COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

PAUL M. DODSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2261-94-4 JUDGE LARRY G. ELDER 

 NOVEMBER 28, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Gerald Bruce Lee, Judge 

 Zelma L. Berger for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

 brief), for appellee. 

 Paul M. Dodson (appellant) appeals his convictions for 

robbery in violation of Code § 18.2-58 and use of a firearm in 

the commission of a felony in violation of Code § 18.2-53.1. 

Appellant contends the trial court erroneously allowed the 

Commonwealth to introduce an accomplice's statement after 

determining the statement was a declaration against penal 

interest, which is an exception to the hearsay rule. 

Specifically, appellant asserts (1) the statement was not against 

the accomplice's penal interest at the time it was made; (2) the 

accomplice was unaware of the nature of his statement; and (3) 

the accomplice's statement was unreliable. Because the trial 

court erroneously determined the statement was against the 

 

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

designated for publication. 
 2 

accomplice's penal interest at the time it was made, we reverse 

the convictions and remand the case for further action if the 

Commonwealth be so advised. 

 Viewed in the light most favorable to the Commonwealth, the 

facts reveal that between midnight and 1 a.m. on December 26, 

1993, Raoul Perez and his wife were operating a video camera 

outside their apartment building in Oakton, Virginia. Two black 

men, one described as "smaller" and the other as "taller," 

approached the couple and asked for some matches. In court, Mr. 

Perez and his wife each identified the smaller black man as 

appellant. Appellant demanded Perez's camera and placed a 

handgun against Perez's temple when he refused to comply. The 

second man stood some distance away. After Perez released the 

camera, the two men fled the area. At the same time, a neighbor 

spotted two men run to and enter a nearby vehicle with 

personalized license tags. 

 Based on the December 27, 1993 statement of Rodrick Brown, 

later identified as the "taller" man accompanying appellant, 

police apprehended appellant. Testimony revealed Brown and 

appellant had previously been roommates in May 1993 but had since 

become hostile toward one another. Brown was called as a witness 

at appellant's trial but refused to testify on grounds of 

self-incrimination. Over appellant's hearsay objection, the 

trial court allowed the Commonwealth to introduce a hearsay 

statement Brown made to police after the incident, on the ground 
 3 

that such statement was a declaration against Brown's penal 

interest. Brown told police: 

We . . . picked Paul Dodson up at Springfield Mall, and 

we came back to Fairfax after we watched a movie, came 

back to Fairfax, and we was [sic] at Oakton Park, 

because he said he wanted to go talk to one of his 

friends, or whatever. And it turns out that he didn't 

have no [sic] friends over there, he just wanted to 

stick someone up. And he--all right. He got out of 

the car, and told me--first of all, he told me to come 

with him, so I was like, cool. I went with him, and 

when we was [sic] walking past the basketball court, 

and I told him--I was like--it was [sic] some people 

over there playing. I wanted to go over there and 

play, shooting until he got back. And he said, "No, 

man. Just come with me. Come with me." So we kept 

walking down the street, and we seen [sic] this man 

with a video camera. And Paul went up to him and asked 

him if he had a light, and the dude said no, he don't 

[sic] smoke. And then he just pulled the--he pulled a 

gun out of nowhere, and just demanded the video camera. 

 And I--as I was like, damn, should I run, or should I 

just stay, or what should I do? So my first thing was 

to start running, when he put the gun to his head. I 

just started running. I didn't want to be around it. 

 Appellant presented two witnesses who were in the vehicle 

the morning of the robbery, each one testifying it was not 

appellant who was in the car with them, but rather another person 

named "Paul." The witnesses also testified Brown told them the 

video camera found in the vehicle, and later carried into a 

witness's house by Brown, was a Christmas gift from Brown's 

mother. 

 A jury convicted appellant on both counts. 

 There exist three prerequisites for applicability of the 

declaration against penal interest exception to the rule against 

hearsay: (1) the declarant must be unavailable; (2) the 
 4 

statement must have been against the declarant's interest at the 

time the declaration was made; and (3) the declarant must have 

been aware at the time the statement was made that it was against 

his interest to make it. Boney v. Commonwealth, 16 Va. App. 638, 

643, 432 S.E.2d 7, 10 (1993)(citing Charles E. Friend, The Law of 

Evidence in Virginia § 234 (3d ed. 1988)); see Morris v. 

Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985). 

Furthermore, the declaration "is admissible only upon a showing 

that the declaration is reliable." Ellison v. Ellison, 219 Va. 

404, 408, 247 S.E.2d 685, 688 (1978). In this case, appellant 

contests all of the above prerequisites, except Brown's 

unavailability. 

 As this Court has said: 

A statement is against the declarant's penal interest 

if it subjects the declarant to criminal liability. 

United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 

(5th Cir. 1981), cert. denied, 459 U.S. 834 (1982). In 

making this determination, we must "look at the 

practical significance of statements made by a witness 

. . . and determine, given all of the circumstances," 

whether the statement subjected the witness to criminal 

liability. Witham v. Mabry, 596 F.2d 293, 297 (8th 

Cir. 1979). 

Boney, 16 Va. App. at 643-44, 432 S.E.2d at 10. 

 Using the Boney standard, we hold Brown's statement was not 

against his penal interest when made because the portions of the 

statement relating events both during and after the offense did 

not subject Brown to criminal liability. As appellant asserts, 

the statement actually benefitted Brown because it cast him in 
 5 

the role of an "innocent bystander" who did not plan or take part 

in the robbery in any way. This case differs from Boney, which 

the Commonwealth argues factually controls this case. In Boney, 

the out-of-court declarant specifically admitted to police he 

helped conceal the murder weapon that was involved in a homicide, 

which implicated the declarant at least as an accessory to the 

incident. Nothing in Brown's statement implicated him as an 

accessory to the crimes charged against appellant. 

 We disagree with the Commonwealth's contention that certain 

circumstances, when evaluated in conjunction with Brown's 

statement, subjected him to potential criminal liability. For 

example, Brown's flight from the crime scene and his entry into 

the same vehicle as appellant do not prove Brown acted as an 

accessory. If taken as true, Brown's statement reveals he was 

surprised appellant robbed Perez and fled from the scene upon 

observing the robbery occur. Furthermore, while Brown possessed 

a video recorder after the incident, there was no direct evidence 

that it was the same video recorder taken from Perez. We cannot 

infer that it was the same video recorder for the purpose of 

finding Brown's statement against his penal interests. 

 Finally, because we cannot say the trial court's error in 

allowing the introduction of Brown's statement did not affect the 

verdicts, we are unable to hold the error harmless. Lavinder v. 

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

(1991)(en banc). Brown's statement to police stood as damning 
 6 

evidence against appellant, as it contradicted testimony from 

Brown's cohorts that appellant was not at the scene of the crime. 

 Because we reverse on this issue, we need not reach the 

separate issues of (1) whether Brown was aware his statement was 

against his penal interest when he made it, or (2) whether there 

existed sufficient indicia of reliability to admit Brown's 

statement. 

 Accordingly, we reverse the convictions and remand the case 

to the trial court for further proceedings if the Commonwealth be 

so advised. 

Reversed.