Wednesday 6th 

 November, 1996. 

Floyd Keith Brown, Appellant, 

 against Record No. 0753-95-2 

 Circuit Court Nos. 94-214-1 through 94-214-4 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On October 8, 1996, came the appellee, by counsel, and filed 

a petition praying that the Court set aside the judgment rendered 

herein on September 24, 1996, and grant a rehearing en banc thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on September 24, 1996, is 

stayed pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellee shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
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 A Rehearing En Banc was granted in this case on November 6, 1996. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Overton 

Argued at Alexandria, Virginia 

FLOYD KEITH BROWN 

 OPINION BY 

v. Record No. 0753-95-2 JUDGE 

JAMES W. BENTON, JR. 

 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 Leon F. Szeptycki (Bruce M. Steen; Charles 

R. Haugh; Lair Dayton Haugh; McGuire, Woods, 

Battle & Boothe, L.L.P.; Haugh & Haugh, 

P.C., on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

A jury convicted Keith Floyd Brown of statutory burglary, 

rape, and two counts of forcible sodomy. Brown contends that the 

trial judge erred in ruling that two statements offered by the defense 

were hearsay and prohibiting their introduction at trial. We agree 

that the statements were not hearsay. Because the errors were not 

harmless, we reverse the convictions and remand for a new trial. 

 I. 

The complainant testified at trial that a man entered her 

apartment early in the morning of June 25, 1994, beat her, sexually 

assaulted her, and raped her. She left her apartment a short time 

later and told the police that a man who had raped her was asleep in 

her apartment. The police arrested Brown at the complainant's 
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apartment that morning. The complainant denied ever having seen Brown 

before he broke into her apartment. 

Brown told the police after his arrest that he had 

consensual sexual intercourse with the complainant. At trial, Brown 

testified that he and the complainant were acquaintances and that she 

admitted him to her apartment. He denied using any force or violence 

upon the complainant. 

Two defense witnesses testified that Brown and the 

complainant knew each other prior to the incident. One of the 

witnesses, Charles Gentry, testified that he observed Brown and the 

complainant together on at least two or three occasions. The trial 

judge admitted evidence that Gentry observed Brown and the complainant 

conversing but refused to allow Gentry to testify that the two were 

discussing the trading of sex for cocaine. 

The trial judge also refused to allow a police officer's 

testimony that Brown "asked [the officer] twice if Peggy [, the 

complainant,] knew he was [at the police station]." The trial judge 

ruled the statement was hearsay. During Brown's testimony, the trial 

judge overruled the Commonwealth's objection and allowed Brown to 

testify, however, that he "asked the officer did [the complainant] 

know [he] was at the police station." 

Brown appeals the trial judge's refusal to admit Gentry's 

testimony as to the content of the overheard conversation and the 

police officer's testimony concerning the question Brown asked at the 

police station. The Commonwealth contends that defense counsel waived 

objection to the admission of each statement, that the trial judge 

correctly ruled that the statements were hearsay, and that the trial 
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judge's refusal to admit the statements, if erroneous, was harmless 

error. 

 II. 

"Hearsay is a statement, other than one made by the 

declarant while testifying at trial, which is offered to prove the 

truth of the matter asserted." Clark v. Commonwealth, 14 Va. App. 

1068, 1070, 421 S.E.2d 28, 30 (1992). "Unless it is offered to show 

its truth, an out-of-court statement is not subject to the rule 

against hearsay and is admissible if relevant." Church v. 

Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 825 (1985). 

At trial, defense counsel sought to introduce testimony that 

Gentry "ha[d] seen [Brown] and [the complainant] together on more than 

one occasion . . . [and that] on one occasion, he overheard a 

conversation between [Brown] and [the complainant] involving trading 

sex and cocaine that took place in the area of Gibson's store." The 

Commonwealth objected to the testimony on the ground that the rape 

shield law had not been satisfied. Ruling that the fact, but not the 

content, of the conversation was admissible, the trial judge stated: 

 Gentry is not going to offer evidence with 

regard to sexual conduct, but a 

conversation. . . . 

 This witness [, the complainant,] was 

never asked and did not testify so as to 

deny about any conversation with regard to 

trading sex for drugs, so that conversation 

cannot be offered for impeachment purposes 

because it is hearsay, and she has not been 

impeached on that point. But I will permit 

[Gentry] to testify about having observed, 

if the person that this woman that [defense 

counsel] referred to is the victim, clearly 

this witness should be permitted to testify 

with regard to seeing the two in the 

presence of the other prior to June 25. 

 But as to the conversation, it is 
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otherwise hearsay, and she has not, she did 

not deny such a conversation existed, so she 

can't be impeached on that point. 

The Commonwealth claims that Brown waived his objection to this issue 

because he never specifically argued that the testimony was not 

hearsay. 

Arguments over the admissibility of Gentry's testimony cover 

approximately ten pages of the record. Brown proffered the testimony 

as admissible evidence and urged the trial judge to admit the 

testimony because it related "just a conversation between the two 

parties." In considering whether the testimony was admissible, the 

trial judge discussed the rape shield statute and raised the issue of 

hearsay. Thus, the trial judge was alerted to the possibility of 

error and had the opportunity to take corrective actions. Martin v. 

Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). 

Brown's counsel consistently maintained that the testimony 

was admissible. Furthermore, Code § 8.01-384 has eliminated the 

requirement that counsel make formal exceptions to rulings or orders 

of the trial judge. "Requiring [Brown] to 'object' after this refusal 

would, in effect, recreate the requirement of noting an exception to a 

final adverse ruling of the trial judge." Martin, 13 Va. App. at 530, 

414 S.E.2d at 404. Counsel's argument was sufficient as an objection 

to preserve the issue for appeal. 

The Commonwealth also asserts that defense counsel conceded 

the issue by stating, "I see what your Honor is saying." We disagree. 

 The record discloses that counsel's remark was in response to the 

trial judge's question whether a different statement by a different 

witness was substantive evidence and could be impeached. 
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Whether the content of the proffered conversation is hearsay 

depends upon the evidentiary purpose for introducing the statements. 

"If the court can determine, from the context and from the other 

evidence in the case, that the evidence is offered for a . . . purpose 

[other than to establish the truth of the facts asserted], the hearsay 

rule is no barrier to its admission." Manetta v. Commonwealth, 231 

Va. 123, 127, 340 S.E.2d 828, 830 (1986). Brown's defense rested upon 

proving that he and the complainant knew each other and had consensual 

sexual intercourse. In offering the evidence, Brown's counsel stated 

that the purpose of Gentry's testimony was to prove that Brown was 

well acquainted with the complainant. 

Gentry's testimony was offered as evidence to prove the fact 

that the statements about trading sex for cocaine were made. Thus, it 

is not hearsay. See Manetta, 231 Va. at 127-28, 340 S.E.2d at 830. 

Whether the parties were speaking the truth when they discussed 

trading sex for cocaine is not at issue. The truth or falsity of 

their out-of-court statements is not important. The mere fact that 

they had the conversation is what is important. Out-of-court 

statements are not hearsay when offered merely to show that the 

conversation occurred. Id.

Conceding that the fact of the conversation is admissible 

but arguing that the content is inadmissible, the Commonwealth states 

that the "offer of sex for crack cocaine no more proves a prior 

relationship between parties than any other conversation." That 

argument addresses the relevance of the evidence, not whether it is 

hearsay. Certainly, the fact that Brown and the complainant had 

talked to each other in public before the alleged sexual assault is 
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relevant because it tends to prove that they knew each other. 

However, the Commonwealth's argument fails to recognize that 

both strangers and acquaintances engage in conversations and that the 

content of the conversation may tend to establish the fact of the 

acquaintance. For example, if the witness had testified that he only 

overheard one of the parties ask, "Can you give me directions to the 

nearest bus station?," then the content of the conversation would have 

tended to prove that the individuals did not know each other. 

Conversely, testimony that the individuals discussed trading sex for 

cocaine would have tended to prove that the individuals had more than 

a casual acquaintance. In introducing Gentry's testimony, Brown was 

seeking to prove not only that the individuals had spoken to each 

other but also that they had a more substantial acquaintance. 

Thus, the content of the conversation Gentry overheard "was 

not hearsay, but was admissible as circumstantial evidence tending to 

establish the probability of a fact in issue." Church, 230 Va. at 

212, 335 S.E.2d at 825. "Any fact, however remote, that tends to 

establish the probability or improbability of a fact in issue is 

admissible." Horne v. Milgrim, 226 Va. 133, 139, 306 S.E.2d 893, 896 

(1983). Gentry's testimony, if believed by the jury, would have 

tended to prove an element of Brown's defense. 

 III. 

Brown also contends that the trial judge should have allowed 

a police officer's testimony that Brown "asked [the officer] twice if 

Peggy [, the complainant,] knew [Brown] was here." The trial judge 

sustained the Commonwealth's hearsay objection. When Brown's counsel 

stated, "I don't think it is hearsay," the trial judge ruled, 
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"[o]bjection sustained. It is hearsay. I note your objection." 

For a statement to be considered hearsay, the statement must 

contain an assertion of fact. "If a statement is offered for any 

purpose other than to prove the truth or falsity of the content of the 

statement, such as to explain the declarant's conduct or that of the 

person to whom it was made, it is not objectionable as hearsay." Hamm 

v. Commonwealth, 16 Va. App. 150, 156, 428 S.E.2d 517, 521 (1993). 

"According to the very definition of hearsay, an inquiry [or question] 

is not an assertion and therefore does not constitute hearsay." Bolen 

v. Paragon Plastics, Inc., 754 F. Supp. 221, 225 (D. Mass. 1990). 

Accord United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir. 1990); 

State v. Carter, 651 N.E.2d 965, 971 (Ohio), cert. denied, 116 

S. Ct. 575 (1995); Washington v. State, 589 A.2d 493, 495 (Md. 1991). 

In determining Virginia law, the Supreme Court of Virginia 

has held that "[t]he rule against hearsay prohibits . . . the 

admission of extra-judicial statements 'only when offered for a 

special purpose, namely, as assertions to evidence the truth of the 

matter asserted.'" Church, 230 Va. at 211-12, 335 S.E.2d at 825 

(citation omitted)(emphasis added). The decision in Krulewitch v. 

United States, 336 U.S. 440 (1949), does not compel a different result 

because it decided a different evidentiary issue under federal law. 

The Court summarily concluded that statements admitted in evidence at 

a federal conspiracy trial were hearsay and held that because the 

statements were not made in furtherance of a conspiracy they were 

improperly admitted by the trial judge on that ground. Id. at 442-43. 

 

Likewise, the decision in Dutton v. Evans, 400 U.S. 74 
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(1970), based on the constitutional right to confrontation, is not 

dispositive of the hearsay issue. In Dutton, the Court assumed 

without discussion that the statements were hearsay. However, the 

appellant in Dutton argued "only that the hearsay exception applied by 

[the State of] Georgia [was] constitutionally invalid because it [did] 

not identically conform to the hearsay exception applicable to 

conspiracy trials in the federal courts." Id. at 80. The Supreme 

Court rejected that argument and held that "a long-established and 

well-recognized rule of state law . . . [does not] violate the 

Constitution merely because it does not exactly coincide with the 

hearsay exception applicable in the decidedly different context of a 

federal prosecution for the substantive offense of conspiracy." Id.

at 83. These federal cases do not change the Virginia rule that an 

out-of-court statement, which is not offered to show its truth, "is 

not subject to the rule against hearsay and is admissible if 

relevant." Church, 230 Va. at 212, 335 S.E.2d at 825-26. 

The trial judge prohibited the police officer from stating 

that Brown asked him if the complainant knew he was at the police 

station. Nothing within the question contains an assertion of fact. 

The truth or falsity of Brown's question to the officer is not at 

issue. See Hamm, 16 Va. App. at 156, 428 S.E.2d at 521. Therefore, 

the question is not barred by the hearsay rule. Accordingly, we need 

not address Brown's alternative argument that even if the statement is 

hearsay, it is admissible under the state-of-mind exception. 

 IV. 

Brown sought to introduce both statements to prove that he 

was acquainted with the complainant before the morning of June 25. If 
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the trial judge had not barred the evidence and the jury found Gentry 

and the police officer to be credible witnesses, the jury would have 

had a basis upon which it could have found that the complainant lied 

concerning her relationship with Brown. Because the complainant and 

Brown agreed that sexual relations occurred but differed on whether 

the acts were consensual, the credibility of each "was paramount in 

determining the ultimate issue of guilt or innocence." Evans-Smith v. 

Commonwealth, 5 Va. App. 188, 210, 361 S.E.2d 436, 448 (1987). 

The error was not harmless. "'[A] fair trial on the merits 

and substantial justice' are not achieved if an error at trial has 

affected the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 

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

§ 8.01-678). Although the Commonwealth introduced physical evidence 

of disarray in the apartment and the complainant's injuries as proof 

of the sexual offenses, the question of rape or consent ultimately 

rested upon the jury's determination of credibility. It is well 

settled that the credibility of witnesses, the weight accorded 

witnesses' testimony, and the inferences to be drawn from proven facts 

are matters that are within the province of the fact finder. Barrett 

v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). 

Furthermore, a harmless error analysis is not merely a 

sufficiency of the evidence analysis. Hooker v. Commonwealth, 14 Va. 

App. 454, 458, 418 S.E.2d 343, 345 (1992). The evidence in this case 

was disputed. Even if "the other evidence amply supports the jury's 

verdicts, [error is not harmless when] the disputed testimony may well 

have affected the jury's decision." Cartera v. Commonwealth, 219 Va. 

516, 519, 248 S.E.2d 784, 786 (1978). Where, as here, the trial judge 
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excludes evidence that tends to support the defendant's theory of the 

case, that error cannot be cured merely by weighing the merits of the 

Commonwealth's evidence. The harmful error lies in improperly denying 

the defendant an opportunity to put before the jury evidence to rebut 

the Commonwealth's evidence. 

Moreover, the critical issue in this case had to be resolved 

by the jury's determination of the credibility of the parties. If the 

jurors had been given the opportunity to hear the prohibited 

testimony, they may have resolved the credibility conflict in Brown's 

favor and accepted his version of the events. Thus, we cannot 

"conclude, without usurping the jury's fact finding function, that, 

had the error[s] not occurred, the verdict would have been the same." 

Barrett, 231 Va. at 107, 341 S.E.2d at 193. 

We reverse the convictions and remand the case to the 

circuit court for retrial if the Commonwealth be so advised. 

 

Reversed and remanded. 
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Coleman, J., concurring in part and dissenting in part. 

I disagree with the majority's holding that the trial court 

erred by excluding Officer Matthew Berryman's proffered testimony. In 

my view, Officer Berryman's testimony is hearsay and does not come 

within any recognized hearsay exception. Furthermore, although I 

concur in the majority's holding that the trial court erred by 

refusing to admit Charles Gentry's testimony that he purportedly 

overheard a conversation between the victim and defendant before the 

alleged offense in which the topic of conversation was exchanging 

cocaine for sex, I believe the error was harmless. Therefore, I would 

affirm the defendant's convictions. 

 I. Officer Berryman's Testimony

In my opinion, Officer Matthew Berryman's proffered 

testimony that the defendant asked him at the police station after 

being arrested "whether Peggy [the victim] knew he was here" was 

inadmissible hearsay and the trial judge did not err by so ruling. 

 Whether an 

extrajudicial statement is hearsay depends 

upon the purpose for which it is offered and 

received into evidence. If the statement is 

received to prove the truth of its content, 

then it is hearsay and, in order to be 

admissible, must come within one of the many 

established exceptions to the general 

prohibition against admitting hearsay. 

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 

(1992). 

 Part of the difficulty in "not-for-truth" 

situations is due to the fact that often 

such evidence will have a dual nature; the 

declaration may indeed be relevant on some 

matter unrelated to the truth of the content 

of the statement, and yet the content of the 

statement may go to the issues of the case 

as well. See, e.g., Donahue v. 
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Commonwealth, [225 Va. 145, 300 S.E.2d 768 

(1983)]. This is perhaps the situation which 

creates the greatest dilemma for the courts. 

In that regard, however, it should be 

remembered that it is a time-honored 

principle of evidence law that, in general, 

if evidence is admissible for any purpose, 

it is admissible. 

Jenkins v. Commonwealth, 22 Va. App. 508, 521, 471 S.E.2d 785, 791 

(1996) (en banc) (quoting 2 Charles E. Friend, The Law of Evidence in 

Virginia § 18-3, at 95-96 (4th ed. 1993) (footnote omitted)). 

The majority holds that, by definition, an inquiry or 

question such as that asked by the defendant is not an assertion and 

does not constitute hearsay. However, the defendant was saying or 

asserting, in effect, "I know Peggy personally." See, e.g., Dutton v. 

Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970); Krulewitch 

v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L.Ed. 790 (1949); 

United States v. Reynolds, 715 F.2d 99 (1983). See also Laurence H. 

Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958 (1974); Ronald 

J. Bacigal, Implied Hearsay: Defining the Battle Line Between 

Pragmatism and Theory, 11 S. Ill. U. L.J. 1127, 1141 (1987). The 

statement was being offered by the defendant and was relevant only to 

prove that the defendant personally knew the victim. In order for the 

jury to infer from the statement that the defendant knew the victim, 

it would have had to determine the truth or falsity of the implied 

assertion. The statement's probative value depended entirely upon the 

truth of an inferred fact that the statement implied and as such it 

was hearsay. 

The mere fact that the defendant made the statement to 

Officer Berryman was not relevant for any other purpose and the fact 

that the statement was made in no way proved the defendant's 
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relationship with the victim unless the truthfulness of the implied 

assumptions were accepted. Therefore, in my opinion, the statement 

was offered to prove the truth of its content and it was inadmissible 

hearsay.1

II. Charles Gentry's Testimony

As to Charles Gentry's proffered testimony that he 

purportedly overheard a conversation between the defendant and the 

victim on an occasion before the alleged crimes about trading crack 

cocaine for sex, I agree with the majority's holding that the trial 

court erred by excluding this testimony. However, the trial judge 

ruled correctly that the fact the conversation purportedly occurred 

was admissible to prove that the defendant and the victim knew one 

another. The fact that the conversation took place would also have 

been relevant to impeach the victim if the jury found Gentry's 

evidence credible. Nevertheless, the defendant did not seek to 

introduce that evidence after the trial court ruled that Gentry could 

not testify as to the nature and particulars of the conversation that 

he purportedly overheard. 

I concur with the majority that Gentry should have been 

allowed to testify to the nature and content of the alleged 

conversation to prove that the defendant and victim knew one another 

and the nature of that relationship. Gentry would have testified that 

he had seen the victim and the defendant together on two or three 

occasions before the charged incident and that on one occasion the 

conversation was about trading sex for cocaine. "The 

 1 The defendant ultimately testified that he asked Officer 

Berryman if "Peggy [knew that he was] . . . down at the police 

station." 
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admissibility of evidence is within the broad discretion of the trial 

court, and a ruling will not be disturbed on appeal in the absence of 

an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 

371 S.E.2d 838, 842 (1988). The trial court had discretion to limit 

the extent to which the witness will be permitted to give the details 

and particulars of the conversation. However, because the alleged 

conversation was relevant to prove the nature of the relationship 

between the victim and the defendant, which fact was material to prove 

whether the sexual intercourse was consensual or forcible, it was 

error to preclude Gentry from testifying about the general content of 

the alleged conversation. 

Although I concur in the majority's holding that the trial 

court erred by refusing to admit Charles Gentry's testimony concerning 

the alleged conversation between the victim and the defendant and its 

content, I would hold that the error was harmless. "A defendant is 

entitled to a fair trial but not a perfect one." Lutwak v. United 

States, 344 U.S. 604, 619, 73 

S. Ct. 481, 490, 97 L.Ed. 593 (1953). Because the defendant conceded 

that he had sexual intercourse with the victim, the only issue for the 

jury to decide was whether the intercourse was accomplished through 

the use of physical force. In my opinion, evidence independent of the 

victim's testimony and without regard to her credibility proved 

overwhelmingly that the defendant used force to accomplish sexual 

intercourse. See Jenkins v. Commonwealth, 244 Va. 445, 454, 423 

S.E.2d 360, 366 (1992); Goins v. Commonwealth, 218 Va. 285, 288, 237 

S.E.2d 136, 138-39 (1977). Thus, whether the jury believed Gentry 

that the conversation had taken place or whether the fact of such a 
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conversation would have affected the victim's credibility would have 

had no bearing upon the jury's deciding that the defendant used force 

to have sexual intercourse with the victim. Therefore, in my opinion, 

neither the jury's guilty verdict nor its recommended sentence would 

have been affected by admitting Charles Gentry's testimony. 

 In Virginia, 

non-constitutional error is harmless "[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." "[A] 

fair trial on the merits and substantial 

justice" are not achieved if an error at 

trial has affected the verdict. . . . An 

error does not affect a verdict if a 

reviewing court can conclude, without 

usurping the jury's fact finding function, 

that, had the error not occurred, the 

verdict would have been the same. 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 

(1991) (en banc) (quoting Code § 8.01-678). 

Here, overwhelming evidence, independent of the victim's 

testimony, proved that the defendant used physical force to accomplish 

sexual intercourse with the victim. A passing motorist testified that 

on the night of the alleged crimes she saw the victim "running down 

the road naked." The victim stopped the motorist and attempted to 

enter her car. According to the motorist, the victim was "bloody" and 

"scared to death." 

When the police arrived, they found the victim in the back 

seat of the motorist's car wrapped in a sheet which the motorist had 

provided. Officer R. L. Shaner testified that the victim's right eye 

was "swollen and bruised." 

The police went to the victim's apartment and found the 

defendant sleeping. A later analysis of his blood showed that he had 
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consumed cocaine. The police found a chair outside the victim's 

apartment placed against the wall below the kitchen window. The 

window sill into the apartment was bent and the screen to the kitchen 

window was damaged. Palm prints that were later identified as 

belonging to the defendant were found on the kitchen sink facing 

inward from the kitchen window. The defendant's shoes were on the 

kitchen sink, and dirt on the shoes appeared to match the dirt in the 

victim's backyard. Furniture had been knocked over in the apartment, 

and blood was found in approximately eight different areas on a bed 

sheet. Blood was also found on the victim's t-shirt. 

A doctor examined the victim that night and stated that the 

victim was "clearly nervous and jittery." The victim's right eye was 

bleeding and swollen shut, and she had red marks on her forehead. In 

addition, she had several scratches on her right front thigh, several 

red marks on her throat, and dried blood on her head, hair, and 

perineum. Her nose was bloody, and there was blood under all of her 

fingernails. Her perineum was slightly swollen and red. 

The defendant told the police that he went to the victim's 

apartment because he had obtained marijuana for her, and that they did 

not consume all of the marijuana. However, the police found no 

marijuana in the apartment, and an analysis of the victim's blood did 

not test positive for marijuana. Furthermore, although the analysis 

of the defendant's blood tested positive for cocaine, it showed no 

trace of marijuana. A forensic expert testified that marijuana would 

be present in a person's blood for at least twenty-four hours after 

the last use. 

In response to the victim's claim that she had bitten her 
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attacker's thumb, the police examined the defendant's thumb when he 

was arrested and found bite marks. The bite marks were open and raw 

and appeared to be very recent. 

In light of this overwhelming evidence, I do not believe 

that the admission of Charles Gentry's testimony that he claims to 

have overheard a conversation between the defendant and victim tending 

to prove that they knew one another and discussed trading cocaine for 

sex would have affected the jury's guilty verdict. See Hanson, 14 Va. 

App. at 191, 416 S.E.2d at 24 (holding that certain hearsay statements 

that should have been excluded were nonetheless "inconsequential" in 

light of the overwhelming evidence of the accused's guilt). 

Likewise, in my opinion the trial court's error did not 

affect the defendant's sentence. The fact that the jury recommended 

the maximum sentence on all four counts does not require a finding 

that the error affected the jury's sentence recommendations; rather, 

we must evaluate the seriousness, as well as the number, of the 

errors. See Yager v. Commonwealth, 220 Va. 608, 615, 260 S.E.2d 251, 

256 (1979). 

At the sentencing phase in this bifurcated trial, the 

Commonwealth proved that in 1993 the defendant had been convicted of 

sodomy and assault and battery; in 1991 he had been convicted of grand 

larceny and breaking and entering; in 1990 he had been convicted of 

driving as an habitual offender and possession of cocaine; in 1989 he 

was convicted of petit larceny and escape; and in 1985 he had been 

convicted of breaking and entering. 

In my opinion, the jury's sentence recommendations were 

influenced by the brutality of the crimes against this victim and by 
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the defendant's record of multiple felony convictions, and the verdict 

and sentences would not have been affected by the trial court 

admitting Charles Gentry's testimony that he purportedly overheard a 

conversation between the defendant and the victim. 

In summary, I disagree with the majority's holding that the 

trial court erred by refusing to admit Officer Berryman's testimony 

about the defendant's out-of-court statement. Furthermore, although I 

agree that it was error to exclude Charles Gentry's testimony 

concerning the nature and subject matter of the conversation that he 

allegedly overheard, I would hold that the error was harmless. 

Accordingly, I respectfully concur in part and dissent in part and 

disagree that the convictions should be reversed.