## Facts

- Lavinder was tried for robbing a store employee making a night deposit at a bank.
- The victim identified Lavinder as the robber, and other witnesses placed him near the scene.
- Some witness descriptions of the perpetrator’s physical traits conflicted, and defense witnesses provided alibi testimony placing Lavinder at home at the time of the robbery.
- During cross-examination, the prosecutor elicited that Lavinder had twice been found “not innocent” of felonies as a juvenile, contrary to Virginia statutory protections governing juvenile adjudications.
- The trial court allowed the testimony and gave no curative instruction.
- The court affirmatively instructed the jury that it could consider the juvenile adjudications in assessing Lavinder’s credibility.
- Lavinder was convicted and appealed, arguing the juvenile-record impeachment and related instruction required reversal.

## Issues

1. What standard governs whether a non-constitutional trial error is harmless in a Virginia criminal appeal?
2. Under that standard, was the improper elicitation and jury use of Lavinder’s juvenile felony adjudications harmless or reversible error?

## Decision

- The Court of Appeals of Virginia (en banc) articulated a general harmless-error test for non-constitutional error: an error is harmless only if the reviewing court can conclude, without displacing the jury’s fact-finding role, that the verdict would have been the same absent the error.
- The court held the error was not harmless because it directly affected Lavinder’s credibility, which was central in a close case with conflicting identification evidence and alibi testimony.
- The conviction was reversed and the case remanded for a new trial.

## Legal Principles

- Non-constitutional error is harmless only if the appellate court can say, with fair assurance and without substituting for the jury, that the verdict would have been the same had the error not occurred.
- Although the harmless-error test is not defined by the trial burden of proof, the reviewing court must account for that burden when judging whether the error could have influenced the verdict.
- Improper impeachment evidence bearing on a defendant’s credibility is especially likely to be prejudicial when the case turns on witness credibility and contested identification.

## Conclusion

The court reversed and remanded for a new trial because the prosecutor’s improper use of juvenile adjudications—reinforced by a jury instruction authorizing their use to assess credibility—could have influenced the verdict, and the appellate court could not conclude the result would have been the same without the error.


Lavinder v. Commonwealth, 407 S.E.2d 910 (Va. Ct. App. 1991) (en banc)