions at the convenience store was proper evidence to rebut defendant’s evidence that he

was a sweet, caring, non-threatening, and non-violent person, as “[t]he Commonwealth was



                                               -8-
permitted to rebut [defendant’s] evidence of good character and to correct the false impression

[defendant] may have given the jury about his character.” Id.

       Here, as in Pughsley, appellant presented evidence of his good character. Appellant’s

testimony gave the jury the impression that he was a hard-working family man in light of his

testimony that had not missed a day of work in five years and had two children. His testimony

also suggested that his prior offenses were minor, as he only mentioned a “failure to appear in

Virginia Beach on a driving charge.” In addition, he gave the jury the idea that he was a

law-abiding person in general, as he testified that he turned himself in for his prior offense, had

college degrees, was working, and “wasn’t just doing anything on the street.” Because appellant

introduced evidence of his good character through testimony that gave the impression that he

was a hard-working, law-abiding citizen, the Commonwealth was entitled to cross-examine him

about specific acts, in this case his prior offenses, in order to rebut his testimony.4 Therefore, the

trial court did not err in permitting the Commonwealth’s attorney to cross-examine appellant

about his prior convictions.

                                        III. CONCLUSION

       We hold that the trial court did not abuse its discretion in allowing the Commonwealth to

cross-examine appellant about his prior offenses during the sentencing phase of trial.

Accordingly, we affirm the judgment of the trial court.

                                                                                           Affirmed.




       4
          We note that appellant could have requested a limiting instruction for the trial court to
instruct the jury to limit their consideration of appellant’s prior convictions only as rebuttal
evidence to his character evidence and not as substantive evidence of his guilt in regard to the
prior convictions. However, appellant did not request a limiting instruction, and therefore none
was given.
                                                  -9-
Petty, J., concurring.

       I agree with the majority that appellant Ronald L. Green’s convictions should be

affirmed. While I don’t disagree with the majority’s analysis, I write separately because I think

there is a narrower, more direct path to deciding the case. “In this case, the best and narrowest

ground is our conclusion that the alleged trial court error, if error at all, was harmless as a matter

of law.” Commonwealth v. White, 293 Va. 411, 419 (2017). Although the Commonwealth was

permitted to ask about appellant’s purported prior convictions, appellant denied each one. He

answered “wrong” to each assertion he had been convicted of a prior crime. Moreover, at the

conclusion of the cross-examination of appellant, the trial court denied the Commonwealth’s

request to introduce a copy of his prior criminal history. As a result, there was no evidence

before the jury of appellant’s prior criminal record. Thus, I conclude that any error by the trial

court, if error at all, in allowing the Commonwealth’s questions was harmless because no

evidence regarding appellant’s criminal history was ultimately presented to the jury.




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