                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Alston
Argued at Richmond, Virginia


FABIAN FERNANDO LAWRENCE
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1646-08-2                                    JUDGE LARRY G. ELDER
                                                                 SEPTEMBER 29, 2009
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                        John Richard Alderman, Jr., Judge Designate

                 Timothy W. Barbrow (Law Office of Timothy W. Barbrow, on
                 brief), for appellant.

                 Richard B. Smith, Special Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Fabian Fernando Lawrence (appellant) appeals from his bench trial conviction for

possessing cocaine. On appeal, he contends the trial court erred in allowing the Commonwealth,

while cross-examining him, to elicit evidence about the nature of his prior conviction—which

was for robbery—rather than simply the fact that he had previously been convicted of one

felony. The Commonwealth concedes on appeal this was error but contends the error was

harmless. We hold the error was not harmless on the facts of this case. Thus, we reverse

appellant’s conviction and remand for a new trial if the Commonwealth be so advised.




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

                                         BACKGROUND

       On the evening of February 2, 2006, Police Sergeant Reed stopped the van appellant was

driving for defective equipment, an inoperable brake light. Appellant was alone in the vehicle.

On the floor of the van, Sergeant Reed observed a “new and unused glass smoking device,”

which he knew was commonly used to smoke crack cocaine. He also observed two or three used

pieces of “brass Chore Boy,” a type of cleaning pad sold as a “pot scrubber,” that were “burnt

black with the [white ash] residue that’s consistent with the smoking of crack cocaine.” When

Sergeant Reed asked appellant about these items, he said “he had removed them from his house,”

that “they weren’t his; he was taking them to the trash” “because his wife had a drug problem”

and “he wanted to get rid of them.” Sergeant Reed subsequently “checked the area . . . better”

and “recovered nineteen to twenty pieces of the Chore Boy[s] that were used, that had fallen out

of a bag and scattered the[m]sel[ves] between the seat and up towards the front console of the

vehicle.” Subsequent laboratory analysis confirmed the residue was cocaine.

       At some point after the stop of February 2, 2006, appellant “showed up at the police

department with his wife.” In April 2006, appellant was indicted for the instant offense. In May

2006, appellant appeared in court with his attorney, and trial was set for August 2, 2006.

Appellant failed to appear for trial on August 2, 2006, and at some point Sergeant Reed learned

he was incarcerated in Maryland and attempted to extradite him.

       On January 4, 2008, Judge John W. Scott conducted a video arraignment of appellant,

who the prosecutor represented was “currently an inmate in the custody of the State of Maryland,

who’s filed under the IAD for speedy trial here in Virginia.”

       A bench trial was held before Judge Scott on March 14, 2008, at which Sergeant Reed

testified about his traffic stop of appellant, what he saw in the van appellant was driving, and

                                                -2-
what appellant told him about the drug paraphernalia in the van. Reed said appellant told him

“that he had removed [the pieces of screen] from his house,” that “they weren’t his,” and that “he

was taking them to the trash.” Sergeant Reed gave no specific testimony at that time about

whether appellant indicated knowing what the Chore Boy screens were used for or admitted that

he knew they contained cocaine residue.

       Appellant testified in his defense, indicating that he had removed the pieces of Chore Boy

that morning from the house he and his wife shared with their four children. He said he had

suspected she might be using drugs because she was not eating much, “would just be up all day,

all night,” was neglecting her household duties, and would sometimes lock their bedroom door

and refuse to let him inside the room immediately. The morning before the traffic stop, before

appellant left for work and while his wife was still sleeping, he searched her dresser drawer and

found the screens. He said he did not know what they were and “[did not] know . . . they

contained [drug residue],” but he suspected they had something to do with drug use. He then

said “Yes,” in response to the question whether he knew when he took the screens out of the

house that morning that they contained “cocaine residue,” but on further questioning he again

said he knew they contained drug residue but that “[he] didn’t know what drug[] was on [the

screens].” He added the screens to the trash bag he was already planning to take to the dump.

He said the dump had not yet opened that morning as he was on his way to work and that he

stopped after work to visit a friend and forgot he had them in the van. He said he was

“suspicious” about the screens and “confirmed it when [Sergeant] Reed pulled [him] over and

confirmed and told [him] what they were.” He denied knowing anything about the glass

smoking device, saying Sergeant Reed found it beneath the driver’s seat of the van, which was

the only vehicle the couple owned and was registered in his wife’s name.




                                               -3-
       Appellant testified on direct examination that he had one prior felony conviction. On

cross-examination, the prosecutor inquired, “What is the nature of that felony?” His attorney

objected and said, “I don’t know that that’s proper cross-examination.” The prosecutor said,

“Number and nature for defendants, Judge.” The judge said, “It’s proper. Objection overruled.”

Appellant then testified that the felony for which he had been convicted was robbery.

       Appellant’s wife testified that the Chore Boy screens were hers. She said she had had a

drug problem before she married appellant and that he knew of her history but that she had been

clean and sober for fifteen years. She testified that “[t]here came a time when [appellant] had

been incarcerated . . . due to a mistake in identity” and that, during that time, she was the sole

provider. She said they lost the family home and that she had a relapse and started smoking

crack cocaine. Appellant had been out of jail for approximately a week before February 2, 2006,

the date of his traffic stop. She said that when she arose the morning of appellant’s traffic stop,

she could tell he had been through her belongings and removed her drug paraphernalia, including

the Chore Boy screens. Appellant’s wife admitted she was incarcerated at the time she testified

and that she had approximately ten prior felony convictions and some misdemeanor convictions

involving theft.

       The Commonwealth called Sergeant Reed in rebuttal and elicited additional testimony

concerning what Reed said to appellant in reference to the pieces of Chore Boy screens. Reed

testified that when he said, “I know what this is used for,” and asked “[W]hy is it in your

vehicle,” appellant responded “he had removed it from the house and was going to throw it away

because his wife had a drug problem.” Reed testified appellant did not say he did not know what

the items were. However, Reed also gave no testimony concerning whether appellant indicated

knowing what drug was on the screens.




                                                -4-
       The trial court found appellant guilty of the charged offense, indicating it did so “after

considering all of the evidence in this matter, including . . . your testimony and . . . your wife’s.”

The trial court sentenced appellant to three years with all three years suspended on certain

conditions, including active supervised probation for an indefinite period.

                                                  II.

                                             ANALYSIS

       “A person convicted of a felony or perjury shall not be incompetent to testify, but the fact

of conviction may be shown in evidence to affect his credit.” Code § 19.2-269. Under settled

principles, “the Commonwealth may ask a defendant who testifies in a criminal proceeding the

number of times he has been convicted of a felony, but . . . not the names of the felonies, other

than perjury, and not the nature or details thereof.” Sadoski v. Commonwealth, 219 Va. 1069,

1071, 254 S.E.2d 100, 101 (1979) (emphasis added). Thus, here, as the Commonwealth

concedes, the trial court erred in allowing the prosecutor to inquire about the nature of

appellant’s prior conviction, which was for robbery.

       Nevertheless, the Commonwealth, citing Cole v. Commonwealth, 16 Va. App. 113, 116,

428 S.E.2d 303, 305 (1993), contends the error was harmless because “‘the record is devoid of

. . . implications’” “‘that the judge considered [the] inadmissible evidence in adjudicating the

merits of the case’” and, thus, we “‘must presume [on appeal] that the trial judge considered the

evidence for the limited purpose of assessing credibility.’” We hold this case is readily

distinguishable from Cole, and we are unable to conclude the error here was harmless.

       In Virginia, non-constitutional error is harmless “[w]hen it plainly appears from the

record and the evidence given at the trial that the parties have had a fair trial on the merits and

substantial justice has been reached.” Code § 8.01-678.

               “If, when all is said and done, [it is clear] that the error did not
               influence the [fact finder], or had but slight effect, . . . the
                                                 -5-
                judgment should stand . . . . But if one cannot say, with fair
                assurance, after pondering all that happened without stripping the
                erroneous action from the whole, that the judgment was not
                substantially swayed by the error, it is impossible to conclude that
                substantial rights were not affected. . . . If so, or if one is left in
                grave doubt, the [judgment] cannot stand.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557, 1566 (1946)); see

also Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)

(discussing harmless error analysis prior to Supreme Court’s adoption of Kotteakos test in Clay).

        “‘[H]armless error analysis . . . [is not] simply a sufficiency of the evidence analysis.’” 1

Williams v. Commonwealth, 32 Va. App. 395, 400, 528 S.E.2d 166, 169 (2000) (en banc)

(quoting Hooker v. Commonwealth, 14 Va. App. 454, 457-58, 418 S.E.2d 343, 345 (1992)). We

may uphold a decision on the ground that any error involved is harmless only if we can conclude,

without usurping the trial court’s fact-finding function, “‘that the error did not influence the [fact

finder], or had but slight effect.’” Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos,

328 U.S. at 764, 66 S. Ct. at 1248, 90 L. Ed. at 1566); see Lavinder, 12 Va. App. at 1006, 407

S.E.2d at 911 (noting a court may not declare an error harmless if doing so requires “usurping

the [fact finder’s] function”).

        It is well settled under this test that the erroneous admission of evidence may be harmless

if evidence of guilt is so “overwhelming” and the error so insignificant by comparison that we

can conclude the error “failed to have any ‘substantial influence’ on the verdict.” United States

v. Lane, 474 U.S. 438, 450, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814, 826 (1986) (quoting

Kotteakos, 328 U.S. at 765, 66 S. Ct. at 1248, 90 L. Ed. at 1567); see also Rose v.


        1
          We note the sufficiency of the evidence to support appellant’s conviction is not before
us in this appeal. Appellant’s assignment of error challenging the sufficiency was denied at the
petition stage.

                                                  -6-
Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454, 459 (2005). The erroneous admission of

evidence also is harmless if the evidence admitted in error is merely “cumulative” of other,

undisputed evidence. Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S. Ct. 1710, 1722, 123

L. Ed. 2d 353, 373-74 (1993).

       As we noted in Cole, “‘[a] judge, unlike a juror, is uniquely suited by training, experience

and judicial discipline to disregard potentially prejudicial comments and to separate, during the

mental process of adjudication, the admissible from the inadmissible, even though he has heard

both.’” Cole, 16 Va. App. at 116, 428 S.E.2d at 305 (quoting Eckhart v. Commonwealth, 222

Va. 213, 216, 279 S.E.2d 155, 157 (1981)). “Consequently, we presume that a trial judge

disregards prejudicial or inadmissible evidence . . . ‘in the absence of clear evidence to the

contrary’” in the record. Id. (quoting Hall v. Commonwealth, 14 Va. App. 898, 902, 421 S.E.2d

455, 462 (1992) (en banc)). However, even in a bench trial, “when the trial judge erroneously

and unconditionally admits prejudicial evidence, we cannot presume that the trial judge

disregarded the evidence he ruled to have probative value.” Wilson v. Commonwealth, 16

Va. App. 213, 223, 429 S.E.2d 229, 235 (emphasis added), aff’d on reh’g en banc, 17 Va. App.

248, 436 S.E.2d 193 (1993); see Pierce v. Commonwealth, 50 Va. App. 609, 617 n.4, 652 S.E.2d

785, 790 n.4 (2007) (quoting Wilson, 16 Va. App. at 223, 652 S.E.2d at 235). Instead, we must

presume, unless that presumption is rebutted, “that by admitting inadmissible evidence, the trial

judge implicitly considered that evidence for an improper purpose.” Pierce, 50 Va. App. at 617

n.4, 652 S.E.2d at 790 n.4.

       In Pierce, we held that the presumption is rebutted when “a judge clearly articulates the

reasons for his decision, and the improper evidence is not among those reasons,” making “clear

that the improper evidence did not impact the verdict.” Id. In Pierce, the trial judge stated “it




                                                -7-
was the testimony of another witness that convinced him that [the defendant, who did not

testify,] was guilty of possession with intent to distribute.” Id. at 618, 652 S.E.2d at 790.

       Here, by contrast, the trial court expressly stated it considered the testimony of appellant

in convicting him. If the trial court had believed appellant’s testimony that he possessed the

pieces of Chore Boy screens only for the purpose of disposing of them and with only an

unconfirmed suspicion about the nature of the residue on the screens, it could have found him

not guilty of the charged offense of possessing cocaine. See, e.g., Young v. Commonwealth, 275

Va. 587, 591-92, 659 S.E.2d 308, 310-11 (2008) (refining the requirement that a conviction for

possessing a controlled substance requires proof, inter alia, that “‘the defendant intentionally and

consciously possessed [the drug] with knowledge of its nature and character’” (quoting Burton

v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975)) (emphasis added in Young)).

On this record, therefore, it is impossible to determine that the trial court’s erroneous admission

of evidence of the nature of appellant’s prior conviction for robbery was limited to credibility

and was harmless. Robbery, in addition to being a felony, is a crime of moral turpitude. It is

also the sort of crime often associated with drug addicts, who require funds to support their

habits. Thus, the admission of evidence of the nature of appellant’s conviction had the potential

for creating prejudice far beyond that resulting from the fact that the trial court knew as a result

of the prior video arraignment that appellant was then incarcerated in another jurisdiction for an

unknown offense. Because the trial court admitted the evidence of the nature of appellant’s

robbery conviction without limitation, we cannot conclude, without usurping the trial court’s fact

finding function, that the erroneous admission of this evidence was harmless.




                                                -8-
                                               III.

       For these reasons, we hold the trial court’s erroneous admission of evidence of the nature

of appellant’s prior conviction, for robbery, was not harmless. Thus, we reverse appellant’s

conviction and remand for a new trial if the Commonwealth be so advised.

                                                                        Reversed and remanded.




                                              -9-
