FROM THE COURT OF APPEALS OF VIRGINIA.
Peter D. Greenspun (Jonathan Shapiro; Mikhail N. Lopez; Greenspun Shapiro, on briefs), for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
OPINION BY JUSTICE S. BERNARD GOODWYN. JUSTICE LEMONS, concurring. JUSTICE McCLANAHAN, dissenting.
PRESENT: All the Justices
S. BERNARD GOODWYN, JUSTICE.
In this appeal, we consider whether the Court of Appeals erred in affirming the circuit court's exclusion of evidence of good character sought by the defendant.
Procedural and Factual Background
In the Circuit Court of Arlington County, Michael Armin Gardner (Gardner) was charged with three counts of aggravated sexual battery in violation of Code § 18.2-67.3 and one count of object sexual penetration in violation of Code § 18.2-67.2. The charges arise from events alleged to have taken place during sleepovers at his home on June 16 and June 18, 2011, and involve pre-teen girls who were friends of his daughter. After a jury trial, Gardner was found guilty of two counts of aggravated sexual battery and one count of object sexual penetration.
Gardner appealed his convictions to the Court of Appeals, which denied his petition for appeal.
Gardner v. Commonwealth, Record No. 1831-12-4 (June 21, 2013). This Court granted Gardner's petition for appeal. The dispositive issue for purposes of this appeal is whether the Court of Appeals erred in affirming the judgment of conviction despite the circuit court's refusal to permit Gardner to elicit evidence of his good character through two witnesses.
While presenting its case at trial, the defense called six character witnesses. In addition to presenting evidence of Gardner's character for truth and veracity, Gardner also attempted to question two of those character witnesses, Laurie Ombrembt (Ombrembt) and Katherine Allan (Allan), about his reputation in the community for being a good caretaker of children and for not being sexually assaultive or abusive toward them.
Specifically, Gardner's counsel asked Ombrembt, " Do you know if Mr. -- what Mr. Gardner's reputation is, among those who know him as well, for being someone who would be a good caretaker of children as opposed to someone who would harm or abuse or be neglectful of them?" The Commonwealth objected and argued that Gardner was limited to presenting character evidence relating to " a reputation for truthfulness and veracity or for peacefulness." In response, Gardner argued to the circuit court that he was entitled to present evidence regarding his reputation for possessing traits related to the crimes charged and that reputation evidence could be in the form of negative testimony regarding his not having a reputation for possessing a certain trait.
The Commonwealth then argued that
it is the defendant's reputation at the time of the incident which is at issue here, so if the neighbors had a discussion that he's never known to be a pedophile, that would be one thing if they had a discussion in the neighborhood about that, but I doubt that they did until after the incident and I don't think he can prove that up through this witness or any other.
Immediately thereafter, the circuit court stated, " I agree," and sustained the Commonwealth's objection to the character evidence sought by Gardner.
Gardner then proffered the following:
Your Honor, we would proffer, then, that Ms. Ombrembt . . . would testify that - beyond what she's already testified to - that ...