Opinion
Record No. 2889-03-4.
June 14, 2005.
Steven A. Merril (Laura P. Leibowitz; Whitestone, Brent, Young Merril, P.C., on brief), Fairfax, for appellant.
Steven A. Witmer, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.
Before: FITZPATRICK, C.J., and BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, McCLANAHAN and HALEY, JJ.
Upon Rehearing En Banc
By published opinion dated January 25, 2005, a panel of this Court affirmed the judgment of the trial court. We stayed the mandate of that decision and granted rehearing en banc. Upon reconsideration, the stay of this Court's January 25, 2005 mandate is lifted and we affirm the trial court for the reasons stated in the majority opinion in Thomas v. Commonwealth, 44 Va.App. 741, 607 S.E.2d 738 (2005), and adopt that opinion as our own.
Judges Benton, Elder, and Clements would reverse the trial court for the reasons set forth in the panel dissenting opinion. Chief Judge Fitzpatrick agrees with the dissent that the trial court erred in allowing the disputed evidence. However, she would hold that the other evidence of guilt is overwhelming and, thus, the error could not have affected the verdict.
This order shall be published and certified to the trial court.