COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Frank 

Argued at Salem, Virginia 

ERRICK LEE MITCHELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1373-01-3 JUDGE ROSEMARIE ANNUNZIATA 

 SEPTEMBER 24, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

Joseph W. Milam, Jr., Judge 

 Mark T. Williams (Williams, Morrison, 

 Light and Moreau, on brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 On March 19, 2001, the circuit court convicted Errick Lee 

Mitchell of unlawful wounding, in violation of Code § 18.2-51, 

and sentenced him to five years in the penitentiary, with one 

year suspended. On appeal, Mitchell contends: (1) the trial 

court erred in allowing a police officer to testify to the 

out-of-court identification by the victim, arguing that the 

testimony constituted inadmissible hearsay; and (2) the 

erroneous ruling was not harmless error. For the following 

reasons, we affirm his conviction. 

 *

 Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
Background

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, the party prevailing below, together with 

all reasonable inferences that may be drawn from it. Ortega v. 

Commonwealth, 31 Va. App. 779, 786, 525 E.E.2d 623, 627 (2000) 

(citing Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 

826, 831 (1997) (additional citation omitted)). 

 On November 18, 2000, Denise Farmer was visiting the home 

of Roscoe Harris. During the early hours of November 19th, 

Mitchell arrived at the house and asked to speak with Farmer. 

Mitchell and Farmer stepped outside, and an argument ensued. 

Mitchell then pulled a box cutter out of a case and cut Farmer 

across her left arm. She tried to go back inside the house but 

Mitchell threatened to cut her again. 

 Farmer told Mitchell that he had cut her "real bad." 

Mitchell wrapped Farmer's wound in a sheet and accompanied her 

to the hospital. Upon arrival at the hospital, Mitchell 

instructed Farmer to go inside alone. He waited outside. 

Police Officer Jacob Sparks questioned Farmer at the hospital 

about her wound and the circumstances surrounding its 

infliction. Farmer told him that Mitchell had cut her and was 

waiting outside. Officer Sparks brought Mitchell into the 

hospital and asked Farmer if he was the individual who had cut 

her. Farmer responded that he was. 

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 At trial, Farmer testified on direct examination that 

Mitchell was the individual who had cut her with the box cutter. 

Over Mitchell's hearsay objection, Officer Sparks testified 

that, when he brought Mitchell into the hospital, he asked 

Farmer if Mitchell "had anything to do with her [injury]." 

Officer Sparks testified that Farmer responded, "That's the man 

who cut me." After he objected to Officer Sparks' testimony, 

Mitchell testified about the officer's conversation with Farmer, 

and stated Farmer identified him in response to Officer Sparks' 

question. 

Analysis

 Mitchell argues on appeal that we should reverse his 

conviction because the trial court admitted inadmissible 

testimony from a police officer regarding an out-of-court 

identification by the victim. He contends that the testimony is 

only admissible as rebuttal evidence when the in-court 

identification is equivocal. See Niblett v. Commonwealth, 217 

Va. 76, 82-83, 225 S.E.2d 391, 395 (1976). Since the victim 

made an unequivocal in-court identification of Mitchell at trial 

and no challenge to this identification was raised, Mitchell 

argues the police officer's testimony of the out-of-court 

identification was inadmissible. Finally, the Commonwealth 

asserts than any error in the admissibility of the officer's 

testimony was harmless. We find that Mitchell waived his 

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objection to the Commonwealth's hearsay evidence and affirm on 

that ground. 

 When "an accused unsuccessfully objects to evidence which 

he considers improper and then on his own behalf introduces 

evidence of the same character, he thereby waives his 

objection." Saunders v. Commonwealth, 211 Va. 399, 401, 177 

S.E.2d 637, 638 (1970); see also Hubbard v. Commonwealth, 243 

Va. 1, 9, 413 S.E.2d 875, 879 (1992) (waiving the appellant's 

objection to Commonwealth's reconstructed opinion evidence of 

vehicle's speed because appellant submitted similar 

reconstructed opinion evidence). 

 Here, Mitchell waived any objection he had to the 

Commonwealth's out-of-court identification hearsay evidence 

since he introduced the same evidence in his own testimony. 

Mitchell testified that the police officer asked the victim, "Do 

you recognize . . . do you know him" and that she had stated, 

"Yeah that's the guy who cut me." Having testified to the same 

hearsay statement that he objected to, Mitchell thus waived his 

objection to the evidence. See id. 

 Affirmed.

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