Johnson v. Commonwealth
58 Va. App. 625
| Va. Ct. App. | 2011Background
- Fight at a Hampton club in April 2009; Bell accompanied a man who fought Akeem, a member of the three-six gang.
- Outside the club, Bell was beaten for about five minutes by Akeem and other three-six members including Johnson.
- Witnesses heard the attackers say three-six, and Johnson was observed in the melee throwing punches.
- A grand jury charged Johnson with participating in a criminal street gang, maiming by mob, conspiracy to maim by mob, and robbery.
- Evidence included a 2009 conviction order finding Johnson guilty of two violent felonies and Turner’s 2009 plea and sentencing order; trial court admitted these over objections.
- Johnson was convicted of maiming by mob, conspiracy to maim by mob, and participating in a criminal street gang; robbery was acquitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of maiming by mob evidence | Johnson argues he did not participate. | State proves mob acted with intent to maim. | Evidence supports mob intent and Johnson's participation. |
| Sufficiency of conspiracy to maim by mob | No explicit agreement shown. | Circumstantial evidence shows joint purpose. | Circumstantial evidence supports conspiracy. |
| Evidentiary error admitting Turner plea and Johnson prior conviction | Objection timely and should have excluded. | Cannot exclude as probative to predicate acts. | No reversible error; defaults and rules applied properly. |
| Admission of Johnson's 2009 conviction order under Code § 18.2-46.1 | Predicate violent acts may be proven by prior convictions. | Status element permits predicate acts evidence regardless of gang relation. | Admissible to prove predicate violent acts under statute. |
Key Cases Cited
- Parks v. Commonwealth, 221 Va. 492, 270 S.E.2d 755 (Va. 1980) (evidence viewed in light favorable to Commonwealth; standard of review on sufficiency)
- Commonwealth v. Leal, 265 Va. 142, 574 S.E.2d 285 (Va. 2003) (mob doctrine; elements of maiming by mob)
- Harrell v. Commonwealth, 11 Va.App. 1, 396 S.E.2d 680 (Va. App. 1990) (mob transformation by unlawful intent; case-by-case fact focus)
- Paiz v. Commonwealth, 54 Va.App. 688, 682 S.E.2d 71 (Va. App. 2009) (individual liability in mob conspiracy context; acts of violence as predicate acts)
- James v. Commonwealth, 53 Va.App. 671, 674 S.E.2d 571 (Va. App. 2009) (conspiracy proven by circumstantial evidence; overt actions indicate agreement)
- Taybron v. Commonwealth, 57 Va.App. 470, 703 S.E.2d 270 (Va. App. 2011) (whether defendant is member of gang under statute; evidentiary standard)
- Phillips v. Commonwealth, 56 Va.App. 526, 694 S.E.2d 805 (Va. App. 2010) (statutory timing of acts to establish gang existence; contemporaneous acts not required for predicate acts)
- Johnson v. Commonwealth, 58 Va.App. 303, 709 S.E.2d 175 (Va. App. 2011) (prior convictions; evidentiary use in gang predicate acts)
- Perry v. Commonwealth, 280 Va. 572, 701 S.E.2d 431 (Va. 2010) (prosecution may consider all admitted evidence; not limited to arguments)