COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Alexandria, Virginia 

OLEN A. LEBBY 

v. Record No. 0617-94-4 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA AUGUST 22, 1995 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Crystal A. Meleen, Assistant Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General (James S. 

Gilmore, III, Attorney General, on brief), for appellee. 

 Olen A. Lebby (appellant) was convicted in a jury trial of 

possession of a firearm after having been convicted of a felony 

in violation of Code § 18.2-308.2(A). On appeal, he argues that 

the trial court erred in: (1) admitting into evidence the 

identity of the victim of his prior felony as a Washington, D.C. 

police officer, and (2) finding that the evidence was sufficient 

to establish his prior felony conviction.1

 For the reasons that 

follow, we reverse the conviction and remand the case for 

retrial. 

 On October 21, 1993, Officer William Haire (Haire) of the 

Fairfax County Police Department received information that a 

 

 *

Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 

 1Appellant raises several other issues, including whether 

the evidence was sufficient: (1) to establish that the gun found 

in the jacket was a firearm under Code § 18.2-308.2, and (2) to 

show that appellant possessed the gun. We hold that the evidence 

was sufficient to prove that appellant possessed a firearm. 
 2 

suspect had brandished a handgun. A radio transmission described 

the suspect and his car, and stated that he was travelling to the 

Alexandria Motel. Haire went to the motel and saw the suspect 

vehicle arrive twelve to fifteen minutes later. Haire searched 

the vehicle and found a brown leather jacket between the front 

bucket seats. He felt a hard object inside the jacket and pulled 

out a loaded 9 mm. Beretta handgun. 

 Haire advised appellant of his rights and told him that he 

was charging him with possession of a firearm after being 

convicted as a felon. Haire said: "I have reason to believe 

that you were charged and convicted in the homicide death of a 

[Washington,] D.C. police officer . . . ." Appellant responded: 

 "Yeah, I killed a D.C. cop." Before trial, appellant made a 

motion in limine to exclude the murder victim's employment as a 

D.C. police officer because of its highly prejudicial nature and 

lack of relevance to any issue at trial. The Commonwealth 

asserted that appellant's statement was necessary to show "that 

the person listed on the indictment in the District of Columbia 

. . . was in fact this person," even though nothing on the 

indictment indicated that the victim was a police officer. The 

trial judge refused to exclude the statement or redact it to 

delete the victim's occupation as a police officer. 

 At trial, the Commonwealth's attorney did not limit the use 

of the statements and emphasized the murder victim's identity as 

a District of Columbia police officer in opening argument: 

 [Haire told appellant that] [y]ou're being 
 3 

arrested because it's my impression that you 

shot and killed, in nineteen-seventy-five, a 

District of Columbia police officer. And the 

defendant's response was yes, I shot and 

killed a cop. 

Similarly, the Commonwealth's attorney argued in closing: 

 April second, nineteen-seventy-five, the 

Grand Jury of the District of Columbia 

charged this defendant with malice 

aforethought for shooting Vernon Johnson, a 

District of Columbia police officer, with a 

pistol, thereby causing injuries from which 

the said Vernon Johnson died on or about 

April second, nineteen-seventy-five. 

 It doesn't say he was a District of 

Columbia police officer in the Grand Jury 

indictment, defendant admitted that to 

Officer Haire. 

 At the in limine hearing, appellant also objected to 

Commonwealth's Exhibit 1, documentary evidence including two 

pages: (1) the second-degree murder indictment, listing the 

murder victim as "Vernon Johnson" and designating the count as 

"B," and (2) a form indicating a guilty judgment for count "B." 

Appellant argued that the two pages were not an adequate record 

of conviction. However, the trial judge allowed the use of these 

documents and stated: "I find that the document as presented is 

a record of conviction according to them. And I think that is 

sufficient at this point." Appellant was found guilty and 

sentenced to the maximum penalty of five years in the 

penitentiary. 

ADMISSIBILITY OF MURDER VICTIM'S IDENTITY

 Appellant argues that the trial court erred in admitting 
 4 

into evidence his response to Haire's question that he had killed 

a District of Columbia police officer. He contends that the 

admission of the murder victim's identity as a police officer was 

highly prejudicial and had little, if any, probative value. 

 "As a general rule, proof of other crimes is incompetent and 

inadmissible to show commission of the crime charged." Tuggle v. 

Commonwealth, 228 Va. 493, 506, 323 S.E.2d 539, 547 (1984), 

vacated and remanded on other grounds, 471 U.S. 1096 (1985). 

"[E]vidence of other crimes may be admissible if introduced to 

prove an element of the offense charged, or to prove any number 

of relevant facts, such as motive, intent, agency, or knowledge." 

Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229, 

234 (emphasis added), aff'd on reh'g, 17 Va. App. 248, 436 S.E.2d 

193 (1993) (en banc). "Even if the other crime falls within an 

exception to the general rule, it only is admissible '[w]henever 

the legitimate probative value outweighs the incidental prejudice 

to the accused.'" Tuggle, 228 Va. at 506, 323 S.E.2d at 547 

(quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 

893 (1983)). 

 We hold that the trial court properly admitted the fact that 

appellant's prior felony was murder. See Essex v. Commonwealth, 

18 Va. App. 168, 171-72, 442 S.E.2d 707, 709-10 (1994). To prove 

that appellant violated Code § 18.2-308.2(A), the Commonwealth 

had to show that appellant had been convicted of a felony and 

possessed a firearm. However, the trial court erred in allowing 
 5 

into evidence the identity of the murder victim as a District of 

Columbia police officer. The issue at trial was not who was the 

victim of the prior felony, but rather only whether appellant had 

committed a felony. 

 We recognize that "the admissibility of evidence is within 

the broad discretion of the trial court." Blain v. Commonwealth, 

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, the 

statements as submitted had minimal probative value and were 

highly prejudicial in that the natural inference to be drawn was 

that appellant had killed a police officer in the line of duty, 

which was not the case. Furthermore, the statements did not 

provide a necessary link between the indictment and appellant 

because the indictment did not indicate that Vernon Johnson was a 

police officer. Additionally, the jury could have inferred that 

it was the same Olen Lebby in the indictment and on trial without 

the statements being introduced into evidence. At the in limine

hearing, the Commonwealth proffered to the court that use of the 

statement would establish that appellant was the same Olen Lebby 

listed in the District of Columbia murder indictment and would be 

used for that limited purpose. However, in both opening and 

closing arguments, the statements were used to highlight the 

murder victim's identity as a police officer. The trial court 

erred in admitting the statements of Haire and appellant without 

attempting to redact the portions identifying the murder victim 

as a District of Columbia police officer. 
 6 

 "Where the 'objectionable portion of the statement [could] 

easily be separated from the remainder of the admission without 

adverse effect,' it is error for the trial court not to do so, 

and if the prejudice caused by admitting the evidence outweighs 

its probative value, the error will be reversible." Ascher v. 

Commonwealth, 12 Va. App. 1105, 1119, 408 S.E.2d 906, 915 (1991) 

(quoting Pierce v. Commonwealth, 2 Va. App. 383, 391, 345 S.E.2d 

1, 5 (1986)), cert. denied, 113 S. Ct. 190 (1992). "Error will 

be presumed prejudicial unless it plainly appears that it could 

not have affected the result." Bruce v. Commonwealth, 9 Va. App. 

298, 301, 387 S.E.2d 279, 280 (1990) (quoting Joyner v. 

Commonwealth, 192 Va. 471, 477, 65 S.E.2d 555, 558 (1951)). As 

in Bruce, appellant received the maximum sentence of five years 

in the penitentiary. Thus, we are unable to hold that the 

admission of the murder victim's identity did not affect the 

penalty. 

 SUFFICIENCY OF THE EVIDENCE

 Appellant also argues that the trial court erred in finding 

the demonstrative record of conviction adequate. "When 

sufficiency of the evidence is at issue on appeal, the evidence 

must be viewed in the light most favorable to the Commonwealth, 

and the evidence must be accorded all reasonable inferences 

deducible therefrom." Pugliese v. Commonwealth, 16 Va. App. 82, 

92, 428 S.E.2d 16, 24 (1993) (citing Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). 
 7 

Viewed in the light most favorable to the Commonwealth, the 

record in this case, including the possible use of appellant's 

redacted statement, was sufficient to show a murder conviction. 

We do not decide whether the evidence without the exchange 

between Haire and appellant would be sufficient to show a prior 

conviction because we do not know whether any portions of the 

statements will be admitted at the new trial. 

 Accordingly, the decision of the trial court is reversed and 

the case remanded for a new trial if the Commonwealth be so 

advised. 

 Reversed and remanded.