Anthony J. Zook v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
ANTHONY J. ZOOK
OPINION BY
v. 	Record No. 2045-98-3 	JUDGE WILLIAM H. HODGES
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Melissa W. Friedman (Anthony F. Anderson, on
brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Anthony J. Zook (appellant) appeals from his convictions by
the Circuit Court of Montgomery County for improper driving and
felony hit and run. 	Appellant contends the trial court erred
(1) when it allowed a state trooper to testify that appellant's
head injury was consistent with a starburst crack found on the
windshield of the car in which appellant was riding, and (2)
when the court instructed the jury to disregard evidence earlier
introduced by appellant. 	Appellant further contends the
evidence was insufficient to prove that he was the driver of the
hit-and-run vehicle. 	Finding no error, we affirm the judgment
of the trial court.

I. 	Background
On July 31, 1997, at approximately 9:00 p.m., Kenneth Price
was driving with his wife on the couple's motorcycle when they
were struck head on by a Ford Mustang automobile that, at the
time of impact, was traveling on the wrong side of the highway.
Appellant and Pamela Mullins were the sole occupants of the
Mustang, which was registered to Mullins.
Michael Haar came upon the accident scene shortly after
hearing a "boom." 	Haar testified that he saw appellant exiting
from the driver's side of the Mustang and that a female exited
from the car's passenger side.
Testifying on behalf of the defendant, Randall Reese stated
that, when he arrived at the accident scene, "there was a lady
there and she told me, I asked her if she was all right and she
told me she swerved to miss a deer and hit the motorcycle." 	The
Commonwealth did not object to this testimony when it was
elicited. 	On cross-examination, the Commonwealth asked Reese if
the woman, Mullins, "[s]aid that there was a deer and that she
swerved to miss the deer?" 	Reese responded in the affirmative.
After Reese finished testifying, the trial court granted the
Commonwealth's motion to strike Reese's testimony regarding what
Mullins said to him on the ground that it was inadmissible
hearsay. 	The court also refused to allow appellant to testify
regarding statements Mullins allegedly made to him about the
accident.
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Trooper Noel, who investigated the crash, testified that
there was a "starburst" crack on the driver's side of the
Mustang's windshield, just to the left of the rearview mirror,
near where the windshield met the car's roof. 	Upon encountering
appellant two hours later, Noel noticed that appellant had an
area of redness and swelling on the right side of his forehead.
Noel testified that, based on his training and experience, the
crack to the windshield and appellant's injury were consistent
with appellant's head striking the windshield where the
"starburst" was located.
II. 	Admissibility of Trooper Noel's Testimony
Appellant asserts that the jury was capable of drawing
reasonable inferences regarding any relationship between
appellant's injuries and the starburst crack on the windshield
without the benefit of Noel's testimony. 	Appellant further
contends that Noel's testimony impermissibly invaded the
province of the jury as fact finder. 	We disagree.
"The admissibility of expert witness evidence is within the
sound discretion of the trial court, and the decision will not
be disturbed on appeal unless the trial court has clearly abused
its discretion." 	Adkins v. Commonwealth, 20 Va. App. 332, 341,
457 S.E.2d 382, 386 (1995). 	"A witness is qualified to speak as
an expert where 'he possesses sufficient knowledge, skill or
experience to make him competent to testify . . . on the subject
matter of the inquiry.'" 	Nichols v. Commonwealth, 6 Va. App.
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426, 432, 369 S.E.2d 218, 221 (1988) (citation omitted). 	"All
that is necessary for a witness to qualify as an expert is that
he have 'sufficient knowledge of his subject to give value to
his opinion' and that he be better qualified than the jury to
form an inference from the facts." 	Kern v. Commonwealth, 2 Va.
App. 84, 86, 341 S.E.2d 397, 399 (1986) (citation omitted).
"It is well settled in Virginia that an expert witness is
not permitted to express an opinion as to an ultimate fact, a
matter that must be determined by the trier of fact." 	Knick v.
Commonwealth, 15 Va. App. 103, 108, 421 S.E.2d 479, 482 (1992).
Nevertheless, the mere fact that an expert's testimony tends to
prove an ultimate fact in issue does not preclude the witness
from testifying on a subject. 	See Hussen v. Commonwealth, 257
Va. 93, 99, 511 S.E.2d 106, 108-09 (holding that expert
testimony that the victim's injuries were not "consistent" with
consensual sexual intercourse did not invade the province of the
jury in a rape case), cert. denied, 119 S. Ct. 1792 (1999);
Davis v. Commonwealth, 12 Va. App. 728, 731-32, 406 S.E.2d 922,
923-24 (1991) (holding that a detective's testimony that the
quantity of drugs possessed by the defendant was inconsistent
with personal use did not improperly invade the province of the
jury where the defendant was charged with possession with intent
to distribute). 	Cf. Bond v. Commonwealth, 226 Va. 534, 539, 311
S.E.2d 769, 772 (1984) (finding that an expert who testified in
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a murder case that the victim's death was the result of a
homicide impermissibly invaded the province of the jury).
Noel's training and experience sufficiently qualified him
to testify regarding the relationship between the starburst
crack found on the Mustang's windshield and appellant's head
injury. 	Moreover, his training and experience rendered him more
qualified than the jury to identify the connection between these
two pieces of evidence. 	Finally, Noel did not testify that
appellant was driving the Mustang; he merely presented evidence
that allowed the jury to draw that inference. 	Accordingly, the
trial court did not abuse its discretion in admitting this
testimony.
III. 	Evidence of Mullins' Statements
Appellant contends the Commonwealth waived its objection to
Reese's hearsay testimony when it failed to promptly object to
this evidence and when the Commonwealth elicited the same
evidence on cross-examination. 	Appellant further contends the
trial court erred when it refused to allow him to testify
regarding statements Mullins made at the accident scene.
In support of his position, appellant cites the following
rule: 	"'[A]n objection to evidence cannot be availed of by a
party who has, at some other time during the trial, voluntarily
elicited the same evidence, or has permitted it to be brought
out by his adversary without objection.'" 	Burns v. Board of
Supervisors of Stafford County, 227 Va. 354, 363, 315 S.E.2d
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856, 862 (1984) (emphasis deleted) (quoting Whitten v.
McClelland, 137 Va. 726, 741, 120 S.E. 146, 150 (1923)). 	See
Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638
(1970) (holding that "where an accused unsuccessfully objects to
evidence which he considers improper and then on his own behalf
introduces evidence of the same character, he thereby waives his
objection").
Unlike Burns, this is not a situation where the
Commonwealth objected to evidence introduced by the appellant
after it had earlier introduced evidence of the same nature.
Rather, this is a situation where the Commonwealth's Attorney
made a late and untimely objection to inadmissible hearsay
evidence. 	Thus, the issue is whether the trial court erred by
entertaining an untimely objection or by excluding inadmissible
hearsay that had been introduced earlier without objection.
Stated another way, the issue is whether the trial court may
exclude inadmissible hearsay where no contemporaneous objection
was made to the evidence but an objection was made later in the
proceedings.
Appellant's argument raises the question whether the trial
court erred by failing to apply the contemporaneous objection
rule: 	"To be timely, an objection to the admissibility of
evidence must be made when the occasion arises--that is, when
the evidence is offered, the statement made or the ruling
given." 	Harward v. Commonwealth, 5 Va. App. 468, 473, 364
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S.E.2d 511, 513 (1988). 	"The goal of the contemporaneous
objection rule is to avoid unnecessary appeals, reversals and
mistrials by allowing the trial judge to intelligently 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).
The purpose and rationale for the contemporaneous objection
rule are inapplicable to this situation. 	The rule is one of
appellate procedure that is designed to ensure that the
presentation of evidence proceeds in an orderly fashion and that
parties do not delay objecting to evidence until the
consequences can be fully weighed. 	Although the Commonwealth
should have objected contemporaneously to the introduction of
the evidence, the contemporaneous objection rule does not
preclude the trial court, in the exercise of its sound
discretion, from entertaining a late objection and excluding
inadmissible evidence after it has been introduced. 	Here, the
Commonwealth's late objection did not prevent the trial court
from intelligently considering the issue or from taking
corrective action in response to the objection.
The position appellant takes would unduly limit the ability
of trial courts to control the flow of evidence and exclude
inadmissible evidence.
Trial judges are required to rule on issues
as they develop at trial. 	If the
development of the case requires reversal of
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an earlier ruling, it is the trial judge's
duty to order that reversal. . . . 	"A trial
court is empowered to change a legal
determination as long as it retains
jurisdiction over the proceedings before
it."
Bottoms v. Commonwealth, 22 Va. App. 378, 383-84, 470 S.E.2d
153, 156 (1996) (holding that a trial court was empowered to
admit evidence that it had previously ruled would be
inadmissible) (citation omitted). 	See also Cunningham v.
Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986)
("The conduct of a trial is committed to the sound discretion of
the trial court.").
Based on the holding in Bottoms, if the trial court had
expressly ruled, in response to a prompt objection from the
Commonwealth, that Reese's testimony was admissible, the court
could have reconsidered this ruling after Reese finished
testifying. 	We see no practical difference between this
hypothetical scenario and what occurred in the present case.
The Commonwealth objected immediately after Reese finished
testifying, while the trial court retained power to correct the
error.
Appellant has also failed to establish how he was
prejudiced by the trial court's ruling. 	Ultimately, the trial
court correctly ruled that the evidence was inadmissible
hearsay. 	Reese's testimony regarding Mullins' out-of-court
statements was not necessary to rebut any improper evidence the
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Commonwealth elicited. 	See, e.g., Wright v. Commonwealth, 23
Va. App. 1, 7, 473 S.E.2d 707, 709-10 (1996) (en banc)
(discussing the doctrine of curative admissibility, which, "in
its broadest form, allows a party to introduce otherwise
inadmissible evidence when necessary to counter the effect of
improper evidence previously admitted by the other party without
objection"). 	A defendant's right to present evidence on his
behalf does not include the right to introduce inadmissible
hearsay evidence. 	See Oliva v. Commonwealth, 19 Va. App. 523,
527, 452 S.E.2d 877, 880 (1995) (a defendant's right to present
evidence in his favor does not include the right to present
irrelevant evidence).
Accordingly, the Commonwealth did not waive its right to
object to Reese's testimony despite raising the objection after
cross-examining Reese on the subject and after Reese had
finished testifying. 	The trial court acted within its authority
and did not abuse its discretion by striking Reese's testimony
in response to the Commonwealth's objection. 	Likewise, the
court did not abuse its discretion when, after sustaining the
Commonwealth's objection, it prohibited appellant from
introducing further evidence regarding Mullins' out-of-court
statements.
IV. 	Sufficiency of the Evidence
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
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inferences fairly deducible therefrom.'" 	Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). 	"This Court does not substitute its
judgment for that of the trier of fact, and the trial court's
judgment will not be set aside unless plainly wrong or without
evidence to support it." 	Hunley v. Commonwealth, 30 Va. App.
556, 559, 518 S.E.2d 347, 349 (1999) (citation omitted).
"When a conviction is based upon circumstantial evidence,
such evidence 'is as competent and is entitled to as much weight
as direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt.'"
Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397,
400 (1994) (citation omitted). 	"The fact finder is not required
to believe testimony that is inconsistent with the facts, may
reject testimony that has been impeached, and may rely solely
upon circumstantial evidence to prove an offense, provided the
circumstances point unerringly to prove the necessary elements
of the offense." 	Doss v. Commonwealth, 23 Va. App. 679, 685,
479 S.E.2d 92, 95 (1996). 	"The inferences to be drawn from
proven facts, so long as they are reasonable, are within the
province of the trier of fact." 	Hancock v. Commonwealth, 12 Va.
App. 774, 782, 407 S.E.2d 301, 306 (1991).
Noel's testimony tended to prove that appellant was sitting
in the driver's seat of the Mustang when appellant's head struck
the car's windshield. 	Haar saw appellant exit the Mustang from
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the driver's side and saw Mullins exit from the passenger side
of the vehicle. 	This evidence was sufficient to allow the jury
to conclude beyond a reasonable doubt that appellant was driving
the Mustang at the time of the accident. 	The jury accepted the
Commonwealth's evidence and rejected appellant's evidence to the
contrary. 	See Sandoval v. Commonwealth, 20 Va. App. 133, 138,
455 S.E.2d 730, 732 (1995) ("The credibility of the witnesses
and the weight accorded the evidence are matters solely for the
fact finder who has the opportunity to see and hear that
evidence as it is presented."). 	We cannot say the jury's
decision was plainly wrong or without evidence to support it.
Accordingly, the judgment of the trial court will not be
disturbed.
Affirmed.
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