COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

KENNETH EDWARD BROWN 

 MEMORANDUM OPINION* BY 

v. Record No. 0695-98-3 JUDGE SAM W. COLEMAN III 

 JUNE 15, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

Charles M. Stone, 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 convicted by a jury of aggravated 

malicious wounding and robbery. On appeal, Brown contends that 

the trial court erred by denying his motions (1) for a new trial 

on the ground that the Commonwealth violated the court’s discovery 

order by withholding from him the fact that a Commonwealth’s 

witness had a felony conviction, (2) for a mistrial because the 

Commonwealth introduced inadmissible evidence 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 evidence as insufficient to support 

the robbery conviction. Finding no error, we affirm the 

convictions. 

 BACKGROUND

 Grogan’s Grocery is a country store located in Henry County 

owned and operated by Arnie Grogan. During the early morning 

before the store opened, Brown knocked on the front door under the 

pretense of needing to purchase kerosene. Grogan opened the store 

for Brown and as Grogan turned around, Brown struck him on the 

head until he became unconscious. 

 Grogan’s billfold, which had been in the cash register before 

Brown entered the store, contained approximately $1,000 in $100 

bills. After Grogan regained consciousness, the billfold was 

missing. 

 At trial, Grogan positively identified Brown as his 

assailant. On cross-examination, Grogan admitted 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 Brown as his assailant in a previous identification. 

Nevertheless, he testified that he was “sure” about the 

identification. 

 The Commonwealth also proved that Brown’s vehicle was at 

Grogan’s Grocery on the morning when the crime occurred. Jason 

Dodd testified that on the morning of the robbery he saw a vehicle 

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in the middle of the road near Grogan’s store. In the vehicle was 

a man whom Dodd identified as Brown. Additionally, 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 there that had no license 

plates, which he later identified from the pictures as Brown’s 

car. Wilson pointed out that he recognized the rust spot on the 

fender. After trial, but before sentencing, the Commonwealth 

informed Brown that Wilson had been convicted in 1983 of 

involuntary manslaughter, a felony. 

 The evidence further proved that on April 26, Jerry Morgan, 

Brown’s landlord, had notified Brown that he and his family were 

to vacate their residence on May 26 for nonpayment of rent. 

Grogan’s store was robbed on the morning of May 25. Between 7:00 

and 7:30 on the morning of May 25, Morgan drove by Brown’s 

residence and noticed 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. 

 

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 However, Renee Martin testified 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 fifty dollar bill. Then, on June 8, she paid $250 

in rent with two $100 bills and other denominations. 

 Jesse Norris, a convicted felon who was in jail with the 

defendant after the robbery, testified that Brown admitted to him 

that he committed the robbery. Brown told Norris that he hit 

Grogan with a tire iron, took his wallet, and left the store. 

Brown also said that as he turned his car around, several people 

drove past him. He noted that he had removed the tags from the 

vehicle to avoid identification and had thrown the tire iron into 

the water. Brown had asked Norris whether stains and fingerprints 

could be taken from a tire iron that had been under water. Brown 

also asked Norris whether he knew how to remove a distinctive rust 

spot from a vehicle. 

 During rebuttal, Brown’s wife testified that “things weren’t 

going very well” regarding their marriage. On cross-examination 

the Commonwealth asked her whether she ever had “any problem with 

what [Brown] did with the money that he did have.” When she 

responded that she did not, the Commonwealth asked whether she 

recalled making a statement to Renee Martin regarding her concerns 

about how her husband spent money. When she replied that she did 

not recall, the Commonwealth asked: “Did you tell her [Brown] was 

spending the money on cocaine?” Over Brown’s objection, and 

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pursuant to the trial court’s ruling, the Commonwealth re-phrased 

the question: “Did you ever tell Renee Martin that your husband, 

Kenny, was spending money, family money, on cocaine?” Brown’s 

wife did not deny the statement but could not recall having ever 

made it. The trial court cautioned 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 Commonwealth did 

not thereafter introduce evidence from Renee Martin that Brown’s 

wife had stated that Brown was spending family money on cocaine. 

ANALYSIS

Failure to Disclose Exculpatory Evidence

 “[S]uppression by the prosecution of evidence favorable to an 

accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution.” Brady v. Maryland, 

373 U.S. 83, 87 (1963). “[A] person convicted of a felony . . . 

shall not be incompetent 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 reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have 

been different. A “reasonable probability” is a probability 

sufficient to undermine confidence in the outcome.’” Soering v. 

Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998) (quoting 

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United States v. Bagley, 473 U.S. 667, 682 (1985)). Therefore, 

Brown “must show that when the case is evaluated in the context of 

the entire record, including the omitted evidence, a jury would 

have entertained a reasonable doubt” as to Brown’s guilt. Id.

 The Commonwealth violated the court’s discovery order by 

failing to reveal Wilson’s prior convictions. Had the 

Commonwealth revealed Wilson’s conviction 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 conviction been disclosed, the jury would 

have come to a different conclusion. Therefore, the trial court 

did not err in denying the motion for a new trial. 

 Wilson’s testimony that he saw Brown’s car at Grogan’s store 

on the morning of the robbery was circumstantial evidence which 

corroborated the other overwhelming evidence of Brown’s guilt. 

Moreover, the testimony was cumulative of Dodd’s testimony who 

also identified Brown’s vehicle. Furthermore, Wilson’s 

identification of Brown’s car was much less incriminating than 

Grogan’s and Dodd’s testimony identifying Brown. Additional 

testimony made the evidence of guilt overwhelming: Norris 

testified that Brown confessed to him; Moore testified that prior 

to the robbery Brown had no money; and Martin testified that after 

the robbery Brown’s wife had a large sum of cash in $100 bills, 

the same denomination taken with Grogan’s billfold. Thus, absent 

Wilson’s testimony, we find the Commonwealth’s evidence of Brown’s 

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guilt to be overwhelming on both charges. Accordingly, we find 

that the trial court did not err in denying Brown’s motion for a 

new trial. 

Prior Inconsistent Statement

 “On appeal[,] the denial of a motion for a mistrial will not 

be overruled unless there exists a manifest probability that the 

denial of a mistrial was prejudicial.” Harward v. Commonwealth, 

5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). “If a witness 

gives testimony that is inconsistent with a prior statement, or 

testifies that he does not recall making the prior statement, a 

sufficient foundation for impeachment has been laid, and opposing 

counsel may cross-examine the witness as to the inconsistency.” 

Smith v. Commonwealth, 15 Va. App. 507, 511, 425 S.E.2d 95, 98 

(1992). 

 Evidence establishing that the Browns were in pressing need 

of money was relevant to prove that Kenneth Edward Brown had a 

motive to commit the crimes. The Commonwealth introduced evidence 

showing that the Browns lacked sufficient financial resources to 

pay their rent prior to the robbery. The defendant offered his 

wife’s testimony in rebuttal to prove that despite some financial 

difficulty, they had sufficient income prior to the robbery. In 

her rebuttal testimony, Paula Brown accounted for the money that 

the Browns spent immediately after the robbery and testified that 

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the money was under her control prior to and during the time when 

the Commonwealth alleged defendant obtained the money by robbing 

Grogan’s store. 

 In cross-examining Paula Brown, the Commonwealth asked her 

whether she had problems with the way her husband spent money. In 

response, she testified that she had no complaints regarding how 

her husband spent their money. The Commonwealth then attempted to 

impeach her by asking, “Did you ever tell Renee Martin that your 

husband, Kenny, was spending . . . family money, on cocaine?” 

 By asking this question, the Commonwealth sought to elicit 

testimony tending to impeach Paula Brown in two ways. First, the 

Commonwealth sought to refute the substance of her prior testimony 

by having her acknowledge that her husband was financially 

irresponsible and had depleted family resources. Second, the 

Commonwealth sought to impeach her credibility as a witness by 

proving that she had made a prior statement inconsistent with her 

testimony under oath. 

 The Commonwealth’s question called for information relevant 

to establish the lack of funds as a motive to commit the crimes. 

However, in order for the trial court to determine whether the 

question was proper, the trial court had to weigh the probative 

value of the evidence against its prejudicial impact. See Cumbee 

v. Commonwealth, 219 Va. 1132, 1137-38, 254 S.E.2d 112, 116 

(1979). 

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 Clearly, the question had a prejudicial effect in that it 

implied that Brown used cocaine. Here, the trial court had no 

opportunity to weigh the probative value against the prejudicial 

effect because the Commonwealth had asked the question in the 

jury’s presence. The trial court, apparently assuming that Paula 

Brown would admit having made the statement, admonished the jury 

only to consider the fact that she may have made the statement to 

the extent that it impeached her testimony and credibility. The 

judge instructed the jury not to consider her statement as 

evidence of Brown’s drug use and in doing so, the judge limited 

the question’s prejudicial effect. A jury is presumed to follow a 

judge’s instruction regarding the limitation placed on a 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 that the jury followed the judge’s admonition. 

Additionally, Paula Brown did not acknowledge having made the 

prior statement; she replied instead, that she did not recall 

having made the statement. Although the question called for a 

potentially prejudicial response, the response was not 

prejudicial, and the Commonwealth never introduced the allegedly 

prior inconsistent statement. Thus, assuming without deciding 

that the question was more prejudicial than probative and should 

have been disallowed, the trial judge’s procedure for handling the 

question was nevertheless harmless. Because the evidence of guilt 

was overwhelming, and the trial court instructed the jury to 

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disregard any prejudicial impact from the question, we conclude 

that the jury was not affected by the question. Therefore, we 

cannot say that there is a manifest probability that the denial of 

appellant’s motion for a mistrial was prejudicial. 

Sufficiency

 “On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.” Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 As noted, we find the Commonwealth’s evidence was 

overwhelming, thus, it was sufficient to convict Brown of 

malicious wounding and robbery. Grogan identified Brown as the 

assailant, and two other witnesses placed Brown’s vehicle at the 

crime scene. Grogan testified that when he regained 

consciousness, his wallet containing approximately ten $100 bills 

was missing. The evidence showed that Brown was experiencing 

financial difficulty, that the crime occurred the day before he 

and his family had to vacate their leased residence for 

non-payment of rent, and that on the afternoon after the 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 struck Grogan with a tire iron and stole 

Grogan’s billfold. 

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 At trial, Brown denied guilt and produced evidence to impeach 

the credibility of Grogan, Wilson,2 Dodd, and Norris. However, 

“[t]he weight which should be given to evidence and whether the 

testimony of a witness is credible are questions which the fact 

finder must decide.” Bridgeman v. Commonwealth, 3 Va. App. 523, 

528, 351 S.E.2d 598, 601 (1986). The evidence is not inherently 

incredible and is sufficient to support the convictions. 

 In conclusion, we find that the Commonwealth’s failure to 

disclose Wilson’s conviction record was not material to the jury’s 

conviction, that the trial court did not err by allowing the 

Commonwealth to question Paula Brown regarding her prior 

inconsistent statement, and that the evidence was sufficient to 

support the convictions. Accordingly we affirm the 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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