COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges Co leman and Lemons Argued at Salem, Virginia

KENNETH EDWA RD BROWN MEMORANDUM OPINION * BY v. Record No. 0695-98-3 JUDG E SAM W. COLEMAN III JUNE 15, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT CO URT OF HENRY COUNTY Charles M. St one, Judge James R. McGarry (Young, Haskins, Mann, Gregory & Smith, P.C., on brief), for appellant. Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kenneth Edward Brown was convic ted by a jury of aggravated malicious woun ding and robbery. On appeal, Brow n contends that the trial court er red by denying his moti ons (1) for a new trial on the ground that th e Commonwealth violatedthe court’ s discovery order by withholding from him the fact th at a Commonwealth’s witness had a felo ny conviction, (2) for a mistri al because the Commonwealth introducedinadmissible eviden ce that he used

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.cocaine, and (3) to strike the evid ence as insufficient to support the robbery conv iction. Finding no er ror, we affirm the convictions. BACKGROUND Grogan’s Grocery is a country store loca ted in Henry County owned and operated by Arnie Grogan. During th e early morning before the store opened , Brown knocked on the front door under the pretense of needin g to purchase kerosene. Grogan openedthe store for Brown and as Groganturned around, Brow n struck him on the head until he beca me unconscious. Grogan’s billfold, wh ich had been inthe cash register before Brown entered the store, contained approxim ately $1,000 in $100 bills. After Gr ogan regained consciousn ess, the billfold was missing. At trial, Grogan positive ly identified Brown as his assailant. On cross-ex amination, Grogan admi tted that he was not wearing glasses on the morning of the attack , that he only saw the assailant for a “short time,” and that he had difficulty identifying Br own as his assailan t in a previous identification. Nevertheless, he testified that he was “sure” about the identification. The Commonwealth al so proved that Brow n’s vehicle was at Grogan’s Grocery on th e morning when the cr ime occurred. Jason Dodd testified that on the morning of the robb ery he saw a vehicle

- 2 -in the middle of the ro ad near Grogan’s store. In the vehicle was a man whom Dodd iden tified as Brown. Additional ly, Dodd identified pictures of Brown’s car as the vehicle he saw that morning. 1 John Wilson, who also drove by Grogan’s store that morning, testified that he saw a car parked ther e that had no license plates, which he later identified from the pictures as Brown’s car. Wilson pointed ou t that he reco gnized the rust spot on the fender. After trial, but before sentenci ng, the Comm onwealth informed Brown that Wilson ha d been convicte d in 1983 of involuntary ma nslaughter, a felony. The evidence further proved th at on April 26 , Jerry Morgan, Brown’s landlo rd, had notifi ed Brown that he an d his family were to vacate their reside nce on May 26 for no npayment of rent. Grogan’s store was robb ed on the morn ing of May 25. Between 7:00 and 7:30 on the morning of May 25, Morg an drove by Brown’s residence and no ticed that his car was not there. Morgan testified that before the robbery, Brown had no money.

1 Brown asserts that his counsel impeached Dodd’s testimony. On cross-examination, Dodd confirmed that after the robbery he told investigators he remembered a hole in the car’s gas tank like the hole in the defendant’s car. Assuming that Dodd was referring to a hole in the gas cap cover, counsel for Brown asked Dodd if he had a view of that side of the vehicle on the morning of the robbery. Dodd admitted that he had no view of that side of the vehicle, but clarified that he was referring to the rusted-out hole in the vehicle’s fender rather than the hole in the gas cap.

- 3 -However, Renee Martintestified that on May 26 at 1:30 p.m., Brown and his wife rented a trailer from her and for a security deposit and one- week’s rent Brown’ s wife paid $350 with three $100 bills and one fift y dollar bill. Then, on June 8, she paid $250 in rent with two $100 bi lls and other denominations. Jesse Norris, a convicted felo n who was in ja il with the defendant after th e robbery, testified that Brown admitt ed to him that he committe d the robbery. Brown told Norris that he hit Grogan with a tire ir on, took his wallet, an d left the store. Brown also said that as he turned his ca r around, seve ral people drove past him. He noted that he had removed the tags from the vehicle to avoid identi fication and had thrownthe tire iron into the water. Brow n had asked Norris whether stains and fingerprints could be taken from a ti re iron that had beenunder wate r. Brown also asked Norris whethe r he knew how to remo ve a distin ctive rust spot from a vehicle. During rebuttal, Br own’s wife testified that “things weren’t going very well” regard ing their marria ge. On cros s-examination the Commonweal th asked her whethe r she ever had “a ny problem with what [Brown] did with the money that he did have.” When she responded that she di d not, the Commonweal th asked whether she recalled making a stat ement to Renee Martin regarding he r concerns about how her husb and spent money. When she replie d that she did not recall, the Co mmonwealth asked: “Did you tell her [Brown] was spending the money oncocaine?” Over Br own’s object ion, and

- 4 -pursuant to the trial court’s ruling, the Commonweal th re-phrased the question: “Didyou ever tell Renee Martin that your husband, Kenny, was spending mo ney, family money, oncocaine?” Brown’s wife did not deny the statement but co uld not recall having ever made it. The tr ial court cautione d the jury not to consider the statement as evidence of drug use but only with regard to its impact, if any, on the witness’ credibility. The Common wealth did not thereafter introduc e evidence from Renee Martin that Brown’s wife had stated that Brown was spendi ng family mone y on cocaine. ANALYSIS Failure to Disclose Exculpator y Evidence “[S]uppression by th e prosecution of evidence favorable to an accused upon request vi olates due process wh ere the evid ence is material either to gu ilt or to puni shment, irrespec tive of the good faith or bad faith of the pros ecution.” Brady v. Maryland , 373 U.S. 83, 87 (1963) . “[A] person convic ted of a felony . . . shall not be incompeten t to testify, but the fact of conviction may be shown in evidence to affect his credit.” Able v. Commonwealth , 16 Va. App. 542, 546, 431 S.E.2d 337, 339 (1993) (quoting Code § 19 .2-269). “Favorable evidence is material ‘only if there is a reasonab le probability that, had the ev idence been disclosed to the defens e, the result of the proceeding would have been different. A “reasonable prob ability” is a probability sufficient to unde rmine confiden ce in the ou tcome.’” Soering v. Deeds , 255 Va. 457, 464, 499 S.E.2d 514, 51 7 (1998) (quoting

- 5 -United States v. Bagley , 473 U.S. 667, 682 (1 985)). Th erefore, Brown “must showthat when the ca se is evaluated inthe context of the entire record, in cluding the omit ted evidence, a jury would have entertained a re asonable doubt” as to Brown’s guilt. Id. The Commonwealth vi olated the court’s discovery order by failing to reveal Wilson’s prior conv ictions. Had the Commonwealth revealedWilson’s convicti on for involuntary manslaughter, Brown could have impeached Wilson’s credibility with that information. However, we find that there is no reasonable probability that had the convictionbeen disclosed, the jury would have come to a differ ent conclusion. Therefore, the trial court did not err in denying th e motion for a new trial. Wilson’s testimony th at he saw Brown’s ca r at Grogan’s store on the morning of the robbery was circ umstantial ev idence which corroborated the other overwhelming evidence of Brown’s guilt. Moreover, the test imony was cumula tive of Dodd’s testimony who also identified Brow n’s vehicle. Furthermore, Wilson’s identification of Brown’s car was much less incr iminating than Grogan’s and Dodd’s testimony identifying Brown. Additional testimony made the ev idence of gu ilt overwhelmi ng: Norris testified that Brown co nfessed to him; Moore testifie d that prior to the robbery Brown ha d no money; and Martintestified that after the robbery Brown’ s wife had a large sum of cash in $100 bills, the same denomination taken with Grogan’s bi llfold. Thus, absent Wilson’s testimony, we find the Commonwealth’s evidence of Brown’s

- 6 -guilt to be overwh elming on both charges. Accordingly, we find that the trial court di d not err in denying Brown’s motion for a new trial. Prior Inconsiste nt Statement “On appeal[,] th e denial of a mo tion for a mist rial will not be overruled unle ss there exists a manife st probabilit y that the denial of a mi strial was prejudicial.” Harward v. Commonwealth , 5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1 988). “If a witness gives testimony th at is inconsiste nt with a prior statement, or testifies that he does not recall making the prior st atement, a sufficient foundation for impeachment has been laid, and opposing counsel may cross-examine the witnes s as to the in consistency.” Smith v. Commonwealth , 15 Va. App. 507, 51 1, 425 S.E.2d 95, 98 (1992). Evidence establishing that the Browns were in pressing need of money was rele vant to prove th at Kenneth Edward Brown had a motive to commit the cr imes. The Commonwealthintroduced evidence showing that the Browns lacked sufficient fi nancial reso urces to pay their rent prior to the robbery. The defendan t offered his wife’s testimony in re buttal to prov e that despite some financial difficulty, theyhad sufficient income prior to th e robbery. In her rebuttal testimony, Paula Brown ac counted for the money that the Browns spent immedi ately after the robbery and test ified that

- 7 -the money was under her control prio r to and during the time when the Commonweal th alleged defend ant obtained the money by robbing Grogan’s store. In cross-examining Paula Brown, the Comm onwealth asked her whether she had pr oblems with the way her husband sp ent money. In response, she test ified that she had no co mplaints regarding how her husband spent their money. Th e Commonwealth th en attempted to impeach her by asking, “Did you ever tell Re nee Martin that your husband, Kenny, was sp ending . . . family mo ney, on co caine?” By asking this ques tion, the Common wealth sought to elicit testimony tend ing to impeach Paul a Brown in two wa ys. First, the Commonwealth sought to refute the substance of her prio r testimony by having her acknow ledge that her husb and was fi nancially irresponsible and had depleted family resources. Second, the Commonwealth sought to impeach her cr edibility as a witness by proving that she had ma de a prior statement in consistent with her testimony un der oath. The Commonwealth ’s question called fo r informatio n relevant to establish the la ck of funds as a motive to commit the crimes. However, in orde r for the trial court to determ ine whether the question was proper, the trial court had to weigh the probative value of the evidence agains t its prejudic ial impact. See Cumbee v. Commonwealth , 219 Va. 1132, 1137-38, 254 S.E.2d 112, 116 (1979).

- 8 -Clearly, the question had a pr ejudicial effect in that it implied that Brown usedcocaine. He re, the trial court had no opportunity to weigh the probative va lue against th e prejudicial effect because the Co mmonwealth had asked the questionin the jury’s presence. The trial court, apparently assuming that Paula Brown would admit having made the statement, admoni shed the jury only to consider the fa ct that she may have made the statement to the extent that it im peached her testimony and credib ility. The judge instructed the jury not to cons ider her statement as evidence of Brow n’s drug use and in doin g so, the ju dge limited the question’s prejudicia l effect. A jury is presumed to follow a judge’s instruction regardin g the limitati on placed ona specific piece of evidence, see Lawson v. Commonwealth , 13 Va. App. 109, 112, 409 S.E.2d 466, 467 (1991), and nothing in the record rebuts the presumption th at the jury followed th e judge’s admonition. Additionally, Pa ula Brown did no t acknowledge ha ving made the prior statement; she replied inst ead, that she did not recall having made the statement. Alth ough the questioncalled for a potentially prejudicial resp onse, the resp onse was not prejudicial, and the Co mmonwealth never intr oduced the allegedly prior inconsis tent statement. Thus, assuming without deciding that the question was more prejudicial than probative an d should have been disall owed, the trial ju dge’s procedure fo r handling the question was neverthele ss harmless. Because the evidence of guilt was overwhelming , and the trial court instructed the jury to

- 9 -disregard any prej udicial impact fr om the question , we conclude that the jury was not affected by th e question. Therefore, we cannot say that there is a manifest probabilit y that the denial of appellant’s mo tion for a mistrial was prejud icial. Sufficiency “On appeal, we re view the evidence in the light most favorable to the Comm onwealth, granti ng to it al l reasonable inferences fairly de ducible ther efrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). As noted, we find the Co mmonwealth’s evidence was overwhelming, th us, it was sufficient to convict Brown of malicious woun ding and robbery. Grogan identifi ed Brown as the assailant, and two othe r witnesses plac ed Brown’s ve hicle at the crime scene. Grogan testified that when he regained consciousness, his wall et containing approxim ately ten $100 bills was missing. Th e evidence showed that Brown was experiencing financial diff iculty, that the crime occu rred the day before he and his family had to vacate their le ased residence for non-payment of rent, an d that on the aftern oon after th e robbery the Browns entered into a new lease paying the security deposit and one-week’s rent in $100 bills. While in jail , Brown admitted to Norris that he st ruck Grogan with a tire iron and stole Grogan’s billfold.

- 10 -At trial, Brown deni ed guilt and pr oduced evidence to impeach the credibility of Grogan, Wilson, 2 Dodd, and Norr is. However, “[t]he weight which sh ould be given to evid ence and whether the testimony of a witness is credible are ques tions which the fact finder must decide.” Bridgeman v. Commonwealth , 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). The eviden ce is not inherently incredible and is su fficient to suppor t the conv ictions. In conclusion, we find that the Common wealth’s failure to disclose Wilson’s convic tion record was not ma terial to the jury’s conviction, that the trial cour t did not err by allowing the Commonwealth to qu estion Paula Brown regarding her prior inconsistent statement, and that the evidence was sufficient to support the convic tions. Accordin gly we affirm th e convictions. Affirmed.

2 On appeal, Brown asserts that Wilson’s evidence was unimpeached. However, on cross-examination, he admitted that he did not see the car for very long, that he was really only concerned with the missing tags, that he did not pay attention to the make or model of the car, that he did not remember whether the car had a roof rack, and that the allegedly identifying rust was not an uncommon feature of cars in the area.

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