Date: 09-21-2020

Case Style:

Case Number:

Judge: MARY BENNETT MALVEAUX

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: Leanna C. Minix, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief)

Defendant's Attorney:

Description: Stafford, VA - grand larceny, statutory burglary
In April 2018, Paula Johnson was living on Mountain View Road in Stafford County
with her mother, Jewel Kelly. Their home and garage were not visible from the road and could
only be seen by walking up the driveway.
Johnson owned a Harley-Davidson Road King motorcycle, which she stored in the
garage. Her brother, Kevin Johnson, stored an antique Toyota Land Cruiser and some other
antiques and tools in the garage as well. The only individuals with keys to the garage were
Johnson, her brother, and a neighbor, Victor Germaine. The garage had two doors, which were
UNPUBLISHED
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secured by a door lock, but Johnson testified that the garage could be opened without a key if
�you . . . jimmy the lock a little bit� by �pop[ping] it with a credit card or something.�
Johnson and Kelly had known appellant for more than thirty years and considered him a
family friend. On Sunday, April 22, 2018, Johnson arrived home and found appellant sitting on
the front porch. He asked to stay at the home because he had a �pool job� to do in
Fredericksburg. He originally asked to stay for one night but ended up staying for four nights,
because the person who was supposed to pick him up did not arrive.
On Thursday, April 26, 2018, Johnson accompanied Kelly to her chemotherapy
appointment. They arrived at the hospital in the morning and stayed for thirteen hours, leaving
around 7:30 p.m. Kelly attempted to call appellant twice that day to ask him to check on her
dogs, but she was unable to get in touch with him. Both Johnson and Kelly described this as
�unusual� because appellant would typically answer Kelly�s phone calls right away.
When Johnson and her mother arrived home, appellant was gone and had not left a note.
Johnson noticed that night that her Coach watch was missing from the top of her nightstand. The
next day, she looked through her nightstand and discovered that in addition to the watch, she was
missing another watch, a bracelet, and a ring.
Sometime on Thursday, April 26, 2018, Germaine looked out his kitchen window and
noticed that Johnson�s garage door was open. He also saw someone on a Harley-Davidson
motorcycle pushing it toward the house. Germaine called Kevin Johnson and asked him if he
was getting on the motorcycle. Kevin Johnson replied that it was probably his sister. About a
half hour later, Germaine saw the man on Johnson�s motorcycle come up the driveway and make
a left-hand turn onto Mountain View Road.
Two days later, on April 28, 2018, Johnson left town to attend a work conference. That
day, Kevin Johnson went to work on items in the garage. He noticed that his sister�s motorcycle
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was missing. He called Johnson and told her that her motorcycle was missing from the garage.
The next day, Johnson went to the garage and found the motorcycle cover on the floor. She also
found a handmade cross necklace that fell out of the motorcycle cover when she picked it up.
Both Johnson and Kelly testified that they had previously seen appellant wearing the necklace.
Johnson testified that her motorcycle had an alarm on it so that it could not be �hot
wired� and had �to have something to start it or shut off an alarm.� A key fob on the key to the
motorcycle would shut off the alarm. Johnson had two keys to her motorcycle which she kept in
her nightstand along with her jewelry. When she checked her nightstand, she found that one of
the two keys was missing. No other valuables were taken from the home or the garage.
After discovering that the motorcycle was missing, both Johnson and Kelly attempted to
contact appellant, but he never responded to their attempts. Johnson�s motorcycle was never
recovered. Johnson had not given appellant permission to take her jewelry, her motorcycle, or
her keys.
Evidence of Prior Bad Acts
At trial, the Commonwealth�s attorney asked Johnson whether appellant had told her
�about his past with taking motorcycles.� Counsel for appellant objected, arguing that the
testimony Johnson was going to provide�that appellant �ha[d] previously stolen and disposed of
motorcycles in Philadelphia��was inadmissible prior bad acts testimony. The
Commonwealth�s attorney proffered that Johnson�s testimony would be that appellant �told her
in the past he was affiliated with a motorcycle club, he would take motorcycles up to
Philadelphia, he would sell the motorcycles to them where they would . . . part-out the parts,
where they would basically chop it up.� The Commonwealth�s attorney argued that the
testimony was admissible as �it goes to lack of mistake, motive, scheme or plan.� In response,
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counsel for appellant argued that the evidence was not admissible as a common scheme or plan
and that it was more prejudicial than probative.
The trial court ruled that
[appellant�s] statements related to prior bad acts, those prior bad
acts happen to be ostensi[b]ly remarkably in similar nature to
what�s being charged in this particular indictment, the [c]ourt finds
that the evidence is sufficient to make it admissible, and I do not
find that the prejudice outweighs the probative value. So the
objection is overruled.
Johnson then testified that appellant told her �that he worked for a motorcycle gang in
Philadelphia and he used to steal motorcycles and take them and part them out.� She
�assum[ed]� that �part them out� meant taking parts off of motorcycles and selling the parts to
other people as opposed to selling the whole motorcycle because the motorcycle had an
identification number on it. Johnson specifically stated that appellant told her he worked for a
motorcycle gang but was not a part of a motorcycle gang. She testified that appellant had made
statements like these several times over the years she had known him and had probably last made
similar statements in 2017. When asked when appellant had worked for the motorcycle gang,
Johnson stated that she did not �have the exact year� but that it was �when he was on the run
from the state of Virginia.�
On cross-examination of Kelly, counsel for appellant asked whether appellant had ever
told Kelly about being in a in a gang in Philadelphia or working for a motorcycle gang. Kelly
responded, �He told me that he knew people there. . . . That had a motorcycle gang, yeah.� On
re-direct, the Commonwealth�s attorney asked Kelly, without objection, about the �motorcycles
up in Philadelphia,� and she stated that appellant had told her that he had taken motorcycles to
Philadelphia where �they chopped them up and resold them.�
Appellant was convicted of grand larceny, in violation of Code � 18.2-95, and statutory
burglary, in violation of Code � 18.2-91. This appeal followed.
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II. ANALYSIS
On appeal, appellant argues that the trial court erred in admitting evidence of prior bad
acts. He contends that Johnson�s and Kelly�s testimony regarding his past statements that he had
taken motorcycles to Philadelphia and resold them for parts was introduced solely to demonstrate
his predisposition to steal motorcycles, was not probative of any of the exceptions to the general
rule prohibiting the introduction of prior bad acts evidence, and that any probative value of the
statements was outweighed by their prejudicial effect.
However, the Commonwealth argues that appellant has waived any challenge to the
admission of his statements because he failed to object to Kelly�s testimony at trial.
It is a well settled and obviously sound general rule that an
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. The rule finds its most frequent application in
cases where the party making the objection afterwards introduces
the same evidence. . . .
Burns v. Bd. of Supervisors, 227 Va. 354, 363 (1984) (quoting Whitten v. McClelland, 137 Va.
726, 741 (1923)) (emphasis omitted). An unsuccessful objection �to the admissibility of certain
evidence [is] waived by the failure to object to the same evidence subsequently introduced.�
Philip Greenberg, Inc. v. Dunville, 166 Va. 398, 404 (1936). This is true even if �precisely the
same fact� was involved and the trial court had earlier rejected the same objection. Id.; see also
Portner v. Portner�s Ex�rs, 133 Va. 251, 263 (1922) (holding that, �if it had been error to admit
[the challenged evidence] in the first place, subsequent introduction of the same evidence
without objection constituted a waiver of the previous objection�); see also Charles E. Friend,
The Law of Evidence in Virginia � 8-4, at 295 (6th ed. 2003) (�Waiver is found where . . . [t]he
objecting party fails to object to the same evidence when subsequently introduced by the
opponent.� (emphasis omitted)).
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It is clear from the record in this case that appellant objected to the evidence regarding his
prior bad acts when that evidence was first elicited at trial during Johnson�s testimony. He
failed, however, to object when the Commonwealth�s attorney subsequently elicited the same
evidence during Kelly�s testimony. Like Johnson, Kelly testified that appellant had told her that
he had taken motorcycles to Philadelphia where �they chopped them up and resold them.� In
addition, appellant himself elicited testimony from Kelly regarding his prior bad acts. Counsel
for appellant asked Kelly on cross-examination whether appellant had ever told her about being
in a gang in Philadelphia or working for a motorcycle gang, and Kelly replied, �He told me that
he knew people there. . . . That had a motorcycle gang, yeah.� In the instant case, by failing to
restate his initial objection to the introduction of the prior bad acts evidence and by himself
eliciting testimony regarding those prior bad acts, appellant permitted the introduction of the
evidence he now challenges on appeal. Therefore, we conclude that appellant waived his
objection to the admission of the Commonwealth�s evidence regarding his past statements about
stealing motorcycles and then reselling them for parts.

Outcome: We hold that appellant waived his challenge to the admission of the evidence of prior bad acts. Accordingly, we affirm.

Plaintiff's Experts:

Defendant's Experts:

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