COURT OF APPEALS OF VIRGINIA
Present: Judges Be ales, Alston and Senior Judge Frank Argued at Norfolk, Virginia

JAMES ANTONIO FULLER MEMORANDUM OPINION * BY v. Record No . 0947-17-1 JUDGE RANDOLPH A. BEALES APRIL 24, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Timothy S. Wright, Judge Diallo K. Morris (B lack & James, P.C., o n brief), for appella nt. Robert H. Anderson, III, Senior Assistant Attorney General (M ark R. Herring, Attorney General, on brief), for appellee.
The Circuit Court of the City of Chesapeake convicted James An tonio Fuller (“appellant”) of committing a hit an d run in violation of Code § 46. 2-894. A ppellant raises two assignments of error on appeal. First, appellant argues that the evidence was insufficient to support his conviction. Second, appellant argues the trial judge erred by excluding tes timony from a defen se witness, which was intended to impeach testimo ny of the Commonw ealth’s witness

. I. B ACKGROUND A. F ACTS R ELATED TO THE S UFFICIENCY OF THE E VIDENCE During appellant’s bench trial, R ickelle Eley testified that sh e was involved in an automobile accident with appellant on April 25, 2016. The acci dent occurred in a convenience store parking lot in Chesapeake , Virginia. While Eley was ente ring the parking lot, appellant was backing his vehicle out of a parking spot, resulting in his hitting Eley’s vehicle. Following

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - the accident, Eley tried to obt ain appellant’s information, but appellant would not speak with her. She testified, “[W]hen I tried to speak to Mr. Fuller, he would not communicate at all with
me . . . .” Eley testified that, shortly a fter the accident occurred, a man whom Eley did not know approached her and appellant. She stated that this individual identified himself to her as “Dwayne Coffle,” who was wearin g a “white kind of tank top, T-s hirt.” Eley said she believed that Coffle was an off-duty pol ice officer based on her seeing a jacket in his vehicle with what appeared to be a badge on its sleeve. 1 Eley testified that appellant and Coffle stepped away from her for a few minutes, and the men positioned themselves betwee n some cars where Eley could not see them. She further testif ied that appellant gave Coffle information that included a name, phone number, license plate numbe r, and insurance information. Eley testified that the conversation between the two men w as muffled but that she heard appellant give certain information to Coffle. 2 According to both Eley and appe llant, Coffle wrote down the information on a piece of paper, which he gave to Eley. No oth er information was exchanged. In fact, Eley testified that neit her Coffle nor appellant asked for Eley’s information. She stated, “I could not give [information] to him [appellant] because he w ould not communicate with me at all. He wouldn’t say anything t o me.” Shortly thereafter, app ellant and Coffle left the scene separately.

1 For the sake of clarity, we ref er to this individual as “Coffl e,” as the parties have done. However, Coffle did not appear a t trial, and there was no factu al finding from the trial court that “Coffle” was, in fact, the indivi dual’s real name. In addition , the trial judge found there was no evidence to support any conclusion that Coffle was actually a l aw enforcement officer.

2 At trial, Eley could not recall th e details of the information that appellant conveyed to Coffle.- 3 - Eley later determined that the information she had received was not accurate. 3 While she could not recall the name that she heard appellant give to Coff le, Eley testified that the name was not James Antonio Fuller. When she attempted that same evening to call the telephone number that she received from Coffle, t he number was disconnected. In addition, the license plate number provided by Coffle for appe llant’s vehicle did not match the photograph of appellant’s license plate that Eley took wit h her smartphone following the accident. She testified, “I took a picture of the actual plate, a nd when I compared them, they wer e off by different digits and letters.” Appellant testified in his defe nse that he did not speak with E ley because she was hysterical, and appellant said tha t he “didn’t really want to g et into any kind of confrontation.” When asked to clarify what appe llant meant by “hysterical,” he stated, “She had her phone out, taking pictures. Oh, my gosh. I’v e never been into an acciden t. You know, stuff like that.” Appellant also testified that he did not know Coffle, but he be lieved Coffle was an off-duty police officer after seeing a jacket with “a police emblem on t he side.” Appellant said that he gave his information to Coffle s o that Coffle could give it to Eley. On cross-examination, appellant admitted that he did not directly give any informatio n to Eley. Appellant also denied providing false information to Co ffle or Eley, and he testified that he observed Coffle hand Eley the information before he left the scene, but that he could not see what Coffle wrote down to hand to her. During appellant’s presentation of his case at trial, the trial judge viewed the surveillance video of the accident. From this video, the trial judge conclu ded, “[T]here’s no evidence

3 After the accident, Eley was una ble to make a claim with her i nsurance company, she testified, based on the informa tion that she received. Approxi mately four weeks later, Eley was able to submit a claim after her insurance company identified a ppellant as the other driver from the accident, based on the pictur e Eley took of the license pla te of appellant’s vehicle.- 4 - whatsoever . . . that Ms. Eley w as anything but totally under c ontrol, which, again, runs somewhat counter to Mr. Fuller’ s characteriza tion of Ms. Eley a t the time.” Regarding Coffle’s role in the incident, the tri al judge found, “There’s no eviden ce before the Court that that person [Coffle] is a police officer.” 4 At the conclusion of the tri al, the judge found that appellan t failed to provide information as require d by the statute’ s plain langu age. The trial judge stated: [I]t still comes down, in the C ourt’s humble opinion, to whethe r or not the activities, the acti on if you will of the defendant in this particular case complied with both the spirit, if you will, per haps more importantly for a criminal case, the actual letter of the law. The Court finds that . . . if, for instance, Mr. Fuller had sim ply said at the end to Ms. Eley, Do you have everything you need from me ? I mean, he did not address her at all, and that -- I don’t thin k he fulfilled his responsibility. For that reason, the Court finds Mr. Fuller guilty as charged . . . .
B. F ACTS R ELATED TO THE E XCLUDED T ESTIMONY During the trial, Eley testified t hat she heard the exchange of information between Coffle and appellant. On cross-examination, however, Eley admitted th at she could not recall her testimony at the preliminary hear ing on this point. Defense co unsel attempted to impeach Eley’s testimony by calling, as a witne ss, the attorney who had repres ented appellant during the preliminary hearing. The Commonw ealth objected to this witness ’ testimony on the grounds of

4 That finding of fact was quickl y followed by the following exc hange during defense counsel’s first motion to strike: [THE COMMONWEALTH]: So I know that Counsel was referring to this individual a s a police officer, and I don’t k now that that’s an appropriate argument to make because that’s not a fact that has been presented. THE COURT: And the Cour t would agree with you. In addition, no subsequent eviden ce was offered to show that th e mysterious “Coffle” was an actual law enforcement officer, a nd the trial judge denied appe llant’s second motion to strike and then convicted appellant. Therefo re, the trial court implicitl y found that appellant did not give his information to a state or loc al law enforcement officer.- 5 - “improper rebuttal” and because defense counsel did not possess a transcript from the preliminary hearing. After the t rial judge confirmed that defe nse counsel was attempting to impeach Eley based upon her failure to recall previous testimon y, the trial judge permitted defense counsel to proffer that the witness, appellant’s former attorney, had heard Eley’s preliminary hearing testimony. Def ense counsel further proffer ed that Eley’s previous testimony was inconsistent with her test imony at trial. After receiving the proffer, the t rial judge said he would not consider the former attorney’s impeachment testimony at trial.
II. A NALYSIS When considering the sufficien cy of the eviden ce on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyo nd a reasonable doubt.’” Crowder v. Commonwea lth, 41 Va. App. 6 58, 663, 588 S. E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 30 7, 318-19 (1979)). “We must in stead ask whether ‘ any rational trier of fact could have found t he essential elements of the cr ime beyond a reasonable doubt.’” Id. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2 d 444, 447 (2003) ( en banc )). “This familiar standard gives full play to the responsibility o f the trier of fact fairly to resolve conflicts in the testimony, to we igh the evidence, and to draw reasonable inference s from basic facts to ultimate facts.” Kelly, 41 V a. App. at 257-5 8, 584 S.E.2d a t 447 (quoting Jack son, 443 U.S. at 319). In deciding the matter before us, we need not rationalize why the strange circumstances of this case unfolded as they did. Our task is simply to determin e whether the eviden ce was sufficient to show that appellant failed to comply with Code § 46.2-894. That statute requires the following: The driver of any vehicle involv ed in an accident . . . in whic h an attended vehicle or other attend ed property is damaged shall immediately stop as close to th e scene of the accident as possi ble without obstructing traffic . . . and report his name, address, driver’s license number, and vehicle regi stration number forthwith to th e State Police or local law-enforcement agency, to the person struck- 6 - and injured if such person appea rs to be capable of understanding and retaining the information , or to the driver or some other occupant of the vehicle collide d with or to the custodian of ot her damaged property. Code § 46.2-894 (emphasis added). Here, “[v]iewing the evidence i n the light most favorable to t he Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 V a. 296, 330, 601 S.E.2d 555, 574 (2004), the evidence sh owed that appellant fail ed to provide his information as the statute requires. Appellant wa s involved in an automobile acci dent on April 25, 2016. Consequently, appellant had an obligation to stop and disclose his information as required in the statute. Here, the evidence is undisputed that appellant stopp ed after the accident; however, he refused to speak directly with Eley despite her obvious attempt s to engage him. It is also undisputed that appellant left the scene before directly giving any inform ation to her or ensuring that the information she had was correct. In his defense, appellant testified that Eley was hysterical a nd that he wanted to avoid a confrontation with her. After h earing all of the testimony and viewing the convenience store’s surveillance video (wh ich defense counsel provided), the trial judge found that “there’s no evidence whatsoever . . . that Ms. Eley w as anything but totally under c ontrol,” contrary to appellant’s version of events. See Mara ble v. Commonwealth, 27 Va. App. 50 5, 509-10, 500 S.E.2d 233, 235 (1998) (“In its role of judging witness credibility, the fa ct finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.”). Therefore, nothing prevented appellant from conveyin g his information to Eley. Rather, as Eley testified, “[H]e would not c ommunicate with me at all. He wouldn’t say anything to
me.” Appellant relied all too willingly, and at his own peril, on t he mysterious Coffle, an individual who appellant acknow ledged he did not know. The evi dence showed that Coffle was- 7 - not wearing a police officer’s unif orm (but rather a white tank top); he was not driving a marked police vehicle; and he did not eve n display a police officer’s badge. The only apparent basis for appellant’s belief that Coffle might have been a law enforcemen t officer was the mysterious individual’s pointing to a jack et in his vehicle with some sort of emblem on it. Simply put, appellant unreasonably relied on the supposed representations o f this mysterious stranger, who emerged from the convenience st ore in a white tank top, when al l he needed to do was to exchange his personal informa tion with Eley. By providing his information to the woman whose vehicle he hit, appellant coul d have easily avoided a felony co nviction. Regarding the evidentiary issue raised by appellant in his sec ond assignment of error, we assume without deciding that the trial court erred by not admit ting the testimony t hat was intended to impeach the Commonw ealth’s witness. Code § 8.01-678 require s harmless error analysis before any judgment is reversed. “Unde r the harmless error doctrine, if there was ‘a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . for any . . . defect, imperfection, or omissio n in the record, or for any err or committed on the tri al.’” Shi fflett v. Commonwealth, 289 Va. 10, 12, 76 6 S.E.2d 906, 908 (2015) (ellip ses in original) (quoting Code § 8.01-678). “In this case, we apply the standard for non-cons titutional harmless e rror, which is that such error is harmless if [an appellate court] can be sure that it . . . had only a ‘slight effect.’” Id. (quoting Clay v. Commonwealth, 26 2 Va. 253, 260, 546 S.E.2d 728 , 731-32 (2001)). Put another way, “[i]f other evidence of guilt is so overwhelming and the e rror insignificant, by comparison, supporting a conclusion that the error did not have a substanti al effect on the verdict, the error is harmless.” Angel v. Commonwealth, 281 Va. 248, 268, 704 S.E.2d 386, 398 (2011). Here, the evidence wa s overwhelming that appellant violated Co de § 46.2-894. The testimony of Eley an d appellant confirmed that appellant did no t directly provide any of his information to Eley a fter the accident. In addition, appellant left the scene without ensuring that the- 8 - information Eley had received was accurate. The trial judge, w ho had the opportunity to view the surveillance video and observe the witnesse s, found that Eley w as not hysterical following the accident. Therefore, it was pos sible for appellant to directly convey his informat ion to Eley, which she attempted to obtain. However, appellant chose to rely, at his own peril, on providing his information to a mysteri ous intermediary wh o was an apparent st ranger, about whom the trial judge found there was no evidence he was a police officer. The infor mation that the alleged stranger provided to Eley was so completely inaccurate that appellant co uld not have been identified by Eley’s insurance compa ny or the authorities but for Eley’s proa ctive decision to photograph appellant’s license plate. In s hort, the evidence of appellant ’s guilt was overwhe lming, and, any error that may have occurred i n not admitting the impeachment t estimony of appellant’s former attorney was harmless.
III. C ONCLUSION Consequently, for all of these reasons, we affirm appellant’s conviction. Affirmed.