Where appellant was convicted of domestic assault and battery and strangulation, and called the victim as a witness, the trial court correctly refused to let him impeach her with inconsistent statements.
“Olivia Overstreet and Jones have a child together. On June 14, 2021, Overstreet and her child spent the night at Jones’s house. During an argument while in bed, Jones ‘got physical’ with Overstreet and began to choke her. Jones got ‘over top of [her]’ on the bed and ‘choked [her] with both hands” around her neck. Overstreet could not breathe and ‘felt like [she] was going to pass out.’
When Jones eventually ‘stopped’ choking her, Overstreet had no ‘visible injuries’ on her neck but it felt ‘kind of sore.’ After the attack, she and Jones ‘made up’ and went to sleep.”
The next morning, Jones threw a plastic baby bottle at Overstreet, which hit her eye. Jones tried to prevent her from leaving but she managed to get into her car. Jones tried to enter but Overstreet locked the doors. Jones broke two car windows with rocks. The glass shards cut the child.
“After the incident, Overstreet saw a nurse for treatment but left because she “didn’t want to be there.” Overstreet also reported the incident to police and filed a written complaint at the magistrate’s office.
“At trial, during the Commonwealth’s case-in-chief, Jones cross-examined Overstreet about the incident but did not ask whether she had made any prior statements that were inconsistent with her trial testimony.
After the Commonwealth rested, Jones called Overstreet as a defense witness.
“During Overstreet’s direct examination, the Commonwealth objected to Jones asking Overstreet to authenticate her written complaint to the magistrate, asserting that Jones was improperly attempting to impeach his own witness with a prior inconsistent statement.
“The trial court allowed Jones to continue examining Overstreet, but cautioned, ‘You can’t impeach your own witness. It would have been different when [Overstreet] was on the stand previously but now she’s your witness.’
“Overstreet authenticated the complaint, and Jones again attempted to introduce it into evidence. The trial court excluded the exhibit, ruling that the complaint was irrelevant except to impeach Overstreet.”
The court denied Jones’ motion for a mistrial. He appeals his convictions.
“The record here supports the trial court’s finding that Jones called Overstreet solely to impeach her. At trial, Jones had the opportunity to cross-examine Overstreet during the Commonwealth’s case concerning any prior inconsistent statements she may have made, but chose not to do so.
“Jones then called Overstreet as his own witness and repeatedly attempted to question her about such prior inconsistent statements. The trial court properly sustained the Commonwealth’s objections to Jones’s questions concerning Overstreet’s prior statements.
“Indeed, that Jones explicitly asked Overstreet whether her prior statements were ‘consistent’ with her testimony belies his assertion that he did not call her ‘solely for the purpose of impeaching her with her prior statements.’ …
“Thus, regardless of whether Overstreet was ‘adverse’ under Code § 8.01-401(A) or Code § 8.01-403, the trial court rationally concluded that Jones called her solely to impeach her; therefore, the trial court did not err in excluding her testimony about her prior statements. …
“Furthermore, Jones was not surprised that Overstreet, when he called her to the stand as his own witness, testified unfavorably to him about some aspects of the night of the strangulation and morning of the assault.
“In fact, Jones could not claim such surprise, as Overstreet previously testified as a Commonwealth’s witness that he had strangled her and thrown a bottle at her face. … Accordingly, Overstreet did not “prove adverse” within the meaning of Code § 8.01-403 and Jones could not impeach her with her prior statements under that section.”
“Jones argues that the evidence was insufficient to prove strangulation or domestic assault and battery. … Jones asserts that Overstreet’s testimony was not credible and lacked corroboration. Jones also asserts that her ‘story changed’ multiple times. …
“Notably, Jones does not contend that Overstreet’s testimony was inherently incredible. Weighing witness credibility ‘is within the exclusive province of the [factfinder], which has the unique opportunity to observe the demeanor of the witnesses as they testify.’ …
“[T]he Commonwealth put on ample evidence to support the conviction – and the factfinder clearly credited it. …
“Overstreet testified that Jones ‘choked [her] with both hands’ around her neck. She could not breathe while Jones choked her and that afterwards, her neck was ‘kind of sore.’
“Although she did not have ‘visible injuries’ to her neck, Overstreet testified that after being choked, she had soreness when she was breathing, soreness when she was talking, and soreness when she was eating and drinking.
“The trial court did not err when it rejected Jones’s challenge to the sufficiency of the evidence.”
Jones v. Commonwealth, Record No. 0586-22-3, May 16, 2023. CAV (unpublished opinion) (Friedman). From the Circuit Court of Pittsylvania County (Moreau). Carlos A. Hutcherson for appellant. Ken J. Baldassari, Jason S. Miyares for appellee. VLW 023-7-174, 11 pp.