Tuesday 5th 

 October, 1999. 

Derek Wayne Gurganus, Appellant, 

 against Record No. 2766-97-1 

 Circuit Court Nos. 97-38-00 and 97-38-01 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

 Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

Elder, Bray, Annunziata, Bumgardner, Lemons and Frank 

 Scott L. Reichle (Donald J. Reichle; 

Reichle & Reichle, P.C., on brief), 

for appellant. 

 Donald E. Jeffrey, III, Assistant 

Attorney General (Mark L. Earley, 

Attorney General, on brief), for 

appellee. 

Upon a rehearing en banc, the stay of this Court’s 

April 20, 1999 mandate is lifted, and the judgment of the trial 

court is affirmed in accordance with the majority opinion of a 

panel of this Court in Gurganus v. Commonwealth, 29 Va. App. 

494, 513 S.E.2d 427 (1999). 

Judges Benton and Elder dissent for those reasons 

expressed in the dissenting opinion of the panel. 
This order shall be published and certified to the 

trial court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 

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 Tuesday 25th 

 May, 1999. 

Derek Wayne Gurganus, Appellant, 

 against Record No. 2766-97-1 

 Circuit Court Nos. 97-38 and 97-38-01 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

Elder, Bray, Annunziata, Bumgardner, Lemons and Frank 

On April 29, 1999 came the appellant, by counsel, and 

filed a petition praying that the Court set aside the judgment 

rendered herein on April 20, 1999, and grant a rehearing en banc 

thereof. 

On consideration whereof, the petition for rehearing 

en banc is granted, the mandate entered herein on April 20, 1999 

is stayed pending the decision of the Court en banc, and the 

appeal is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. It is further ordered that the appellant shall file with 

the clerk of this Court ten additional copies of the appendix 

previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 

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COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

DEREK WAYNE GURGANUS 

 OPINION BY 

v. Record No. 2766-97-1 JUDGE RICHARD S. BRAY 

 APRIL 20, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY 

Westbrook J. Parker, Judge 

Scott L. Reichle (Donald J. Reichle; 

Reichle & Reichle, P.C., on brief), for 

appellant. 

Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Derek Wayne Gurganus (defendant) was convicted in a jury 

trial for statutory burglary and grand larceny, violations of 

Code §§ 18.2-91 and -95, respectively. He complains on appeal 

that the trial court erroneously admitted into evidence a prior 

consistent statement given to police by a Commonwealth witness. 

Finding no error, we affirm the convictions. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). 

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I. 

 On the morning of September 9, 1996, James Elkins, an 

employee of Hallmark Communications (Hallmark), discovered 

evidence of forced entry into the business location in Isle of 

Wight County and “stuff missing.” Elkins notified the local 

sheriff, and Lieutenant Tom Gibbons was assigned to investigate. 

Gibbons proceeded to the scene, inspected the building, and 

observed that “the entire place had been ransacked,” with damage 

to both rear entry and interior doors. A subsequent inventory 

confirmed that numerous items had been stolen, including a 

“console . . . T.V.” and nine pagers. 

 Shortly after Gibbons’ arrival, Sheriff’s Deputy Willard 

“showed up” and provided Gibbons with particulars relative to a 

suspicious vehicle he had observed in the area at “about 4:30 

[that] morning.” Gibbons ascertained that the vehicle was 

registered to a Virginia Beach address and immediately contacted 

that city’s police, requesting assistance in locating the car. 

Within hours, Virginia Beach police stopped the vehicle, 

recovered the stolen TV and pagers, and arrested the driver, 

Eric Landers, and his passenger, Kevin (Greg) Baucom, for 

“possession of stolen articles.” 

 Gibbons learned immediately of the arrests, proceeded 

directly to Virginia Beach, arriving within an hour, questioned 

Landers, and obtained the following signed statement: 

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I, Eric Joseph Landers, left my house on the 

night of September 8th with my two friends 

[defendant and Baucom]. We went and picked 

up my car from Newport News. Then we went 

to [defendant’s] house and dropped his car 

off. We started driving to one of our 

friend’s house just to say hey and see what 

he was doing. But on the way there we had 

seen the store and they (Derek [defendant] 

and Greg [Baucom]) were like, hey, let’s hit 

this place. So after we visited our friend 

for a little while we headed back towards 

where we came from. They had told me to let 

them out and go pick them up in twenty 

minutes. I drove around and they . . . told 

me to drive down the dirt road so they could 

put the things in the car. So like an 

idiot, I did. I was sitting in the car 

telling them to leave because what they were 

doing was stupid. I never set one foot 

inside that building. That is the honest 

truth. All I did was get out of the car and 

walk where they could hear me and tell them 

I was leaving so they had better come on. 

 I am so sorry for even driving around. 

Even though I didn’t take anything I still 

should have not ever drove around for them. 

I was scared and I didn’t know what to do. 

I’m not used to being scared so I just went 

along and drove around. I’ve never been 

more scared than I am right now. One of 

them has said (pretty much said) if someone 

rats them out they’re dead, so I don’t know 

what to do, but I am telling the truth and I 

will cooperate with you one hundred percent. 

I just want to go to college and make 

something of myself. I just hope that I 

haven’t already ruined that chance. 

 Landers’ trial testimony, as a Commonwealth witness, was 

substantially consistent with his earlier statement to Gibbons, 

and the Commonwealth attempted to introduce it into evidence. 

Defendant, however, objected, arguing that the Commonwealth was 

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attempting to improperly “bolster” Landers’ testimony. In 

sustaining the objection, the trial court concluded that the 

evidence was inadmissible “until [defense counsel] attacks 

[Landers’] credibility.” 

 Defendant concedes on brief that counsel subsequently 

“cross-examined Mr. Landers in an attempt to impeach his 

testimony and challenge his credibility.” In response to such 

questioning, Landers acknowledged that the Virginia Beach charge 

had been “dropped” following his arrest in Isle of Wight on 

September 12, 1996 for the instant offenses and that trial in 

Isle of Wight had been delayed until he testified in the subject 

prosecution. Landers admitted “hope” that “something good” 

would result from his testimony but steadfastly denied that 

anyone promised “anything” in return. Defendant did not explore 

Landers’ motives in making the earlier statement to Gibbons. 

 The Commonwealth recalled Gibbons on rebuttal and offered 

Landers’ statement “to refute the notion that’s been put forward 

by the defense that he’s fabricated [a story] . . . to benefit 

himself.” Defense counsel objected, again arguing that the 

statement would improperly bolster Landers’ credibility. The 

trial court, however, concluded that the statement was then 

admissible as “one of the exceptions to the hearsay rule” 

against prior consistent statements and permitted Gibbons to 

relate it to the jury. The disputed convictions followed and 

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defendant, on appeal, challenges the admissibility of the prior 

statement. 

II. 

 “As a general rule, a prior consistent statement of a 

witness is inadmissible hearsay.” Faison v. Hudson, 243 Va. 

397, 404, 417 S.E.2d 305, 309 (1992) (citations omitted). 

However, the Supreme Court of Virginia has approved “a few 

narrowly circumscribed exceptions,” id., 

when the opposing party: (1) suggests that 

the declarant had a motive to falsify his 

testimony and the consistent statement was 

made prior to the existence of that motive, 

(2) alleges that the declarant, due to his 

relationship to the matter or to an involved 

party, had a design to misrepresent his 

testimony and the prior consistent statement 

was made before the existence of that 

relationship, (3) alleges that the 

declarant’s testimony is a fabrication of 

recent date and the prior consistent 

statement was made at a time when its 

ultimate effect could not have been 

foreseen, or (4) impeaches the declarant 

with a prior inconsistent statement. 

Mitchell v. Commonwealth, 25 Va. App. 81, 84-85, 486 S.E.2d 551, 

552-53 (1997) (citing Faison, 243 Va. at 404-05, 417 S.E.2d at 

309-10); see also 1 Charles E. Friend, The Law of Evidence in 

Virginia § 4-12 (4th ed. 1993 & Cum. Supp. 1998). Manifestly, 

such exceptions are intended to permit a party to “repel . . . 

an imputation” that a witness testified untruthfully by 

“show[ing] that the witness made a similar statement at a time 

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when the supposed motive [to fabricate] did not exist.” Repass 

v. Richmond, 99 Va. 508, 515, 39 S.E. 160, 163 (1901). 

 Thus, once defendant tainted Landers’ trial testimony with 

evidence suggesting that self-interests had compromised his 

veracity, Landers’ prior consistent statement to Gibbons was 

admissible to repair his credibility, provided the statement was 

made before Landers had reason or design to falsify. In seeking 

to escape the rule in this instance, defendant maintains that 

“bias, interest or corruption” inhered in Landers’ post-arrest 

statement to Gibbons. He reasons that Landers then had a 

“motive to lie” and “shift the blame from himself to another in 

an attempt to get favorable treatment,” although the record does 

not disclose evidence of promise, expectation or other incentive 

to fabricate at that time. 

 In support of his contention that Landers’ post-arrest 

custodial status, without more, infected his statement with 

self-interest, defendant relies upon Smith v. Commonwealth, 239 

Va. 243, 387 S.E.2d 871 (1990). In Smith, the accused had 

brutally murdered a police officer, following earlier threats to 

“shoot the first [police officer] that arrive[d].” Id. at 249, 

387 S.E.2d at 874. Subsequent to arrest, Smith explained to 

police that he fired his weapon in self-defense after an 

assailant first shot him in the foot, a clearly exculpatory 

statement reflective of a “motive to lie,” together with 

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“sufficient time to fabricate a story.” Id. at 261, 387 S.E.2d 

at 880. In concluding that Smith’s statement was inadmissible 

as a prior consistent statement, the court looked beyond Smith’s 

mere status as an arrestee and considered the content of the 

statement, together with attendant circumstances, to find that 

it was fraught with self-serving motive, corrosive of truth. 

See id.; see also United States v. Henderson, 717 F.2d 135 (4th 

Cir. 1983), cert. denied, 465 U.S. 1009 (1984) (arrest alone 

does not establish a motive to fabricate). 

 In contrast, Landers’ prior statement was clearly 

inculpatory, a confession not simply to possession of stolen 

goods, the Virginia Beach offense for which he was then in 

custody, but, additionally, a ready admission to participation 

in the then uncharged burglary and larceny in Isle of Wight. 

Unlike Smith, Landers further implicated rather than exonerated 

himself. Thus, the content of Landers’ statement, an 

appropriate consideration to our analysis, countered any 

attribution of taint arising solely from the attendant 

circumstances. 

 Moreover, the record offers no support to defendant’s claim 

that Landers’ statement was otherwise prompted by unspoken 

coercion, anticipation of leniency or favor, or improper motive. 

No evidence suggests a scheme to mislead through the statement, 

prior knowledge of its consequences or the existence of 

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inconsistent statements. During cross-examination of Landers, 

defendant probed only his reasons for testifying at trial, with 

no inquiry into considerations that induced Landers to speak 

with Gibbons months previously. He now relies on a silent 

record to discredit Landers’ statement. 

 It is well established that “[t]he admissibility of 

evidence is within the broad discretion of the trial court, and 

a ruling will not be disturbed on appeal in the absence of an 

abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 

371 S.E.2d 838, 842 (1988) (citation omitted). “Thus, we should 

reverse only upon ‘clear evidence that [the decision] was not 

judicially sound’ and not simply to substitute our ‘discretion 

for that rendered below.’” Jefferson v. Commonwealth, 27 Va. 

App. 477, 488, 500 S.E.2d 219, 225 (1998) (alteration in 

original). 

 Under the instant circumstances, we find no abuse of 

discretion in the admission of Landers’ prior consistent 

statement into evidence and, accordingly, affirm the 

convictions. 

 Affirmed.

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Benton, J., dissenting. 

 By well established “general rule, a prior consistent 

statement of a witness is inadmissible hearsay.” Faison v. 

Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992). See also

Howard v. Commonwealth, 81 Va. 488, 490 (1886). As the Supreme 

Court noted in Faison, “[t]o allow such a statement to 

corroborate and buttress a witness’s testimony would be an 

unsafe practice, one which not only would be subject to all the 

objections that exist against the admission of hearsay in 

general but also would tend to foster fraud and the fabrication 

of testimony.” 243 Va. at 404, 417 S.E.2d at 309. The rule is 

subject only to “a few narrowly circumscribed exceptions.” Id. 

See also Gallion v. Winfree, 129 Va. 122, 127, 105 S.E. 539, 540 

(1921). 

 Pertinent to this appeal, the Supreme Court has described 

one of the narrow exceptions by “stat[ing] that, when a witness 

is impeached by ‘a charge of bias, or interest, or corruption,’ 

a prior consistent statement made by the witness is admissible 

if it was made ‘before the time when the supposed bias, or 

interest, or corruption could have existed.’” Faison, 243 Va. 

at 404, 417 S.E.2d at 309 (quoting Gallion, 129 Va. at 127, 105 

S.E. at 540) (emphasis added). I disagree with the majority’s 

conclusion that Eric Landers’ statement qualified under this 

exception. The evidence clearly proved that Landers’ statement 

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was not made before the time when his bias, interest, and 

corruption could have existed. 

 Landers made his statement after the police arrested him. 

When Landers was stopped and arrested by the police, Landers was 

driving a vehicle containing some of the stolen property. 

Indeed, he possessed the only parcels of stolen property that 

have been recovered -- a large television and eight pagers. 

After Landers was arrested in the City of Virginia Beach for 

possession of the stolen property in his vehicle, he was 

arrested in Isle of Wight County for breaking and entering. 

 Landers was interrogated after his first arrest and made 

the statements at issue. When Landers was arrested for 

possessing the stolen property and charged with a felony, those 

events became the occasion that spawned the motive to exonerate 

himself. At that time, he was not free from any desire, motive, 

or impulse he may have had to mitigate the very apparent 

appearance of his own culpability. As the Court noted in 

Gallion, “[t]he [contact] between the parties [in the criminal 

event] was made before the [statement] introduced in evidence 

was had, and the interest of [Landers] was the same at the date 

of the [statement] as at the time of the trial. So that the 

[statement] was not admissible under this exception to the 

rule.” 129 Va. at 127, 105 S.E. at 540. Simply stated, the 

evidence does not establish that when Landers made the 

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confession he was free of motivation to mitigate the obvious 

appearance of his culpability by spreading the blame and 

overstating Derek Wayne Gurganus’ involvement. Indeed, Landers’ 

statement implicates Gurganus as the primary criminal actor and 

mitigates Landers’ participation through a self-serving 

description of Landers as an unsuspecting companion who was 

“telling them to leave because what they were doing was stupid.” 

In a further attempt to exonerate himself and promote his 

interest, Landers’ statement contains an offer to “cooperate 

with [the police] one hundred percent” and expresses a desire 

“to go to college and make something of [him]self . . . hop[ing] 

that [he has not] already ruined that chance.” 

 At the time Landers made these revelations, he had been 

arrested for possession of the stolen goods. “Hence, he had a 

clear motive to lie about who [committed the burglary], and he 

had sufficient time [between his arrest and later interrogation] 

to fabricate a story.” Smith v. Commonwealth, 239 Va. 243, 261, 

389 S.E.2d 871, 880 (1990). Furthermore, the evidence proved 

that after Landers made his statement, the felony charge was 

dismissed in the City of Virginia Beach. 

 In affirming the trial judge’s admission of the prior 

consistent statement, the majority creates a new evidentiary 

standard. The majority looks to the “inculpatory” nature of 

Landers’ statement and concludes that it outweighs the “taint.” 

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In this respect, the majority confuses the prior consistent 

statement exception to the hearsay rule with the declaration 

against penal interest exception. Furthermore, the majority’s 

analysis fails to address the “narrowly circumscribed 

exceptions” to the “general rule” barring admission of the prior 

consistent hearsay statement. Faison, 243 Va. at 404, 417 

S.E.2d at 309. I can find no case decision holding that a prior 

consistent statement may be admitted under an exception to the 

hearsay rule if the statement is proved to be inculpatory. 

 For these reasons, I would hold that the trial judge erred, 

reverse the convictions, and remand for retrial. 

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