COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Bray 

Argued at Salem, Virginia 

DARRELL W. WILLIS 

 MEMORANDUM OPINION* BY 

v. Record No. 0171-96-3 JUDGE LARRY G. ELDER 

 FEBRUARY 4, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 C. Lynn Lawson (Humes J. Franklin, Jr.; 

Franklin, Franklin, Denney & Ward, P.L.C., on 

briefs), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Eugene P. Murphy, Assistant Attorney 

General, on brief), for appellee. 

 Darrell W. Willis (appellant) appeals his convictions of 

breaking and entering, sodomy, and animate object sexual 

penetration. Code §§ 18.2-89, -67.1, -67.2. For the reasons 

that follow, we affirm. 

 I. 

 FACTS 

 Around midnight on September 14, 1993, a man broke into the 

trailer of the victim through a bedroom window and attacked her 

in her bed. He placed his finger inside the victim's vagina and 

forced her to commit oral sodomy on him before the victim was 

able to escape. The victim immediately reported the attack to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the police. She subsequently informed them that although she did 

not see her assailant's face, she did observe that his penis was 

"huge" and that a "bump or a sore" protruded from it. 

 Thirteen months later, in October, 1994, Lieutenant Mader of 

the Augusta County police submitted an affidavit for a search 

warrant to examine appellant's penis "to determine if [it] is 

large and has a bump or a sore on it." The magistrate issued the 

search warrant and a physician examined appellant's penis. 

 Following the examination, appellant was arrested and 

charged with breaking and entering, sodomy, and animate object 

sexual penetration. Prior to his trial, the trial court denied 

appellant's motion to suppress the evidence obtained during the 

examination of his penis, which included photographs and the 

testimony of the examining physician. 

 At his trial, appellant sought to impeach the credibility of 

a witness for the Commonwealth, Mr. Stinnett, by introducing an 

employment record that stated that he was fired due to his "lack 

of attention to detail." The Commonwealth filed a motion in 

limine to exclude this evidence, and the trial court sustained 

the Commonwealth's motion. 

 Near the end of the trial, appellant testified on his own 

behalf. Appellant's prior criminal record includes convictions 

of petit larceny and misdemeanor sexual battery. During 

cross-examination, the Commonwealth's attorney attempted to 

impeach appellant's credibility by proving that he had a prior 
 -3- 

conviction of a misdemeanor involving moral turpitude. The 

following exchange took place: 

 Q. Prior to this, have you ever been 

convicted of any crimes involving 

moral turpitude? 

 A. What does that mean? What does 

"moral turpitude" mean? 

 Q. Have you ever been convicted of any 

crime . . . like lying or cheating, 

or stealing or sexually assaulting 

anybody? 

Appellant's counsel immediately objected and, out of the presence 

of the jury, moved for a mistrial. The trial court denied 

appellant's motion, ruling that sexual battery was a crime 

involving moral turpitude and that the Commonwealth's attorney's 

question was proper. After the jury returned, appellant answered 

that he had been convicted of a crime involving moral turpitude. 

 At the conclusion of the evidence, appellant requested a 

jury instruction regarding his alibi defense. Over appellant's 

objection, the trial court refused to give the instruction. 

However, the trial court did instruct the jury regarding the 

presumption of innocence and the standard of reasonable doubt. 

 II. 

PROBABLE CAUSE TO ISSUE WARRANT 

 Appellant contends that the trial court erred when it denied 

his motion to suppress the evidence obtained from the examination 

of his penis. He argues that the magistrate who issued the 

search warrant ordering the examination did not have probable 
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cause to believe that his penis would match the description given 

by the victim of her assailant's penis. We disagree. 

 When issuing a search warrant, "'the task of the issuing 

magistrate is simply to make a practical, common-sense decision 

whether, given all the circumstances set forth in the affidavit 

before him . . . there is a fair probability that . . . evidence 

of a crime will be found in a particular place.'" Lanier v. 

Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990) 

(quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 

2332, 76 L.E.2d 527 (1983)). Although the magistrate must base 

his conclusion of probable cause upon objective facts contained 

in the affidavit and reasonable inferences therefrom, the 

magistrate "need only conclude that it would be reasonable to 

seek the evidence in the place indicated in the affidavit." 

Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 903 

(1993) (citations omitted). "Upon review, a search warrant will 

be upheld if the evidence, viewed as a whole, provided the 

magistrate a 'substantial basis' for concluding that probable 

cause existed to issue the warrant." Id. 

 We hold that the magistrate could conclude from the facts 

contained in the affidavit that it was reasonable to examine 

appellant's penis for evidence of the crime committed against the 

victim. The affidavit indicated that the victim had observed 

that the penis of her assailant was large and contained a bump or 

sore. It also stated that a cigarette butt found outside the 
 -5- 

window that served as the point-of-entry of the assailant 

contained DNA that matched appellant's. In addition, the 

statements of appellant and Mr. Stinnett placed appellant near 

the victim's neighborhood around the time of the attack, and 

appellant had been convicted of sexually battering another woman 

in the area nine months earlier. These facts contained in the 

affidavit provided a substantial basis for the magistrate to 

conclude that it would be reasonable to search appellant's penis 

to see if it matched the description offered by the victim. 

 Appellant argues that even if the magistrate had probable 

cause to issue the search warrant during the weeks following the 

attack, the victim's observations of her assailant's penis were 

too stale to justify the examination of his penis thirteen months 

later. We disagree. 

 Although probable cause must be based on facts reasonably 

related in time to the date of the issuance of the warrant, 

"circumstances occurring substantially before the issuance of a 

search warrant can justify [its] issuance . . . if such past 

circumstances disclose a 'probable cause' of a continuous nature 

so as to support a rational conclusion that the past probable 

cause is still operative at the time of [issuance]." Pierceall 

v. Commonwealth, 218 Va. 1016, 1021, 243 S.E.2d 222, 225 (1978), 

cert. denied, 439 U.S. 1067, 99 S. Ct. 833, 59 L.E.2d 32 (1979). 

 When the crime under investigation is not a continuing offense 

and the desire of law-enforcement authorities is to search for 
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the fruits, instrumentalities, or evidence of the prior crime, a 

significant factor in evaluating the staleness of the affidavit 

is the nature of the evidence sought. See Wayne R. Lafave, 

Search and Seizure § 3.7(a) (3d. ed. 1996). 

 We hold that the information provided by the victim in 

September, 1993 still justified the examination of appellant's 

penis in October, 1994. In filing the affidavit, Lt. Mader 

sought evidence that appellant's penis matched the description 

given by the victim of her assailant's penis. Specifically, Lt. 

Mader sought to determine if appellant's penis was large and if 

it exhibited a bump or a sore. Given the nature of the evidence 

sought, it was reasonable for the magistrate to conclude that an 

examination of appellant's penis would still reveal that it was 

large, even though the victim's observations were thirteen months 

old. In addition, while genital sores are known to have an 

ephemeral nature, a "bump" has a more permanent quality. Thus, 

based on the facts contained in the affidavit, it was reasonable 

for the magistrate to conclude that a bump noticed by the victim 

on the night of her attack would still exist in October, 1994. 

 III. 

ADMISSIBILITY OF WITNESS' EMPLOYMENT HISTORY 

 Appellant contends that the trial court committed reversible 

error when it refused to admit the evidence of Mr. Stinnett's 

employment history for the purpose of impeaching Mr. Stinnett's 

credibility. We disagree. 
 -7- 

 "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 discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988) 

(citation omitted). "Evidence is admissible if it is both 

relevant and material. '[E]vidence is relevant if it tends to 

establish the proposition for which it is offered.' Evidence is 

material if it relates to a matter properly at issue." EvansSmith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 

(1987) (citation omitted). In addition, evidence may be admitted 

only if "its probative value outweighs policy considerations." 

Blain, 7 Va. App. at 17, 371 S.E.2d at 842. "Any evidence which 

would tend to convince the jury that the witness's perception, 

memory, or narration is defective or that his or her veracity is 

questionable is relevant for the purposes of impeachment." 

Charles E. Friend, The Law of Evidence in Virginia § 4-1 (1993). 

 We hold that the trial court did not abuse its discretion 

when it ruled that the evidence of Mr. Stinnett's employment 

history was not relevant to his credibility as a witness. 

Although the issue of Mr. Stinnett's credibility was a material 

issue at appellant's trial, the evidence proffered by appellant's 

attorney was not probative of Mr. Stinnett's ability to perceive, 

remember or narrate past events. Appellant's counsel proffered 

that the employment record stated that Mr. Stinnett was fired 

from a job not more than four years before the trial "as a result 
 -8- 

of [his] lack of attention to detail." However, the proffer 

included only sparse information regarding the nature of Mr. 

Stinnett's responsibilities during his employment and the 

circumstances that led to his termination. Although the 

proffered evidence tends to prove that Mr. Stinnett was 

previously not a successful employee, the vague, declaratory 

statement by Mr. Stinnett's former employer that he was fired 

because of his inattention to detail, without more of a link, 

does not tend to prove the fact at issue: whether Mr. Stinnett's 

perception, memory or narration is defective. 

 IV. 

IMPEACHMENT OF APPELLANT 

 Appellant contends that the trial court erred when it denied 

his motion for a mistrial after the Commonwealth's attorney 

attempted to impeach appellant's credibility by proving a prior 

conviction of a misdemeanor involving moral turpitude. Appellant 

argues that reversible error was committed when the 

Commonwealth's attorney asked him if he had a prior conviction 

for a crime involving moral turpitude and then defined such 

crimes to include sexual battery. He asserts that the trial 

court committed reversible error when it ruled that sexual 

battery was a crime of moral turpitude, denied his motion for a 

mistrial, and ordered him to answer the Commonwealth's attorney's 

question. We disagree. 

 A denial of a motion for a mistrial following either the 
 -9- 

production of inadmissible evidence or an improper statement by 

counsel is not reversible error "unless there is a manifest 

probability that the evidence or statement was prejudicial to the 

adverse party." Coffey v. Commonwealth, 188 Va. 629, 636, 51 

S.E.2d 215, 218 (1949); see Terry v. Commonwealth, 5 Va. App. 

167, 169, 360 S.E.2d 880, 881 (1987). The probability of 

prejudice exists when either the evidence or the statement is "so 

impressive that it probably remained on the minds of the jury and 

influenced the verdict." Id.

 Assuming without deciding that the trial court erroneously 

ruled that sexual battery was a misdemeanor involving moral 

turpitude,1 we hold that neither the Commonwealth's attorney's 

inclusion of sexual battery in his definition of crimes involving 

moral turpitude nor appellant's admission that he had a prior 

conviction of a crime involving moral turpitude constitutes 

reversible error. 

 The inclusion by the Commonwealth's attorney of sexual 

battery in his definition of crimes involving moral turpitude was 

unlikely to have influenced the jury. Any prejudicial effect of 

this statement was diluted by the simultaneous mention of "lying, 

 

 1In Virginia, the credibility of a witness may be impeached 

by showing that he was previously convicted of a felony, perjury, 

or a misdemeanor that involved moral turpitude. See Ramdass v. 

Commonwealth, 246 Va. 413, 423, 437 S.E.2d 566, 572 (1993), 

vacated on other grounds, U.S. , 114 S. Ct. 2701, 129 

L.E.2d 830 (1994) (stating that a litigant's right to impeach for 

prior criminal conduct has been confined to the aforementioned 

convictions). 
 -10- 

cheating, or stealing" as crimes involving moral turpitude. Any 

possible stigmatizing effect of the Commonwealth's attorney's 

comment was negated by the trial court's instruction to the jury 

that it must not consider appellant's prior conviction of a crime 

involving moral turpitude as evidence of guilt. "'Once a jury is 

instructed regarding the use or limitations placed on specific 

evidence, they are presumed to follow such instructions,'" and 

nothing in the record indicates that the jury failed in this 

respect. Lawson v. Commonwealth, 13 Va. App. 109, 112, 409 

S.E.2d 466, 467 (1991) (quoting Lewis v. Commonwealth, 8 Va. App. 

574, 580, 383 S.E.2d 736, 740 (1989)). 

 In addition, appellant was not unduly prejudiced by his 

admission that he had previously been convicted of a crime 

involving moral turpitude because his admission was accurate and 

admissible. The record indicates that appellant had a prior 

conviction of petit larceny, which is a misdemeanor involving 

moral turpitude that may be used to impeach the credibility of a 

witness. See Bell v. Commonwealth, 167 Va. 526, 538-39, 189 S.E. 

441, 447 (1937). 

 Furthermore, 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.'" Lavinder v. 

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) 

(quoting Code § 8.01-678). Even if the Commonwealth's attorney 
 -11- 

had not made his comment regarding sexual battery, the evidence 

in the record overwhelmingly proves that appellant was the person 

who attacked the victim. The record shows that appellant visited 

a friend who lived across the street from the victim's trailer on 

the night of the attack. In addition, the victim testified that 

her attacker was "a lot taller" than her and that she could feel 

a "sore" on his penis. The record shows that the victim is five 

feet, nine inches tall and that appellant is six feet, six inches 

tall, and an examination of appellant's penis thirteen months 

after the attack revealed that it had three lesions near its head 

that "appeared to have been there for a while." Also, the 

Commonwealth introduced into evidence a cigarette butt that 

conclusively proved that appellant was the person who attacked 

the victim. The cigarette butt was found on the day after the 

attack on the ground outside of the victim's trailer. It was 

lying underneath the window through which the assailant had 

entered the victim's trailer and bore the brand "Salem." The 

victim testified that in September, 1993 both she and her 

boyfriend smoked "Merit Menthol" cigarettes and that during the 

day on September 14, the date of her attack, she had picked up 

all cigarette butts and other debris from her yard. Forensic 

tests revealed that DNA found on this cigarette butt matched 

appellant's DNA and was unique to eight percent of the Caucasian 

population. During an interview on the day after the attack, 

appellant was observed smoking a "Salem" cigarette. Because the 
 -12- 

evidence overwhelmingly proves that appellant was the man who 

attacked the victim, we conclude that any prejudice caused by the 

Commonwealth's attorney's reference to sexual battery in his 

definition of crimes involving moral turpitude could not have 

affected the verdict. 
 -13- 

 V. 

REFUSAL OF ALIBI INSTRUCTION 

 Appellant contends that the trial court erred in refusing to 

instruct the jury regarding his alibi theory. We disagree. 

"[W]hen the jury is properly instructed on the presumption of 

innocence and reasonable doubt, 'a separate instruction on alibi 

[is] neither necessary nor required.'" Crabbe v. Commonwealth, 

221 Va. 419, 421, 270 S.E.2d 727, 728 (1980) (quoting Minor v. 

Commonwealth, 213 Va. 278, 281, 191 S.E.2d 825, 827 (1972)); see

also Titcomb v. Wyant, 1 Va. App. 31, 36, 333 S.E.2d 82, 85 

(1985). Because the record shows that the jury was properly 

instructed on both the presumption of innocence and reasonable 

doubt, the trial court did not err when it refused to instruct 

the jury regarding appellant's theory of alibi. 

 For the foregoing reasons, we affirm the convictions of 

breaking and entering, sodomy, and animate object sexual 

penetration. 

Affirmed.