COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Lemons∗ and Frank 

Argued at Chesapeake, Virginia 

CHRISTOPHER JAMES MOLTZ 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 0930-99-1 JUDGE DONALD W. LEMONS 

 MAY 2, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Charles E. Haden for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 ∗

 Justice Lemons prepared and the Court adopted the opinion 

in this case prior to his investiture as a Justice of the 

Supreme Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 Christopher J. Moltz appeals his conviction for murder, 

robbery and conspiracy to commit robbery. On appeal, he 

contends that the trial court erred (1) by admitting the 

statement of Adam Davis as a declaration against penal interest, 

(2) by denying Moltz's motion for a mistrial, (3) by denying 

Moltz's motion to strike, and (4) by denying Moltz's motion to 

set aside the verdict. Finding no reversible error, we affirm. 
I. BACKGROUND 

 On the evening of December 17, 1997, three men wearing 

black clothes and masks entered a house occupied by James 

Kahley, Aaron Melton, James Ritchie and Michael Jackson. The 

first man put a gun to Kahley's head and demanded money and 

jewelry. Kahley gave him twenty dollars. The second man 

carried a chrome gun with a laser site and immediately shot and 

killed the occupants' six-month-old Rottweiler. The third man 

went upstairs where he confronted Melton and Jackson and 

demanded money from Jackson. He shot Jackson in the head after 

Jackson told the man that he had no money. Melton wrestled the 

assailant to the ground and, in the course of the struggle, 

managed to remove part of his mask, exposing his face. The men 

left after "three to four minutes." An autopsy revealed that 

Jackson died from a gunshot wound to the head. 

 On December 21, 1997, police questioned Adam Davis ("Adam") 

about the murder. Adam told police that he and Moltz had been 

"having problems with [Kahley and his roommates]," that Moltz 

said he could get someone to rob them and that he and Moltz 

asked Frankie Davis, Adam's brother, if he knew someone who 

would be interested in participating in a robbery. Adam stated 

that Moltz had a map drawn in pencil and used it to explain the 

layout of the victims' house to Montusa Pace, Otis Thomas and a 

man known as "Nique." 

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 On December 22, 1997, police obtained a statement from 

Frankie implicating Moltz in the robbery. On January 8, 1998, 

police showed Melton a photo spread from which he identified 

Otis Thomas as the man who shot Jackson. Police recovered a 

"laser switch beam" from Frankie's yard and recovered a school 

bag from his mother's house that contained bullets. Moltz was 

tried before a jury on one count of first degree murder, one 

count of conspiracy to rob, three counts of robbery, one count 

of burglary and five counts of use of a firearm in the 

commission of a felony. He was tried jointly with Adam, Otis 

Thomas and Montusa Pace. 

 At trial, Frankie testified that on the afternoon of 

December 17, 1997, Moltz and Adam went to Frankie's home in 

Hampton and asked if he or anyone he knew wanted to participate 

in a robbery. Frankie stated that he telephoned Montusa Pace, 

told him what Moltz and Adam wanted and arranged a meeting. 

Pace arrived at the meeting dressed in a ski mask and a "hoody." 

Otis Thomas and a third male known as "Nique" accompanied Pace; 

all three men wore black clothes. Frankie testified that Adam 

and Moltz used a pencil-drawn map to explain the layout of the 

victims' house. Between 8:45 and 8:55 p.m. Moltz and Adam led 

Pace, Thomas and Nique to the victims' house. 

 According to Frankie's testimony, Adam returned around 

11:30 p.m. and told Frankie that "[s]omething went wrong" 

because he had "seen police cars and ambulances everywhere." 

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The following morning Adam told Frankie, "Your boy shot somebody 

last night." Frankie testified that as Adam was leaving, Pace 

arrived with "a crazy look on his face" and said, "[the house 

was] nothing like [Adam and Moltz] said it was." Frankie told 

the jury that Pace said he shot a Rottweiler and that Thomas 

"had to [shoot] somebody." Frankie further testified that Pace 

gave him a bag containing a .38 caliber weapon and bullets. 

 Pace's attorney objected since the .38 caliber handgun was 

not evidence in this case.1 The trial judge sustained the 

objection, gave a cautionary instruction to the jury directing 

them to ignore testimony concerning the .38 caliber handgun and 

stated, "[t]hat evidence is not before the Court, and it's not 

relevant in this case, and you're not to consider it." The 

Commonwealth's attorney again asked Frankie whether anything 

else was in the bag. Frankie told the jury that Pace gave him a 

coat, inside of which was a Tech .22 rifle. Pace's attorney 

made the same objection and moved for a mistrial based upon the 

jury hearing evidence that the court had already ruled 

inadmissible.2 The court denied the motion for a mistrial and 

the following exchange occurred: 

THE COURT: Ladies and gentlemen, during the 

preliminary instructions, I gave you a 

guidance that you should not consider any 

 1

 The .38 caliber handgun had been ruled inadmissible on the 

first day of the three-day trial. 

2

 For purposes of this appeal, Moltz has adopted the 

arguments and objections of Pace's trial counsel. 

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evidence that is stricken or that you are 

told to disregard as a result of my 

sustaining an objection. 

 Again, we have reference to a .22 

caliber weapon – the bullet, I'm sorry. 

Yes, .22 caliber bullet. .22 caliber which 

I sustained an objection. You've heard 

that. You're not to consider it. You are 

to disregard that. That's not evidence in 

this case. 

[DEFENSE COUNSEL]: I believe it was the 

rifle, Judge. 

THE COURT: All right. .22 caliber rifle. 

You are not to consider that. It is not 

evidence in this case. 

 Frankie testified that Pace gave him "some bullets" in a 

bag and identified Commonwealth's Exhibit 16 as the "laser 

switch beam" that had been given to him by Pace which Frankie 

hid in his backyard. Pace told Frankie to hold onto the items 

because he did not want them in his house "in case something 

went on." Frankie testified that he "switched [the bullets] and 

put them in a book bag" which he "put behind some old equipment" 

in his "mom's backyard." 

 After finding Adam, Thomas and Pace guilty of a total of 

thirty-one counts, the jury resumed deliberations the following 

Monday morning on the charges against Moltz. In the course of 

those deliberations, the jury sent the following question to the 

judge: "What is the difference in legal terms [between] 

burglary and robbery?" The jury deliberated for six more hours 

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but was deadlocked. The trial judge gave the jury an "Allen 

charge" instruction stating, 

 As you have been told, your verdict 

must be unanimous. If you can possibly 

reach a verdict, it is your duty to do so. 

You should listen to the views and opinions 

of your fellow jurors with fairness, and 

candor, and you should give consideration to 

what they say. 

 However, you must decide the case for 

yourself, and you should reach an agreement 

only if it can be done without sacrificing 

your individual judgment. 

 During the course of your 

deliberations, each of you, whether in the 

majority or the minority, should not 

hesitate to reexamine your own views and 

change your opinion if you are convinced it 

was wrong. 

 No juror, however, should give up his 

or her honest opinion as to the evidence 

solely because of the opinion of his or her 

fellow jurors or for the mere purpose of 

returning a verdict. If you can reach a 

decision without surrendering your 

conscientious opinion, it is your duty to do 

so. 

The jury convicted Moltz of murder, conspiracy to commit robbery 

and three counts of robbery. Moltz's subsequent motion to set 

aside the jury's verdict was overruled. 

II. ADMISSION OF STATEMENT 

 The Commonwealth concedes that the admission of Adam's 

statement to police was error. Adam's statement to police may 

have satisfied Virginia evidentiary requirements for 

qualification as an exception to the hearsay rule, but 

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nonetheless fails to pass constitutional scrutiny. As in Lilly 

v. Virginia, 527 U.S. 116, 125 (1999), "[w]e assume, as we must, 

that [Adam's] statements were against his penal interest as a 

matter of state law, but the question whether the statements 

fall within a firmly rooted hearsay exception for Confrontation 

Clause purposes is a question of federal law." The Supreme 

Court of the United States has "consistently either stated or 

assumed that the mere fact that one accomplice's confession 

qualified as a statement against his penal interest did not 

justify its use as evidence against another person." Id. at 

128. "[A]ccomplice's confessions that inculpate a criminal 

defendant are not within a firmly rooted exception to the 

hearsay rule as that concept has been defined in [the Court's] 

Confrontation Clause jurisprudence." Id. at 134. 

When a court can be confident- as in the 

context of hearsay falling within a firmly 

rooted exception--"that the declarant's 

truthfulness is so clear from the 

surrounding circumstances that the test of 

cross-examination would be of marginal 

utility," the Sixth Amendment's residual 

"trustworthiness" test allows the admission 

of the declarant's statements. 

Id. at 136 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)). 

Accordingly, the possibility of admitting an accomplice's 

statement under a "residual trustworthiness" test was left open. 

We do not consider the question of residual trustworthiness, 

however, since the Commonwealth does not argue that it applies 

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in this case. Rather, the Commonwealth argues that the error in 

admission of Adam's statement was harmless. 

III. HARMLESS ERROR 

 The United States Supreme Court in Lilly remanded the case 

to the Supreme Court of Virginia "to assess the effect of 

erroneously admitted evidence in light of substantive state 

criminal law." Lilly, 527 U.S. at 139. On remand, the Supreme 

Court of Virginia recited the standard to be employed in such an 

analysis. 

The standard that guides our analysis of the 

harmless error issue in this case is clear. 

Thus, "before a federal constitutional error 

can be held harmless, the court must be able 

to declare a belief that it was harmless 

beyond a reasonable doubt;" otherwise the 

conviction under review must be set aside. 

Chapman v. California, 386 U.S. 18, 24 

(1967). This standard requires a 

determination of "whether there is a 

reasonable possibility that the evidence 

complained of might have contributed to the 

conviction." Id. at 23. In making that 

determination, the reviewing court is to 

consider a host of factors, including the 

importance of the tainted evidence in the 

prosecution's case, whether that evidence 

was cumulative, the presence or absence of 

evidence corroborating or contradicting the 

tainted evidence on material points, and the 

overall strength of the prosecution's case. 

Delaware v. Van Arsdall, 475 U.S. 673, 684 

(1986); see also Harrington v. California, 

395 U.S. 250, 254 (1969); Schneble v. 

Florida, 405 U.S. 427, 432 (1972) 

(erroneously admitted evidence harmless 

where it was merely cumulative of other 

overwhelming evidence of guilt). 

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Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 

(1999). 

 Here, Adam's statement was entirely cumulative of Frankie's 

statement which had already been received in evidence without 

objection from Moltz. Frankie's testimony established that: 

(1) Moltz and Adam came to Frankie's house looking for someone 

to rob the victims because "[Moltz and Adam] were beefin' with 

the guys over some girls"; (2) that Moltz had a map of the 

victims' house drawn out in pencil; (3) that Frankie contacted 

Pace, Thomas and Nique to commit the robbery; (4) that Adam had 

the map and showed it to Pace and Thomas; (5) that Moltz and 

Adam spoke with Pace, Thomas and Nique about the layout of the 

house and the robbery; (6) that Moltz and Adam drove to the 

victims' house and pointed it out to Pace and his cohorts; and 

(7) that Pace came over to Frankie's house the day after the 

murder and gave him a bag containing a laser site and bullets. 

 In comparison, Adam's oral and written confessions to the 

police established that: (1) he and Moltz had been in a dispute 

with the victims; (2) Moltz initiated the conversation about the 

robbery; (3) Moltz said that "he could have someone else [commit 

the robbery] for him"; (4) Moltz asked Frankie if he knew 

somebody who wanted to participate in a robbery; and (5) he and 

Moltz had a map drawn in pencil of the victims' house, and Moltz 

used it to explain the robbery to Pace. 

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 Unlike Lilly where there was no independent corroboration 

of who was the "trigger man" and the accomplice testimony was 

clearly harmful on this crucial question, here, the admission of 

Adam's oral and written confessions provided no further evidence 

than that which had already been established by Frankie's 

testimony at trial. Although error, we hold that the admission 

of Adam's statement was harmless beyond a reasonable doubt. 

III. MOTION FOR MISTRIAL 

 "Whether improper evidence is so prejudicial as to require 

a mistrial is a question of fact to be resolved by the trial 

court in each particular case." Beavers v. Commonwealth, 245 

Va. 268, 280, 427 S.E.2d 411, 420 (1993); see Lewis v. 

Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970). 

"[W]hether a trial court should grant a mistrial is a matter 

resting within its discretion, and absent a showing of abuse of 

discretion, the court's ruling will not be disturbed on appeal." 

Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607 

(1990). The judgment "will not be reversed for the improper 

admission of evidence that a court subsequently directs a jury 

to disregard because juries are presumed to follow prompt, 

explicit, and curative instructions." Beavers, 245 Va. at 280, 

427 S.E.2d at 420. Only if a manifest probability existed as a 

matter of law that the improper evidence prejudiced Moltz by 

remaining on the minds of the jury and influencing their verdict 

despite the instruction to disregard it, will the trial court's 

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decision be reversed. See Bennett v. Commonwealth, 29 Va. App. 

261, 273-74, 511 S.E.2d 439, 445 (1999). "'Whether a manifest 

probability exists that . . . improper evidence prejudiced the 

accused despite [a court's] cautionary instruction depends upon 

the nature of the incompetent evidence when considered in 

relation to the nature of the charges, the other evidence in the 

case, and [the] manner in which the prejudicial evidence was 

presented.'" Id. at 274, 511 S.E.2d at 445 (quoting Mills v. 

Commonwealth, 24 Va. App. 415, 420-21, 482 S.E.2d 860, 862-63 

(1997)). "Additionally, a court's failure to take any action in 

response to an improper question is relevant to determining 

prejudice because the jury may infer from such inaction that the 

court approved of the impropriety." Bennett, 29 Va. App. at 

274-75, 511 S.E.2d at 445. "The number of references to an 

error is also relevant to our consideration of whether prejudice 

influenced the jury." Id. at 275, 511 S.E.2d at 445. 

 At the beginning of the second day of a three-day trial, 

the Commonwealth's attorney, in an attempt to elicit Frankie's 

testimony with respect to specific items contained in the bag 

given to him by Pace without leading the witness, asked general 

questions about the contents of the bag. In his responses, 

Frankie mentioned that the bag contained a Tech .22 rifle and a 

.38 caliber handgun.3 Frankie's testimony, however, did not link 

 3

 Although the record indicates the jury may have seen one 

of the weapons the day before, it is inconclusive in that 

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the Tech .22 rifle or the .38 caliber handgun to the robbery and 

shooting. Furthermore, defense counsel immediately objected, 

and the trial court immediately sustained each objection. That 

testimony was not further developed or explored, leaving the 

jury to have heard of each weapon only once. Having evaluated 

the effect of the testimony and considered its impact, the trial 

court judge determined that a curative instruction was the 

appropriate corrective means. 

 Upon review of the record, we hold that the curative 

instruction was clear that the weapons were not evidence in the 

case and were not to be considered by the jury. Because of the 

vast weight of evidence against Moltz and his codefendants, the 

manner in which the guns were mentioned by Frankie and the 

clarity and decisiveness of the trial court judge's curative 

instruction, we do not find that a manifest probability existed 

that the jury's verdict was affected by hearing about the 

existence of these weapons. Accordingly, we cannot say that the 

trial court abused its discretion. 

IV. MOTION TO STRIKE 

 On appeal, when considering sufficiency of the evidence, 

this Court considers all the evidence and any reasonable 

inferences fairly deducible from it in the light most favorable 

to the Commonwealth. See Higginbotham v. Commonwealth, 216 Va. 

 

respect and a deliberate effort was made by the trial court to 

prevent the jury from seeing them. 

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349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a 

witness, the weight accorded the testimony and the inferences to 

be drawn from proven facts are matters to be determined by the 

fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 

S.E.2d 473, 476 (1989). A trial court's judgment is not to be 

disturbed on appeal unless it is plainly wrong or without 

evidence to support it. See Code § 8.01-680. 

 Moltz was found guilty of conspiracy to commit robbery and 

as an accessory before the fact to the murder of Jackson and 

accessory before the fact to three robberies. Kahley testified 

that he and his friends had been involved in a dispute with 

Moltz and Adam. Frankie testified that Moltz approached him 

about participating in the robbery and that Pace was contacted. 

Moltz obtained a map of the house for the purpose of robbing the 

victims, showed it to Pace, Thomas and Nique and accompanied 

Adam in the car that led Pace, Thomas and Nique to the house. 

Kahley described the downstairs assailant as being dressed in 

black and using a gun with a laser site. Melton identified 

Thomas in a photo spread and at trial as the gunman who shot 

Jackson. Frankie testified that Pace, Thomas and Nique wore 

black clothes, that the following day Pace gave Frankie a bag 

containing a laser site and bullets, and informed him that the 

robbery had gone wrong and that a person and dog had been shot. 

 When acting in concert, all participants "may be held 

accountable for incidental crimes committed by another 

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participant during the enterprise even though not originally or 

specifically designed." Berkeley v. Commonwealth, 19 Va. App. 

279, 283, 451 S.E.2d 41, 43 (1994). When Jackson responded that 

he had no money, Thomas shot him in the head. This shooting 

occurred during an armed robbery that Moltz planned. Even if he 

did not anticipate someone being shot, "[a]n incidental and 

probable consequence of the use of a firearm in the commission 

of a robbery is that someone will get killed." Jones v. 

Commonwealth, 15 Va. App. 384, 389, 424 S.E.2d 563, 566 (1992); 

see Carter v. Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265, 

268 (1986). Accordingly, the evidence was sufficient to support 

the convictions. 

V. MOTION TO SET ASIDE THE VERDICT 

 An "Allen charge" is appropriate "'[w]hen jurors have 

announced their inability to agree.'" Joseph v. Commonwealth, 

249 Va. 78, 97, 452 S.E.2d 862, 868 (1995) (quoting Petcosky v. 

Brown, 197 Va. 240, 252, 89 S.E.2d 4, 13 (1955)). An "Allen 

charge" is given to explain the importance of the jury reaching 

an agreement and their duty to do so if they can without 

surrendering their individual consciences. See Poindexter v. 

Commonwealth, 213 Va. 212, 215, 191 S.E.2d 200, 203 (1972). 

 The Commonwealth correctly notes that the "Allen charge" 

given here did not ask the jurors to deviate from their 

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individual consciences to come to a verdict.4 The motion to set 

aside the verdict was properly denied. 

VI. CONCLUSION 

 For the reasons stated, we affirm the convictions. 

Affirmed. 

 4

 We also note that the fact that the jury may have 

compromised by convicting Moltz of some charges and acquitting 

him of others is not a basis for upsetting the verdict. See

Reed v. Commonwealth, 239 Va. 594, 597, 391 S.E.2d 75, 76 

(1990); see also, Dunn v. United States, 284 U.S. 390, 394 

(1932). 

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