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Briefing errors result in conviction being affirmed

Virginia Lawyers Weekly//July 21, 2019

Briefing errors result in conviction being affirmed

Virginia Lawyers Weekly//July 21, 2019

A defendant’s conviction was upheld because one issue he raised on appeal referred to an alleged error that was corrected by the trial court and the second assignment of error was waived as it was not adequately briefed.


Benjamin Forrest Carter and Jasmine Smith-Aaron were in a romantic relationship.  In April of 2016, the parties got into an argument. A physical altercation ensued, which ultimately resulted in the charges against Carter.

Smith-Aaron was the commonwealth’s primary witness at trial. She cooperated and answered the commonwealth’s questions about the events leading up to Carter’s assault on her. When the commonwealth asked questions about the assault, Smith-Aaron became less cooperative and she repeatedly answered questions by stating that she did not know what happened or that she could not remember.

The trial court allowed the commonwealth to treat Smith-Aaron as an adverse witness, but she continued to state that she could not remember. The commonwealth attempted to use the transcript from Smith-Aaron’s preliminary hearing testimony to refresh her recollection. The trial court ultimately found that she was unavailable and granted the commonwealth’s motion to admit the preliminary hearing transcript.

Carter’s counsel was permitted to cross-examine Smith-Aaron. She continued to state that she could not remember, and, at best, she could only tell them what she was reading from the preliminary hearing transcript. The trial court continued the case. When it resumed, the commonwealth again attempted, unsuccessfully, to refresh Smith-Aaron’s memory.

The trial court found that Smith-Aaron was refusing to testify, and it held her in contempt of court. Smith-Aaron explained that she truly did not remember because the abuse “happened for hours,” and she did not remember the details. The trial court allowed the commonwealth to question her again. Smith-Aaron answered some questions that she had not answered before, but was still unable to give many details.

After the commonwealth rested its case, Carter renewed his motion to strike the preliminary hearing transcript from evidence. After arguments, the trial court granted Carter’s motion and struck the preliminary hearing testimony from the record.

The trial court found Carter guilty of all four charges against him.  This appeal followed.


Carter’s assignment of error alleges that the trial court improperly admitted the transcript of Smith-Aaron’s preliminary hearing testimony into evidence at the trial. Although the trial court initially admitted the transcript into evidence, it subsequently granted Carter’s motion to strike the preliminary hearing transcript from the record. Thus, despite Carter’s argument, the preliminary hearing transcript was not admitted into evidence. Because the trial court did, in fact, grant Carter’s motion to strike, Carter’s assignment of error refers to an alleged error corrected by the trial court and does not address the final ruling of the trial court. Consequently, we will not consider this argument on appeal.

Carter argues that the evidence was insufficient to convict him of the crimes for which he was charged. Specifically, he argues that the testimony of Smith-Aaron, even if admissible, was not credible as a matter of law. However Carter’s argument consists solely of two conclusory sentences. Further, Carter does not present a single citation or legal authority to support his contention. Because we consider Carter’s failure to comply with Rule 5A:20(e) significant, we consider this assignment of error waived.


Carter v. Commonwealth, Record No. 0801-18-1, July 2, 2019. CAV (Atlee) from Newport News Cir. Ct. (Tench). Jill R. Schmidtke for Appellant, Brittany A. Dunn-Pirio for Appellee. VLW No. 019-7-117, 5 pp. Unpublished.

VLW 019-7-117

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