WILLIAMS v. COMMONWEALTH
JANUARY 13, 1998
Record No. 2704-96-3
ERNIE C. WILLIAMS, JR.
COMMONWEALTH OF VIRGINIA
BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
Present: Judges Coleman, Elder and Senior Judge Cole
Argued by teleconference
Gray Robinson (Jackson & Robinson, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (Richard Cullen,
Attorney General; Monica S. McElyea, Assistant Attorney General,
on brief), for appellee.
Ernie Williams, who had been declared an habitual offender,
was driving his pickup truck in Washington County when he veered
off the road, causing the accidental death of Jeremy Harless, a
passenger in the truck. Williams was charged with driving after
having been adjudged an habitual offender (second offense) and
second degree felony murder. At trial, the judge granted
Williams’ motion to strike the evidence on the second degree
felony murder charge, and a jury convicted Williams of driving
after having been declared an habitual offender.
On appeal, Williams contends the trial judge erred by
admitting evidence that he was reaching for a beer when the
accident occurred and that he had consumed four beers on the day
of the accident. We hold that the trial judge did not abuse his
discretion by admitting evidence that when the accident occurred
Williams was reaching for a beer. Further, assuming, without
deciding, that the judge erred by admitting evidence that
Williams had consumed four beers earlier during the day of the
accident, we hold that on the facts of this case any such error
was harmless. Accordingly, we affirm the conviction for driving
after having been declared an habitual offender.
Williams was driving his pickup truck down a narrow, country
road with Gerald and Jeremy Harless as passengers. Gerald rode in
the cabin next to Williams, and Jeremy sat in a chair in the
truck’s open bed. As Williams reached for an open beer, the truck
veered off the road and struck a column of concrete steps
protruding from the ground near the roadside. The collision threw
Jeremy from the truck, and he later died of the severe injuries
that he suffered in the fall. The investigating officer testified
that he could not detect that Williams’ physical condition was
Williams contends the trial judge erred by admitting the
evidence that he drank four beers earlier during the day and that
he was reaching for a beer when the accident occurred. He argues
that such evidence was irrelevant to prove the charged offenses
of whether he was driving after having been declared an habitual
offender and of whether Jeremy Harless was killed as a result of
his driving after having been declared an habitual offender.
The evidence that Williams was reaching for a beer when the
accident occurred was admissible as part of the res gestae
of the offenses for which he was tried. "Facts which
constitute the res gestae must be such, as are so
connected with the very transaction or fact under investigation
as to constitute a part of it." Jones v. Commonwealth,
11 Va. App. 75, 83, 396 S.E.2d 844, 848 (1990). Limited reference
to such evidence is admissible where it is "so inseparably
connected with [the offense] as to make the avoidance of all
reference to it practically impossible." Compton v.
Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 450 (1949).
Here, the fact that Williams was reaching for a beer moments
before the accident explained how the accident occurred; that
fact was "inseparably connected" to the accident.
Because the evidence was an integral part in explaining the
accident, Williams was not entitled to sanitize the facts
underlying the incident. Accordingly, the trial court did not
abuse its discretion in admitting evidence that Williams reached
for a beer while driving the truck. See McWilliams v.
Commonwealth, 177 Va. 933, 941, 15 S.E.2d 70, 73 (1941)
("Whether or not a [fact] is a part of the res gestae
rests within the sound judicial discretion and judgment of the
As to Williams’ contention that the trial court erred by
admitting evidence that was irrelevant, which was that Williams
had drunk four beers earlier on the day of the accident, we hold
that on the facts of this case, any such error was clearly
harmless as to the conviction for driving after having been
declared an habitual offender. Appellate review of
nonconstitutional error required that:
the conviction must be reversed unless it plainly
appears from the record and the evidence given at the
trial that the error did not affect the verdict. An error
does not affect the 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
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991) (en banc) (emphasis added).
Unless it plainly appears that the inadmissible evidence did not
affect either the finding of guilt or the sentence, the verdict
must be set aside.
Here, we are only concerned with whether the evidence had a
prejudicial effect upon Williams’ conviction or sentence for
driving after having been declared an habitual offender since the
trial judge struck the murder charge. The evidence was
overwhelming that Williams was driving his truck at the time of
the accident and that he did so after having been declared an
habitual offender. Gerald Harless testified that Williams was
driving the truck. Furthermore, Williams admitted to the
investigating state trooper and to the witness Jewell Musick that
he was the driver. Also, Williams admitted to the trooper that he
was an habitual offender and the documentary evidence proved
that. Based upon this evidence, it clearly appears to us that the
jury would have reached the same verdict that Williams was guilty
of driving after having been declared an habitual offender had
the evidence not been admitted that he consumed four beers
earlier in the day. Thus, we find that the error, if any, in
admitting the evidence did not affect and was harmless as to the
issue of guilt.
Evaluating the effect that such inadmissible evidence may have
had upon the jury’s determination of punishment is more
problematic. In doing so, we cannot substitute our judgment for
that of the jury or usurp their function of weighing the
evidence; we must be able to say with conviction that on these
facts a jury would not have reached a different result had the
offending evidence been excluded. Although the jury in this case
recommended the maximum sentence, in view of Williams’ extensive
prior criminal record and upon the facts of this case, we do not
believe that another jury would have recommended another sentence
had the fact that Williams drank four beers been excluded. The
evidence proved that Williams had three prior convictions for
driving on a revoked or suspended license, that he had five prior
convictions of driving under the influence, and two prior
convictions for driving after having been declared an habitual
offender. On the occasion which gave rise to this case that
Williams drove while having been declared an habitual offender
and ordered to not drive, he crashed and killed Jeremy Harless.
The range of punishment that a jury could have recommended was a
mandatory sentence of not less than one year or more than five
years in the penitentiary. On these facts we do not believe that
had the evidence been excluded that Williams had earlier consumed
four beers the jury would have imposed less than the maximum
penalty. Accordingly, any error in admitting this evidence was
harmless as to the issue of punishment.
For these reasons, we affirm the conviction.
 Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.