COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, ∗ Judges Frank and Clements Argued at Chesapeake, Virginia

CARLOS DEMARON BROWN MEMORANDUM OPINION ** BY v. Record No. 0226-05-1 CHIEF JUDGE WALTER S. FELTON, JR. APRIL 18, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Norman A. Thomas, Judge Harry Dennis Harmon, Jr., for appellant. Denise C. Anderson, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Carlos Demaron Brown (“appellant”) was c onvicted by a jury of attempted robbery and sentenced to three years imprison ment. Appellant was also found to be in violation of probation imposed as a condition of two previously susp ended five-year prison sentences. Following appellant’s conviction and senten cing for attempted robbery, the trial court revoked each of appellant’s previously suspended sentences and ordered a portion of those sentences be served consecutive to his sentence for the attempted robbery. On appeal, appellant argues that the trial cour t erred in its pretrial ruling that the tape recording of the victim’s 911 ca ll to the police would be inadmi ssible lay testimony as to the ultimate issue to be determined by the jury. Appellant contends that the “statements were admissible as an exception (mental state) to the ultimate issue of fact rule.” He also contends

∗ On April 1, 2006, Judge Felton succeeded Judge Fitzpatrick as chief judge.

** Pursuant to Code § 17.1-413, this opin ion is not designa ted for publication.- 2 - that the trial court erred in de nying his motion to strike the evid ence, and that it abused its discretion in sentencing him to consecutive terms of imprisonment for violating the terms of his previously suspended sentences, an d in ordering that those senten ces be served consecutive to the three-year sentence imposed for his conviction of attempted robbery. Finding no error, we affirm the judgment of the trial court.
BACKGROUND On appeal, we review the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial co urt. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (citation omitted). So viewed, the evidence established that in March 2004, appellant entered a fast-food restaurant and approached the sh ift manager, Sabrina Allen (“Alle n”), carrying a small blue knife in his hand with the blade open. Appellant to ld Allen to, “[g]ive me your money.” Allen initially laughed, was uncertain whether appellant was serious, and “shook it off because it was a small blade.” Appellant repeated his demand fo r a second time, while holding the knife “in the same position, up where [Allen] could see it.” Dianna Ross (“Ross”), another employee of the fast-food restaurant, witnessed th e interaction between appellant and Allen, and initially “just started laughing like it was a joke .” Appellant then demanded money from Allen a third time, brandishing the knife over the cas h register, and “holler[ed]” to Ross, “[h]ey, you, give me all the money.” While appellant grew up in the same neighborhood with Alle n, Allen did not “know him personally,” had never had a conversation with him, and had never joked around with him.- 3 - Ross also did not initially r ecognize appellant, with whom she had attended middle school, because it had “been a long time” si nce she had last seen him. Concerned, Allen went to the back of the store to call 911, but was unable to get a dial tone. She returned to the front of the store, wh ere appellant was still standing with the knife in his hand. Appellant then ordered food and hande d Allen money to pay for his order. When Allen opened the cash register, appellant said, “[y] ou think I’m playing; give me your money,” in a “demand type” tone while holding the knife on top of the cash register, cl oser to Allen. He was “swinging [the knife] around” and not smiling wh en he made his repeated demand. Allen quickly closed the cash register and again went to the back of the store because “she felt nervous and [felt] like [she] needed to call 911,” aski ng Ross to stall appellant while she called 911. An officer, dispatched to the fast-food rest aurant in response to Allen’s 911 call, saw appellant leaving the restaurant. Appellant wa s arrested and charged with attempted robbery. Immediately prior to the beginning of the trial, appellant’s counsel as ked the trial court to admit, in the defense case, the tape recording of Allen’s 911 call to the police as proof that he lacked any criminal intent to commit robbery. He paraphrased Allen’s statements on the 911 tape as follows: “[Allen] states, I’m not sure if he’s joking or not, I’m not sure if he’s joking, I thought it was best to call, better safe than sorry in this kind of neighborhood . . . [t]here’s someone here who asked me for the money from th e register, I’m not sure if he’s joking or not, but I thought I should call.” Th e Commonwealth indicated that appellant’s paraphrase was “relatively accurate,” but noted that it “[didn’t] recall her saying that he asked for the money, it was that he demanded the money.” (Emphasis added). Appe llant argued that the 911 tape was relevant to prove that Allen t hought he was joking when he as ked for the money and therefore the tape was probative of his lack of criminal intent.- 4 - The trial court ruled that the 911 tape w ould be improper lay witness opinion testimony as to appellant’s criminal intent, commenting that Allen’s opinion as to his criminal intent “does not appear to fall within the gambit of thos e matters in which opinions may be given by laypersons.” However, the trial court advised ap pellant that the 911 tape might be admissible if the Commonwealth “open[ed] the door to [Allen’s] testimony and [appellant] cross-examine[d] on it properly, and the witness ma[de] a denial of it, then it could indeed become rebuttal or impeachment evidence.” Appellant did not thereafter seek to use the tape for impeachment purposes nor offer it as substantive evidence during the cour se of the trial. Neither the 911 tape nor a transcript of its contents was included in the record on appeal . The jury convicted appellant of attempted robbery. This appeal followed.
I. THE 911 TAPE Appellant asserts that the trial court erred in its pretrial ruling that the tape recording of Allen’s 911 call to the police woul d be inadmissible lay opinion te stimony of his state of mind when he made his demands for money from Allen and Ross. Assuming without deciding that the trial court erred in its pr etrial ruling, any such error was harmless. Code § 8.01-678 provides that “[w] hen 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, no judgment shall be . . . reversed . . . for any error committed on the trial.” “In a criminal case, it is implicit that, in order to determine whether there has been a fair trial on the merits . . . a review ing court must decide whether the alleged error substantially influenced the jury. If it did not, the error is harmless.” Clay v. Commonwealth , 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). In Clay , the Supreme Court adopted the federal standard, as- 5 - enunciated in Kotteakos v. United States , 328 U.S. 750 (1946), for determining whether nonconstitutional error 1 is harmless error. The test articulated in Kotteakos is as follows: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whol e, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected . . . . If so, or if one is left in grave doubt, the conviction cannot stand. Clay , 262 Va. at 260, 546 S.E.2d at 731-32 (citing Kotteakos , 328 U.S. at 764-65). Allen and Ross both testified dur ing the trial as to their initial uncertainty of whether appellant was serious in his demand for money from them. At best, the 911 tape of Allen’s call for help to the police was cumulative of Allen’s testimony. From the record before us, we conclude “with fair assurance, after pondering a ll that happened without stripping the erroneous action from the whole,” that it plainly appears that appellant had a fair trial and the jury’s verdict was not substantially affected by the exclusion of the 911 tape. Kotteakos , 328 U.S. at 765. See also Pace v. Richmond , 231 Va. 216, 227, 343 S.E.2d 59, 65 (1986) (exclusion of relevant evidence not reversible error if it is merely cumulative). Accordingly, we find no error on this record that the trial court erred in its pretrial ruling related to the admissibility of the 911 tape.
II. MOTION TO STRIKE Appellant also contends the trial court erred in not gran ting his motion to strike the evidence. In order to convict appellant of attempted robbery, the Commonwealth was required to prove that appellant intended to take money from the employees of the fast-food restaurant by

1 Appellant does not assert, nor does the r ecord show, that the trial court committed constitutional error.- 6 - force or intimidation, and that he engaged in co nduct that went “beyond me re preparation and be done to produce the intended resu lt.” Tharringt on v. Commonwealth , 2 Va. App. 491, 494, 346 S.E.2d 337, 339 (1986) (citation omitted). “Wheneve r the design of a person to commit a crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt.” Martin v. Commonwealth , 195 Va. 1107, 1112, 81 S.E.2d 574, 577 (1954). Here, appellant approached the employees of the fast-food restaurant armed with a knife and repeatedly demanded that they give him mo ney, holding his knife with open blade on top of the cash register while repeating his demands. Allen was initially uncertain as to whether appellant was serious in his dema nd for money. However, his pers istent repeated demands that she give him money, while displayi ng a knife blade, caused her su fficient apprehension to call 911. From this evidence the jury could conclude that appellant possessed the criminal intent to deprive the fast-food restaurant employees of money by force or intimidation, and that his repeated demands for money at knifepoint were direct acts towards accomplishing his criminal intent. We therefore conclude that the trial cour t did not err in denying appellant’s motion to strike the evidence, and that cred ible evidence in the record suppor ts his conviction by the jury of attempted robbery.
III. SENTENCING Appellant also argues that the trial court a bused its discretion in revoking his previously suspended sentences and in ordering a portion of those sentences be served consecutive to his sentence for attempted robbery. When a trial court has previously suspe nded the execution or imposition of a sentence, “the court may revoke the suspension of sentence for any cause the court deems sufficient that- 7 - occurred at any time within the probation period, or within the period of suspension fixed by the court.” Code § 19.2-306(A). In reviewing whet her a trial court erred in revoking a previously suspended sentence, “[t]he court’s findings of fact and judgment will not be reversed unless there is a clear showing of abuse of discretion.” Allison v. Commonwealth , 40 Va. App. 407, 411, 579 S.E.2d 655, 657 (2003) (citations omitted). The record shows that appella nt previously received suspe nded sentences and was placed on probation in 2002, following convictions of drug offenses. He subsequently tested positive for cocaine use; failed to repor t to his probation officer; failed to submit to urine screens; failed to report to Drug Court; and absconded from hi s probation supervision. Additionally, appellant was convicted of attempted robbery while armed with a deadly weapon, a clear violation of the terms of his probation. Given the record before us, we conclude that the trial court did not abuse its discretion in revoking appellant’s previously suspended sentences and in ordering a por tion of those sentences be served consecutive to his se ntence for the attempted robbery.
CONCLUSION For the reasons set forth above, we conclude th e trial court did not err in its pretrial ruling as to the admissibility of the 911 tape; in denyin g appellant’s motion to strike the evidence; and that it did not abuse its discre tion in sentencing defendant to terms of consecutive one-year imprisonment for his probation viol ations, to be served consecutiv e to the three-year sentence imposed for attempted armed robbery. The judgmen t of the trial court is therefore affirmed. Affirmed.