COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Se nior Judge Bumgardner ∗ Argued at Salem, Virginia

GREGORY LEON YOUNG OPINION BY v. Record No. 1763-04-3 JUDGE ROBERT P. FRANK FEBRUARY 7, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Mila m, Jr., Judge Seth I. Howard, Assistant Appe llate Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Denise C. Anderson, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

A jury convicted Gregory Leon Young, appellant, of armed robbery in violation of Code § 18.2-58 and sentenced him to life in prison. On a ppeal, appellant contends that the trial court erred in allowing the Commonwealth to play portions of a vide otaped confession to the jury because it contained statements of other, unrel ated crimes that were inadmissible and highly prejudicial. For the re asons stated, we affirm appellant’s conviction, but vacate appellant’s life

sentence and remand to the tria l court for re-sentencing.

BACKGROUND On January 21, 2004, at 3:00 p.m., a man entere d the Check ‘n Go check-cashing facility in Danville, Virginia. Shanna Jones, an empl oyee, was alone in the store, standing behind the counter. The man approached Jones and placed a sm all note on the counter that read, “I have a

∗ Judge Bumgardner participated in the hear ing and decision of th is case prior to the effective date of his retirement on December 31, 2005.- 2 - gun. Give me $2,100.00. You have ten seconds.” The man told Jones, “Just give me all your money and you won’t be hurt.” He then pulled fr om his coat a large silver and black handgun. The man pointed the gun at Jones, and she ha nded over all of the money in her cash drawer, totaling $1,176. The man left the store. Jones pr essed the panic button at her station to alert police, who responded to the scene. A video camera in the store recorded the robbery. On January 28, 2004, police officers arrested appellant in Henry County, Virginia, in connection with a bank robbery th at occurred that same day. During their interrogation of appellant regarding that offense, appellant made statements regarding the robbery of the Check ‘n Go in Danville. After being questioned by Henry County detectives regarding the Danville robbery, Danville detectives que stioned appellant and took a wr itten statement from him. Appellant was subsequently charged with armed r obbery and use of a firearm in commission of a felony. These charges were tried separatel y, with the armed robbery tried by a jury. 1 Before trial began, outside of the presence of the jury, the Commo nwealth advised the trial court that they would seek to admit a vi deo recording of appellan t’s confession to Henry County and Danville detectives. The tape cont ained two different interviews, one conducted by Henry County/Martinsville detectives, and one conducted by Danville detectives. The total interview lasted approximately f our hours and addressed not only th e subject charges, but other, unrelated crimes involving both r obbery and drugs, including th e Henry County bank robbery for which appellant was initially arrested. Appellant made incriminating statements regarding the present armed robbery during both interviews. The Commonwealth acknowledged that in the ta pe “they discuss other things too . . . other cases. And I guess what we need to do is try to sanitize it.” Appellant objected to the

1 The record reflects that, the morning of the trial, appellant chose to proceed pro se on the charge of armed robbery, but had appointed counsel to represent him on the other charge. The charge of use of a firearm in commissi on of a felony is not before us on appeal.- 3 - introduction of the video alt ogether, arguing that it would je opardize his presumption of innocence before the jury. The trial court allowe d the video into evidence , but limited its use to statements about the present offenses, ruling that evidence of any other crimes was not relevant to the present charges. The trial court advise d the Commonwealth that “s tatements unrelated to

these offenses need to be redacted from the ta pe before it is played to the jury.” The Commonwealth agreed and informed the court that he w ould instruct the dete ctives to do so.

After a brief recess and before trial be gan, appellant renewed his objection to the admission of the videotape and expressed his concer n that the recording coul d not be sanitized in

order to exclude the statements of other crim es. The Commonwealth’s Attorney advised the

court that detectives were curren tly reviewing the video and that he would notify appellant as to the outcome of that process before he sought to introduce the video. The trial court agreed and proceeded with opening statements. During his opening statement, appellant assert ed that he was “tricked and forced” into confessing the Check ‘n Go robbery to the detectiv es. Appellant stated th at at the time of his confession he was being “held and detained in Henry County on separate charges.” Appellant

also noted that a search of his house did not re sult in the recovery of any weapon or cash associated with the armed robbery. At trial, the victim identified appellant as the robber, who was depicted in the store video recording of the crime. The Commonwealth intr oduced the fingerprint analysis from the note the robber left on the counter, which matched appell ant’s fingerprints. The Commonwealth also entered appellant’s signed, written confession into evidence, which included a description of the clothing appellant wore on the day of the robbery. In his cross-examination of the laboratory technician who performed the fingerprint analysis, appellant elicited testimony that his fi ngerprints had initially been taken for another- 4 - criminal case. In his cross-examination of det ectives who had interviewed him on the day of his arrest, appellant suggested that he had been intoxicated at the time he made incriminating statements, though these witnesses denied noticing any evidence of intoxication. The Commonwealth represented that the tape had been “sanitized” and proceeded to play portions of the tape for the trial court’s revi ew. The tape had not been sanitized, but the Commonwealth indicated that it would try to “start ” and “stop” the tape at specific points in order to allow the jury to view only the statements made regarding the present offense. The

Commonwealth and the trial court both noted that the videotape did not have a “counter” that would facilitate this method of showing the tape. During the “Martinsville” portion of the videot ape played for the trial court’s review, appellant made reference to othe r robberies and said that he ha d purchased drugs with the money he recovered from the present robbery: INTERVIEWER: Did you go there pl anning to rob that too, or did you . . . did you have it spur of the moment or was it planned?

APPELLANT: No . . . that one wasn’t spur of the moment.

INTERVIEWER: You drive the same car?

APPELLANT: Yeah.

* * * * * * * INTERVIEWER: [W]hat did you do with that money . . . eleven hundred dollars?

* * * * * * * APPELLANT: And the rest, man, you know, bought me a little bit of drugs, you know . . . little bit of crack . . . little bit of heroin. . . . Appellant objected to the statements regard ing his purchase of drugs. The trial court overruled appellant’s objections, finding that his use of the proceeds of the crime was admissible- 5 - evidence. The trial court determined that appellant had “opened the door” by asserting in his opening statement that police had searched hi s home and had not found any proceeds of the

crime. The trial court ruled that the Commonw ealth could play the “Martinsville” portion of the tape to the jury. In considering the “Danville” por tion of the videotape, the tria l court declined to review the video, noting a concern about making the jury wait for the four hours it would take for such a review. The Commonwealth’s Attorney represented that “I’m pretty sure that they didn’t go into anything else” regarding other crimes, though he conceded that he could not be “a hundred percent sure.” The trial court decided, “[w]ell, on the Danville tape, if there is any mention of anything other than the Danville Check ‘n Go situation, I’m going to ask that the tape be immediately stopped, and if necessary I will ask th e jury to disregard what they just saw.” 2 The Commonwealth resumed its case, cal ling the Henry County detective who had interviewed appellant. During his testimony, the Commonwealth played the “Martinsville” portion of the videotape to the jury, wh ich included the statements noted above. The Commonwealth then played the “Danvill e” portion of the videotape, which included the following statements by appellant: INTERVIEWER: What brings you all the way to Martinsville and Henry County? APPELLANT: Exactly what I got caught for today.

2 The trial court allowed appellant to review portions of the tape during a brief recess, though it is not clear from the reco rd whether appellant was to re view the video for objectionable statements or whether appellant was to review th e video for portions that he may have elected to introduce as evidence. During the discussion of the videotape’s admissi bility, appellant raised the possibility of introducing portions of the tape to show that he was intoxica ted during the interrogation. The trial court ruled that appellant would be permitted to show portions of the tape. We note that the court permitted appellant less than one hour to review a video that lasted four hours. In fact, the trial court noted repeatedly that appellant shoul d know exactly what was said on the tape, as “he was there.”- 6 - * * * * * * * INTERVIEWER: For drugs?

APPELLANT: Yeah. Appellant objected, arguing that the statem ent was unduly prejudicial and would affect the impartiality of the jury. A ppellant further objected to the en try of the “Danville” portion of the videotape altogether, as it was unnecessary to show his taped conf ession because he had signed a written statement, which the Commonwea lth had previously intr oduced into evidence. The Commonwealth argued that it was necessary to show the tape because appellant had called into question his sobriety at the time of the interr ogation through his comments in his opening statement and in his questions on cross-examinati on of the Commonwealth’s witnesses. The trial court agreed, and overruled appell ant’s objection. The trial cour t then took a brief recess to

allow the Commonwealth to further review the video to “see if there’s anyt hing else on here that would be objectionable.” 3 When the trial resumed, the court instructed the jury to disregard the question and answer regarding the reason appellant wa s arrested on the day of the in terview. The Commonwealth continued to play the videotape, which contai ned the following statement about the previous Henry County robbery: “I got caugh t redhanded [sic] at this part icular job. . . . ” Appellant objected, and the trial court instructed the jury as follows: Ladies and gentlemen of the jury, to the extent this tape we are viewing contains any referen ce to anything which may have occurred outside of Danville, sp ecifically outside the incident which is at issue in this Court today, the Check ‘n Go . . . the alleged Check ‘n Go robbery, it is to be disregar ded. It is not relevant to these cases, and it is not to be considered by you as evidence in these cases today.

3 The record does not disclose whether the Commonwealth did review the video at that time.- 7 - The Commonwealth resumed playing the videotape to the jury: INTERVIEWER: One mistake don’t make you bad.

APPELLANT: That was no one mistake.

INTERVIEWER: There have been several. APPELLANT: I’m pretty sure you are aware of them. History . . . got a bad history.

* * * * * * * APPELLANT: [T]he thing is now, you know, everybody is thinking as far as you know, the authorities here in Henry County, they’re thinking I’m a serial robber, you know. . . . [T]his is my first time doing a [sic] armed robbery. I had a robbery charged back in the day, but there was no weapon used . . . The trial court stopped the tape and instructed the jury: Ladies and gentlemen of the jury, to the extent that there’s any reference to anything that’s not re levant to this proceeding today, it is to be disregarded, as I instru cted you earlier. I just heard something on the tape that relates to apparently something about the past, and that is to be disregar ded. It is not evidence in this case. Appellant again objected to the continued play ing of the tape to th e jury, noting that the jury had again heard an inflammatory remark. A ppellant asked the trial court to exclude the tape from evidence as it undermined his presumpti on of innocence. The Commonwealth argued that the only purpose for showing the videotape was to demonstrate that appellant was coherent during the interrogation, as appe llant had “opened the door” thr ough his opening statements and

cross-examination of the Commonwealth’s witnesses regarding his sobriety that day. The trial court granted appellant’s continui ng objection and refused to allow the tape to be played any further, ruling however that the Commonwealth coul d offer the remainder of the tape in rebuttal- 8 - if appellant “put into issue [his] ability to have made the statement.” Appellant renewed his objection to the videotape be ing played for any purpose. Appellant also argued that damage had already been done to his presumption of innocence by the evidence of other crimes already heard by the jury, but the trial court ruled that it had “instructed the jury as best it can.” The tr ial court again instructed the jury to disregard “any reference to any incidents that occurred other than those for which we are in Court on today.” Appellant presented no evidence. The jury found appellant guilty of armed robbery. At sentencing, the Commonwealth introduced one burglary conviction fr om 1988, a burglary and a grand larceny conviction from 1988, a burglary and a grand larceny conviction from 1991, a robbery conviction from 1992, and armed robbery and grand larceny convictions from 1993. After deliberating for twelve minutes, the jury recommended appellant serve life in prison. This appeal follows. ANALYSIS On appeal, appellant contends the trial court erred in allowing the admission of videotape evidence that contained statements of other crimes committed by appellant. 4 In reviewing this argument, we must consider whether: (1) the evidence of other crimes was admissible; (2) the trial court erred in relying on cautionary instru ctions to remedy the admission of other crimes evidence; and (3) if any error occurred, whether it was harmless. Admissibility of Other Crimes Evidence “The admissibility of evidence is within th e broad discretion of th e trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.” Blain v.

4 Appellant does not contend on appeal that th e entire tape was inadmissible. Our review is limited to appellant’s argument that the portions of the videotap e that contain statements about other crimes were inadmissible.- 9 - Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, “[b]y definition, when the trial court makes an error of law, an abuse of discretion occurs.” Bass v.

Commonwealth , 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). Evidence that an accused has committed other crimes, “by showing that the accused has a criminal propensity, tends to reverse his presum ption of innocence of the crime on trial.” Lewis

v. Commonwealth , 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983). Generally, evidence that a defendant has committed crimes other than the offense for which he is being tried is hi ghly prejudicial and inadmissible. Such evidence confuses the issues before the jury and tends to prejudice the defe ndant in the minds of the jury by showing his or her depravity and criminal propensity. This rule is not without exception. Evidence of other crimes or convictions may be admitted for the purpose of, among other things, impeaching the credibility of a witness, including a criminal defendant, attacking a defendant’s character on cross-examination, or proving a relevant issue or element of the offense charged, such as motive, intent, common scheme or plan, knowledge or identity. Hackney v. Commonwealth , 28 Va. App. 288, 293, 504 S.E.2d 385, 388 (1998) (citations omitted). Citing Thornton v. Commonwealth , 31 Va. App. 825, 525 S.E.2d 646 (2000), and Kirkpatrick v. Commonwealth , 211 Va. 269, 176 S.E.2d 802 (1970), the Commonwealth argues

that other crimes evidence is admissible because appellant’s statements regarding other crimes

were “so interwoven with his overall statement that they could not be comp letely redacted from the videotape.” This argument is based on an inco rrect statement of the law and is without merit.

Both Thornton and Kirkpatrick hold that evidence of other crimes can be admitted when the two

crimes are so intertwined as to not be easily sepa rated without affecting the propriety of the statement. Here, it is not the crimes that are intertwined, but the statements themselves. This

cannot serve as a basis to ad mit evidence of other crimes.- 10 - While the Commonwealth repeatedly acknowledg ed to the court belo w that evidence of other crimes had no place in appellant’s trial, they argued that the videotape should be admitted to show appellant’s demeanor during the interrogations. 5 They contended below, as they do on appeal, that appellant “opene d the door” through his opening st atement and his questioning of the Commonwealth’s witnesses by suggesting that his statements were made while he was

intoxicated. 6 Assuming, without deciding, that the portions of the videotape were admissible to show appellant’s demeanor, this does not provide an adequate basis for allowing evidence of other

crimes to be admitted at trial. There were other permissible means by which the Commonwealth could have shown appellant’s demeanor. Indeed , the trial court recognized that other crimes evidence could not be admitted, ruling that such evidence was not relevant to the present charges. We agree that the statem ents of appellant as to other crimes were inadmissible at trial. Review of the Videotape and Us e of Cautionary Instructions

It is within the discretion of the trial c ourt to require the Commonwealth to redact a videotape and to decide whether to review the videotape before it is presented to the jury. “‘[T]he conduct of a trial is comm itted to the trial judge’s discre tion, and absent evidence of an

5 The Commonwealth also suggests that the evidence regarding appellant’s purchase of drugs using the proceeds from the robbery is admi ssible based on appellant’s opening statement. Appellant did suggest in his opening statement th at he was not guilty because no proceeds from the robbery were found during the search of his home. However, appellant did not cross-examine the Commonwealth’s witnesses about what was rec overed in the search, nor did he present this evidence during his case-in-chief. Thus, hi s remarks during his opening statement were not enough to “open the door” to the evidence of his purchase of drugs. See Fields v. Commonwealth , 2 Va. App. 300, 343 S.E.2d 379 (1986) (holding that, because opening statements are not evidence, counsel cannot open the door to otherwise inadmissible evidence by an assertion made in an opening statement).

6 To open the door to other crimes evidence, appellant must have “invited” the error through his questioning of the witnesses. See Crest v. Commonwealth , 40 Va. App. 165, 174, 578 S.E.2d 88, 92 (2003). On cross-examination, a ppellant elicited testimony that he had been arrested in Henry County on separa te charges. However, this que stioning did not “invite” into evidence the specific crime with which he was ch arged or his involvement in other robberies. Thus, there is no merit to the Commonwealth’s argument.- 11 - abuse of this discretion, we will not disturb his rulings on that subject.’” Griffin v.

Commonwealth , 22 Va. App. 622, 625, 472 S.E.2d 285, 287 (1996) (quoting Justus v.

Commonwealth , 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981)).

The trial court instructed the Commonwealth to redact any statements regarding other crimes from the videotape before it was played to the jury. The Commonwealth failed to do so,

as was revealed to the trial court when the Commonwealth played the “Martinsville” portion of the tape for the court. After reviewing the “Mar tinsville” portion of the vide otape, the trial court

was on notice that the Commonwealth had not redacted the tape as instructed. The trial court heard statements regarding other crimes on the “M artinsville” portion of the videotape, and, thus, should have realized the danger that the jury would hear inadmissible evidence. As a substitute for reviewing the entire videot ape outside of the pres ence of the jury and ensuring the integrity of the evidence presented at trial, the trial court decided to remedy the introduction of any inadmissible statements through cautionary instructions. As a result, the jury repeatedly heard evidence of other crimes, re quiring the trial court to issue four separate cautionary instructions. Generally, a trial court may cure errors arising from inadmissible evidence being improperly presented by promptly instructing the jury to disregard the inadmissible evidence.

LeVasseur v. Commonwealth , 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). “We will presume that a jury has followed the trial court’s prompt and explicit curative instructions, unless the record clearly shows that the jury disregar ded the instructions.” Schmitt v. Commonwealth , 262 Va. 127, 147-48, 547 S.E.2d 186, 200 (2001). However, there are instances in which cautionary instructions given by the trial court regarding inadmissible evidence cannot be pr esumed to have been followed by the jury. “[T]he admission of incompetent evidence is reversible error notwithstanding the fact that the trial court, after its admission,- 12 - instructed the jury to disregard it , if such illegal evidence was so impressive that it probably remained on the minds of the jury and influenced their verdict.” “If the prejudicial effect of the impropriety cannot be removed by the instructions of the trial court, the defendant is entitled to a new trial.” Whether a manifest proba bility exists that the improper evidence prejudiced the accused despite the cautionary instruction depends upon the nature of th e incompetent evidence when considered in relation to the na ture of the charges, the other evidence in the case, and manner in which the prejudicial evidence was presented.

Mills v. Commonwealth , 24 Va. App. 415, 420-21, 482 S.E.2d 860, 862-63 (1997) (citations omitted).

In Mills , we reversed appellant’s co nvictions for various traffic offenses, resisting arrest, and driving under the influence when the arresting officer testified be fore the jury to the presence of drug needle marks on Mills’s arms. Id. The trial court’s prompt cau tionary instructions to the jury not to consider the office r’s comments were not enough to cu re the prejudicial impact on the accused’s presumption of innocence. We held th at, “[a]lthough evidence of the defendant’s guilt was overwhelming, we cannot say that the prejudic ial evidence did not aff ect the length of the sentences or the amount of fines that the ju ry recommended and the judge imposed.” Id. at 421, 482 S.E.2d at 863. Thus, we found that the error was not harmless.

In Powell v. Commonwealth , 13 Va. App. 17, 409 S.E.2d 622 (1991), we similarly held

that the admission of other crimes evidence wa s reversible error de spite the cautionary instruction given by the trial c ourt. Powell was charged with various drug violations. Id. at 18, 409 S.E.2d at 623. The prosecutor questioned Powe ll on cross-examination regarding his prior felony convictions. Id. at 19, 409 S.E.2d at 624. Powell testifie d falsely regarding the number of prior convictions, and the prosecutor proceeded to question him about the specifics of those convictions, which had involve d drug distribution. Id. at 19-20, 409 S.E.2d at 624. The trial court instructed the jury to limit its considera tion of prior convictions to impeachment purposes- 13 - only. Id. at 27, 409 S.E.2d at 628. We held that, de spite Powell’s false testimony that allowed for impeachment by the prosecutor, “[t]he risk of prejudice was so great because the evidence portrayed [Powell] as a drug deal er” and its admission constituted re versible error that could not be cured by a cautionary instruction. Id. at 27-28, 409 S.E.2d at 628-29. 7 Here, the jury heard multiple statements regarding other crimes committed by appellant, including several references to other robberies, the same crime fo r which appellant was on trial. Henry County detectives questione d appellant about the Danville robbery using references to other robberies, asking if he “used the same car” a nd if he planned to “rob that [one] too.” In referring to the Henry County robbery, appellant sa id that he had been caught “redhanded [sic] at that particular job.” Appella nt also made reference to Henry County detectives having the impression that he was a “serial r obber.” Thus, the jury had eviden ce before it that appellant was involved in a robbery in Danville. Each stat ement was accompanied by an admonishment by the trial court that these statements were not evidence against appellant. The repeated admission of inadmissible other crimes evidence had a cumulative effect on the impartiality of the jury that could not be cured by cautionary instruction. See Maxey v.

Hubble , 238 Va. 607, 616, 385 S.E.2d 593, 597 (1989) (holding that where counsel persisted in making objectionable remarks despite the trial co urt’s admonishments and instructions to the jury to disregard those remarks, “an appellate cour t will presume that the prejudicial effect of the improper conduct was too strong to be removed by further admonitions or jury instructions”).

7 Powell is not, as the dissent suggests, distingui shable from the instant case by virtue of the nature of the cautionary instruction given by the trial court. In both Powell and the instant case, the trial court allowed inadmi ssible evidence to be heard by th e jury. The point relevant for our analysis is that in Powell , as here, a cautionary instruction could not cure the trial court’s error. It is inconsequential that the instruction in Powell limited the jury’s consideration of the evidence to a specific purpose, where the instructi ons here barred any jury consideration. When determining whether the instructi on was adequate to cure the erro r, we look to the factors noted in Mills above, none of which involve consideri ng the scope of the instruction given.- 14 - Under these circumstances, it is impossible to conc lude that the jury did not consider these other crimes in determining appellant’s guilt and the length of the sentence recommended. Instead, this “evidence was so impressive that it pr obably remained on the minds of the jury and

influenced their verdict.” Mills , 24 Va. App. at 420, 482 S.E.2d at 862. 8 We find that the trial court abused its discretion by embarking on a pr ocedural path that relied on cautionary instructions to remedy the erro neous and deliberate admission of other crimes evidence. We further find the cautionary instruct ions could not remedy this error. 9 The only question remaining is whether these e rrors were harmless as to both the finding of guilt and to the sentence recommended by the jury.

8 We do not, as the dissent suggests, cite to Mills or Maxey for the proposition that appellant need not move for a mistrial to preserve this issue for appeal. Instead, we rely on those cases for the proposition that, in some inst ances, a cautionary inst ruction cannot cure a prejudicial error made by the trial court. The fact that appellants in Mills and Maxey moved for a mistrial does not affect this Court’s decisions in those cases on the curative effect of the cautionary instructions given by the trial court.

9 An alleged error is sufficien tly preserved for consideration on appeal if “at the time the ruling or order of the court is made or sought , [a party] makes known to the court the action which he desires the court to ta ke or his objections to the ac tion of the court and his grounds therefor.” Code § 8.01-384. The purpose of this rule is “to avoid unnecessa ry appeals, reversals and mistrials by allowing the trial judge to intell igently consider an issue and, if necessary, to take corrective action.” Campbell v. Commonwealth , 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991). Regarding a request for a mist rial, “[t]he recognized purpose of this requirement is to prevent retrials by calling the er ror to the attention of the tria l judge, who may then caution the jury to disregard the inappropriate remarks.” Craddock v. Commonwealth , 16 Va. App. 402, 405, 429 S.E.2d 889, 891 (1993). The purpose of ma king contemporaneous objections is to advise the court of whatever corrective action th e requesting party wishes the court to take. Campbell , 12 Va. App. at 480, 405 S.E.2d at 2. In this case, appellant challenged the admissib ility of the videotape. He objected on at least five occasions. Clearly, the court was awar e of his position regarding the evidence. We find no precedent that requires a defendant to move for a mistrial when he timely presents his objection to the trial court a nd the court subsequently make s a ruling unfavorable to the defendant. We conclude that a ppellant’s failure to request a mi strial does not procedurally bar this appeal.- 15 - Harmless Error When deciding whether non-const itutional error is harmless in the context of a criminal proceeding, we must apply Code § 8.01-678 that states in pertinent part: When 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 reach ed, no judgment shall be arrested or reversed . . . [f]or any . . . de fect, imperfection, or omission in the record, or for any error committed on the trial. The Virginia Supreme Court st ated in Clay v. Commonwealth , 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001), that “[i]n a criminal case, it is implicit that, in order to determine

whether there has been ‘a fair trial on the me rits’ and whether ‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error substantially influenced the jury. If it did not, the error is harmless.” The Clay Court adopted the following test for

non-constitutional harmless error that was applied by the United States Supreme Court in

Kotteakos v. United States , 328 U.S. 750 (1946): “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 (quoting Kotteakos , 328 U.S. at 764-65).

We hold that the trial court’s errors were harmless as to the guilt of appellant. Disregarding the videotaped statements, the ev idence of appellant’s guilt was overwhelming.

Two detectives testified as to a ppellant’s oral confession to the robbery of the Danville Check ‘n Go in two different interviews with police. In addition, the Commonwealth introduced appellant’s written confession to the crime wh ere appellant described the clothing he wore during the robbery. The jury had the opportunity to view the video recording of the crime, where- 16 - appellant fit the physical appear ance of the robber, including the clothing appellant described. Appellant’s fingerprints were r ecovered from the note the robber handed to Ms. Jones directing her to give him the money. At trial, Ms. Jone s positively identified appellant as the man who robbed her, and testified to her pr ior identification of a ppellant in a photo array presented to her by detectives shortly after the crime occurred. Given the weight of this evidence against appellant, we find that substantial justice has be en reached and the error in admitting evidence of prior offenses in appellant’s guilt phase of the trial was harmless. However, we do not find evidence of appellan t’s involvement with dr ugs, or evidence of the Henry County offense, to be harmless with respect to the sentence imposed. “[T]he bifurcated procedure established in Code § 19.2- 295.1 clearly manifests a le gislative intent to provide juries with information specific onl y to sentencing[.]” Gilliam v. Commonwealth , 21 Va. App. 519, 525, 465 S.E.2d 592, 595 (1996). “[T]he prior criminal convictions of a felon, including previous efforts to punish and rehabili tate, ‘“bear upon a tende ncy to commit offenses, the probabilities of rehabilitation, and similar fact ors”’ indispensable to th e determination of an appropriate sentence.” Id. at 524, 465 S.E.2d at 595 (citatio ns omitted). “We cannot at once reason that such considerations promote enli ghtened sentencing and dismiss as harmless the prejudicial effects of inadmissible, although facially releva nt, evidence pertaining to sentencing

issues.” Webb v. Commonwealth , 31 Va. App. 466, 471, 524 S.E.2d 164, 167 (2000). During the guilt phase of trial, any reference to a prior robbery or to the “serial robber” was harmless as evidence of appellant’s two prior robbery convictions was properly admitted during the sentencing phase. However, allowing th e jury to hear of appe llant’s drug charge and drug purchases, as well as his robbery offense in Henry County, during the guilt phase was not harmless, as the jury did not hear this evidence during the penalty phase. Further, both of these- 17 - prior acts refer to recent behavior, whereas appe llant’s prior offenses occurred in the past, the most recent conviction being in 1993. Finally, the jury deliberated a mere twelve minutes before recommending appellant serve a life sentence, the maximum penalty for armed robbe ry. We would usurp the role of the jury to

conclude that the sentence would have been th e same had the jury not known about appellant’s drug activity and his current arre st in Henry County. We theref ore find that the admission of these prior acts into evidence during the guilt pha se of appellant’s trial was not harmless error with respect to the sentence imposed.

CONCLUSION After the Commonwealth and the trial court ag reed that evidence of prior crimes was inadmissible, the trial court nevertheless exposed the jury to inadmissible evidence. The court then attempted to cure the erro r by giving cautionary instructions. We find the trial court erred by employing this procedure. The error was harm less in determining appellant’s guilt, but we find it substantially affected the sentencing reco mmendation made by the jury. Accordingly, we- 18 - affirm appellant’s conviction for armed robbery, but reverse and remand to the trial court for re-sentencing consiste nt with this opinion. 10 Affirmed in part, reversed in part, and remanded.

10 Code § 19.2-295.1 states in relevant part: If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due to an error in the sentencing proceeding, the court shall impanel a different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth and the court agr ee, in the manner provided in § 19.2-257, that the court shall fix punishment. Here, we found that error occurred in th e guilt phase of the trial. Although we determined that the error was harmless to the guil t phase, the effects of th e error spilled over into the sentencing phase, thus tainting the sentencing process. Theref ore, the error during the guilt phase did affect the sentencing. We c onclude there was error at sentencing. In order for us to remand for re-sentenc ing only, we must find, pursuant to Code § 19.2-295.1, that the basis for reversal was “s olely due to an erro r in the sentencing proceeding.” “Solely” is defined as “entirely ” or “exclusively.” The American Heritage Dictionary 1229 (1982). Thus, if there was error in the guilt phase and in sentencing, we must reverse and remand for a new trial. However, we have held here that the error at the guilt phase was harmless, thus affirming the conviction. To remand for a new trial would be a futile act. When interpreting statutory language, the “statute must be construed with reference to its subject matter, the object sought to be attaine d, and the legislative pu rpose in enacting it; the provisions should receive a construction that will render it harmonious with that purpose rather than one which will defeat it.” Esteban v. Commonwealth , 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003) (citing Stanley v. Tomlin , 143 Va. 187, 195, 129 S.E. 379, 382 (1925)) “Where a particular construction of a stat ute will result in an absurdity, some other reasonable construction which will not produce the absurdity will be found.” Miller v. Commonwealth , 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942). We conclude that the statut ory language allows this Cour t to remand for re-sentencing when the error in the guilt phase was harmless thereby creating no need for a new trial on the merits. The only harm done was in sentencing.- 19 - Humphreys, J., concurring, in part, dissenting, in part, and dissenting from the judgment. I agree that evidence relating to three of the defendant’s “other crimes” was inadmissible during Young’s criminal trial. However, because I believe that the cautionary instructions were sufficient to cure any incidental prejudice that may have resulted from the inadvertent disclosure of these “other crimes,” I woul d hold that the trial court did not abuse its discretion in allowing the videotaped confession to be played to the jury. Accordingly, I would affirm both the conviction and the defendant’s resulting life sentence. Initially, I would hold that Young’s confession that he used the money from the Check ‘n’ Go robbery to purchase “a little bit of drugs . . . little bit of crack . . . [and a] little bit of heroin” was both relevant and admissible, and, th us, I would hold that the trial court did not abuse its discretion in determining that the pr obative value of this statement outweighed its potential prejudical effect. It is well established that, in a criminal pros ecution, evidence that s hows or tends to show that the defendant is guilty of other crimes, even if of the same nature as those charged in the indictment, is inadmissible for the purpose of showing that the accused was likely to commit the crime charged in the indictment. See Scates v. Commonwealth , 262 Va. 757, 761, 533 S.E.2d 756, 758-59 (2001); Kirkpatrick v. Commonwealth , 211 Va. 269, 272, 176 S.E.2d 803, 805 (1970). “The purpose of this rule is to preven t confusion of offenses, unfair surprise to the defendant and a suggestion of ‘criminal prope nsity,’ thus preserving the ‘presumption of innocence.’” Crump v. Commonwealth , 13 Va. App. 286, 289, 411 S.E.2d 238, 240 (1991) (quoting Lewis v. Commonwealth , 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983)). However, “[e]vidence of other crimes, whic h are ‘so intimately connected and blended with facts proving the commission of the offens e charged may be admissible because it cannot be separated with propriety.’” Thornton v. Commonwealth , 31 Va. App. 825, 829, 525 S.E.2d- 20 - 646, 648 (2000) (quoting Sutphin v. Commonwealth , 1 Va. App. 241, 246, 337 S.E.2d 897, 899 (1985)). That is, “[w]here a course of crimin al conduct is continuous and interwoven, consisting of a series of related crimes, th e perpetrator has no right to have the evidence ‘sanitized’ so as to deny the jury knowledge of all but the immediat e crime for which he is on trial.” Scott v.

Commonwealth , 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). Further, “[t]he fact-finder is

entitled to all of the releva nt and connected facts, including those which followed the commission of the crime on trial, as well as thos e which preceded it; ev en though they may show the defendant guilty of other offenses.” Id. I would hold that Young’s confession that he bought illegal drugs with the money he

stole from the Check ‘n’ Go is admissible because this “other crime” was “continuous and interwoven” and “intimately conn ected” with the crime for which he was on trial. Also, Young’s confession to purchasing drugs with the stolen money has probative value because it tends to establish that Young did, in fact, commit the crim e charged. Specifically, the fact that Young used the proceeds of the robbery to purchase il legal drugs is probative because it tends to establish that Young had a motive for committing the robbery. See, e.g. , Sutphin , 1 Va. App. at 245, 337 S.E.2d at 899 (noting that “other crimes” evidence is ad missible “to prove motive to commit the crime charged”); see also Rose v. Commonwealth , 270 Va. 3, 10, 613 S.E.2d 454, 457 (2005) (noting that “other crimes” evidence is “‘permissible in cases where the motive . . . of the accused is involved, or where the evidence is connected with or leads up to the offense for

which the accused is on trial’ ” (quoting Commonwealth v. Minor , 267 Va. 166, 172, 591 S.E.2d 61, 65 (2004))); Guill v. Commonwealth , 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998) (“[E]vidence of other crimes is allowed when it tends to prove motive, intent, or knowledge of the defendant.”).- 21 - Moreover, although revealing th e illegal drug transaction w ould have some incidental prejudicial effect, I would furt her hold that the trial court di d not abuse its discretion by determining that the probative value of this statement outweighed its potential prejudicial effect. See generally Rose , 270 Va. at 11, 613 S.E.2d at 458 (“Admission of evidence of other crimes committed by a defendant . . . is subject to the fu rther requirement that the legitimate probative

value of the evidence must exceed the in cidental prejudice to the defendant.”). The mere fact

that this statement tends to show that Y oung purchased illegal drugs does not negate its relevance as to the crime charged, nor, in my opinion, does it automatically render that evidence unfairly prejudicial. Thus, I would hold that the trial court did not clearly abuse its discretion in concluding that the probative value of the statem ent outweighed its potential prejudicial effect.

See Thornton , 31 Va. App. at 829, 525 S.E.2d at 647-48 (holdi ng that the trial court did not err in admitting the “defendant’s statement that he had sold the other drugs the night before” because that statement “was intimately connected with and arose out of the same transaction for which the defendant was on trial,” furt her noting that “[t]he probative value of [] evidence explaining the defendant’s conduct and completing the story of the transaction ‘outweighed any incidental prejudice to [the defendant]’ ” (quoting Newton v. Commonwealth , 29 Va. App. 433, 454, 512 S.E.2d 846, 856 (1999)) (second a lteration in original)). In sum, because the Commonwealth introduced evidence of the drug transaction as part of a continuous course of events, rather th an “for the prohibited purpose of showing a predisposition on the part of the accuse d to commit crime,” Glover v. Commonwealth , 3 Va. App. 152, 161, 348 S.E.2d 434, 441 (1986), I would hol d that this statement is both relevant

and admissible.- 22 - I agree, however, with the ma jority’s conclusion that the remaining “other crimes”

evidence was inadmissible. 11 I also agree with the general prin ciple that, in some circumstances, a cautionary instruction is insufficient to cure the prejudice that may have been caused by the inadvertent disclosure of inadmissible, “other crimes” evidence. However, in those circumstances, the defendant’s appropriate remedy is to move for a new trial. See Terry v.

Commonwealth , 5 Va. App. 167, 168-69, 360 S.E.2d 880, 880-81 (1987) (“[I]f the prejudicial effect of the impropriety cannot be removed by the instructions of th e trial court, the defendant is entitled to a new trial.”); see also Maxey v. Hubble , 238 Va. 607, 385 S.E.2d 593 (1989); Mills

v. Commonwealth , 24 Va. App. 415, 482 S.E.2d 860 (1997). Young never moved for a mistrial or for a new trial. Moreover, Young affirmativel y requested, on at least one occasion, that the trial court instruct the jury to disregard thes e statements. Because Young both consented to the issuance of the cautionary instructions and neglected to move for a new trial, I would hold that Young cannot now argue that the jury was so pr ejudiced by its exposure to the “other crimes”

evidence that his conviction should be reversed. 12

11 The remaining statements consisted of : (1) the discussion during which the investigator asked, “What brings you all the way to Martinsville and Henry County,” Young responded, “Exactly what I got caught for today,” the detective then asked if Young was caught because of “drugs,” and Young responded, “Yeah”; (2) Young’s statement that he “got caught redhanded at this particular job”; and (3) the discussion during which Y oung stated that “the authorities here in Henry County, they’re thinking I’m a serial robber, you know . . . this is my first time doing a armed robbery. I had a robbe ry charged back in the day, but there was no weapon used,” the investigator then asked wh ether it was “a common law robbery,” and Young responded, “Common law . . . yeah, yeah.”

12 I also disagree with the majority’s charac terization of the Commonwealth’s disclosure of the “other crimes” evidence as “deliberate.” Fo r example, the record is clear that, on at least one of these three occasions, the Commonwealth—r ather than the trial court or the defendant— stopped the tape when the “other crimes” evid ence was first mentioned. But even if the Commonwealth deliberately paraded this evidence before the jury, the defendant’s appropriate remedy would be to move for a mistrial or for sanctions against the Commonwealth.- 23 - The majority concludes, howev er, that the trial court abused its discretion by “expos[ing] the jury to inadmissible evidence ” and then “attempt[ing] to cure the error by gi ving cautionary instructions.” In effect, then, the majority holds that the trial court erred in failing, sua sponte , to set aside the verdict and grant a new trial. Neit her this Court nor the Vi rginia Supreme Court has ever held that the trial court automatically abus es its discretion when the jury hears inadmissible evidence, the trial court issues a requested cautionary instruction, but the trial court then fails to grant a mistrial, sua sponte . Thus, I believe the majority’s approach represents an unwarranted and unprecedented extension of existing Virginia law. 13 As the majority recognizes, “[o]nce a jury is instructed regarding the use or limitations placed upon specific evidence, they are presumed to follow such instructions.” Lewis v.

Commonwealth , 8 Va. App. 574, 580, 383 S.E.2d 736, 740 (1989) . Thus, “[g]enerally, a trial court may cure errors arising from improperly presented evidence by immediately instructing the jury to disregard that evidence.” Terry , 5 Va. App. at 168-69, 360 S.E.2d at 880-81. Under the

13 I note that, of the three cas es cited by the majority in support of its position, two involved the reversal of the trial co urt’s denial of a new trial. See Maxey , 238 Va. at 616, 385 S.E.2d at 597 (holding that the defendant’s “moti on for a new trial should have been granted”); Mills , 24 Va. App. at 420, 482 S.E.2d at 862 (“The sole issue is whether the trial court erred by refusing to grant a mistrial af ter the Commonwealth’s principal witness interjected incompetent and inadmissible evidence into the trial during cross-examination.”). Both of those cases are, therefore, readily distinguishable. In the third case, Powell v. Commonwealth , 13 Va. App. 17, 409 S.E.2d 622 (1991), this Court held that a cauti onary instruction was insufficient to cure the prejudice to the defendant where the trial co urt affirmatively and improperly allowed the Commonwealth to use other crimes ev idence to impeach the defendant during cross-examination, and the court th en “gave a cautionary instructi on which told the jury that the evidence of other offenses could only be consid ered for impeachment of the defendant and could not be considered as evidence of gui lt or in assessing punishment.” Id. at 27, 409 S.E.2d at 628. In Powell , then, the trial court affirmatively adm itted the “other crimes” evidence and then instructed the jury that it shoul d only consider that evidence fo r a limited purpose. Here, in contrast, the trial court did not affirmatively admit the “other crimes” evidence, instead informing the jury that it could not consider that evidence for any purpose. Accordingly, I believe that Powell is also distinguishable and fails to support the majority’s position.- 24 - circumstances of this case, the trial judge cautioned the jury to disregard the evidence relating to

these other incidents on at least f our separate occasions. Because the jury is presumed to have followed these cautionary instructions, in the ab sence of any motion for a mistrial, I would hold that the trial judge’s numerous admonitions to th e jury to disregard the other crimes evidence were sufficient to cure any incidental prejudi ce that may have been caused by the inadvertent

disclosure of this information. See id. For these reasons, I would affirm the judgm ent below. Accordingly, I respectfully

dissent.