James Douglas Hodge v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
JAMES DOUGLAS HODGE MEMORANDUM OPINION* BY
v. 	Record No. 0217-97-3 	JUDGE RUDOLPH BUMGARDNER, III
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
Reelia R. Watson for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
James Douglas Hodge was indicted for malicious wounding of
Michael Brenson. 	After a two-day trial, a jury convicted him of
unlawful wounding and sentenced him to six months in jail and
fined him $1,500. 	The trial court suspended all but three days
of the sentence. 	The defendant argues that the trial court erred
by not striking and then giving a cautionary instruction after a
witness made prejudicial remarks and by giving an instruction on
character evidence when there was none presented. 	Finding that
the trial court committed no reversible error, we affirm.
The defendant and the victim were students at Emory and
Henry College. 	They were fraternity brothers and residents of
the same dormitory. 	An evening of drinking culminated in a fight
between the two. 	As it ended, Brenson was holding the defendant
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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down on the floor choking him when Hodge stabbed him three times
in the thigh and once in the buttock.
During the direct examination of Brenson's roommate, the
Commonwealth's attorney asked him to describe the defendant's
appearance and demeanor. 	The witness responded, "Hodge was
obviously inebriated. 	At the same time, I could smell an odor of
marijuana." 	Defense counsel objected and asked that the remark
be stricken. 	The trial judge sustained the objection.
The Commonwealth's attorney then asked the witness if he had
noticed something in the room that night or the next morning.
The witness replied, "Well, later that night I noticed a bowl
that we'd --- you would use to smoke marijuana with." 	Defense
counsel again objected, and the court sustained the objection.
The court immediately held a conference with the attorneys out of
the presence of the jury. 	It reviewed in detail what testimony
the Commonwealth expected to present and ruled that it could not
present any evidence about marijuana. 	The trial continued, and
the Commonwealth went directly to other evidence. 	The defendant
did not request a cautionary instruction at any point. 	In the
general instructions given at the end of the trial, the trial
court did give an instruction that told the jury not to consider
any matter that was rejected or stricken.
When the trial court promptly ruled to sustain the
objections of the defendant, it ruled that the item was not
proper evidence in the case and it thereby rejected that item
from consideration. 	When evidence is improperly admitted, the

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appellant can request a cautionary instruction to cure the
prejudice. 	See LeVasseur v. Commonwealth, 225 Va. 564, 589, 304
S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063 (1984). 	The
judge is not required to give the curative instruction sua
sponte. 	See Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d
599, 607 (1990). 	Indeed, some defendants may not want to draw
attention to the objectionable statement. 	To require a court to
give the instruction sua sponte would deprive defendants of this
option in determining their trial strategy. 	In this case, while
no prompt cautionary instruction was given, the jury was
instructed to disregard rejected evidence. 	Jurors are presumed
to follow instructions to disregard rejected evidence. 	See
LeVasseur, 225 Va. at 589, 304 S.E.2d at 657; Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619, cert. denied,
498 U.S. 908 (1990).
The defendant objected to Instruction 101 which told the
jury that it could consider the character of the defendant in
determining guilt. 	The defendant never presented evidence of his
good character. 	He offered no evidence of character traits that
would tend to prove he did not commit malicious wounding and,
therefore, did not put his character in issue. 	He did present
evidence to support his credibility in the form of testimony of
his reputation for truthfulness. 	The defendant testified, and in
1"You may consider the character of the defendant when
proven by the evidence, whether good or bad, along with the other
facts and circumstances in the case in determining his guilt or
innocence."

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doing so he did put his credibility in issue, but presenting
evidence of his reputation for truthfulness did not put his
character in issue. 	See Smith v. Commonwealth, 212 Va. 675, 676,
187 S.E.2d 191, 192 (1972). 	Instruction 10 should not have been
given, but in this case it was harmless error to do so.
The instruction itself carried the caveat that character
evidence was only to be considered when it was proven. 	With no
evidence of his character, under this instruction there was
nothing for the jury to consider in its deliberations. 	In
addition, there was overwhelming evidence of guilt. 	The
defendant admitted that he had a knife in his pocket and that he
stabbed the victim, although he did not remember doing so, and
the victim testified that the defendant stabbed him during the
fight. 	"An error does not affect a verdict if a reviewing court
can conclude, without usurping the jury’s fact finding function,
that, had the error not occurred, the verdict would have been the
same." 	Lavinder v. Commonwealth, 12 Va. App. 1003, 1007, 407
S.E.2d 910, 912 (1991) (en banc). 	We do so conclude.
Finding no reversible error, we affirm.
Affirmed.