non-constitutional error in Virginia

2025Non-constitutional error “is harmless if we can be sure that it did not ‘influence the jury’ or had only a ‘slight effect.’” Shifflett, 289 Va. at 12 (quoting Clay v. Commonwealth, 262 Va. 253, 260 (2001)).

2025“Non-constitutional error is harmless ‘[w]hen 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.’” Salahuddin v. Commonwealth, 67 Va. App. 190, 212 (2017) (alteration in original) (quoting Code § 8.01-678). “‘If, when all is said and done,’ the reviewing court is ‘sure that the [non-constitutional] error did not influence the jury, or had but slight effect, the verdict and the judgment should stand.’” Smith v. Commonwealth, 72 Va. App. 523 , 543 (2020) (alteration in original) (qu

2025Servs., 68 Va. App. 547, 564 (2018) (noting that any non-constitutional error is harmless “if a reviewing court can conclude . . . that, had the error not occurred, the [outcome] would have been the same” (first alteration in original) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1006 (1991) (en banc))); Welsh v. Commonwealth, ___ Va. ___, ___ (Mar. 20, 2025) (“An appellate court can conclude that a non-constitutional error is harmless ‘if it can conclude that the error did not influence the [result] or had but slight effect.’” (quoting Commonwealth v. Kilpatrick, 301 Va. 214 , 216 (20

2017A non-constitutional error is harmless “[w]hen 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.” Code § 8.01-678. “‘[A] fair trial on the merits and substantial justice’ are not achieved if an error at trial has affected the verdict.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1006 , 407 S.E.2d 910, 911 (1991) (en banc).

2025“A non-constitutional error is harmless ‘[w]hen 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.’” Id. at 712 (alteration in original) (quoting Turman v. Commonwealth, 276 Va. 558, 567 (2008)).

2025“A non- constitutional error is harmless ‘[w]hen 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.’” Graves v. Commonwealth, 65 Va. App. 702, 712 (2016) (alteration in original) (quoting Turman v. Commonwealth, 276 Va. 558, 567 (2008)).

2026“Non-constitutional error is harmless ‘[w]hen 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.’” Id. at 212 (alteration in original) (quoting Code § 8.01-678).

2025“Non-constitutional error is harmless ‘[w]hen 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.’” Salahuddin v. Commonwealth, 67 Va. App. 190, 212 (2017) (alteration in original) (quoting Code § 8.01-678). “‘If, when all is said and done,’ the reviewing court is ‘sure that the [non-constitutional] error did not influence the jury, or had but slight effect, the verdict and the judgment should stand.’” Smith v. Commonwealth, 72 Va. App. 523 , 543 (2020) (alteration in original) (qu

2018Non-constitutional error is harmless if the error “failed to have any ‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438, 450 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

2009Non-constitutional error is harmless “when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the - 13 - merits and substantial justice has been reached.” Code § 8.01-678. “‘If, when all is said and done, [it is clear] that the error did not influence the [fact finder], or had but slight effect, . . . the judgment should stand . . . .’” Clay v. Commonwealth, 262 Va. 253, 260 , 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 , 66 S. Ct. 1239, 1248 , 90 L.

2024“A non- constitutional error is harmless 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.’” Anderson v. Commonwealth, 282 Va. 457, 466 (2011) (quoting Rose v. Commonwealth, 270 Va. 3 , - 21 - 11-12 (2005)).

2023“A non-constitutional error is harmless 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.’” Anderson v. Commonwealth, 282 Va. 457, 466 (2011) (quoting Rose v. Commonwealth, 270 Va. 3, 12 (2005)).

2025“Non-constitutional error is harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison that we can conclude the error ‘failed to have “any substantial” influence on the verdict.’” Dandridge v. Commonwealth, 72 Va. App. 669 , 685 (2021) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018)).

2025“Non-constitutional error is harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison that we can conclude the error ‘failed to have “any substantial” influence on the verdict.’” Dandridge v. Commonwealth, 72 Va. App. 669 , 685 (2021) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018)).

2025“A non-constitutional error is harmless ‘[w]hen 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.’” Id. at 712 (alteration in original) (quoting Turman v. Commonwealth, 276 Va. 558, 567 (2008)).

2025A non-constitutional error is harmless “[w]hen 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.” Turman v. Commonwealth, 276 Va. 558, 567 (2008) (quoting Code § 8.01-678).

2019“Non-constitutional error is harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison that we can conclude the error ‘failed to have any “substantial influence” on the verdict.’” Bell v. Commonwealth, 47 Va. App. 126 , 140 n.4, 622 S.E.2d 751 , 757 n.4 (2005) (quoting United States v. Lane, 474 U.S. 438, 450 (1986)).

2018Non-constitutional error is harmless if the error “failed to have any ‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438, 450 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

2024“A non- constitutional error is harmless 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.’” Anderson v. Commonwealth, 282 Va. 457, 466 (2011) (quoting Rose v. Commonwealth, 270 Va. 3 , - 21 - 11-12 (2005)).

2023“A non-constitutional error is harmless 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.’” Anderson v. Commonwealth, 282 Va. 457, 466 (2011) (quoting Rose v. Commonwealth, 270 Va. 3, 12 (2005)).

2025A non-constitutional error is harmless if, “when all is said and done, . . . the error did not influence the jury, or had but slight effect.” Ramsey v. Commonwealth, 63 Va. App. 341, 356 (2014) (quoting Clay v. Commonwealth, 262 - 23 - Va. 253, 260 (2001)).

2024Non-constitutional error is harmless if “the error did not influence the jury or had but slight effect.” Holloman v. Commonwealth, 65 Va. App. 147, 171 (2015) (quoting Ramsey v. Commonwealth, 63 Va. App. 341, 356 (2014)).

2008Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 , 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). 3 2 While at work approximately a month prior to the shooting, Johnson spoke with Plummer about an altercation between West and himself that occurred that past weekend. 3 Code § 8.01-678 provides, in pertinent part, as follows: 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, no -4- Non-constitutional error is harmless “‘if a reviewing court can conclude, wi

2008Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 , 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). 3 2 While at work approximately a month prior to the shooting, Johnson spoke with Plummer about an altercation between West and himself that occurred that past weekend. 3 Code § 8.01-678 provides, in pertinent part, as follows: 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, no -4- Non-constitutional error is harmless “‘if a reviewing court can conclude, wi

2025“A non-constitutional error is harmless 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.’” Id. (quoting Code § 8.01-678).

2022Although the harmless-error analysis is not a sufficiency-of-the-evidence analysis, Commonwealth v. White, 293 Va. 411, 422 (2017), a non-constitutional error remains harmless if “the evidence of guilt [is] so overwhelming that it renders the error insignificant such that the error could not have affected the verdict,” Commonwealth v. Kilpatrick, ___ Va. ___, ___ (Aug. 4, 2022) (citing Haas v. Commonwealth, 299 Va. 465 , 469 (2021)).

2026The Instructional Error was Not Harmless In general, a non-constitutional error is only harmless when “the evidence of guilt [was] so overwhelming that it renders the error insignificant by comparison such that the error could not have affected the verdict,” Commonwealth v. Kilpatrick, 301 Va. 214 , 217 (2022), and “if the reviewing court can be sure that the error did not influence the jury and only had a slight effect,” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).

2025The error is harmless “if the reviewing court can be sure that the error did not influence the [fact finder] and only had a slight effect.” Lawrence v. Commonwealth, 279 Va. 490, 497 (2010).

2015The standard for non-constitutional error is established in Code § 8.01-678, which provides, in pertinent part: 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, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any other error committed on the trial. -8- “An error is harmless (1) if ‘other evidence of guilt is so overwhelming and the error so insignificant by comparison that the error could not have affec

2015The standard for non-constitutional error is established in Code § 8.01-678, which provides, in pertinent part: 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, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any other error committed on the trial. -8- “An error is harmless (1) if ‘other evidence of guilt is so overwhelming and the error so insignificant by comparison that the error could not have affec

2020“As appellant raises a challenge related to the admissibility of evidence, ‘[w]e examine this claim under the standard for non-constitutional harmless error.’” Schmuhl v. Commonwealth, 69 Va. App 281, 307-08 (2018) (quoting Salahuddin v. Commonwealth, 67 Va. App. 190, 211-12 (2017)), aff’d, 298 Va. 131 (2019); see Carter v. Commonwealth, 293 Va. 537, 544-46 (2017) (applying a non-constitutional standard to determine that any error was harmless that the trial court committed in refusing to admit certain evidence supporting a defendant’s claim of self-defense).

2018Non-constitutional error is harmless if we determine that the error “did not ‘influence the jury’ or had only a ‘slight effect.’” Carter v. Commonwealth, 293 Va. 537, 545 , 800 S.E.2d 498, 502 (2017) (quoting Shifflett v. Commonwealth, 289 Va. 10 , 12, 766 S.E.2d 906 , 908 (2015)).

2025“Applying this - 15 - standard, a non-constitutional error is harmless ‘if, when all is said and done, the error did not influence the [fact-finder], or had but slight effect.’” Spruill, 298 Va. at 127-28 (quoting Commonwealth v. Swann, 290 Va. 194, 201 (2015)).

2025Non-constitutional error “is harmless if the appellate court ‘can[] say, with fair assurance, . . . that the judgment was not substantially swayed by the error.’” Tomlin, 74 Va. App. at 410 (alterations in original) (quoting Commonwealth v. Swann, 290 Va. 194, 201 (2015)).

2008Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 , 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). 3 2 While at work approximately a month prior to the shooting, Johnson spoke with Plummer about an altercation between West and himself that occurred that past weekend. 3 Code § 8.01-678 provides, in pertinent part, as follows: 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, no -4- Non-constitutional error is harmless “‘if a reviewing court can conclude, wi

2008Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 , 407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). 3 2 While at work approximately a month prior to the shooting, Johnson spoke with Plummer about an altercation between West and himself that occurred that past weekend. 3 Code § 8.01-678 provides, in pertinent part, as follows: 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, no -4- Non-constitutional error is harmless “‘if a reviewing court can conclude, wi

2020The standard for non-constitutional error is established in Code § 8.01-678, which provides, in pertinent part: 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, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any error committed on the trial. “[A] harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Williams v. Commonwealth, 32 Va. App. 395, 400 (2000) (en banc) (quotin

2020The standard for non-constitutional error is established in Code § 8.01-678, which provides, in pertinent part: 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, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any error committed on the trial. “[A] harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Williams v. Commonwealth, 32 Va. App. 395, 400 (2000) (en banc) (quotin

2023“Non-constitutional error is harmless ‘[w]hen it plainly appears from the record and evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached.’” Cousett, 71 Va. App. at 60-61 (alteration in original) (quoting Purvis v. Commonwealth, 31 Va. App. 298, 308 (2000)).

2019“Non-constitutional error is harmless ‘[w]hen it plainly appears from the record and evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Id. (alteration in original) (quoting Code § 8.01-678).

2025Non-constitutional error is harmless if we can determine that “there has been a fair trial on the merits and . . . substantial justice has been reached” because “other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison” that we can conclude “the alleged error [did not] substantially influence[] the [verdict].” Id. at 217 (quoting Haas v. Commonwealth, 299 Va. 465 , 467 (2021)); Dalton v. Commonwealth, 64 Va. App. 512, 520-21 (2015) (quoting Schwartz v. Schwartz, 46 Va. App. 145, 159 (2005)).

2016A non-constitutional error is harmless if it is clear that the error “did not influence the [fact finder], or had but slight effect.” Schwartz v. Schwartz, 46 Va. App. 145, 159 , 616 S.E.2d 59, 66 (2005) (alteration in original) (quoting Clay v. Commonwealth, 262 Va. 253, 260 , 546 S.E.2d 728, 731 (2001)). “[R]elevant to the harmless error analysis is whether the evidence admitted in error is merely ‘cumulative’ of other, undisputed evidence.” Id. at 160, 616 S.E.2d at 67 (quoting Brecht v. Abrahamson, 507 U.S. 619, 639 (1993)). 3 As we find that husband did not breach the premarital agreement

2019“A non-constitutional error is harmless if it plainly appears from the record that the parties had ‘a fair trial on the merits and substantial justice has been reached.’” Angel v. Commonwealth, 281 Va. 248, 268 (2011) (quoting Code § 8.01-678).

2017“A non-constitutional error is harmless if it plainly appears from the record that the parties had ‘a fair trial on the merits and substantial justice has been reached.’” Angel v. Commonwealth, 281 Va. 248, 268 , 704 S.E.2d 386, 398 (2011) (quoting Code § 8.01-678). “[N]on-constitutional error may be harmless ‘[i]f other evidence of guilt is so overwhelming and the error [is] insignificant by comparison, supporting a conclusion that the error did not have a substantial effect on the verdict.’” Turner v. Commonwealth, 284 Va. 198, 209 , 726 S.E.2d 325, 331 (2012) (quoting Angel, 281 Va. at 268

2024Non-constitutional error is harmless if “the error did not influence the jury, or had but slight effect.” Holloman v. Commonwealth, 65 Va. App. 147, 171 (2015) (quoting Ramsey v. Commonwealth, 63 Va. App. 341, 356 (2014)). 3 Neither Green nor his father testified at trial. -4- B.

2024Non-constitutional error is harmless if “the error did not influence the jury or had but slight effect.” Holloman v. Commonwealth, 65 Va. App. 147, 171 (2015) (quoting Ramsey v. Commonwealth, 63 Va. App. 341, 356 (2014)).

2020The standard for non-constitutional error is established in Code § 8.01-678, which provides, in pertinent part: 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, no judgment shall be arrested or reversed . . . [f]or any . . . defect, imperfection, or omission in the record, or for any error committed on the trial. “[A] harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Williams v. Commonwealth, 32 Va. App. 395, 400 (2000) (en banc) (quotin

2018Error is harmless when we are able to conclude “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.” Clay v. Commonwealth, 262 Va. 253, 260 , 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). “[H]armless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Hooker v. Commonwealth, 14 Va. App. 454, 458 , 418 S.E.2d 343, 345 (1992), quoted with approval in Williams v. Commonwealth, 32 Va. App. 395, 400 , 528

2015Nevertheless, Code § 8.01-678 makes "harmless-error review required in all cases." Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675 , 675 (1990) (emphasis in original); see Walker v. Commonwealth, 144 Va. 648 , 652, 131 S.E. 230 , 231 (1926) (holding that the harmless error statute "puts a limitation on the powers of this court to reverse the judgment of the trial court-a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment"). 2 We have thus conducted a harmless error review under the non-constitutional standar

2015Nevertheless, Code § 8.01-678 makes "harmless-error review required in all cases." Ferguson v. Commonwealth, 240 Va. ix , ix, 396 S.E.2d 675 , 675 (1990) (emphasis in original); see Walker v. Commonwealth, 144 Va. 648 , 652, 131 S.E. 230 , 231 (1926) (holding that the harmless error statute "puts a limitation on the powers of this court to reverse the judgment of the trial court-a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment"). 2 We have thus conducted a harmless error review under the non-constitutional standar

2016In determining whether a trial court’s error was harmless, this Court looks to whether the defendant received “a fair trial on the merits and substantial justice [was] reached.” Timmons v. Commonwealth, 15 Va. App. 196, 199 , 421 S.E.2d 894, 896 (1992). ‘“Non-constitutional error is harmless 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.’” Bell v. Commonwealth, 66 Va. App. 479, 488 , 788 S.E.2d 272, 276 (2016) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 ,

2016In determining whether a trial court’s error was harmless, this Court looks to whether the defendant received “a fair trial on the merits and substantial justice [was] reached.” Timmons v. Commonwealth, 15 Va. App. 196, 199 , 421 S.E.2d 894, 896 (1992). ‘“Non-constitutional error is harmless 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.’” Bell v. Commonwealth, 66 Va. App. 479, 488 , 788 S.E.2d 272, 276 (2016) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06 ,

2025See Adams v. Commonwealth, 275 Va. 260, 277 (2008) (applying the non-constitutional test to evaluate the harmlessness of the admission of hearsay evidence).

2023See Adams v. Commonwealth, 275 Va. 260, 277 (2008) (applying the non-constitutional test to evaluate the harmlessness of admission of hearsay evidence obtained from the catalog of a maker of firearm accessories).

2023In this case, the non-constitutional standard applies because the assignment of error challenges “the propriety of the [character evidence] instruction.” See Graves, 65 Va. App. at 711 ; see also Velasquez v. Commonwealth, 276 Va. 326 , 331 n.5 (2008) (applying the test for non-constitutional harmless error in holding that the trial court’s error in instructing the jury was harmless).

2016See Turman, 276 Va. at 567 , 667 S.E.2d at 771 ; Velasquez v. Commonwealth, 276 Va. 326 , 331 n. 5, 661 S.E.2d 454 , 457 n. 5 (2008). *712 A non-constitutional error is harmless “[w]hen 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.” Turman, 276 Va. at 567 , 667 S.E.2d at 771 (quoting Code § 8.01-678).