COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

DAVID MARK HALES MEMORANDUM OPINION * BY v. Record No. 3226-03-3 J UDGE RUDOLPH BUMGARDNER, III DECEMBER 28, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge (Kathleen M. Mizzi Todd, on brief), for appellant. Appellant submitting on brief. (Jerry W. Kilgore, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee. Appellant submitting on brief.
David Mark Hales appeals convictions of grand larceny, breaking and entering, and unlawful wounding resulting from two separate jury trials. In each trial, he contends the trial court erroneously admitted eviden ce of other crimes. For the following reasons, we affirm. The defendant was charged with three sets of crimes: breaking and entering, and grand larceny occurring on December 2, 1999; abduction and assault and battery occurring on May 10, 2000; and malicious wounding occurring on May 11, 2000. The trial court set se parate jury trials by grouping the offenses by date. The felony i ndictments were not returned until January 2003, and the trials were not held until May, June, and August 2003. The defendant was only granted an appeal from the first two trials. All of the charges i nvolved the defendant and Jerr i Lynn Vance, and she was the principal witness for the Commonw ealth in all three trials. Though the defendant intermingles

* Pursuant to Code § 17.1-413, this opini on is not designated for publication.- 2 - and blends his complaints of error throughout his brief, we review the incidents of the trials separately. 1 The first trial heard the charges of breaki ng and entering, and grand larceny, which arose December 2, 1999. At the time of the offense, Jerri Vance was the defendant’s girlfriend and accomplice. She testified that sh e went with the defendant to an unfinished house where he stole a Jacuzzi. The Commonwealth’s Attorney as ked Vance why she accompanied the defendant. She responded, “I didn’t participate. I was in fear of him, plus I was on drugs and I was scared.” She continued that she and the defendant were using methamphetamine and marijuana and the thefts provided money for thei r drugs. She reiterated her fe ar of the defendant and added, “Because he beat me a lot.” For the first time, the defendant raised an objection. The defendant argued the reason that Va nce participated was irrelevant and “unimportant” because Vance was not on trial. The Commonwealth responded that the defendant opened the door to Vance’s motivatio n during his opening statement, and the trial court overruled the objection. Th e Commonwealth next asked how often the defendant beat her, the defendant objected, 2 and the trial judge ru led, “I think we’ve gone far enough into it.” The Commonwealth’s Attorney then changed subjects to how the w itness came to inform the police about the theft of the Jacuzzi. She asked why Vance had not reported the offense until May 2000, and Vance answered that she was in the hospital. Asked, “Why were you in the hospital?” Vance replied, “He sta bbed me in the throat.” The de fendant objected, and the trial court sustained the objection.

1 To the extent the defendant maintains that the Commonwealth enga ged in prosecutorial misconduct, that issue was not raised before th e trial court and was not an issue granted on appeal. Rule 5A:18.

2 Before the defendant interposed his object ion, Vance had answered, “Whenever he was mad.” The defendant never moved to have the remark stricken or disregarded.- 3 - The defense cross-examined Vance extensivel y about her motive to testify and her bias against the defendant. When asked, “You don’t lik e Mark, do you?,” Vance responded, “I did at one time. I used to love him.” When defense co unsel retorted that Vance had not spoken to the defendant in three years, Van ce replied, “Since the day he sta bbed me is the last time I saw him.” 3
Defense counsel also asked whether Vance had received favors for testifying for the Commonwealth since she was not ch arged in the instant offense. Vance responded, “I don’t owe them nothing, they don’t owe me nothing.” Vanc e admitted she was a drug addict with a criminal record involving lying, cheating, or stea ling. She also maintained that the defendant sold drugs and they engaged in criminal behavior to support their drug use. She rented trucks that the defendant used in several burglaries. The defendant contends the trial court erred in admitting the statements that the defendant beat and stabbed Vance. “Evidence that show s or tends to show a defendant has committed a prior crime generally is inadmissible to pr ove the crime charged.” Guill v. Commonwealth , 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998). If the evidence tends to prove any element of the offense it may be admitted as an exception to this rule. Id. The contested statements were admissible to support Vance’s credib ility and explain her presence at the scene of the offense. Vance’s credibility was the paramount issue as the defense had made abundantly clear during the opening argument: “I want you to pay attention closely to what they’re saying, why they’re saying it, why they ’re here.” The defendant argued that Vance

3 At the conclusion of cross-examination, de fense counsel asked Vance about taking the police to the house where the Jacuzzi was stolen. Vance answered she took the investigator “to where the Jacuzzi was . . . and to the house where I got stabbed . . . .” The defendant made no objection.- 4 - falsely made the accusations because she was in trouble and in jail. She was angry with the defendant, disliked him, a nd was out to get him. When a witness is an accomplice, “the presum ption of truthfulness no longer prevails, the witness stands impeached, and evidence enhanci ng credibility, if otherwise competent, is admissible.” Largin v. Commonwealth , 215 Va. 318, 319, 208 S.E.2d 775, 776 (1974). The credibility of an accomplice’s testimony “is a signifi cant factor in the jury’s determination of the accused’s level of culpabilit y.” Lilly v. Commonwealth , 258 Va. 548, 553, 523 S.E.2d 208, 210 (1999). The Commonwealth was entitled to explain Va nce’s relationship with the defendant. At the time of the crime, Vance and the defendant were living together, yet she incriminated him and was the primary prosecuting witness agains t him. The defendant’s abusive conduct explained and validated her claim of fear. The stabbing illustrated the extent of his abuse and the reality of her fear. It resolv ed the questions of why their relationship severed and why she testified against him. The defendant does not ha ve the right to sanitize the evidence. Scott v. Commonwealth , 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). The admission of evidence is within the broa d discretion of the trial court. Coe v. Commonwealth , 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Relevant evidence is admissible “though it may necessarily involve misconduct on th e part of the defendant” when its probative value outweighs potential prej udice to a defendant. Id. “And a trial court’s discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion.” Id. The trial court did not abuse its discretion in admitting evidence that bore on Vance’s credibility. The evidence bore on the precise issu es emphasized by the defense. It answered the defendant’s arguments of why Vance was present at the crime and why she testified against him.- 5 - The trial court exercised its discretion by allowing the evidence but carefully limiting the extent to which the Commonwealth could pur sue details of the stabbing and frequency of the beatings. Even if the admission of the evidence were vi ewed as error, it would have been harmless error. During extensive cross-examination, the defendant elicited the same evidence of which he complains. In closing argument, defense counsel stressed that evidence, characterized it as prejudicial, and stated she drew the jury’s attention to it “becau se that evidence was stricken by the court.” 4 The defendant invited and acquiesced in the admission of the evidence. Sullivan v. Commonwealth , 157 Va. 867, 878, 161 S.E. 297, 300 (1931). The second trial heard the char ge of malicious wounding of Je rri Vance. The defendant had filed a notice of alibi defense stating he wa s in Charlottesville on May 10. He filed a motion in limine seeking to exclude any evidence of any assa ult of Vance occurring that day. The trial court declined to rule before the evidence was fully developed during trial, but it eventually admitted evidence that the defendant hit Vance the day before the stabbing. The defendant and Vance were living togeth er at Victor Knicely’s house. On May 10, Knicely awoke to an argument between the defenda nt and Vance in his yard. He looked out his bedroom window and saw the defendant hit Vance in the face and then leave. That evening, Vance suspected the defendant had a relationship with Sherry Curry and telephoned her. Curry denied the defendant was with her. Early the next morning, Vance went to Curry’s home and found the defendant asleep in her bed. The defendant and Vance had an argument, and then she left.

4 The defendant contends the trial court fail ed to give a cautionary instruction. The defendant never requested a cautionary instruction or asked that the evidence be stricken when the trial court sustained his objection. Rule 5A: 18. The trial court has no duty to instruct the jury sua sponte to disregard the evidence. “[A] defendant must request such an instruction where appropriate.” Cheng v. Commonwealth , 240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). Moreover, the trial court did instruct the jury to disregard re jected and stricken matters in its charge to the jury.- 6 - A few hours later, Vance returned to Curry’s house. The defendant was alone, and they renewed their argument. Vance testified she fell to the floor, the defendant kicked her in the back and ribs, took out a pocketkni fe, and stabbed her in the thro at. She did not call the police because she had absconded and was hiding from them. Vance did call Knicely on her cell phone and told him the defendant had stabbed her. Later, the defendant admitted to Knicely that he had stabbed Vance. The defendant testified in his own defense. He was not at Knicely’s house on May 10 and had not seen Vance for two days. He woke up in Curry’s house on May 11 with Vance yelling and cursing at him. He remained calm and eventually got her to leave. The first time Vance returned, she threatened to hurt herself but left without incident. The next time she returned, she grabbed a steak knife and stabbed he rself. The defendant admitted that he was an extremely combative person, that he regularly fought with Vance, and that sometimes their fights were physical. When the evidence of criminal conduct is c ontinuous and connected with the present offense, “[t]he fact-finder is en titled to all of the relevant and connected facts, including those which followed the commission of the crime on trial, as well as those which preceded it; even though they may show the defendant guilty of other offenses.” Scott , 228 Va. at 526-27, 323 S.E.2d at 577. “Such evidence is permissible in ca ses . . . where the evidence is connected with or leads up to the offense for which the accuse d is on trial.” Kir kpatrick v. Commonwealth , 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Evidence of the May 10 assault showed the flow of events from one day to the next. The quarrel on May 10 was unresolved, a nd the hostility between the pa rties continued to the next morning when it escalated into the stabbing. Th e stabbing was a continuation of the altercation that began the day before in Knicely’s yard.- 7 - The Commonwealth had to prove the defendant acted with malice. The assault on May 10 illustrated the volatility of the defendant’s relationship with Vance and demonstrated his continued violence toward her. It defined his in tentions and refuted his claim that she stabbed herself. It was relevant and admissible. Clay v. Commonwealth , 262 Va. 253, 260-61, 546 S.E.2d 728, 732 (2001) (where defendant put intent in issue by claiming murder accidental, victim’s state of mind is relevant and admi ssible to show her fear of him); Compton v. Commonwealth , 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979) (when defendant claims death accidental, evidence of prior relationship between hi m and victim is relevant and admissible). The decision to admit the evidence rested with in the discretion of the trial court, and it did not abuse that discretion by admitting the evidence. Again the trial court carefully exercised its discretion by instructing sua sponte when the incident was men tioned by a second witness. The trial court instructed that the evidence wa s admitted “solely for the purpose to give the background of apparently what wa s a continuous flow here and explains the movements of the various parties throughout the balance of that day and the next day.” Finally, if the trial court erred, the admi ssion is clearly harmless. A nonconstitutional error is harmless “if a reviewing court can conc lude, without usurping th e jury’s fact finding function, that, had the error not occurred, the ve rdict would have been the same.” Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) ( en banc ). The verdict would not have changed if the trial court had excluded the evidence of the assault on May 10. The evidence of the defendant’s guilt was overwhelming. It included his own admission to Knicely that he stabbed Vance. The defenda nt conceded he was a combative person and he fought physically with Vance. Vance’s injuries were consistent with her testimony about the stabbing. While the defendant denied he saw Va nce May 10 and claimed she stabbed herself, the- 8 - jury could disbelieve his self-serving testimony a nd conclude he was lying to conceal his guilt. Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Accordingly, we conclude the trial court did not abuse its discretion in admitting evidence at either trial. Accordingly, we affirm. Affirmed.