COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

TROY LEE ESTEP 

 MEMORANDUM OPINION* BY 

v. Record No. 2887-95-3 JUDGE RICHARD S. BRAY 

 MAY 20, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WISE COUNTY 

J. Robert Stump, Judge 

 Susan D. Oglebay for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Troy Lee Estep (defendant) was convicted by a jury of 

burglary, malicious wounding, robbery and abduction. On appeal, 

defendant contends that the trial court erroneously received into 

evidence portions of his statement to police, while denying his 

request for admission of the entire statement. Finding no 

reversible error, we affirm the convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 "The ancient rule in this Commonwealth is that the 

prosecution has no right to introduce selected portions of a 

defendant's confession and exclude those which tend to mitigate, 

justify, or excuse the offense charged." Boggs v. Commonwealth, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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229 Va. 501, 517, 331 S.E.2d 407, 419 (1985), cert. denied, 475 

U.S. 1031 (1986). However, this principle does not render 

admissible irrelevant and immaterial contents of a statement, 

otherwise inadmissible. See Pierce v. Commonwealth, 2 Va. App. 

383, 389-91, 345 S.E.2d 1, 4-5 (1986). Accordingly, 

"objectionable portion[s] of [a] statement [which] can easily be 

separated from the remainder of the admission without adverse 

effect" should be redacted, with only relevant parts admitted 

into evidence. Id. at 391, 345 S.E.2d at 5. 

 "When . . . evidence is rejected, it is incumbent upon the 

proponent of the evidence to make a proffer of the expected 

[content]; otherwise, the appellate court has no means of 

determining if the evidence is material or otherwise admissible." 

Speller v. Commonwealth, 2 Va. App. 437, 440, 345 S.E.2d 542, 

545 (1986). "[I]t is axiomatic that an appellate court's review 

. . . is limited to the record on appeal." Turner v. 

Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986). 

Here, defendant proffered only a portion of the statement in 

issue, leaving the record silent with respect to the remainder 

and precluding our review of its exclusion for error. 

 Assuming, without deciding, that exclusion of the proffered

evidence was error, we find it harmless. "An error, if 

non-constitutional in nature as is this one, is harmless if '"it 

plainly appears from the record and the evidence given at the 

trial that" the error did not affect the verdict.'" Woodward v. 
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Commonwealth, 16 Va. App. 672, 675, 432 S.E.2d 510, 512 (1993) 

(emphasis omitted) (quoting Lavinder v. Commonwealth, 12 Va. App. 

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code 

§ 8.01-678)). 

 The proffered portion of the statement indicates only that 

defendant had been drinking throughout the day of the offense. 

Without objection from defendant, the trial court instructed the 

jury that 

 [v]oluntary intoxication is not a defense to 

any of the crimes that [defendant] is charged 

with. Even if you find that he was greatly 

intoxicated by the voluntary use of alcohol 

you must still find him guilty if you find 

that the Commonwealth has proved every 

element of the crimes beyond a reasonable 

doubt. 

Defendant was, therefore, bound by this legal principle, see

Shamblee v. Virginia Transit Co., 204 Va. 591, 594-95, 132 S.E.2d 

712, 714 (1963); see also Commonwealth v. Millsaps, 232 Va. 502, 

509, 352 S.E.2d 311, 315 (1987), which removed intoxication from 

the jury's consideration in the guilt phase of trial. 

 Moreover, such evidence was merely cumulative of 

uncontroverted testimony which established that defendant was 

"very loud," smelled of alcohol and "[a]ppear[ed]" to have been 

"drinking" moments after the offense. "Evidence admitted in 

error does not affect a verdict if it is 'merely cumulative of 

other, undisputed evidence.'" Woodward, 16 Va. App. at 675, 432 

S.E.2d at 512 (quoting Ferguson v. Commonwealth, 16 Va. App. 9, 

12, 427 S.E.2d 442, 445 (1993)). Conversely, the erroneous 
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exclusion of cumulative evidence may also be harmless. 

 Thus, the record plainly demonstrates that exclusion of the 

proffered evidence could not have properly affected the verdict, 

rendering the ruling harmless, even if in error. Accordingly, we 

affirm the convictions. 

 Affirmed.