                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Alston and Chafin
UNPUBLISHED


              Argued at Richmond, Virginia


              DIMITRI DUANE BAINES
                                                                            MEMORANDUM OPINION * BY
              v.     Record No. 0805-12-2                                    JUDGE TERESA M. CHAFIN
                                                                                  APRIL 30, 2013
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                            Clarence N. Jenkins, Jr., Judge

                               Joan J. Burroughs, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellant.

                               Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Dimitri Duane Baines (“appellant”) appeals the result of his probation revocation hearing

              and contends the trial court violated his right to confrontation by admitting and considering

              inadmissible hearsay testimony. For the reasons that follow, we affirm the trial court’s ruling.

                     Appellant was ordered to show cause why his previously suspended sentences on

              convictions of grand larceny and burglary should not be revoked. Prior to the revocation

              hearing, appellant objected to the admissibility of testimony concerning unadjudicated criminal

              offenses. Appellant argued that the Commonwealth intended to introduce evidence of several

              burglaries in which appellant was implicated and that the testimony concerning these burglaries

              should be excluded because it contained inadmissible hearsay. The trial court declined to make a

              blanket ruling as to appellant’s hearsay objection, stating that with “respect to the hearsay, we’ll



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
just have to take that up on a case-by-case basis . . . it hasn’t been presented to the Court, so I

don’t know what, if any hearsay evidence will be forthcoming.”

       At the revocation hearing, Richmond Police Detective Greg Russell testified that he

responded to a reported burglary at R.S. Express, a convenience store, at 3:00 a.m. on November

25, 2011. The glass door to the building had been broken, and several items were stolen from

inside the store, including lottery tickets. Russell watched surveillance video captured by

security cameras at R.S. Express and observed a black shoe “kicking the glass, and, eventually,

making entry through the glass window and the glass shattering, and then the person climbing

through the bottom portion of the door.” The perpetrator’s face was masked, but Russell

observed that he was wearing dark-colored pants, shoes, gloves, and a black jacket.

       Officer Derrick Longoria testified that he also watched the surveillance video and

observed appellant wearing a jacket similar to the one worn by the perpetrator in the video while

patrolling the area around R.S. Express an hour later. Longoria stopped appellant approximately

two blocks from the R.S. Express. When a records check revealed appellant was wanted on an

outstanding warrant for grand larceny and forgery, he was arrested. Appellant told police he

lived at 2411 Ruffin Road.

       Russell and Longoria proceeded to that address and knocked on the door of the residence.

A woman who identified herself as appellant’s mother granted permission to the officers to

conduct a search, directing them to appellant’s bedroom in the basement. While walking through

the house Longoria observed in plain view a brown paper grocery bag filled with “well over 100

scratched off lottery tickets.” In the basement, Longoria found a pair of black tennis shoes

similar to the ones seen in the surveillance video with “items of glass on the front and possible

glass particles on the bottom of the shoes and the soles.” In addition to the shoes and lottery

tickets, police recovered a duffel bag from the basement bedroom containing “two plastic

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baggies, [and] each bag contained numerous off-white rock substances.” A field test indicated

that the substances were positive for cocaine and heroin.

       The officers found a Honda Accord in the garage of the home. The car had been

dismantled and, in Russell’s opinion, “stripped.” A check on the vehicle identification number

(VIN) confirmed that the vehicle had been reported stolen from an address “less than half-a-mile

from” appellant’s home. Further, a form found during the search of appellant’s home linked

appellant to yet another vehicle reported stolen. The form had been signed “Dimitri Baines” and

indicated the person “signing the form did . . . have legal right to have the vehicle and have it

crushed or destroyed.”

       On cross-examination, Russell admitted that he could not see the intruder’s face on the

surveillance video from R.S. Express. Russell also admitted that he had no “personal knowledge

of the fact that [appellant] stays” at the residence that was searched by police. Russell only knew

that the woman who answered the door “identified herself as Baines’ mother,” that she rented the

house, and that she showed the detective and the officers to “a room that she said was her son’s,

Dimitri.”

       Russell also testified about two additional burglaries that occurred in mid-August 2011

during a major power outage in the City of Richmond. The businesses in question “suffered

burglaries . . . where glass had been kicked in and lottery tickets taken.” At the end of that same

month, two females were apprehended by police when they attempted to redeem stolen lottery

tickets. The two women were identified as appellant’s mother and sister. When police

interviewed the two women, the mother stated that she had gotten the tickets that morning from

her son, Dimitri Baines. Russell watched a video of the interview, but stated that he did not

know its exact date. He admitted that he did not take detailed notes and had no personal

recollection of “the words that [appellant’s] mother used.” Russell also testified that he had

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conferred with an investigator at the Virginia Lottery Commission who confirmed that the tickets

used by the two women matched the serial numbers on two of the tickets stolen in the August

burglaries. Russell stated that he did not have the serial numbers with him and that he had no

basis of knowledge about the connection between the lottery tickets redeemed by the women and

the stolen lottery tickets.

        Appellant objected to (1) Russell’s testimony concerning the Virginia Lottery

Commission investigator’s statements about the connection between the stolen lottery tickets and

the tickets redeemed by appellant’s mother and sister and (2) Russell’s testimony concerning any

information based on the interrogation of appellant’s mother as inadmissible hearsay violating

his right to confrontation. The trial court overruled appellant’s objections and allowed the

testimony.

        The Commonwealth argued that appellant should be found in violation of his probation,

citing two new charges in Henrico County, the car thefts, the August and November 2011

burglaries, and the evidence of drug use. The trial court stated that it was troubled by appellant’s

pattern of crime and that there was no indication that the pattern would stop. The trial court

stated that the “evidence [was] overwhelming although circumstantial but still overwhelming” as

to appellant’s failure to keep the peace and be of good behavior. The trial court revoked

appellant’s probation, and he was sentenced to an active sentence of five years and nine months

on the grand larceny charge, and seven years and nine months on the burglary charge.

        On appeal, appellant contends that Officer Russell’s testimony pertaining to the

burglaries in which appellant was a suspect should not have been admitted into evidence.

Appellant first argues that since the testimony consisted almost entirely of hearsay, it violated

appellant’s right of confrontation pursuant to the Sixth Amendment. Second, appellant contends

that even if the testimony did not violate his right of confrontation, it should not have been

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admitted because it did not rise to the level of reliability prescribed under Henderson v.

Commonwealth, 59 Va. App. 641, 722 S.E.2d 275 (2012) (en banc), aff’d, 285 Va. 318, 736

S.E.2d 901 (2013). Assuming without deciding that the challenged hearsay testimony was

erroneously admitted, the error was clearly harmless beyond a reasonable doubt.

       “When a federal constitutional error is involved, a reviewing court must reverse the

judgment unless it determines that the error is harmless beyond a reasonable doubt.” Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). In making that determination,

an appellate court must consider, among other factors, “the importance of the tainted evidence in

the prosecution’s case, whether that evidence was cumulative, the presence or absence of

evidence corroborating or contradicting the tainted evidence on material points, and the overall

strength of the prosecution’s case.” Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208,

209 (1999) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). See also Dearing v.

Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000); Pitt v. Commonwealth, 260 Va.

692, 695, 539 S.E.2d 77, 78 (2000), cert. denied, 532 U.S. 978 (2001).

       As the Supreme Court stated in Van Arsdall, “an otherwise valid conviction should not

be set aside if the reviewing court may confidently say, on the whole record, that the

constitutional error was harmless beyond a reasonable doubt.” 475 U.S. at 681. See Jenkins v.

Commonwealth, 244 Va. 445, 454, 423 S.E.2d 360, 366 (1992) (concluding that the admission

of a defendant’s confession was harmless error based on the Commonwealth’s presentation of

overwhelming evidence of guilt, which consisted of other confessions to close friends, fellow jail

inmates, and investigators). It is well established that violations of the Confrontation Clause are

subject to harmless error review. See Crawford v. Washington, 541 U.S. 36, 76 (2004)

(Rehnquist, C.J., concurring in the judgment).




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         Here, appellant acknowledges two misdemeanor offenses from Henrico County which

demonstrate that he failed to be of good behavior, as required by the terms of his probation.

Furthermore, Officer Longoria testified that in connection with investigating the November

burglary, the officers recovered from appellant’s bedroom a duffle bag containing two plastic

baggies containing “numerous off-white rock substances.” The rock substances tested positive

for cocaine and heroin. In the garage of the home, the officers found a “stripped” Honda Accord

which had been reported stolen from an address “less than half-a-mile from” appellant’s

residence. Additionally, a form found during the search of appellant’s home linked appellant to

yet another stolen vehicle. The form had been signed “Dimitri Baines” and indicated the person

“signing the form did . . . have legal right to have the vehicle and have it crushed or destroyed.”

The car had been reported stolen in early June 2011.

         Undoubtedly, the evidence as a whole, excluding the challenged hearsay statements,

overwhelmingly proved that appellant was in violation of the terms of his probation.

Accordingly, we hold that even if the admission of the statements compromised appellant’s right

of confrontation, the error, in the circumstances of this case, was harmless beyond a reasonable

doubt.

                                                                                          Affirmed.




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