Rushing v. Com., 284 Va. 270

Rush ing convicted of gang participation under §18.2-46.2(A) and challenged admissibility and sufficiency on appeal
August 1, 2008 home invasion in Hampton: O'Dell wounded; Newton and Rushing; GD affiliation alleged by detective Sales
Evidence included Clark/Lollis predicate acts to prove GD existence; Clark beads as insignia linked by beads
Photograph of Rushing making GD hand signal admitted without witness authentication or foundation
Court of Appeals affirmed; Virginia Supreme Court reverses on sufficiency after excluding improperly admitted evidence
Rushing’s convictions for gang participation and burglary-firearm use are reversed and dismissed; other convictions remain unaffected

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Clark conviction order	Rushing argues Clark order is irrelevant	Commonwealth argues relevant as predicate proof	Not admissible; insufficient predicate crime evidence without it
Admissibility of GD hand-signal photograph	Photo lacked foundation and authentication	Court admitted photo over objection	Harmless or reversible error; remains moot due to insufficiency without other evidence
Sufficiency of predicate acts to prove GD existence	Beads/Clark insufficient to prove two predicate acts	GD predicated on two acts;Clark shown as member	Insufficient; two predicate acts not proven without Clark conviction evidence
Appellate review standard for sufficiency vs. evidentiary errors	Evidence considered all including improperly admitted	Virginia standard excludes illegally admitted evidence from sufficiency review	Virginia rule followed; cannot rely on illegally admitted evidence for sufficiency

Crawford v. Commonwealth, 281 Va. 84 (2011) (cannot consider illegally admitted evidence on sufficiency review)
Rowland v. Commonwealth, 281 Va. 396 (2011) (use of firearm in burglary requires pre-entry use)
Lockhart v. Nelson, 488 U.S. 33 (1988) (general rule on sufficiency review in federal context)