Dontae T. Ebron v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia
DONTAE T. EBRON
MEMORANDUM OPINION*
v. 	Record No. 0499-07-1 	BY JUDGE ROBERT J. HUMPHREYS
JUNE 24, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Mark M. Kantro for appellant.
J. Robert Bryden, II, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Dontae T. Ebron (“Ebron”) appeals his convictions for first-degree murder and use of a
firearm in the commission of a felony, in violation of Code § 18.2-32 and Code § 18.2-53.1,
respectively. He argues that the trial court erred in allowing evidence under the state-of-mind
exception to the hearsay rule. Assuming without deciding that the trial court erred in admitting
this testimony, we find such error harmless. Thus, we affirm Ebron’s convictions.
It is well settled that an appellate court “decides cases ‘on the best and narrowest ground
available.’” Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006)
(en banc) (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531
(1991) (Stevens, J., concurring)). “Coupled with these principles of judicial prudence is the
proposition that an appellate court may structure a decision upon an ‘assuming but not deciding’
basis.” Id. Furthermore, “the ‘assuming but not deciding’ basis is useful for a ‘harmless error’
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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analysis.” Id. Assuming without deciding that the trial court erred in admitting Arrington’s
testimony, we decline to address the merits of Ebron’s argument because, on the record before
us, such error is harmless.
Harmless error occurs when “it plainly appears from the record and the evidence given at
the trial that the parties have had a fair trial on the merits and substantial justice has been
reached[.]” Kirby v. Commonwealth, 50 Va. App. 691, 698, 653 S.E.2d 600, 603 (2007)
(quoting Code § 8.01-678). Said differently,
If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand. But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. If so, or if one is left in grave
doubt, the conviction cannot stand.
Id. at 698, 653 S.E.2d at 604 (quoting Rose v. Commonwealth, 270 Va. 3, 12, 613 S.E.2d 454,
459 (2005)).
Ebron never disputed that he was present at the scene of the murder. At oral argument,
counsel for Ebron conceded that had the trial court, in fact, erred in admitting Arrington’s
testimony, such error would have been harmless, due to the overwhelming evidence against
Ebron presented from alternative sources. Thus, we can safely say that Ebron’s convictions were
not “substantially swayed” by Arrington’s testimony. Viewing the evidence in its totality, we
cannot say that this testimony had more than a minor impact on Ebron’s convictions. As such,
we hold that the trial court’s error in allowing Arrington’s testimony was harmless. Accordingly,
we affirm Ebron’s convictions.
Affirmed.