Present: All the Justices
TERRICK D. BARNES
v. Record No. 090339 OPINION BY
CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR.
COMMONWEALTH OF VIRGINIA January 15, 2010
FROM THE COURT OF APPEALS OF VIRGINIA
I.
In this appeal from the Court of Appeals, the primary
issue we consider is whether a search warrant affidavit
satisfied the probable cause requirement established by the
United States Supreme Court in Franks v. Delaware, 438 U.S. 154
(1978).
II.
Terrick D. Barnes was indicted by a grand jury in the
Circuit Court of the City of Alexandria for the unlawful,
felonious and malicious shooting of Henry Carmon in violation
of Code § 18.2-51.2 and for the unlawful and felonious use and
display of a firearm while committing an aggravated malicious
wounding in violation of Code § 18.2-53.1.
During a pretrial hearing, Barnes filed a motion to
suppress certain evidence that had been seized from his home
pursuant to a search warrant. Barnes asserted that the
evidence should be suppressed because purportedly the affidavit
in support of the search warrant was insufficient to establish
probable cause and allegedly the affidavit contained incomplete
and “recklessly omitted” information that negated probable
cause.
Upon the conclusion of a pretrial evidentiary hearing on
this issue, the circuit court, among other things, denied
Barnes’ motion to suppress. At a bench trial, the circuit
court convicted Barnes of the charged offenses. The circuit
court fixed Barnes’ punishment at twenty years imprisonment,
with eight years suspended for the aggravated malicious
wounding conviction, and three years imprisonment for the use
of a firearm conviction.
Barnes appealed his convictions to the Court of Appeals,
which affirmed the convictions in an unpublished opinion.
Barnes v. Commonwealth, No. 2314-07-4 (Dec. 9, 2008). Barnes
filed a petition for rehearing en banc, which was denied.
Barnes v. Commonwealth, No. 2314-07-4 (Jan. 15, 2009). Barnes
appeals.
III.
Facts Adduced During the Evidentiary Hearing on the Motion to
Suppress Evidence Seized Pursuant to the Execution of the
Search Warrant
On June 12, 2006, Henry Carmon encountered the defendant
sometime during the day at a food facility operated by the
Salvation Army. Carmon spoke with the defendant and said:
2
“[H]ow [are] you doing, young man?” The defendant replied:
“[Y]ou know what you did.”
Approximately 10:00 p.m. on the night of June 12, 2006,
Carmon left his home en route to a convenience store to “bum a
cigarette.” Carmon testified that as he was walking to the
store, “[the defendant] was there waiting on me.”
The defendant, using a 9 millimeter pistol, fired five
bullets at Carmon and one bullet struck Carmon in his hip.
Carmon was able to clearly see the defendant’s face when the
defendant shot Carmon. Carmon gave the following testimony
during the pretrial hearing:
“Question: . . . Were you able to see [the
defendant’s] face when he shot you?
“Answer: Yes, I did.
“Question: How close to you was he, when he shot you?
“Answer: We were close up, . . . his face was in my
face.
“Question: Were you walking when you passed each
other?
“Answer: Yes.
“Question: Were you on the street or the sidewalk?
“Answer: We was on the sidewalk.
“Question: The same sidewalk?
“Answer: Yes.
“Question: Do you remember what he was wearing?
“Answer: Only thing I know was he had a white sweater
on. He was trying to cover his face up.
“Question: What did he look like?
“Answer: He’s dark and . . . his mustache comes down
this way and his hair is kind of short.
“Question: When you say[, ‘]the mustache coming down
this way[,’] are you talking about a go-tee or like a fu-
man-chu style mustache?
“Answer: Yes.”
3
Detective Robert Hickman, of the Alexandria Police
Department, was working on the night of June 12, 2006, and was
assigned to investigate these crimes. He interviewed Carmon
the night he was admitted to a hospital for treatment. Carmon
told Detective Hickman that the assailant was a dark black male
in his twenties or thirties, five feet four inches to five feet
six inches tall, and very skinny with a mustache that “drooped
down to his chin.” Carmon also informed Hickman that the
assailant was wearing a “white hooded shirt.”
Detective Hickman created a “photograph-spread” and showed
it to Carmon at the hospital. The photograph-spread contained
a picture of Barnes that was taken in 2002. Detective Hickman
did not use a photograph that was taken of Barnes on the night
of the crimes because Hickman was concerned that the photograph
may be suggestive since Barnes was wearing a white shirt.
Carmon failed to identify Barnes as the assailant when Carmon
reviewed the photograph-spread that contained the 2002
photograph of Barnes. * Several months later, however, Carmon
*
The circuit court concluded it was not surprised that Carmon
failed to identify the defendant in the photograph-spread. The
court commented:
“Well, this one [photograph taken in 2002] was when
the [defendant] was four years younger and at that time,
he had longer hair, had some . . . kind of pig-tails
hanging down and a whole lot greater go-tee than what
appears in the actual line-up picture. In addition to
that, the witness described the [d]efendant as being dark
or his assailant as being dark, and with the lighting on
4
identified Barnes as his assailant during a line-up at a jail.
Barnes, who had fled the scene of the crimes, later
returned to the crime scene that same night. Detective Hickman
saw Barnes at the scene of the shooting upon Barnes’ return.
Barnes spoke with another police officer, Richard Sandoval, and
voluntarily accompanied Officer Sandoval to a police station.
The police officers were concerned on the night of the crimes
that they may not have probable cause to obtain a search
warrant of the defendant’s home so they requested his
permission to conduct a search of his house. Barnes refused.
The detectives continued their investigation. Detective
Hickman learned that Lisbeth Lyons, who was in the area when
the shooting occurred, saw a man leave the scene of the
shooting. She described an individual who fit the defendant’s
description. Eventually, Detective Hickman prepared an
affidavit to obtain a search warrant for the defendant’s house.
The affidavit in support of a search warrant is attached to
this opinion as Exhibit A.
Detective Hickman also learned, during his investigation,
that several patrons at a restaurant saw the defendant after
the shooting “conceal himself from gentlemen nearby who were
living in a truck.” Detective Hickman stated in the search
the [d]efendant in [the] photograph . . . , he looks
almost white-skinned he’s so light, obviously because of
5
warrant affidavit that the defendant sought to conceal himself
after the shootings.
After Barnes shot the victim, several individuals who were
“standing nearby” spoke with Detective Hickman and another
police officer. These individuals stated that they saw a
person, with a physical appearance different from Barnes’
physical appearance in the vicinity after the victim was shot.
Detective Hickman did not include this information in the
search warrant affidavit.
Detective Hickman testified that according to a police
report, another police officer stopped an individual near the
scene of the shooting who was wearing a white shirt. However,
Detective Hickman did not pursue that individual because he did
not match the physical description of the assailant “at all.”
Detective Hickman noted in the police report, however, that
another police officer had stopped an individual wearing a
white shirt because that officer thought that the individual
may have matched the description of the assailant. This
information was not included in the search warrant affidavit.
Detective Hickman testified that generally he neither
includes exculpatory information in search warrant affidavits
nor intentionally omits information that may be exculpatory
from search warrant affidavits. Detective Hickman stated:
the light.”
6
“I don’t put in exculpatory evidence in affidavits. I
don’t believe that a search warrant affidavit is a
complete overview of the entire investigation.
“I believe – the way I complete a search warrant
application is, I put in the evidence that rises to a
level of probable cause. I don’t believe that all
evidence needs to be put in, that would give it probable
cause.”
Detective Hickman sought and obtained the search warrant
of the defendant’s house four days after the defendant shot the
victim. During those four days, Hickman discovered additional
facts that he included in the search warrant affidavit.
Carmon, the victim, knew the models of the automobiles that the
defendant usually drove. Two other witnesses identified the
defendant in a photograph-spread, and one witness, Colby
Cooper, told police officers that he saw “the [d]efendant walk
up the street and down the street [where the shooting occurred]
right at the time of the shooting.” Cooper also gave a
description of the assailant that is similar to the description
that the victim gave to Detective Hickman regarding Barnes.
Detective Hickman also learned that the defendant lived on
Price Street. Detective Hickman stated the following in the
search warrant affidavit. The victim had previously told
Detective Hickman that the assailant lived on Price Street.
Another witness confirmed that the defendant’s nickname was
“Turk” and that Turk lived on Price Street.
7
Detective Hickman showed another witness, Lisbeth Lyons, a
photograph-spread, but she was unable to identify the
defendant. Detective Hickman did not include that information
in the search warrant affidavit. However, two other witnesses,
Cooper and Mary McMillan successfully identified the defendant
in a photograph-spread and Detective Hickman included this
information in the affidavit because he believed “it goes
towards probable cause.” Detective Hickman testified that
every fact that he placed in the affidavit was true.
Upon the conclusion of the pretrial hearing, the defendant
asked the circuit court to suppress all items seized pursuant
to the execution of the search warrant, including a handgun, a
gun magazine, a white shirt, bullets, and ballistic tests that
clearly associated the defendant with the shooting.
Rejecting the defendant’s motion to exclude the evidence
seized from the execution of the search warrant, the circuit
court stated:
“Now, as [the court] understand[s] this [motion], this
[Franks] case protects against [o]missions that are
designed to mislead or that are made in reckless disregard
of whether they would mislead.
“[The court doesn’t] think Detective Hickman made
these omissions with the – with a design to mislead.
Obviously, he stated that it’s just his matter of
principle that he doesn’t put exculpatory evidence [into]
affidavits for search warrants.
“But it does seem . . . that the omissions were
probably made in reckless disregard of whether they would
mislead.
8
“Notwithstanding that, [the court has] reviewed this
affidavit very, very, very carefully and . . . [has]
reviewed it with an eye toward including the omissions,
which [defendant’s counsel] has pointed out, and having
done that, [the court is] satisfied that the affidavit,
plus the omissions, still establishes probable cause for
the search that took place.”
IV.
A.
Barnes, relying principally upon the United States Supreme
Court’s opinion in Franks v. Delaware, supra, argues that the
search warrant that was executed in his home is void because
the circuit court found that Detective Hickman’s omissions of
material facts in the search warrant “were probably made in
reckless disregard of whether they would mislead.” Continuing,
Barnes asserts that the circuit court erred by ruling that the
affidavit for the search warrant established probable cause to
search the defendant’s house even if the omitted material had
been included in the affidavit.
Responding, the Commonwealth contends that the affidavit
in support of the search warrant established probable cause
and, hence, the requirements of the United States Supreme
Court’s decision in Franks v. Delaware, supra, have been
satisfied. We agree with the Commonwealth.
The United States Supreme Court in Franks v. Delaware,
considered the issue whether a defendant in a criminal
proceeding ever has the right under the Fourth and Fourteenth
9
Amendments, subsequent to the ex parte issuance of a search
warrant, to challenge the truthfulness of factual statements
made in an affidavit supporting the issuance of that warrant.
The Supreme Court stated the following principles pertinent to
the resolution of this issue:
“In sum, and to repeat with some embellishment what
we stated at the beginning of this opinion: There is, of
course, a presumption of validity with respect to the
affidavit supporting the search warrant. To mandate an
evidentiary hearing, the challenger’s attack must be more
than conclusory and must be supported by more than a mere
desire to cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by an
offer of proof. They should point out specifically the
portion of the warrant affidavit that is claimed to be
false; and they should be accompanied by a statement of
supporting reasons. Affidavits or sworn or otherwise
reliable statements of witnesses should be furnished, or
their absence satisfactorily explained. Allegations of
negligence or innocent mistake are insufficient. The
deliberate falsity or reckless disregard whose impeachment
is permitted today is only that of the affiant, not of any
nongovernmental informant. Finally, if these requirements
are met, and if, when material that is the subject of the
alleged falsity or reckless disregard is set to one side,
there remains sufficient content in the warrant affidavit
to support a finding of probable cause, no hearing is
required. On the other hand, if the remaining content is
insufficient, the defendant is entitled, under the Fourth
and Fourteenth Amendments, to his hearing. Whether he
will prevail at that hearing is, of course, another
issue.”
Id. at 171-72 (footnote omitted).
The United States Court of Appeals for the Fourth Circuit,
in United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990),
10
explained, in detail, the Supreme Court’s holding in Franks v.
Delaware:
“In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674,
57 L.Ed.2d 667 (1978), the Supreme Court held that in
certain narrowly defined circumstances a defendant can
attack a facially sufficient affidavit. The Franks Court
recognized a strong ‘presumption of validity with respect
to the affidavit supporting the search warrant,’ 438 U.S.
at 171, 98 S.Ct. at 2684, and thus created a rule of
‘limited scope,’ id. at 167, 98 S.Ct. at 2682. The rule
requires that a dual showing be made which incorporates
both a subjective and an objective threshold component.
In order even to obtain an evidentiary hearing on the
affidavit’s integrity, a defendant must first make ‘a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant
affidavit.’ Id. at 155-56, 98 S.Ct. at 2676-77. This
showing ‘must be more than conclusory’ and must be
accompanied by a detailed offer of proof. Id. at 171, 98
S.Ct. at 2684. In addition, the false information must be
essential to the probable cause determination: ‘if, when
material that is the subject of the alleged falsity or
reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a
finding of probable cause, no hearing is required.’ Id.
at 171-72, 98 S.Ct. at 2684-85. The Franks test also
applies when affiants omit material facts ‘with the intent
to make, or in reckless disregard of whether they thereby
made, the affidavit misleading.’ United States v.
Reivich, 793 F.2d 957, 961 (8th Cir. 1986).”
In United States v. Photogrammetric Data Services, Inc.,
259 F.3d 229, 237-38 (4th Cir. 2001), the United States Court
of Appeals for the Fourth Circuit once again articulated the
principles that we must apply when a defendant asserts that a
search warrant is void in violation of Franks v. Delaware,
supra:
11
“An affidavit supporting an application for a search
warrant is entitled to a strong presumption of validity.
See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674,
57 L.Ed.2d 667 (1978). Consequently, in order to obtain
an evidentiary hearing on the integrity of an affidavit, a
defendant must make ‘a substantial preliminary showing
that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the
affiant in the warrant affidavit.’ Id. at 155-56, 98
S.Ct. 2674. The ‘showing “must be more than conclusory”
and must be accompanied by a detailed offer of proof.’
United States v. Colkley, 899 F.2d 297, 300 (4th Cir.
1990)(quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674).
‘Mere negligence in recording the facts relevant to a
probable-cause determination is not enough.’ Id. at 301
(internal quotation marks and alterations omitted).
“ ‘[T]he false information must [also] be essential
to the probable cause determination: “if, when material
that is the subject of the alleged falsity or reckless
disregard is set to one side, there remains sufficient
content in the warrant affidavit to support a finding of
probable cause, no hearing is required.” ’ Id. at 300
(quoting Franks, 438 U.S. at 171-72, 98 S.Ct. 2674).
Thus, a Franks hearing ‘serves to prevent the admission of
evidence obtained pursuant to warrants that were issued
only because the issuing magistrate was misled into
believing that there existed probable cause.’ United
States v. Friedemann, 210 F.3d 227, 229 (4th Cir.), cert.
denied, 531 U.S. 875, 121 S.Ct. 180, 148 L.Ed.2d 124
(2000).”
B.
We observe that the circuit court followed an incorrect
procedure when that court conducted the Franks hearing. The
United States Supreme Court and all circuits of the United
States Court of Appeals have held that a defendant is not
entitled to a Franks hearing unless the defendant makes a
substantial preliminary showing that the affidavit for the
search warrant contains deliberately false or recklessly false
12
misstatements or omissions necessary to a finding of probable
cause. See Franks v. Delaware, 438 U.S. at 155-56; see also
United States v. Wilburn, 581 F.3d 618, 621 n.1 (7th Cir.
2009); United States v. Sarras, 575 F.3d 1191, 1218-19 (11th
Cir. 2009); United States v. Summage, 575 F.3d 864, 873 (8th
Cir. 2009); United States v. Fowler, 535 F.3d 408, 415-16 (6th
Cir. 2008); United States v. Tate, 524 F.3d 449, 455 (4th Cir.
2008); United States v. Reiner, 500 F.3d 10, 14-15 (1st Cir.
2007); United States v. Martinez-Garcia, 397 F.3d 1205, 1214-16
(9th Cir. 2005); Rivera v. United States, 928 F.2d 592, 604
(2nd Cir. 1991); United States v. Mueller, 902 F.2d 336, 341-42
(5th Cir. 1990); United States v. Owens, 882 F.2d 1493, 1498-99
(10th Cir. 1989); United States v. Calisto, 838 F.2d 711, 714-
16 (3rd Cir. 1988).
The Circuit Court of the City of Alexandria failed to
require that the defendant establish the requisite substantial
preliminary showing and the circuit court improperly proceeded
to conduct a Franks hearing. Even though the Commonwealth does
not challenge this unorthodox procedure, circuit courts in this
Commonwealth should not conduct a Franks hearing absent the
establishment of the requisite substantial preliminary showing.
C.
Pursuant to Franks, before a circuit court conducts an
evidentiary hearing, the court is required to “set to one side”
13
the alleged false or reckless information or omission and
determine whether the warrant affidavit supports a finding of
probable cause before conducting an evidentiary hearing. 438
U.S. at 156. In spite of the improper procedure that the
circuit court employed, we nonetheless agree with the circuit
court’s conclusion that the affidavit for the search warrant in
this appeal established probable cause.
We discussed the concept of probable cause in Parker v.
Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53 (1998)
(quoting Taylor v. Commonwealth, 222 Va. 816, 820-21, 284
S.E.2d 833, 836 (1981)):
“ ‘The legal standard of probable cause, as the term
suggests, relates to probabilities that are based upon the
factual and practical considerations in everyday life as
perceived by reasonable and prudent persons. The presence
or absence of probable cause is not to be examined from
the perspective of a legal technician. Rather, probable
cause exists when the facts and circumstances within the
officer’s knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a
person of reasonable caution to believe that an offense
has been or is being committed. Draper v. United States,
358 U.S. 307, 313 (1959); Schaum v. Commonwealth, 215 Va.
498, 500, 211 S.E.2d 73, 75 (1975). In order to ascertain
whether probable cause exists, courts will focus upon
“what the totality of the circumstances meant to police
officers trained in analyzing the observed conduct for
purposes of crime control.” Hollis v. Commonwealth, 216
Va. 874, 877, 223 S.E.2d 887, 889 (1976).’ ”
Additionally, when determining whether an affidavit for
the issuance of a search warrant is sufficient to support that
warrant, we must consider the totality of the circumstances.
14
Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666
(1991); Illinois v. Gates, 462 U.S. 213, 230-31 (1983). And,
the search warrant affidavit is presumed to be valid. Franks,
438 U.S. at 171.
Applying the well established aforementioned principles,
we hold that the search warrant affidavit in this case is
constitutionally permissible and does not contravene the
principles established in Franks v. Delaware, supra. The
affidavit, which contains the following information, clearly
established probable cause. The affidavit informed the
magistrate that the victim saw the suspect who shot him (the
victim). A witness who resides on the same street as the
defendant identified the defendant as the same black male she
observed after she was awakened by the “sounds of gunshots.”
This witness saw Barnes walking, and he had his hand “up over
his head.” Another witness informed Detective Hickman that
Barnes’ nickname was “Turk,” and the witness identified a
photograph of Barnes as the man she saw on the night of the
shooting. Another police officer received information from a
citizen who advised the officer that a black male was seen
running after gunshots occurred. A police officer responded
and stopped the defendant, Barnes, who was dressed in a white
pullover shirt with a hood. Two other citizens saw Barnes two
to three minutes after they heard gunshots and Barnes sought to
15
conceal himself. Certainly, the facts in the affidavit would
cause a person of reasonable caution to believe that the
defendant had committed the crimes. Parker, 225 Va. at 106,
496 S.E.2d at 53. Thus, the issuing magistrate had a
substantial basis for concluding that probable cause existed.
Illinois v. Gates, 462 U.S. at 238-39.
V.
Sufficiency of the Evidence
A.
Applying well established principles of appellate review,
we will state the evidence in the light most favorable to the
Commonwealth, the prevailing party in the circuit court.
McMillan v. Commonwealth, 277 Va. 11, 15, 671 S.E.2d 397, 399
(2009); Bishop v. Commonwealth, 275 Va. 9, 11, 654 S.E.2d 906,
907 (2008); Pruitt v. Commonwealth, 274 Va. 382, 384, 650
S.E.2d 684, 684 (2007). We will only summarize those facts
that are germane to the sufficiency of the evidence to
establish the defendant’s crimes beyond a reasonable doubt.
As we previously stated, Henry Carmon, the victim,
encountered the defendant on June 12, 2006, during the day, at
a facility operated by the Salvation Army. Later that evening,
Carmon left his home around 10:00 p.m. to walk to a convenience
store in order to “bum a cigarette.”
16
As Carmon was walking, he met the defendant. Carmon
stated that the defendant “was standing there and [that they]
faced each other and [the defendant] took his left hand trying
to cover his face up. [The defendant] had a white sweater on.
Then [the defendant] took his right hand and went for the gun.”
The defendant removed a gun from his belt, the “waistband
area.” Carmon testified that the defendant “shot at [Carmon]
five times, but [the defendant] hit [Carmon] one time.” The
defendant shot Carmon in his buttock and during the trial,
Carmon identified the defendant as the individual who shot him.
After the shooting, Carmon informed Detective Hickman that
the defendant was wearing a white shirt, a white sweater, and
that he was trying to conceal his face. Carmon had seen the
defendant several times before the defendant shot Carmon. The
defendant attended the same high school as Carmon’s
stepdaughter. Carmon knew that the defendant lived on Price
Street and had seen the defendant driving a grey or white car
and also a “big black car.” Carmon informed Detective Hickman
that the defendant’s nickname began with the letter ‘T’.
Mary McMillan, who lives on Price Street, the same street
where the defendant lives, heard a “loud popping noise about
five or six times” around 10:00 p.m. on June 12, 2006. She
left her house and walked on her porch to “see what was going
on.” She saw the defendant, whose nickname is “Turk,” walking
17
down the street. McMillan identified the defendant as “Turk”
during the trial.
Dayna Blumel observed a black male wearing a white shirt
on the night of the crimes. She saw him on three occasions.
The first time she saw the defendant, he was walking in the
street. She observed him again approximately ten to fifteen
minutes later. About thirty minutes later, she heard a gunshot
and she saw the defendant “briskly walking or a slight jog.”
Later, she saw the defendant running and she heard sirens from
police cars. Dayna Blumel testified that the defendant stopped
running and “ducked” when he saw some police officers.
Robert Blumel also observed Barnes on the night of the
shootings. Blumel described Barnes as a black male with medium
height, slight build, and short hair. Robert Blumel saw Barnes
and Blumel heard gunshots. Less than one minute elapsed
between the time Robert Blumel heard gunshots and the time he
saw the defendant running near the crime scene. Blumel spoke
to policemen who were at the crime scene and testified that
“[a]s soon as [Blumel] leaned forward and pointed to [the
defendant], [the defendant] crouched down and the police got
him.”
The police officers executed a search warrant of Barnes’
residence and found a handgun, magazine, and ammunition. They
also seized a white-colored, short-sleeved, hooded sweat top.
18
The semi-automatic handgun, along with the magazine and
cartridges, were concealed in a basement area above the
ductwork.
Gary C. Arntsen, a firearm examiner employed by the
Commonwealth of Virginia in the Fairfax Forensic Laboratory,
qualified as an expert witness on the subject of firearms. He
testified that the bullets discovered at the scene of the crime
had been fired by the defendant’s 9 millimeter pistol that was
found in his home as the result of the execution of the search
warrant. Additionally, bullet cartridges found at the scene of
the crime had been expelled by the defendant’s pistol, which
was in operable condition. A bullet that had been removed from
the victim’s body had also been fired by the defendant’s
pistol.
Dr. Hani Seoudi, a surgeon who operated on the victim the
night of the shooting, qualified as an expert witness. Dr.
Seoudi testified that the bullet from the defendant’s pistol
damaged the lining of the victim’s left hip joint “and that is
closest to what [doctors] call traumatic arthritis, which can
present in chronic pain and limitation [of] range of motion of
the joint.” Additionally, Dr. Seoudi testified that as a
result of the surgery that he performed on the victim, the
victim would have permanent intestinal and abdominal scarring.
19
Carmon was in the hospital for approximately three weeks
as a result of the injuries caused by the assailant. Carmon is
unable to walk long distances and to sleep at night. His legs
hurt “all the time.” He also has scarring as a result of the
surgery to remove the bullet from his buttock.
B.
The defendant argues that the Commonwealth failed to
establish, beyond a reasonable doubt, sufficient evidence to
support his convictions for aggravated malicious wounding in
violation of Code § 18.2-51.2 and use of a firearm in the
commission of aggravated malicious wounding in Code § 18.2-
53.1. Continuing, the defendant asserts that the Commonwealth
failed to establish that the victim suffered severe injury with
significant and permanent physical impairment as required by
Code § 18.2-51.2.
The defendant’s arguments are utterly without merit.
Without being unduly repetitive, we note that the victim and
numerous witnesses identified Barnes as the armed assailant who
shot Carmon with a 9 millimeter pistol discovered at Barnes’
house. Additionally, Dr. Seoudi testified that the bullet that
entered the victim’s body damaged the lining of his left hip
joint, thereby causing traumatic arthritis. Traumatic
arthritis can result in chronic pain and a limitation of the
range of motion of that joint. Furthermore, the facts
20
summarized in part V.A. of this opinion clearly demonstrate
beyond a reasonable doubt that the Commonwealth introduced
sufficient evidence to support the convictions.
VI.
For the foregoing reasons, we will affirm the defendant’s
convictions.
Affirmed.
21
690
691
692