PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Koontz, S.JJ.
CHRISTIAN LEE RUSHING
OPINION BY
v. Record No. 111569 SENIOR JUSTICE CHARLES S. RUSSELL
June 7, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents questions concerning the admissibility
and sufficiency of the evidence offered to support a conviction
of criminal street gang participation in violation of Code
§ 18.2-46.2(A).
Facts and Proceedings
At a jury trial in the Circuit Court of the City of
Hampton, Christian Lee Rushing was convicted of aggravated
malicious wounding, use of a firearm while committing aggravated
malicious wounding, burglary while armed, use of a firearm while
committing burglary, and participation in a criminal street
gang. On March 12, 2010, the circuit court sentenced him to a
total of 51 years incarceration for those offenses, with 32
years suspended. Only two of those offenses are before this
Court on appeal, criminal gang participation and use of a
firearm in commission of burglary.
In accordance with familiar principles of appellate review,
the facts will be stated in the light most favorable to the
Commonwealth, the prevailing party at trial. On August 1, 2008,
Christian Lee Rushing and his co-defendant William Travis Newton
were both 16-year-old residents of Newport News. According to
Newton's later statement to the police, a member of the "Crips"
gang had told Rushing that a certain house in nearby Hampton
belonged to a drug dealer, that $15,000 in cash could be found
there, and that no one would be at home. Newton and Rushing got
a ride to Hampton and "scope[d] out" the house. They decided to
break into the house and returned on August 1, 2008 for that
purpose. They pried open a patio door with a crowbar and
entered the house from the rear.
The house was occupied by 75-year-old Benjamin O'Dell, who
was not a drug dealer and who lived there alone. O'Dell was at
the top of a flight of four steps that descended from the living
room level to the lower level where the front door was located.
Newton and Rushing appeared below him, having come through
another room on the lower level. Both Newton and Rushing were
carrying handguns. Newton fired a shot at O'Dell that missed
and hit the ceiling. O'Dell heard one of them say: "let's get
out of here; we [have] got the wrong house." Rushing fled but
Newton remained long enough to fire two more shots, both of
which struck O'Dell in the side, penetrating his abdomen.
O'Dell suffered injuries requiring extensive surgery that
included removal of a kidney and repair of the duodenum. He
remained in a hospital more than a month, followed by a period
2
of rehabilitation. He was able to identify both defendants at
trial as the perpetrators.
Rushing and Newton were both arrested by Newport News
police officers and their homes were searched pursuant to search
warrants. The two handguns the defendants had used were the
property of Newton's grandfather, who identified them as his.
Newton at first denied involvement but later, after being shown
the handguns, admitted that it was he, and not Rushing, who had
shot O'Dell. The search of Rushing's home produced nothing of
consequence, but a search of his person incident to his arrest
produced brass knuckles, bandannas, and a straight razor. The
search of Newton's home produced, in addition to the handguns,
numerous indicia of gang membership including notebooks,
drawings, writings, and bandannas.
Newton and Rushing were tried together. The Commonwealth
presented the testimony of Detective Ernest Corey Sales, the
officer in charge of the "gang unit" of the Hampton police. The
court admitted his testimony as an expert witness on the
subjects of gang identification and gang ideologies. He
testified extensively as to the origins, alliances, rivalries,
insignia, traditions, and lore of various street gangs extant
throughout the country. Detective Sales opined that both
Rushing and Newton were members of a gang originating in Chicago
known as "Gangsta Disciples" (GD), who sometimes referred to
3
themselves as the "Folk" or the "Folk Nation." He testified
that he personally knew of 23 GD members in his immediate area
and that the gang was active there and elsewhere. He stated
that the primary purpose of all street gangs was the commission
of crimes, including drug distribution, car theft, and robbery
and that members advance in status within the gang by committing
these crimes.
The detective testified that his opinion of Rushing's
affiliation with GD was based primarily on two things. First
was a photograph of Rushing making a GD recognition hand signal
called "throwing up a pitchfork." The second was Rushing's
participation with Newton in committing the crimes against
O'Dell. 1 The photographer did not testify, nor did any witness
identify the photograph as a fair representation of the scene it
portrayed or describe the circumstances existing when it was
taken. The court admitted the photograph in evidence over
Rushing's objection that it lacked any foundation.
The statutory definition of "criminal street gang"
contained in Code § 18.2-46.1 requires proof that the gang's
members have committed, or attempted or conspired or solicited
1
Sales, interviewing Newton, asked him if he was "Folk."
Newton responded by saying: "[A]ll is one." Sales testified
that this was the proper response to that question by a member
of GD. The notebooks found in Newton's bedroom were filled with
the gang's symbols, rules and insignia.
4
others to commit, two or more predicate criminal acts, at least
one of which was a crime of violence. To comply with this
requirement, the Commonwealth offered certified copies of court
orders showing the convictions of two individuals. The first
indicated that Darryl Brandon Lollis pleaded guilty in the
Circuit Court of the City of Norfolk to robbery and criminal
gang participation. In the attached plea agreement and
stipulation of facts, Lollis admitted he was a member of GD.
The second conviction order indicated that Deanthony Clark
pleaded guilty in the Circuit Court of the City of Hampton to
carjacking and the use of a firearm. Detective Sales opined
that Clark was a member of GD because he had once observed
Clark, sitting in a chair in a school office, wearing black and
blue beads. Sales testified that black and blue beads are
insignia worn by GD members.
Rushing objected to the admission of these orders on the
ground that there was no indication of any connection between
Rushing and either Lollis or Clark, and on grounds of relevancy
and hearsay. The court held that the orders were relevant as
proof of predicate offenses required to establish an element of
the crimes: that GD was a criminal street gang.
Rushing appealed his convictions to the Court of Appeals.
A single judge denied his petition and he requested review by a
three-judge panel. The panel granted the appeal as to a single
5
assignment of error, denying two others. The Court of Appeals
rephrased the granted assignment to read as follows, deleting
matter contained in the assignment Rushing had made in his
petition for appeal:
The circuit court erred by finding the evidence
sufficient to convict appellant of gang
participation because of insufficient evidence,
because prior felony convictions of alleged gang
members were improperly admitted, and a photo of
appellant allegedly making a gang sign was
improperly admitted.
By a published opinion, a divided panel affirmed the
convictions. Rushing v. Commonwealth, 58 Va. App. 594, 712
S.E.2d 41 (2011). The panel majority noted that Rushing had not
asked for a new trial, which would be his remedy if evidence
were to be held improperly admitted, but rather had asked that
the gang participation conviction be reversed and the charge
dismissed because the evidence was insufficient to support it.
The panel majority therefore declined to address the issues of
admissibility of evidence. The majority held that on appellate
review of the sufficiency of the evidence, all the evidence must
be considered, whether improperly admitted or not. Thus,
including the challenged evidence of the photograph and the
orders of conviction, the majority found the evidence sufficient
to support the conviction and affirmed. Id. at 602-03, 712
S.E.2d at 45-46. One judge dissented on the ground that the
majority had erred in refusing to consider Rushing's challenge
6
to the admissibility of the photograph and the conviction
orders. Id. at 610-11, 712 S.E.2d at 49. We awarded Rushing an
appeal.
Analysis
A. Gang Participation
Code § 18.2-46.1 defines the relevant terms as follows:
"Criminal street gang" means any ongoing
organization, association, or group of three or
more persons, whether formal or informal, (i)
which has as one of its primary objectives or
activities the commission of one or more criminal
activities; (ii) which has an identifiable name
or identifying sign or symbol; and (iii) whose
members individually or collectively have engaged
in the commission of, attempt to commit,
conspiracy to commit, or solicitation of two or
more predicate criminal acts, at least one of
which is an act of violence, provided such acts
were not part of a common act or transaction.
"Predicate criminal act" means (i) an act of
violence; (ii) any violation of [listing 29
specified sections of the Code of Virginia];(iii)
a second or subsequent felony violation of
subsection C of § 18.2-248 or of § 18.2-248.1;
(iv) any violation of a local ordinance adopted
pursuant to § 15.2-1812.2; or (v) any
substantially similar offense under the laws of
another state or territory of the United States,
the District of Columbia, or the United States.
Code § 18.2-46.2 provides, in pertinent part:
A. Any person who actively participates in
or is a member of a criminal street gang and who
knowingly and willfully participates in any
predicate criminal act committed for the benefit
of, at the direction of, or in association with
any criminal street gang shall be guilty of a
Class 5 felony. . . .
7
The Commonwealth, therefore, had the burden of proving,
beyond a reasonable doubt, that (1) Rushing had committed a
"predicate criminal act," (2) that GD existed as an identifiable
street gang, (3) that GD was a criminal street gang because its
members had committed two or more "predicate criminal acts," at
least one of which was a crime of violence, and (4) that Rushing
committed his "predicate criminal act" as a member of or active
participant with the gang.
Rushing contends that the Commonwealth's evidence was
insufficient to prove the latter two of those elements.
Specifically, he argues that Deanthony Clark's conviction order
should not have been admitted in evidence because it was not
shown to be relevant. Rushing points out that there was no
evidence that he knew or had any relationship with Clark, and
that the conviction order would only have been relevant if it
had some tendency to show that Clark was a member of GD when
Clark committed his crime.
We agree with Rushing's conclusion. Detective Sales
expressed his opinion that Clark was a member of GD. Generally,
expert opinion is only admissible in a criminal case if it is
based on facts in evidence. Simpson v. Commonwealth, 227 Va.
557, 565, 318 S.E.2d 386, 391 (1984). The only factual basis
Sales had for that opinion was that he had once seen Clark, on
an unspecified date, sitting in a chair in a school office,
8
wearing black and blue beads. Because Sales also considered
such beads to be GD insignia, he concluded that Clark was a GD
member. Proof that GD members wear black and blue beads does
not constitute proof that all who wear black and blue beads are
GD members. 2
Further, because Sales' observation of Clark's beads was
not related in time to Clark's commission of his crime in
Norfolk, it does not support the conclusion that he committed it
as a member of the gang. Participation in the gang's
activities, without more, is not sufficient to characterize an
actor as a gang member in one of the two offenses prerequisite
to proof of a criminal street gang's existence. A defendant
charged with gang participation, although not an actual member
of the gang, may be convicted upon a showing that he
participated in a gang-related crime. The statute, however,
2
The Commonwealth's reasoning illustrates the celebrated
fallacy of the undistributed middle term in Aristotelian Logic.
In the syllogism: "All gang members wear beads; Clark wears
beads; therefore Clark is a gang member," the conclusion is
fallacious because it does not account for those who wear beads
who are not gang members. Some may wear them because they wish
to become or be perceived as members, or for protection from
members, or because they are enemies or even law enforcement
officers seeking to infiltrate the gang, or because they simply
like beads. See Spencer v. Texas, 385 U.S. 554, 578-79 (1967)
(Warren, C.J., dissenting) (citing Stebbing, A Modern
Introduction to Logic 88 (6th ed. 1949)); Allied Erecting &
Dismantling Co. v. USX Corp., 249 F.2d 191, 202 n.1 (3d Cir.
2001) (citing Rugero Aldisert, Logic For Lawyers (1997)).
9
requires membership in the case of those who committed the two
unrelated crimes necessary to establish the existence of a
criminal street gang.
We do not agree with Rushing's contention that proof of a
personal connection between Rushing and Clark was necessary to
make Clark's conviction relevant. The last sentence of Code
§ 18.2-46.1 demonstrates a clear legislative intent to include
within the sweep of the statute predicate crimes committed by
gang members anywhere within the United States. Nevertheless,
Detective Sales' opinion of Clark's gang membership was
insufficiently grounded on facts in evidence to carry the
Commonwealth's burden of proving one of the two requisite
predicate crimes by gang members. 3
Rushing also contends that the circuit court erred in
admitting a photograph of his making what was described by
Detective Sales as a GD hand signal. The photographer did not
testify, nor did any other witness identify or authenticate the
photograph, describe the circumstances existing when it was
taken, or testify that it fairly represented the scene it
appeared to portray. The circuit court therefore erred in
admitting it into evidence without any foundation. See Charles
3
By contrast, Lollis' conviction was relevant because he
admitted GD gang membership in his stipulation and plea
agreement.
10
E. Friend, The Law of Evidence in Virginia § 13-12(a) at 538
(6th ed. 2003). See Virginia Rule of Evidence 2:901 (enacted by
2012 Acts chs. 688, 708 (requiring "evidence sufficient to
support a finding that the thing in question is what its
proponent claims").
As stated above, the Court of Appeals declined to address
errors in the admission of evidence because Rushing had, in his
assignment of error, described the improper admission of the
photograph, along with the Clark and Lollis conviction orders,
as the basis for his contention that, without them, the evidence
was insufficient to support the conviction. It is certainly
better appellate practice to put the appellant's finger on the
precise error complained of by assigning errors separately when
both evidentiary error and sufficiency questions are appealed.
We do not, however agree with the Court of Appeals' holding
that review of an evidentiary error is precluded by giving it as
the reason the evidence was insufficient. Put differently, an
appellant may properly contend (1) that evidence was entered
erroneously and (2) without that error the record would not
contain evidence sufficient to support the conviction. An
appellate court, in those circumstances, cannot adjudicate the
question of sufficiency without first deciding whether the
evidence should have been admitted. If the evidence is
determined to have been admitted in error, and the error has
11
been properly preserved and is non-constitutional, and if there
remains evidence in the record clearly sufficient to support the
conviction without the evidence erroneously admitted, then the
error is harmless and the judgment may be affirmed. If the
appellate court is in doubt as to the extent to which the
erroneously admitted evidence may have affected the verdict, the
appellant is entitled to a reversal and a remand for a new
trial. But if there remains in the record, without the
erroneously admitted evidence, insufficient evidence to support
the conviction, the appellate court must reverse and enter final
judgment for the appellant.
The Court of Appeals cited Lockhart v. Nelson, 488 U.S. 33
(1988), for the proposition that, on appellate review for
sufficiency of the evidence, all evidence in the record, whether
erroneously admitted or not, is to be considered. We have
adopted a different standard of appellate review in Virginia. 4
In Crawford v. Commonwealth, 281 Va. 84, 111-12, 704 S.E.2d 107,
123-24 (2011), we held that, on appellate review of the
sufficiency of the evidence, "an appellate court may not
consider evidence illegally admitted at trial. To hold
otherwise would circumvent on appeal the Constitutional
4
The only issues before us in this appeal involve questions
of the interpretation of Virginia statutes, Virginia appellate
procedure, and Virginia's rules of evidence.
12
protections provided to a defendant at trial." (Emphasis added.)
We adhere to that standard and the Court of Appeals was bound by
Crawford. 5
Applying that standard, we hold that if the record is
considered without the erroneously admitted evidence of
Deanthony Clark's conviction, the Commonwealth proved only one
predicate crime committed by a gang member rather than the two
required by the statute. Therefore, the Commonwealth failed to
prove an essential element of the crime and the Court of Appeals
erred in affirming Rushing's conviction for gang participation.
Because this holding requires reversal and final judgment for
Rushing, we do not reach the effect of the erroneous admission
of the photograph. 6
B. Use of a Firearm in Commission of Burglary
The Commonwealth concedes on brief that, in light of this
Court's decision in Rowland v. Commonwealth, 281 Va. 396, 402,
5
Here, as in Crawford, we are concerned with the rules of
appellate review in Virginia. The Supreme Court of the United
States, in Lockhart, in a federal habeas corpus appeal,
considered whether the Double Jeopardy Clause barred a
resentencing proceeding after evidence used to support an
enhanced penalty was found to have been improperly admitted. If
the Commonwealth should seek to retry Rushing, a double jeopardy
question may arise, but that question is not before us in this
appeal.
6
It is thus unnecessary to decide whether that error was
harmless in light of other evidence from which the jury might
have concluded that Rushing committed his crimes in
participation with the gang.
13
707 S.E.2d 331, 334 (2011) (use of a firearm in commission of
burglary requires proof that the firearm was used before entry
was fully accomplished), the evidence was insufficient to
support that conviction. Accordingly, we will reverse the
conviction on that charge, and enter final judgment dismissing
that charge.
Conclusion
For the reasons stated, we will reverse and dismiss
Rushing's convictions for gang participation and for use of a
firearm in the commission of burglary, entering final judgment
here. Rushing's other convictions are unaffected by this
appeal.
Reversed and final judgment.
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