712 S.E.2d 8
Va. Ct. App.2011Background
- Appellant Salcedo was convicted by bench trial in Rockbridge County of robbery, use of a firearm in the robbery, and participating in a criminal act for the benefit of a criminal street gang.
- Evidence showed Salcedo, Lebron, Turner, and Jarmillo formed a group; they wore Latin Kings colors and beads and discussed needing money to buy marijuana.
- A masked gunman robbed a Rockbridge County convenience store on Aug. 16, 2009; surveillance captured a later entry by Salcedo’s associates.
- Turner, who robbed the store, testified Salcedo did not participate and that Salcedo did not say “man up.”
- Police recovered gun-related items, clothing, and dyed evidence; Turner’s DNA was on gloves.
- Salcedo’s home was searched; police found gang-related items, Latin Kings tattoos, and extensive gang-related material on seven computers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence suffices to prove Salcedo as principal in the second degree | Salcedo argues no direct proof of participation or intent | Commonwealth contends evidence shows overt acts and intent | Sufficiency established; rational trier could convict Salcedo |
| Whether Latin Kings qualifies as a criminal street gang | Salcedo contends Latin Kings not a criminal street gang | Commonwealth contends it meets statutory definition | Latin Kings proven to be a criminal street gang beyond reasonable doubt |
| Whether robbery was committed for the benefit of, in association with, or at the direction of the gang under § 18.2-46.2 | Salcedo argues insufficient connection to the gang | Commonwealth asserts active participation and “for the benefit” element proven | Evidence supports robbery in association with and at the direction of the gang |
Key Cases Cited
- Brown v. Commonwealth, 278 Va. 523 (2009) (standard for sufficiency on appeal; defer to factfinder for credibility)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency review requires rational finder of fact to find elements beyond reasonable doubt)
- Corado v. Commonwealth, 47 Va.App. 315 (2005) (circumstantial evidence must exclude reasonable hypotheses of innocence)
- Holloway v. Commonwealth, 57 Va.App. 658 (2011) (circumstantial evidence weight equal to direct evidence when convincingly proves guilt)
- Commonwealth v. Taylor, 256 Va. 514 (1998) (standard for sufficiency and appellate deference to the trier of fact)