COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Clements Argued at Alex andria, Virginia

GREGORY BOYD MEMORANDUM OPINION * BY v. Record No. 2947-99-4 JU DGE JEAN HARR ISON CLEMENTS APRIL 17, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newm an, Jr., Judge Janell M. Wolfe for appellant. Shelly R. James, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Appellant Greg ory Boyd was convicted in a jury trial of robbery in violation of Code § 18.2-58. On appeal, he contends the trial court erred in allowing th e Commonwealth to cross-examine him about the nature of his prior felony offenses. After examining th e record, we conclude th at, although the trial court did err, that er ror was harmless . Accordingly, we affirm appellant's conviction. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opinion recites only those fa cts necess ary to a disposition of this appeal.Boyd's sole conten tion on appeal is that the trial court erred in permitting the Commonweal th to question him on cross-examinatio n about the na ture of his prior felony convictions. In reviewing Boyd 's claim, we are guided by several established pr inciples. When a defendant testif ies in his own defense, he puts his cr edibility in issue. Smith v. Commonwealth , 212 Va. 675, 676, 187 S.E.2d 191, 192 (1972) ( per curiam ). The defendant's cred ibility may th en be impeac hed by evidence of prior convictions. Sadoski v. Commonwealth , 219 Va. 1069 , 1071, 254 S.E.2d 100, 101 (1979). The Comm onwealth may ask the defendant on cross-examinatio n "the number of times he has been convicted of a felony, but . . . not the names of the fe lonies, ot her than perjury, and not the nature or details thereof." Id. ; see also Code § 19.2-269; Jewel v. Commonwealth , 30 Va. App. 416, 425-26, 517 S.E.2d 264, 269 (1 999) (construing Code § 19.2-269 to mean that the Commonwealth may show the fact of defendant' s felony convictions but no t the names, other than perjury, and details thereof), aff'd , 260 Va. 430, 536 S.E.2d 905 (2000). Likewise, when the defendant "tes tifies on direct exam ination that he has been convicted previous ly of a certain number of fe lonies, he may be cross-examined only with respect to th e correctnes s of the number stated and, if his answers are truthful, not wi th regard to the names or the nature of the of fenses." McAmis v. Commonwealth , 225 Va. 419, 422, 30 4 S.E.2d 2, 4 (1983). Furthermore, a

- 2 -defendant's cr edibility may be impeached by evidence of his prior misdemeanor convictions invo lving moral tu rpitude. Chrisman v. Commonwealth , 3 Va. App. 89, 348 S.E.2d 399 (1986). Here, Boyd testified on his own behalf at trial. He testified on direct examination that he had been co nvicted of "six or maybe seven" felonies. He did not identi fy on direct examination the name or nature of any of his felony convictions. He also testifie d that he had been conv icted of misdemeanors involving moral turpitude. On cross-examinatio n, the following ex change took place between the prosec utor and Boyd: Q. And defense counsel had asked you about your criminal record. You have approximately ei ght felony conv ictions. Is that right? A. Yes, sir — I mean, yes ma'am. Q. Okay. An d some of th ose are for lying, cheating or stealing. Is that correct?

A. I wouldn't say – I wouldn't say it exactly like that, ly ing, cheating or stealing. They was pe tit larcenie s. You know what I mean? It was grand la rceny, you know, but now — it wasn't for lying, cheating and stealing. That's wh at you trying to say. Q. Lying, cheating or stealing. Let's focus on stealing. Were any of the felonies for any stealing kinds of crimes?

A. Yes. It was for peti t larceny, yes. Q. The felonies? You kn ow a felony is a more serious crime?

- 3 -A. Yes. Q. When your counsel aske d you about felonies, do you understa nd what a felony is? A. Yes, I do. Q. Now, thinki ng back on your record, were any of those felo nies, the se rious ones, for involved — did th ose involve stealing?

A. No. Boyd's counsel then objected, assert ing that the Commonwealth could not ask abou t the nature of Boyd's previous offenses. The trial court overruled the objection, ruling that th e Commonwealth could ask Boyd if he had been convicted of a felony involving lying, cheating, or st ealing. The cross-exam ination cont inued as follows: Q. I'm going to ask again about the felonies, the se rious crimes. A. Yes, ma'am. Q. Any of th ose crimes, no t the petit larcenies or misdemea nors but the serious crimes, has to do with stealing? A. No, ma'am. It was a drug offense, my serious charge th at I went to the institution for. Q. Okay. Woul d it refresh your recollection, or do you just not remember or are you just saying no, I had no felony crimes involving stealing?

A. I'm not saying that. Q. But if you looked at your criminal record, might yo u remember if you had any crimes involving steali ng that were serious crimes?

- 4 -A. We ll, okay. Yes, I did. Yes, I did. Okay. Q. Do you remember now?

A. I'm just saying for to answer your question correctly, you know what I mean, you saying did I have any felonies that is for lying, cheating or stea ling. And as far as my recollection as do I have it ? Yes, I do. Q. Okay. An d do you thin k there is probably three or four of those?

A. It may be, yes. Because Boyd testifie d on direct examinatio n that he had been convicted prev iously of six or seven fe lonies, the Co mmonwealth was permitted to questi on Boyd on cross-exam ination rega rding the correctness of the number stated. McAmis , 225 Va. at 422, 304 S.E.2d at 4. Once, however, Boyd testified tr uthfully that he had been convicted of ei ght felonies, the Commonweal th was not permitted to subsequent ly ask about the natu re of his previous felony convictions. Id. We hold, th erefore, that the trial court erred in allowing the Commonwealth to pursue its qu estioning of Boyd regarding the na ture of his pr evious felony convictions. However, our inquir y does not end there. We must decide whether the error requires reversal of Boyd's conviction. A non-constitutional error by the trial court is harmless if "it plainly appears from the record and the evidence given at the trial that" the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error

- 5 -not occurred, the verdict would have been the same. Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) ( en banc ) (quoting Code § 8.01-678). "Each case must . . . be analyzed individually to determine if an error has affected the verdict." Id. at 1009, 407 S.E.2d at 913. In this case, it plainly appears from the record and the evidence given at the trial that the error did not affect the jury's verdict. The victim unequivocally identified Boyd as the person who robbed him. Furthermore, Boyd told the jury that he had eight previous felony convictions and that he had been convicted of misdemeanors involving moral turpitude. The improperly elicited evidence was limited to Boyd's disclosure that, of his eight felony convictions, one was for a drug offense and three or four involved lying, cheating, or stealing. No other details of those convictions were revealed. Moreover, the trial court gave a limiting instruction that told the jury that the evidence of other offenses could only be considered for impeachment of the defendant and could not be considered as evidence of his guilt. When, as here, the record does not show otherwise, "it is to be presumed that the jury followed an explicit cautionary instruction." Albert v. Commonwealth , 2 Va. App. 734, 74 1, 347 S.E.2d 534, 538 (1986). We can conclude, ther efore, without usurpi ng the jury's fact finding function , that, had the erroneously permitted questions

- 6 -propounded to Boyd on cross-exam ination over de fense counsel's objection not been asked, the verdict woul d have been the same. Accordingly, the error was harmle ss, and we affi rm appellant's conviction. Affirmed.

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