*1 However, we find the circuit court did not shot Robinson.” as err, analysis necessary. no harmless error
Affirmed.
Christian Lee RUSHING Virginia. COMMONWEALTH Record No. 0723-10-1. Appeals Virginia. Court of July J., Petty, concurred in part part dissented and filed opinion. *3 (Office
Kimberly Defender, Enderson Hensley the Public brief), appellant. on for Theisen, B.
Virginia Attorney Senior Assistant General (Kenneth Cuccinelli, II, General, brief), T. Attorney on appellee. KELSEY, BEALES,
Present: PETTY and JJ.
KELSEY, Judge. A jury Rushing participating convicted Christian Lee in a 18.2-46.2(A). § criminal street in violation of Code On appeal, single assignment challeng- asserts of error ing sufficiency of the evidence and we requesting reverse his conviction and the charge. Finding dismiss the evidence sufficient, we affirm.
I. in appeal, “light On we review the evidence most Hudson, favorable” to the Commonwealth. Commonwealth v. (2003). 505, 514, 786 This principle S.E.2d in requires us to “discard the evidence of the accused conflict regard with that of the and as true all the credible evidence favorable to the Commonwealth and all fair therefrom.” Parks inferences to be drawn (1980) 492, 498, and (emphasis 221 Va. omitted). there is sufficient determining In whether citation conviction, moreover, appellate an court evidence to sustain at trial that “all admitted consider the evidence” must Commonwealth, 279 Va. in Hamilton v. contained the record. 94, 103, Bolden v. Com- (quoting (2008)). monwealth, 275 Va. Rushing proved the evidence at trial perspective, From this Newton, Hamp- Travis went to the accomplice, and an William dealer, be a they drug of a believed to person ton home the victim after Rushing targeted to rob him. intending (a “Crips” from his friend “Snails” member learning $15,000 in victim had cash inside gang) that the intended and Newton broke handguns, Rushing home. Armed with bandannas over their faces while wearing into the home (driven waited a block getaway grandmother) car Newton’s home, away. they expected drug did not find the Inside the home. 75-year-old dealer rather a man who owned but exclaimed, here; got out of we get One of the intruders “let’s man, shot the and both he and wrong house.” Newton scene. Rushing fled the Rushing. later arrested Newton and
Hampton police officers arrest, Rushing pockets At his had his a set the time of knuckles, razor, and several bandannas with straight brass blue, black, coloring. During and white a search of Newton’s home, activity, evidence of includ- police gang found extensive blue, black, notebooks, rules, eighteen and ing gang graffiti, ad- and white bandannas. also found Newton’s Officers handguns during Newton and used dress the two break-in. the trial joint jury Rushing,
At the trial of Newton notebooks, writings, into evidence the court admitted and bandannas found Newton’s home. Over drawings, objection, photograph the court also admitted a Rushing’s counsel sign. Rushing’s hand Rushing making pitchfork admitting photo- no foundation had been laid for argued *5 graph. prosecution’s The main witness was a police detective with in expertise identifying gangs. Testifying criminal as an the detective stated the in expert, gang materials found New- ton’s home were gang those of a street called the Gangsta Disciples. pitchfork The hand and the sign gang affiliating black, colors of blue and the detective identified the explained, Gangsta as the Disciples. The detective testified he with spoke prior Newton to trial. The detective greeting used secret for the Gangsta Disci- “Folk”) ples if he (asking Newton was and received from (“all one”). Newton the appropriate reply Additional ques- tions the detective further confirmed Newton’s member- in the ship gang. Newton also used the pitchfork sign, hand others, among identify his gang membership. testified,
The Gangsta Disciples, the detective originated and Chicago twenty-three had known members Hampton. The detective stated Gangsta Disciples are “involved in all activities, sorts of criminal from robberies to burglaries, stolen cars, narcotics Larry distribution.” “That’s what Hoover is for,” added, incarcerated the detective “one of the leaders.” Advancement within the hierarchy gang, the detective added, required a member to commit various crimes escalating in seriousness.
The detective identified Deanthony Clark aas local member Gangsta Disciples. During the testimony, detective’s the trial court admitted into evidence a conviction order showing Clark had pled guilty to carjacking using and firearm during a felony. Rushing’s objection, Over the trial court also order, admitted into evidence a sentencing plea agreement, and stipulation of facts showing Darryl Brandon Lollis had been of gang convicted participation robbery. In facts, the stipulation of Lollis being admitted to a member Gangster Disciples—a phrase used at trial and on appeal interchangeably with Gangsta Disciples.1 Rushing’s opening appeal, petition appeal, brief on as well as his admitted, states: appellant’s objection, "The Circuit Court also over in a criminal Rushing participating convicted jury
The gang partic- aside the moved to set gang. street his proved that no evidence ground on the verdict ipation *6 in a or membership gang, in his active “membership gang, something in for he showing participated any transaction entered final the motion and The trial court denied gang.” judgment.
II. OF APPELLATE REVIEW A. THE SCOPE governing review suffi the standard of reciting After claims, Rushing’s opens of brief argument the section ciency finding the “The Court erred this assertion: Circuit with appellant gang participation.” to convict of evidence sufficient challenge to argument proceeds 6. The then Br. at Appellant’s evidence, either inad claiming they were individual items of The brief ends with prove guilt. missible or insufficient the same exactly point: appellant to convict of
The evidence was insufficient any that he had there was no evidence participation because gang paraphernalia or knowledge writings, drawings of Road, convictions prior felony at 40 Creek the Deep found admitted, and improperly Mr. Lollis were of Mr. Clark and failed to admitted and photo appellant improperly the of was any membership Gangsta Disciples. prove added). ground, Rushing On this (emphasis Id. at 10-11 “reverse” his conviction and “dismiss contends we should 5A:20(f) 11; generally at see Rule against him.” Id. charge precise sought” to state “the relief appellant’s brief (requiring on appeal). Darryl Lollis in which
prior individual named Brandon conviction of an robbery gang participation, in Norfolk of Mr. Lollis was convicted Appeal Gangsta Disciples." specifically membership in See Petition So, too, 10-11; appeal, argument Appellant’s in oral on Br. at 5. at interchangeable. phrases See Oral Rushing's as counsel treated 285, 292, 299, 8:21; 250-51, App. Argument see also at Audio at 7:28 to trial). interchangeable phrases (showing use of the argument, Rushing’s At oral counsel clarified that the evi- issues are dentiary sufficiency assignment “subsets” of words, error. Oral Audio at 00:50. In other Argument argument counsel on explained, appeal was “two- pronged”—challenging sufficiency properly admit- evidence, and, alternatively, ted challenging sufficiency 2:34, all the evidence. Id. at 2:25 to 6:26 to 6:28. When asked at oral argument how counsel could “meld and blend” the arguments together to “make one she argument,” replied that considered, “even if’ the improperly admitted exhibits are evidence “remains insufficient.” Id. at 6:14 to 6:50. brief,
In his Attorney accurately General restates Rush- ing’s argument appeal: on “The defendant contends his Assignment Error that the evidence was insufficient prove the charge gang participation because prior felony *7 convictions of members and a photograph defen- (em- dant were improperly admitted.” Br. at 12 Appellee’s added). phasis Realizing argument Robinson’s conflated can be defeated either one ways, Attorney of two the General argues
(i) sufficiency our appeal review on should take into account trial,
“all the evidence at including alleged evidence admitted,” (citations have been erroneously id. at 11 added), emphasis and, omitted and (ii) the evidence challenged by Rushing “was properly ad-
mitted and was to sustain the conviction for sufficient added). gang participation,” id. at 14 (emphasis (Assistant See also Argument Oral Audio at 14:03 to 14:11 Attorney General pointing out that sufficiency evidence case). is the “overriding question” presented by this present We in detail Rushing’s argument on appeal to clarify the scope of our review. aWhen “reversal is for mere error, trial evidentiary and not for insufficiency, we will re mand the case for a new trial.” Gray 943, (1980) (citations 946, omitted). 265 In case, however, this Rushing does not ask whether the claimed evidentiary errors warrant a remand for a new trial. “We v. Common- question.” Lay unasked answer this
thus do not 716 n. 3 wealth, n. adjudication, the (2007). the adversarial model Under decided, issues to be judges—determine litigants—not to be range of remedies and presented, the facts to be designed model “is necessity, the adversarial sought. By for know what is best parties that the premise around the argu- the facts and them, advancing are responsible States, 540 relief.” Castro v. United entitling them to ments L.Ed.2d 778 S.Ct. U.S. J., (Scalia, part). concurring reasons, only sufficiency argu
For these we address “two-pronged” Under his Rushing appeal.2 makes on ment limit sufficiency we must our Rushing contends argument, evidence, if’ and “even we to the admitted properly review evidence, never admitted we should improperly consider the evidence, entirety, support in its insufficient to theless find the 2:34, 6:14 to Audio at 2:25 to jury Argument verdict. Oral 6:50; the court “erred (arguing also Br. at 7-8 Appellant’s see prior alleged convictions of by admitting copies certified insufficient to show because “the evidence was gang members” member”); (arguing id. at 9-10 [gang] that Mr. was a Clark ... prove was insufficient to his “photograph appellant foundation was laid for the membership” because “no [gang] debate, evidentiary is As frames the photo”). analysis. merely sufficiency are “subsets” of the See sues Audio at 00:50. Argument Oral AND B. ERRORS SUFFICIENCY EVIDENTIARY *8 by disagreeing Rushing’s with begin analysis We our evi first the admissible assumption segregate that we must a conducting sufficiency before dence from the inadmissible reviewing an court principles, appellate review. Under settled v. 55 We came to a similar conclusion in Lunsford 831, (2009), 59, 62, appellant, Va.App. where the "in 833 essence, accept argument items of [certain his that ask[ed] this Court hearsay, consider that we then evidence] ask[ed] were inadmissible sufficiency that evidence.” of the evidence to convict absent the
603 in a its of the criminal case—with sufficiency evidence the all consider jeopardy implications—must double concomitant at actually regard trial without the evidence admitted of properly it was admitted: whether of insufficiency for the evi An court’s reversal “appellate government’s the is in effect a that dence determination so that the trial lacking the was against case defendant Lock judgment acquittal.” a of court should have entered [290], Nelson, 33, 39, 285 102 109 S.Ct. hart v. 488 U.S. (1988). insufficiency of L.Ed.2d 265 Because reversal judgment acquittal, to a of such equivalent the evidence is States, 437 Burks v. United reversal bars retrial. See (1978). [2150-51], 1 To 1, 18, 2141 57 L.Ed.2d U.S. 98 S.Ct. analogy “make between a reversal for insuffi complete” the granting the trial court’s ciency the evidence and of Lockhart, U.S., 488 42 at [109 at S.Ct. judgment acquittal, 291], reviewing “a court must consider all evidence court,” evi regardless the trial whether that by admitted id., 41 at erroneously, [109 dence admitted S.Ct. was 291], — Brown, U.S. -, -, 130 S.Ct.
McDaniel v. curiam) added); see (emphasis 175 582 {per L.Ed.2d Lockhart, 290-92; 39-42, 109 see generally U.S. at S.Ct. at (3d 25.4(c), LaFave, § R. Procedure at 652 Wayne Criminal 2007) (“As it, the court put appellate applying ed. one court not at ‘assessing legal sufficiency Burks is evidence ” (citation be, trial at the trial that was.’ that will but omitted)); 26 Moore’s Federal Practice—Criminal Procedure (3d 2007) (“A 629.30[2], trial ... § at 629-62 ed. court admitted, and to all of the evidence it has make considers it this same of evidence analogy complete quantum must be court.”).3 reviewing that considered v. 3. See also Watts (2010) (stating improperly consider the admitted “we must sufficiency analysis”); Creacey, 56 Va. our Andrews [evidence] in (2010) ("While App. wife on 620 n. n. admissibility guardian report, ad appeal challenges the litem's evidence.”); determining sufficiency Wil- we consider it in *9 604
We do acknowledge, but not find controlling on this particu- Commonwealth, v. lar point, 84, 112, 281 Va. 704 Crawford 107, (2011), S.E.2d 123-24 which stated a defendant’s “Consti- tutional protections” forbid an appellate court from consider- ing “evidence illegally admitted” at trial when “reviewing the sufficiency of the reasons, evidence.” For two we cannot follow this dictum.
First,
that,
even without
held
the inadmissible
Crawford
evidence, the remaining evidence was sufficient
prove
guilt.
defendant’s
That conclusion made it logically unneces
sary to determine whether
the result
any
would be
different
even with the inadmissible evidence being considered.
In
words,
other
it did not matter whether
evi
challenged
dence was considered for purposes of the sufficiency review—
the unchallenged evidence was alone sufficient. See generally
Cent.
States,
Green Co. v.
United
425, 431,
531 U.S.
121 S.Ct.
1005, 1009,
(2001)
monwealth, 299, 312-13, (holding evidence, “we consider all including illegally admitted ad- Lockhart, (citing mitted 291)). evidence” U.S. 109 S.Ct. at Velazquez Similar dicta exists in 263 Va. 105- (2002) ("If trial, the evidence adduced at excluding improperly expert opinion testimony, admitted was insuf- ..., ficient acquittal____”). convict he is entitled to an But that declaration, too, unnecessary was holding to the actual in that case.
Second,
protec
“Constitutional
question
whether
*10
sufficiency
the
of
“reviewing
an
court
appellate
tions” forbid
admitted” at
considering
illegally
from
“evidence
the evidence”
123-24,
112,
at
involves
trial,
at
704 S.E.2d
Crawford, 281 Va.
the
Despite
doctrine.5
jeopardy
of the double
application
an
situation,”
F.2d
Taylor,
v.
658
delicate
Wilson
“unusual and
ourselves,
(5th Cir.1981),
find
this
1021,
in which we
1035
opinion,
court
whether
supreme
a state
much is certain: When
holding
of the United
in its
conflicts with
holding,
in dicta or
of federal constitutional
Court on an issue
Supreme
States
remains the
law,
Supreme
ruling
States
Court
United
decision,
law,
rule to the
state
or
binding precedent—“any
Martin,
v.
notwithstanding.” Chesapeake & O.R. Co.
contrary
(1931).
453, 458,
209, 221,
In under the of United Lockhart, an court appellate Court decisions in McDaniel and “ ‘must consider all of reviewing sufficiency the evidence court,’ regardless admitted the trial wheth evidence ” — McDaniel, erroneously.’ er that evidence was admitted Lockhart, at -, 488 U.S. at (quoting 130 S.Ct. 672 U.S. Virginia consistently protections that the afforded courts "have held Virginia are with those in the under Constitution co-extensive Commonwealth, Va.App. 21 States Constitution.” v. United Bennefield 306, 739-40, (citations omitted); (1996) see also 467 S.E.2d 311 Commonwealth, 58, 62, 263 230 Stephens v. 557 S.E.2d guarantee jeopardy ("Virginia's against double affords a constitutional guarantees Jeopardy as federal Double defendant the same Commonwealth, 720, 722, Clause.”); 221 Va. Martin v. 354, 357, (1981); Va.App. v. Armstead (2009); Peterson (1987). 291). authority 109 S.Ct. at Given this from the United Court, Supreme analysis consider, States our sufficiency must therefore, all evidence actually admitted at trial without regard to whether it was properly admitted. We thus do not segregate, Rushing requests, as allegedly inadmissible evidence from all of the admitted evidence the purpose of reviewing sufficiency supporting evidence the jury’s verdict.
C. APPELLATE REVIEW OF SUFFICIENCY
CHALLENGES An court appellate does not “ask itself whether it *11 believes that the evidence at the trial guilt beyond established Commonwealth, reasonable doubt.” Williams v. 278 Va. 190, 193, 280, (2009) 677 (quoting S.E.2d 282 Jackson v. Virginia, 307, 318-19, 2781, 2789, 443 U.S. 99 S.Ct. 61 L.Ed.2d (1979)) 560 “Rather, (emphasis original).6 the relevant question ‘any is whether rational trier of fact could have found the essential elements of the beyond crime a reasonable ” (citation doubt.’ Id. omitted emphasis original). Thus, when a jury verdict, has rendered its “it is not for this court to say that the evidence does or does not establish guilt his beyond a reasonable doubt original because as an proposition it might have reached a different conclusion.” Cobb v. Com monwealth, 941, 953, 146 270, (1929). 152 Va. S.E. 274 Suffice it to say, an “appellate court is no jury.” substitute for a Id.7 Commonwealth, 672, 676, 61, See also Sullivan v. 280 Va. 701 S.E.2d (2010); Commonwealth, 366, 399, 910, 63 Prieto v. 278 Va. 682 S.E.2d (2009); Commonwealth, 11, 19, 927 v. McMillan 277 Va. 671 S.E.2d 396, (2009); Commonwealth, 171, 182, 399 v. Jones 277 Va. 670 S.E.2d 727, (2009); Commonwealth, 437, 442, 734 Maxwell v. 275 Va. 657 499, (2008). S.E.2d 502 Commonwealth, 363, 368, Courtney 7. See also v. 281 Va. 344, (2011) ("As occasions, 347 we many have said on '[I]f there is convictions, support reviewing evidence to permit- court is not judgment, opinion ted to might substitute its own even if its differ from ” (citation the conclusions reached at finder of fact the trial.’ omitted)).
607 reweigh “not to permitted we are Consequently, 385, Berlin, 408, 641 evidence,” 273 S.E.2d Nusbaum v. Va. “to (2007), authority courts have no 494, 507 because appellate trial,” Haskins v. Common novo over second de preside (2004). Instead, wealth, 407 Va.App. 44 give we record, as living to which a wide discretion
juries the record, them. entitles printed logically distinguished from many to the truth guideposts living The record contains record; having not seen them printed not in the which are ourselves, to conclusions of give weight great we should have and heard them. those who seen Commonwealth, 1126, 1136, S.E.2d Va. 86 Bradley v. 196 (1955). only not “applies standard appellate This deferential fact, any justified reasonable and but also findings facts may the fact-finder have drawn from the inferences 672, 676, 701 v. proved.” Sullivan (2010); 61, 63-64 also Clanton S.E.2d see (en banc). Va.App. S.E.2d Thus, inferences from basic may a factfinder “draw reasonable facts,” Haskins, facts to ultimate (citation omitted), push unless so would “into doing at 406 Commonwealth, 48 sequitur” of non Thomas v. Va. realm *12 omitted). (2006) (citation App. D. CRIMINAL STREET GANG PARTICIPATION in a jury participating
The convicted 18.2-46.2(A), § in violation of which gang criminal street Code in or is “Any person actively participates who provides: gang knowingly a criminal and and member of street who willfully any predicate in criminal act committed participates of, of, any in at the direction or association with for the benefit The guilty felony.” shall of Class gang criminal street be ei two elements—status and conduct. While crime involves gang, member in a criminal street an active or participant ther the defendant participate must in a predicate criminal act any related to criminal street gang.
The status element turns on the statutory definition of a criminal street gang, which includes
any ongoing organization, association, or group three or more persons, (i) whether or informal, which has as formal one primary objectives of its or activities the commission of (ii) one or activities; more criminal which has an identifiable (iii) name or identifying or sign symbol; and whose mem- individually bers or collectively have engaged in the commis- of, sion commit, attempt conspiracy commit, or solicita- tion of two or more predicate acts, criminal at least one of which violence, is an act of provided such acts were not part of a common act or transaction. added). §
Code 18.2-46.1 (emphasis The conduct element of the crime requires only proof that the defendant “knowingly and willfully” participated a “predicate criminal act commit- of, ted for the benefit of, at the direction or in association with any criminal street gang____” 18.2-46.2(A). § Code
The evidence at trial amply supports the rationality of the jury verdict finding Rushing guilty of violating Code 18.2-46.2(A). § Testifying as a gang expert, the detective bandannas, described the colors, hand signs, and other unique indicia of membership associated with the Gangsta Disciples gang. The evidence showed Rushing wore a bandanna Gangsta Disciples colors during the home invasion. The picture of him flashing the pitchfork hand sign, a symbol unique to the gang, further confirms his status. The evidence also showed Rushing planned and executed the crime with Newton—who also wore a telltale during crime, bandanna had evidence in his home of the pitchfork and other gang symbols, and used the secret Gangsta Disciples greeting. addition,
In the detective identified Deanthony Clark as a local member of the Gangsta Disciples. Clark’s convictions for carjacking and use of a firearm during felony, and Lollis’s robbery convictions for participation, prove the predicate criminal “acts of violence” committed “individu- *13 under gang by putative members collectively” ally or 19.2~297.1(A)(i)(e)(identifying § § See Code Code 18.2-46.1. violence”). The stipulation as “acts of robbery carjacking Lollis, his acknowledging Brandon by Darryl of fact executed Disciples, similarly satisfied Gangsta in the membership § 18.2-46.1.8 of Code requirements fails establish the evidence to Rushing argues 18.2-46.2(A) § he had no because element of Code status not participate Clark or Lollis and did with either relationship statutes, Nothing governing in the crimes. respective in their of Code however, proof. The status element requires such 18.2-46.2(A) actively par § that the defendant requires only The a criminal street gang. in or be a member of ticipate in § gang in Code 18.2-46.1 of a criminal street definition exhibiting speci three any group “formal or informal” cludes mem requirement The that characteristics. gang-related fied committed “individually collectively” or group bers of the have 18.2-46.1, acts, § of “permits proof criminal Code predicate pattern acts establish a criminal individually committed Commonwealth, v. activity.” Va.App. Corado gang former Code (construing 18.2-46.1). § in the participate predi The defendant need not relationship criminal have any personal cate acts or with committed them. gang members who 470, 703 Va.App. Citing Taybron v. (2011), as in Rushing argues “[j]ust Taybron, S.E.2d 270 failed to demonstrate the existence a crimi- Commonwealth § 18.2-46.2.” Br. Appellant’s nal street under Va.Code held language, Taybron broad disagree. Despite 9. We its earlier, Gangsta Disciples "in- testified are 8. As noted detective activities, burglaries, in all sorts criminal from robberies volved cars, Larry distribution.” “That's what Hoover stolen narcotics added, for,” our of the leaders.” Given incarcerated the detective "one holding, decide this evidence rendered harmless we need not whether evidentiary stipulation of See any objections to the fact Lollis. Kirby generally (2007) (summarizing for nonstructural harmless error standard error). trial *14 that, case, in “only this the evidence fails to establish that a appellant, Squad, member of Street Bang the 36th was a member of the national or some gang organiza- Bloods other belonged.” tion to which Turner and also at n. King Id. added). 278 n. 6 (emphasis words, In other addressed Taybron only question the evidence the proved belonged whether the defendant to the same criminal street those gang as who had committed the predicate criminal acts. Taybron did not the stat- interpret require utes to that the of members the criminal street gang have any specific one relationship beyond with another belong- ing gang. to the same Taybron Nor did the defen- suggest dant in participate must the predicate prove acts used the § existence of a criminal gang street under Code 18.2-46.1. requirement Neither in the appears statutes or interpreta- our tion in Taybron. of them
III. sum, In the jury, evidence before the viewed in its entirety, the amply supports rationality jury’s that Rush- finding in ing participated criminal street in violation Code 18.2-46.2(Á). § We thus affirm Rushing’s conviction.
Affirmed. J.,
PETTY, in concurring, part, and in dissenting, part. I concur the majority’s holding that an court appellate must consider all the evidence that was introduced at trial in assessing sufficiency the of the evidence to support convic- I concur tion. also in the majority’s holding that the evidence was sufficient to support Rushing’s conviction under Code However, § below, 18.2-46.2. I for reasons I explain believe majority’s that the decision not to Rushing’s address argu- ment regarding admissibility the of a ignores the photograph admonition from the Supreme Court that cases should be decided on the merits unless a violation of a non-jurisdictional rule is “so substantial as to preclude addressing court’s case,” merits of the it such that would with “interfer[e] Moore justice.” orderly administration (2008). In 150, 154, my 276 Va. the issue and fairly presents if appellant opinion, assign scope to the objecting without merits, we it on the addresses argument, error or the ment of Rushing’s Thus, I consider would that issue. should decide admitting photograph trial court erred that the argument Gangsta with sign a hand associated Rushing making well-taken, re argument conclude that Disciples, was sufficient Because the evidence the conviction. verse *15 criminal a participation conviction for Rushing’s support Fifth Amend Jeopardy Double Clause gang, street not bar a retrial. does the United States Constitution ment to if be Thus, for a new trial the Commonwealth I would remand so advised.9 APPELLATE REVIEW
I. OF SCOPE 5A:12(c)(l) ‘As heading entitled “Under provides: Rule list, concise Error,’ clearly and petition shall signments in the errors argument, specific and without extraneous ly rely.” intends to While party which the rulings upon below petition in the assigned of error normally “[o]nly assignments 5A:12(c)(1)(i), Court,” this Rule by will be noticed appeal Court, in this its prevent Rule does not “the text of the from consid authority, inherent and to its pursuant discretion acquired the Court has long additional issues as as ering such jurisdiction,” Riner (2003) (citation omitted), aff'd, 268 Va. (2004). of error purpose assignments “The certainty order errors with reasonable
is to out the point on which points counsel to opposing court and direct this and to judgment, a reversal of intends to ask appellant hearsay Confron- permit and Sixth Amendment trial would 9. A new admissibility judicial records objections to the tation Clause thoroughly presented devel- regarding Lollis to be more Clark and Therefore, necessary those issues it to decide oped. I do not believe today. limit discussion to these points.” Harlow v. (1953).
In single error,10 assignment Rushing argues that: The Circuit Court erred finding the evidence sufficient to appellant convict of gang participation because of insuffi evidence, cient because prior felony convictions of alleged gang admitted, members were improperly and a photo of appellant allegedly making sign was improperly admitted.11
In a somewhat conflated argument, Rushing initially argues
that the photograph was insufficient to prove his membership
in the Gangsta Disciples. He then transitions into an argu
ment that the Commonwealth
lay
failed to
any foundation for
the admission of the photograph and that without an adequate
foundation the photograph was not admissible under the silent
theory.
witness
Rushing concludes this argument with the
statement,
photograph]
“[The
should not have been admitted
by the Circuit
Then,
Court.”
Rushing returns to his sufficien
cy argument by
“Furthermore,
stating,
the picture was insuffi
cient to prove any gang affiliation by appellant.”12
*16
petition
appeal,
In the
assignment
for
this
of error read:
10.
The
by finding
Circuit Court erred
the evidence sufficient to convict
appellant
gang participation
of
because there was no evidence that
appellant
any knowledge
had
gang writings, drawings
of
parapher-
or
home,
nalia found at the
prior
co-defendant's
felony convictions of
alleged gang
improperly
trial,
members were
appellant’s
admitted at
photo
appellant
of
allegedly making
gang sign
improperly
was
evidence,
admitted as
photo
prove
and the
appellant
did not
was a
gang member.
rephrased
portion
We
assignment
of this
granted
when we
the
appeal.
provides
also
"[a]n exact
pages
reference to the
11.
transcript
objection
...
[his
where
to the
photograph
admission of the
preserved
5A:12(c)(l).
was]
in the trial court.” Rule
majority correctly
The
points
sufficiency
out that
12.
and admissibility
separate
are two
legal concepts.
and distinct
As this case demon-
strates, conflating disparate
single assignment
issues in a
of error is
clearly
example
appellate
not an
advocacy.
of effective
of
assignment
that
the
recognizing
The
sufficiency
of both
actually address issues
argument
error and
“[a]rguments
that
in its brief
admissibility, correctly notes
and
sufficiency
the
of
admissibility
the
of evidence
concerning
then addresses the
legal issues.” It
raise different
evidence
enti
sub-heading
Under a
separately.
each issue
merits of
argues
tled,
the
Rushing,”
of
Commonwealth
“Photograph
admitting
its discretion in
trial
did
abuse
that
court
not
“[t]he
At
the
no
jury.”
the
of
for
consideration
photograph
the
argument, did the Common
on
or at oral
either
brief
point,
majority
the
has
to limit the
before us as
wealth ask us
issues
“ ‘Attorney
understood the
The fact that the
General
done.
” Moore,
it,’
755,
... and
on to address
issue
went
Commonwealth, 51
at 154
Moore v.
(quoting
(en banc)
J.,
6,
305,
(Petty,
1,
result)),
in
one of the factors to consider
concurring
the
to adhere strictly
an
“failure
determining
appellant’s
whether
5A:12(c)”
as
of
is “so substantial
requirements
to the
Rule
addressing
from
the merits of
Appeals
the Court of
preclude
case,”
754,
at 154.13
the
id. at
Furthermore,
Court
to “hear and deter-
panels
this
are
§
cases.”
17.1-
appeals granted
mine ...
in criminal
Code
402(C).
legislative
intent
This
same
language expresses
17.1-402(D),
obligating
§
this
language
as does
Code
en
and decide
case” before
sitting
Court
banc
“consider
preference
it:
a clear
for
language
legislative
“This
indicates
on
disposition
appellate
and final
cases
prompt
merits,
interfering
when that can be done without
with
Moore,
justice.”
276 Va. at
orderly administration
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II. ADMISSIBILITY OF THE PHOTOGRAPH In order to establish that Rushing was a member of the Gangsta Disciples, the Commonwealth offered as evidence Number Exhibit a photocopy of what appears be two images of Rushing. One image depicts Rushing making a sign hand unique to the Gangsta Disciples. There is no information on the exhibit indicating where or when the images were they made or how came into the possession of the police. After Detective Gainer identified as person depicted in the images, Commonwealth marked the exhibit identification and then Gainer, asked Detective “Was this photograph, what’s been marked as Common 24, provided wealth’s to you or Detective Crouch?” Detective responded, Gainer “It was not provided to me.” Based on this testimony, the trial court admitted Exhibit 24 into evidence.14 consistently
“We have held that photo- admission of graphs into evidence rests within the sound discretion of a court, trial and that the trial court’s decision will not be disturbed on appeal unless the record discloses a clear abuse discretion.” Bailey v. 259 Va. (2000). It is well established that “[pjhoto- graphs are generally admitted into evidence for two purposes: to illustrate a witness’ testimony, and anas ‘independent silent witness’ of matters revealed Here, photograph.” Id. the photograph of Rushing making gang sign was not offered to illustrate a witness’ testimony. No witness testified Although the Commonwealth photocopy referred to the photo- as a graph, testimony presented there was no to establish whether this was a print digital image of a from an photocopy electronic device or a of an photograph. legal actual principles regarding The adequate an founda- type tion are the image, same for either and I will refer to the exhibit photograph my analysis. as a *18 as making gang sign, the the that he had observed Rather, offered photograph the was portrayed. photograph such, of this fact. As the “silent witness” independent as an is “whether the was admissible photograph test for whether an founda adequate to provide the evidence sufficient [was] it.” Fer process producing the assuring accuracy tion 745, 747, 187 189, 191 v. guson (1972) photograph produced by (discussing composite the “showing person presents camera the who Regiscope the check, person that presented the identification cashed”). Or, the explaining as another court check which stated, there the theory “proof silent witness has must be in any significant respect” has not been altered photograph State, 453 N.E.2d it to be admissible. Buck v. (Ind.1983) photographs that certain were admissible (holding on “uncontro theory part under the silent witness based photographs verted evidence that the Polaroid were not al retouched”); Cal. People Doggett, tered or see also v. (1948) P.2d that certain App.2d (holding “unimpeached were admissible based in on photographs part expert testimony pictures that the themselves contain[ed] they elements ... which that not physical disclose[d] [were] ‘composite’ photographs genuine photo or ‘faked’ but [were] graphs prints’ ‘straight photograph’ and ‘contact made from 33 N.Y.2d 352 N.Y.S.2d negatives”); People Byrnes, that certain (holding 308 N.E.2d 437-38 essentially were admissible under iden photographs reasoning theory part “testimony tical to the silent witness based on positive prints that the from which the were made negatives the criminal had been seized at the where acts [location have depicted alleged in the were photographs occurred]” that “unimpeached testimony by photographic expert and on any had not altered in manner and that the negatives been reproductions”). therefrom were accurate prints produced Here, simply regarding there was no evidence either it, or the used to origin photograph process produce of this offered no whatsoever that the proof and the Commonwealth tampered had not been altered or with. While photograph Detective person Gainer identified the shown in photo- graph Rushing, as presented Commonwealth no evidence (or whether) showing where or how even police obtained original images, or when and under what circumstances photocopy exhibit was created. Detective Gainer dis- exhibit, claimed any prior knowledge of the and the Common- any wealth failed to ask other witness about its or origin authenticity. Simply put, there was no “evidence of extrinsic circumstances [showing] that the photograph authentic.” [was] *19 Friend, The Law Evidence Virginia § Charles E. 13- of (6th 12(a), ed.2003). at 539 In the complete any absence of such evidence providing foundation for admitting photo- this graph witness, as a silent I believe the trial court erred admitting it into evidence. I Accordingly, would reverse Rushing’s conviction and remand for a new trial.
Court Appeals Virginia.
July FELTON, C.J., ELDER, Before FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, ALSTON, POWELL and JJ.
Upon a Petition for En Banc Rehearing July On 2011 came the appellee, by Attorney General Virginia, petition and filed a requesting that the Court set