COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

FLOYD MILES 

 MEMORANDUM OPINION* BY 

v. Record No. 0692-00-4 JUDGE LARRY G. ELDER 

 APRIL 10, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 S. Jane Chittom, Appellate Defender (Public 

Defender Commission, on brief), for 

appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Floyd Miles (appellant) appeals from his jury trial 

convictions for breaking and entering, rape, forcible sodomy and 

animate object penetration. On appeal, he contends the trial 

court erroneously (1) refused to admit evidence from unrelated 

cases of an alleged pattern by the Commonwealth of failing to 

comply with discovery orders in order to cause a mistrial; (2) 

admitted the expert testimony of a sexual assault nurse that the 

victim's injuries were inconsistent with consensual intercourse; 

and (3) refused to give appellant's proffered jury instruction 
on the abolition of parole, even after the jury inquired 

specifically about the computation of appellant's sentence. We 

hold the trial court's error, if any, in excluding evidence of 

alleged discovery violations in other cases does not provide a 

basis for reversal because appellant has established no 

prejudice. We also hold that the testimony that the victim's 

injuries were inconsistent with consensual intercourse did not 

constitute impermissible testimony on the ultimate issue. We 

conclude, however, as the Commonwealth concedes, that the court 

erroneously refused to instruct the jury on the abolition of 

parole. Therefore, we affirm appellant's convictions but remand 

for resentencing in compliance with Fishback v. Commonwealth, 

260 Va. 104, 532 S.E.2d 629 (2000). 

I. 

A. 

EVIDENCE OF ALLEGED DISCOVERY VIOLATIONS IN OTHER CASES 

 "Evidence is admissible if it is both relevant and 

material." Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 

361 S.E.2d 436, 441 (1987). "Evidence is material if it relates 

to a matter properly at issue" and "'relevant if it tends to 

establish the proposition for which it is offered.'" Id.

(quoting Charles E. Friend, The Law of Evidence in Virginia

§ 134 (2d ed. 1983)). "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 

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discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 

S.E.2d 838, 842 (1988). 

 When the Commonwealth fails "to adequately and fully 

provide discovery . . . under Rule 3A:11, . . . the court may

order the Commonwealth to permit the discovery or inspection, 

grant a continuance, or prohibit the Commonwealth from 

introducing the evidence not disclosed, or the court may enter 

such other order as it deems just under the circumstances." 

Code § 19.2-265.4 (emphasis added). 

[W]hen it appears to a trial court that a 

party has deliberately attempted to 

introduce evidence which it knows is 

improper or inadmissible, either because it 

was not disclosed during discovery or 

because it otherwise is inadmissible under 

rules of evidence, it is the duty and 

responsibility of the court to deter such 

inappropriate tactics by taking such action, 

imposing such sanctions, or granting such 

relief as it deems appropriate. 

Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d 39, 41 

(1986). However, when an accused alleging a discovery violation 

"shows no prejudice, he can claim no [reversible] error." 

Hughes v. Commonwealth, 18 Va. App. 510, 529, 446 S.E.2d 451, 

463 (1994) (en banc) (citing Davis v. Commonwealth, 230 Va. 201, 

205, 335 S.E.2d 375, 378 (1985)). Thus, a defendant who alleges 

the remedy fashioned for any discovery violation is insufficient 

also must show prejudice in order to claim entitlement to 

relief. 

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 Here, we assume without deciding that evidence of the 

Commonwealth's alleged discovery violations in unrelated cases 

was relevant to the trial court's determination of the 

appropriate sanction, if any, to be imposed for the challenged 

discovery violation in this case--the Commonwealth's failure 

timely to provide appellant with a copy of the letter revealing 

the results of the herpes test performed on appellant's blood.1 

We also assume without deciding that the trial court abused its 

discretion in failing to consider that evidence. However, even 

assuming error in the exclusion of such evidence, the record 

fails to reveal any prejudice to appellant as a result, and 

thus, any such error does not require reversal. 

 The record shows the trial court granted appellant's 

request for a mistrial because it believed the late disclosure 

of the herpes blood test results could not be remedied in any 

other fashion once the jury became aware of the existence of a 

second vial of blood. In response to appellant's first motion 

to dismiss, which was based on an alleged double jeopardy 

violation, the court noted the herpes test results were not 

exculpatory and fashioned a remedy less drastic than dismissal 

 1

 Although appellant's second motion to dismiss alleged 

numerous other discovery violations in this case, the issue 

presented to us by appellant and on which we granted this appeal 

relates only to "the conduct that caused a mistrial in this 

case." The conduct which caused the mistrial was the 

Commonwealth's questioning of Investigator Grigsby about the 

second vial of blood after failing to disclose the herpes test 

results during discovery. 

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of the indictment: It precluded the Commonwealth from offering 

into evidence the results of the late-disclosed herpes test or 

any new test. In ruling on appellant's second motion to 

dismiss, which was based on numerous alleged discovery 

violations, the court noted likely violations in the form of the 

Commonwealth's unexplained delay in producing certain "Brady

materials," but even as to those likely violations, the court 

concluded appellant had "ample time" to make use of them and 

that it was inappropriate "to sanction [the Commonwealth] by 

having a potential criminal go free." The only claim of 

prejudice appellant made in association with the discovery 

violation which necessitated the mistrial was that it extended 

the length of his pretrial incarceration. However, he did not 

assert a speedy trial claim, and he made no allegation that the 

late disclosure of the herpes test and resulting mistrial 

rendered unfair the trial in which he ultimately was convicted. 

The record demonstrates, therefore, that the trial court 

fashioned a remedy for the challenged discovery violation, 

non-disclosure of the inculpatory herpes test results, which 

preserved appellant's right to a fair trial and that, even as to 

late-produced exculpatory evidence, the trial court thought the 

remedy of dismissal too extreme. Thus, because appellant failed 

to show any prejudice from the late disclosure of the herpes 

test results, we affirm the trial court's denial of his motion 

to dismiss the indictment. 

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B. 

TESTIMONY OF SEXUAL ASSAULT NURSE EXAMINER 

 Appellant contends the testimony of Nurse Suzanne Brown 

that the victim's injuries were inconsistent with consensual 

intercourse constituted improper testimony on an ultimate issue. 

For the reasons set forth in Hussen v. Commonwealth, 257 Va. 93, 

511 S.E.2d 106 (1999), and Velazquez v. Commonwealth, ___ Va. 

App. ___, ___ S.E.2d ___ (2001), we disagree. 

 As we held in Velazquez, relying on Hussen, the statement 

that an alleged rape victim's injuries are "'inconsistent with 

consensual intercourse' . . . is 'not a comment on one of the 

ultimate issues of fact to be determined by the jury, that is, 

whether the defendant's conduct was against the victim's will." 

Velazquez, ___ Va. App. at ___, ___ S.E.2d at ___ (quoting 

Hussen, 257 Va. at 99, 511 S.E.2d at 109). Here, as in both 

Velazquez and Hussen, the expert witness' testimony "dealt 

[only] with consistencies and inconsistencies. [The expert] did 

not testify that, in her opinion, [the defendant] engaged in 

sexual intercourse with [the victim] against [the victim's] 

will, the ultimate issue in the case." Velazquez, ___ Va. App. 

at ___, ___ S.E.2d at ___. Thus, the trial court did not err in 

admitting the testimony. 

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C. 

PAROLE INSTRUCTION 

 Appellant contends he is entitled to resentencing on all 

offenses because the trial court erroneously refused to instruct 

the jury on the abolition of parole in violation of the holding 

subsequently rendered in Fishback, 260 Va. 104, 532 S.E.2d 629. 

The Commonwealth concedes that Fishback entitles appellant to a 

remand for resentencing, and we agree. 

 Here, as in Fishback, appellant proffered an instruction on 

parole, which the trial court refused to give. See id. at 109, 

532 S.E.2d at 630. The court then failed to answer the jury's 

specific question about the method of computing appellant's 

sentence. See id. at 109-10, 532 S.E.2d at 630-31. Because 

appellant committed the charged offenses on or after January 1, 

1995, and because his case was not yet final when Fishback was 

decided, he is entitled to a new sentencing hearing before a new 

jury. See id. at 115-17, 532 S.E.2d at 634-35. 

II. 

 For these reasons, we hold that any error resulting from 

the trial court's refusal to admit evidence of other alleged 

discovery violations by the Commonwealth did not constitute 

reversible error because appellant has not proved prejudice. We 

also hold that the court's admission of testimony that the 

victim's injuries were inconsistent with consensual intercourse 

did not constitute impermissible testimony on an ultimate issue 

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of fact. However, we conclude that the trial court committed 

reversible error in refusing to instruct the jury on the 

abolition of parole and its impact on appellant's sentence. 

Therefore, we affirm appellant's underlying convictions but 

remand for resentencing. 

 Affirmed on the merits 

and reversed and remanded

 for resentencing.

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