COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Huff and Senior Judge Coleman Argued by teleconference

DAVID JOBB EDWARD MEMORANDUM OPINION * BY v. Record No. 1768-12-2 JUDGE ROBERT P. FRANK NOVEMBER 19, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING GEORGE COUNTY J. Martin Bass, Judge Vanessa R. Jordan, Assistant Pub lic Defender (Offi ce of the Public Defender, on brief), for appellant. Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

David Jobb Edward, appellant, was convicted, in a bench trial, of misdemeanor assault and battery in violation of Code § 18.2- 57. On appeal, he argues the tria l court erred in refusing to allow the testimony of a defense witness who, he contends , would further impeach the victim’s testimony. For the reasons stated, we affirm.

BACKGROUND Appellant and S.C. had been involved in a romantic relations hip that ended in January of 2013. S.C., accompan ied by her brother-in-law, Mr. Hyles, and her son, sought to retrieve her belongings from appellant ’s residence. At trial, Hyles testified that once they arri ved at appellant’s home , appellant “opened the screen door and invited [Hyles] in to the house.” Once Hyles began to walk inside, a ppellant pushed Hyles to the floor and Hyles fell backwards onto the porch. When Hyles stood, appellant punched

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - him, breaking his nose. Appellant continued to beat Hyles on the back of his head with his fists. Finally, S.C.’s son pulled the two men apart. Hyles was transporte d to the hospita l by ambulance

for treatment. During cross-examination, Hyles denied he had been previously told by appellant to stay off appellant’s property and denied that he was told that evening to leave the premises. He also denied that he threw the first punch, that he grab bed and squeezed appellant’ s testicles, that he bit appellant’s finger and ear during the altercatio n, and further denied th at he earlier told a mutual acquaintance that he was going to “whoop” appellant the next time he saw him. Hyles did acknowledge that he is a previously convicted felon.

The court read into evidence a stipulation of S.C.’s testimony. In relevant part, she

indicated that she did not see how the fight started, but she di d see Hyles grab appellant’s

testicles. Appellant testified that he was not expecting to see Hyles on the day S.C. collected her belongings. He did not invite him into his home; rather, he told him expressly to get off his property. According to appellant, when Hyle s rang the doorbell, Hyles jumped on appellant’s back and grabbed his testicles. The fight conti nued into the kitchen, wher e, appellant testified, he continued to defend himself against Hyles. As a result of the fight, appellant sustained injuries to his lip, finger, a nd ear. Appellant introduced phot ographs taken by Deputy Shriver that evening depicting his injuries. Appellant test ified that he had told Hyles three times to stay off his property. William Lamb testified that he knows both Hyle s and appellant. In December of 2011 he had a conversation with Hyles wherein Hyles threatened to “kick [appellant’s] ass.” Appellant called Mary Stevens as a witness in an attempt to impeach Hyles’ testimony that Hyles was never told to stay off appellant’s property. Ms. Stevens would have testified that- 3 - she was “present for an occasion where [appellant] told [Hyles] to stay off” of appellant’s property, although she did not reference a time frame when this conversation would have occurred. The Commonwealth objected to rele vancy when counsel asked Stevens if she was present “for an occasion where [appellant] told [Hyles] to stay off his property.” The court sustained the objection, reasoning that because a ppellant already denied having any conversation in Stevens’ yard, the question to Stevens bore no relevance to Hyles’ credibility. 1 In rebuttal, the Commonwealth called Deputy Sh river. He told the court that after he responded to appellant’s residence, appellant told him that he initially in structed Hyles to leave his property, but then invited hi m inside. Appellant told Shrive r that upon entering the residence, Hyles struck appellant in the face and the fight ensued. Shriver noticed cuts on appellant’s fingers and face. At the conclusion of the evidence and arguments, the trial court stated that it considered all of the evidence, including the credibility a nd demeanor of the witnesses. The court found appellant guilty of misdemeanor assault and battery. This appeal follows.

ANALYSIS Appellant argues that the trial court e rred by refusing to allow the testimony of Ms. Stevens, which would have further impeach ed Hyles by contradicting his testimony that

1 We note that the trial court misinterpret ed Ms. Stevens’ testimony to say that the conversation took place in her backyard. Ms. Stev ens was asked if she had ever been present for an occasion where appellant told Hyles to stay off of his property. Appellant denied he ever told Hyles, while in Stevens’ yard, to stay away from his property. He never indicated the location of the conversation.- 4 - appellant never banned him from the property. The Commonwealth responds that error, if any,

was harmless. 2 “‘The admissibility of evidence is within th e broad discretion of th e trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.’” Bell v. Commonwealth, 49 Va. App. 570, 576, 643 S. E.2d 497, 500 (2007) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). “This standard, if nothing else, means that the trial judge’s ruling will not be reversed simply because an appellate court disagrees. Only when reasonable jurists could not differ [does this Court] say an abuse of

discretion has occurred.” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 81 1, 613 S.E.2d 870 (2005). “The proponent of

the evidence bears the burden of establishing, by a preponde rance of the evidence, the facts necessary to support its admissibility.” Id. “When a witness takes the stand, she puts her cred ibility at issue in th e case.” McCarter v. Commonwealth, 38 Va. A pp. 502, 506, 566 S.E.2d 868, 869 (2002). “[T]the opposing party may impeach [a] witness by ‘drawing into ques tion the accuracy of the witness’s perception,

2 The Commonwealth initially asserts on brief th at this issue is waived pursuant to Rule 5A:18. We disagree. Rule 5A: 18 is clear that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objec tion was stated with reasonable certainty at the time of the ruling . . . .” Indeed, “[i]n order to preserve an issue for app eal, ‘an objection must be timely made and the grounds stated with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006) (quo ting Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986)). If a party fails to timely and specifically object, he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 642, 674 S.E.2d 554, 557 (2009). Here, after the Commonwealth obj ected to the proposed question to Stevens and the court ruled, appellant responded that “ it is direct impeachment” testimony. We believe this response sufficiently put the trial court and opposing co unsel on notice of appellant’s objection. Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002). The Commonwealth further asserts on br ief that appellant abandoned his argument regarding impeachment of Hyles because at tria l counsel stated that he offered Stevens’ testimony as impeachment of appellant. In the co ntext of the entire ex change between counsel and the trial court, we find that counsel miss poke and it is clear that Stevens’ testimony was offered for the impeachment of the victim alone.- 5 - recordation, recollection, narra tion, or sincerity.’” Pearce v. Commonwealth, 53 Va. App. 113, 120, 669 S.E.2d 384, 388 (2008) (quoting McCarter, 38 Va. App. at 506, 566 S.E.2d at 869-70). Any evidence which would tend to convince the fact finder that the witness’ perception, memory, or narration is defective is relevant for purposes of impeachment. Id. “The sole purpose of impeachment evidence is to persuade th e [fact finder] that the witness is not worthy of belief . . . .” Charles E. Friend, The Law of Evidence in Virginia § 12-1 (7th ed. 2012). The Commonwealth maintains that any erro r in excluding Ms. Stevens’ testimony was harmless in this case. Assuming without decidi ng there was error, we agree that excluding Stevens’ testimony was harmless.

A criminal conviction shall not be reversed for an error committed at trial when “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.” Code § 8.01-678; Hanson v. Commonwealth, 14 Va. App. 173, 189, 416 S. E.2d 14, 24 (1992). A reviewing court must take into account the burden of proof applied at trial when evalua ting the impact of an error upon a verdict. To the extent that the impact of an error on a verdict is affected by the burden of proof, in a criminal case, the reviewing court must consider that the fact finder was required to reach its verdict beyond a reasonable doubt. Lavinder v. Commonwealth, 12 Va. App. 1003, 1006, 407 S. E.2d 910, 911 (1991) (en banc). “The effect of an error on a verdict varies widely de pending upon the circumstan ces of the case. Each case must, therefore, be an alyzed individually to de termine if an error has affected the verdict.” Id. at 1009, 407 S.E.2d at 913 (internal citations an d quotations omitted). The victim, Hyles, had already been impeached on a number of issues. He denied that he was the aggressor in the fight, a fa ct that appellant contradicted. Hyles denied grabbing appellant’s testicles, a fact that S.C. disputed in her sti pulation. Hyles stated he never threatened to “whoop” appellant, yet Mr. Lamb testified that he heard Hyles threaten to “kic k [appellant’s] ass.”- 6 - Additionally, Hyles testified he never bit appella nt on the ear or finger. Yet, Deputy Shriver observed and photographed injuries on appellant cons istent with appellant’s testimony of how Hyles inflicted those wounds. Appellant al so contradicted Hyles’ testimony that he was never told to stay away from appellant’s property. Finally , Hyles is a convic ted felon. See Code § 19.2-269 ( “A person convicted of a felony or perjury shall not be incompetent to te stify, but the fact of conviction may be shown in evid ence to affect his credit.”).

The issue before the tr ial court was whether ap pellant or Hyles was th e primary aggressor. Appellant attempted to impeach Hyles’ credibilit y by offering Stevens’ testimony. Hyles’ credibility had already been challe nged by other impe achment testim ony. The trial co urt, in a bench trial, weighed the credibil ity of the witnesses and appellant and found appell ant guilty of assault and battery. The trial court had before it testimony an d evidence that impeached Hyles but nevertheless found him credible, reje cting appellant’s testimony. The value of Ms. Stevens’ excluded impeachment testimony was minimal at best, particul arly in light of appellant’s statement to Deputy Shriver that appellant told Hyle s to get off his property and th en invited him in. Appellant’s statement to the deputy supported Hyles’ testimony that he was invited into appellant’s house prior to the fight. Thus, the fact that appellant told Hyles to leave at some un known time is irrelevant. Thus, we can say, beyond a re asonable doubt and wi thout usurping the fact finding function,

that the verdict would have been the same had Ms. Stevens been allowed to testify. We also conclude that an additional piece of impeachmen t testimony would not have altered the outcome of

the trial. Accordingly, we find the error, if any, to be harmless.

Affirmed.