COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Lemons and Frank Argued at Norf olk, Virginia

MALCOLM LARICE WILLIAMS MEMORANDUM OPINION * BY v. Record No. 1928-98-1 JUDGE ROBERT P. FRANK FEBRUARY 29, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT CO URT OF THE CITY OF VIRGINIA BEACH Thomas S. Sh adrick, Judge Andrew G. Wiggin (E dward W. Webb, Assistant Public Defender, on brief), for appellant. Virginia B. Theise n, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Malcolm Larice Willia ms (appellant) appeals his co nviction of unlawful wounding. On appeal, he contends th at the tria l court: 1) abused its discreti on in refusing to ad mit opinion testimony from an expert witnes s for the defens e, 2) erred in refusing to allow cross-exam ination of a witness for the Comm onwealth regarding an incident that occurred after the offense, and 3) erred in refusing to allow testim ony from a witness for the defense regard ing the incide nt that occurred af ter the of fense. We disagree and affi rm the conviction.I. BACKGROUND Appellant and Ca nute Brown (victim) foug ht at a party on the evening of August 17, 1997. The fight, whic h occurred outside, was broken up an d the two men sepa rated. Appellan t went into a house while the victim prepared to le ave the part y. Then, appellant came out of the house carryi ng a knife. He approached the victim and the two men fought again. Before the fight was broken up, appellant cut the victim on th e shoulder with the knife. The vict im got into his car to leave, and appellant shattered the driv er's side window of the vehicle. Particles of glass fell onto the victim. Before the police arrived, appe llant fled the sc ene. Officer Hendricks of the Virgin ia Beach Police Depart ment testified that when he arrived at the party the victim had a lace ration on his left shoulder that was five or six inch es in length. The paramedics arrived sh ortly after th e police. Jasen White, a volunteer with the Virg inia Beach Rescue Squa d, treated the victim at the scene. He te stified that the victim did not answer when asked if he had be en stabbed. He reported the victim's injury as an abrasion that was six to eight inches in length with minor bleeding. The trial co urt permitted Wh ite to testify as to his concept of an abra sion. White desc ribed an abrasion as similar to the wound a person receives when he or she falls and scrapes his or her knee.

- 2 -On September 30, 1997 , Officer Montei ro of the Vi rginia Beach Police Department ques tioned appellant about the incident at the party. Office r Monteiro read appellant his Miranda rights, and appellant agreed to talk with th e officer. Init ially, appellant only admitted to figh ting with the victim and shattering the car window. He deni ed having a knife and cu tting the vict im. After further questi oning, appellant admitted to getting a knife but denied using it. A second incident be tween appellant and the victim occurred a few days after the pa rty. At trial, co unsel for appellant attempted to cross-ex amine a witness for the Common wealth about the second incident. The Commonwealth objected on the ground of relevance. Co unsel for appell ant argued that the witness' testimony would go to state of mi nd and motive to fabricate. The trial judge sustai ned the objectio n. Counsel fo r appellant did not make a proffer of the witness' testimony. Later, counsel for appellant atte mpted to recall a defense witness to testify about the second incident. The Commonweal th objected. Counsel for appellant prof fered the witness' testimony, but the trial judge sustained the obje ction on the basis that the testimon y would be prejudicial to the Commonwealth because the Co mmonwealth's witnesses had be en released and there was no opportunity for rebuttal. The jury convicted ap pellant of unlawful wounding, an d he was sentenced to serve five years in the state peni tentiary.

- 3 -II. ANALYSIS Appellant conten ds on appeal th at the trial cour t: 1) abused its discretion in refusing to ad mit opinion test imony from an expert witness for the defense, 2) er red in refusing to permit cross-examinat ion of a witness for the Co mmonwealth regarding an incident that occu rred after the of fense, and 3) er red in refusing to permit testimony fr om a witness for the defense rega rding the incident that occu rred after the of fense. We disa gree and affirm the conviction. "The admissibilit y of evidence lies within the sound discretion of the trial court. A trial cour t's evidentiary rulings will not be di sturbed on appeal unle ss a clear abuse of discretion is shown." Mack v. Co mmonwealth , 20 Va. App. 5, 7, 454 S.E.2d 750, 751 (1986) (citing Coe v. Commonwealth , 231 Va. 83, 88, 340 S.E.2d 820, 823 (1986)). The admission of expert testimony is committed to the soun d discretion of the trial judge, and we will reverse a trial court's decision only where that court has abused its discretion. Nonetheless, expert testimony is inadmissib le on any subject on which the ordina ry lay person of average intelligence is equally capabl e of reaching his or her own conclusion. Brown v. Corbin , 244 Va. 528, 53 1, 423 S.E.2d 17 6, 178 (1992) (citation om itted). Prior to trial, th e trial court ru led that Jasen White, the volunteer for the Virginia Beach Rescue Sq uad, could not testify as an expert witness th at the victim's wound was inconsis tent with

- 4 -a knife wound be cause he was not qualif ied to give opinion testimony. The trial judge, howe ver, permitted Wh ite to describe the wound as an abrasion. We hold that the tr ial court did no t err in excl uding White's opinion testimon y. We find, base d on the detailed description of the wound, that expert testimony was unne cessary in th is case. "[T]he ordinary la y person of averag e intelligence," id. , based on the description of the wound, could have determined whether the injury was inflicted by a knife. Th erefore, such determination was within the prov ince of the jury. Appellant conten ds that the tria l court erred in refusing to permit him to cross-ex amine one of the Comm onwealth's witnesses regarding an incident that occurred several da ys after th e party. At trial, however, appellant did not proffer th e witness' testimony when the trial cour t sustained th e objection. "When an objection is sustained and evidence is rejected, it is incumbent upon the proponent of the evidence to make a proffer of the expected answer; otherwise, the appellate court has no means of determining if the evidence is material or otherwise admissible." Speller v. Commonwealth , 2 Va. App. 437, 440, 345 S.E.2d 542, 545 (1986) (citing Blue Cross v. Commonwealth , 221 Va. 349, 357, 269 S.E.2d 827, 832 (1980)). We find that appellant's appeal of this issue is procedurally barred because he did not proffer the testimony of

- 5 -the witness at the time the trial court sustained the objection to the evidence. Appellant challenges the trial court's refusal to permit him to recall a defense witness to testify about the incident that occurred several days after the victim was injured at the party. "A trial court exercises discretion in deciding whether to permit the recall of witnesses for further examination." Avocet Development Corp. v. McLean , 234 Va. 658, 669, 364 S.E.2d 757, 764 (1988) (citation omitted). The trial court refused to permit appellant to recall the witness because the Commonwealth had released its witnesses for rebuttal based on an earlier ruling by the trial court. The trial court ruled that permitting recall of the witness would be prejudicial to the Commonwealth. The Commonwealth released its witnesses before the defense rested and did so at its own peril. However, appellant had the opportunity to question the witness about the incident during direct examination. Therefore, we find no abuse of discretion by the trial court. For these reasons, we affirm appellant's conviction. Affirmed.

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