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Creamer v. Commonwealth

Court of Appeals of Virginia

January 13, 2015


Page 227



Reed C. Amos (Amos & Amos, PLLC, on brief), for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Chafin and Senior Judge Coleman.


Page 228


Jason N. Creamer (appellant) was convicted of grand larceny in violation of Code § 18.2-95. On appeal, he argues that the trial court erred by prohibiting him from calling his former co-defendant as a witness and rejecting his post-trial proffer of the co-defendant's testimony.[1] He also contends that the evidence was insufficient to support his conviction. We hold, based on appellant's mid-trial proffer of the expected testimony, that the court did not abuse its discretion in refusing to allow appellant to call his co-defendant as a witness. We hold further that if the trial court erred in refusing to accept appellant's post-trial proffer, which he specifically offered only to complete the record for appeal, any [64 Va.App. 190] error was harmless. Finally, we conclude that the evidence was sufficient to support his conviction. Therefore, we affirm.


In February 2011, Edward Moore (Moore) moved to another state with his fiancé e, Lynn Allison Moore (Mrs. Moore).[2] Prior to moving, Moore rented his fully furnished house to appellant and his wife.[3] The lease was a " rent-to-own" agreement and allowed appellant to purchase the home after he had rented it for two years. The agreement, which Mrs. Moore had obtained online, did not mention the furnishings in the home. Pursuant to the rental agreement, appellant and his wife resided in the home, and they allowed a friend, Richard Davis (Davis), to live in the garage.

In February 2012, when Moore began eviction proceedings due to appellant's failure to pay the rent, he discovered that appellant and his family, as well as Davis, had moved out. Moore found that the house key was in the lock and almost all of the household furnishings had been removed.

Moore reported the missing furnishings to the Sheriff's Department.[4] Appellant admitted to Officer H.H. Dickerson that he had taken the furnishings, but he said that they had been " given to him." Moore and his wife indicated, by contrast, that they had told appellant he could have the furnishings only if he exercised the option to buy the home, which he did not. As a result of the investigation, appellant and Davis were charged with grand larceny of the furnishings.

[64 Va.App. 191] At the start of appellant's and Davis's joint trial, appellant moved to separate the witnesses, and the trial court granted the motion. The Commonwealth presented its case through the testimony of Moore, Officer Dickerson, and Susan Kirtley, who lived next door to the rental property. Moore testified that his agreement with appellant was that " if [appellant and his wife] purchased the house, then they could have all the furnishings inside the house." Moore also testified that when he first spoke to appellant after finding the house almost empty, appellant denied taking any of the missing furnishings. Kirtley testified that in February 2012, she saw appellant, his wife, and two relatives removing from the home various articles of furniture, boxes, and other " normal stuff you . . . move when you're moving out." She did not identify Davis as having been involved. Officer Dickerson testified that appellant later

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admitted taking the items but claimed that they had been " given to him."

At the close of the Commonwealth's case-in-chief, co-defendant Davis moved to strike the evidence, arguing that it failed to prove he had been involved in the taking of any of the missing furnishings. The Commonwealth agreed, and the court granted Davis's motion to strike. On appellant's motion, Davis was then directed to wait " in the backroom with the other witnesses" in case appellant elected to call him as a witness.

During appellant's case-in-chief, he questioned Mrs. Moore about her knowledge of the events surrounding execution of the rental agreement. When asked whether she talked to appellant about the furnishings, Mrs. Moore testified, " I was there when they discussed the fact that if [appellant] purchased the house, he could have the furniture that was in the house."

When appellant attempted to call Davis, his former co-defendant, the prosecutor objected on the ground that Davis had been present in the courtroom during the Commonwealth's case. Appellant stated, " If . . . the Court wants to prohibit [Davis] from testifying for impeachment for the Commonwealth's [64 Va.App. 192] witnesses, whose testimony he heard, then I won't make any objection to that." Appellant argued, however, that " because [Davis] wasn't present for any of the defense witnesses, then he certainly should be able to testify on those matters." Appellant clarified that the testimony he intended to elicit from Davis would be " about his own behavior or thoughts" or " his own statements or . . . actions." He did not proffer any more specific information.

The Commonwealth responded that appellant could not impeach his own witnesses. In addition, it posited that any testimony from Davis regarding his own actions would be irrelevant because he was no longer a party. Appellant made no further attempt to explain the relevance of Davis's testimony. The trial court then sustained the Commonwealth's objection to Davis's testimony " for the reasons the Commonwealth stated."

At the sentencing hearing, appellant made a written proffer of the testimony from Davis that he had planned to offer during the guilt phase. Appellant's counsel explained that he had " never done this before" and was not sure what would " be acceptable as a procedure." He also stated explicitly, " This is not trying to get this back in[,] as a judgment has been made, just as a basis for the record for appeal, if necessary." The Commonwealth argued that the proffer, in order to have been timely, had to have been made at the time the court ruled on the admissibility of Davis's testimony. Counsel for appellant responded that he had made " some proffer . . . on the record [at trial]." [5]

[64 Va.App. 193] Appellant and the prosecutor submitted competing trial court memoranda regarding the proffer. Appellant reiterated that the proffer's purpose was " not to assist the trial judge in ruling on the admissibility of the evidence." He acknowledged that Rule 2:103(a) required that he make " a ' contemporaneous objection' . . . to a ruling of the trial court." He contrasted this, however, with the rule's language in subsection (2) regarding proffers, which requires, regarding excluded evidence, only that " the substance of the evidence was made known to the court by proffer."

The prosecutor again objected on numerous grounds. He argued, inter alia, that appellant made an insufficient proffer of the witness' expected testimony during trial, when the court was required to make its ruling regarding admissibility, and that the trial court would have erred ...

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