Johnson v. Commonwealth of Va..

• Decision Date: 02 August 2011
• Docket Number: Record No. 2091–10–1.
• Parties: Edward JOHNSONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 625

712 S.E.2d 751

Edward JOHNSON

v.COMMONWEALTH of Virginia.

Record No. 2091–10–1.

Court of Appeals of Virginia, Chesapeake.

Aug. 2, 2011.

Charles E. Haden, Hampton for appellant.Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: KELSEY, PETTY and BEALES, JJ.KELSEY, Judge.

The trial court convicted Edward Johnson of maiming by mob, Code § 18.2–41, conspiracy to maim by mob, Code §§ 18.2–22, 18.2–41, and participating in a criminal street gang, Code § 18.2–46.2. On appeal, Johnson challenges the sufficiency of the evidence and claims the trial court erred in admitting certain exhibits. We affirm Johnson's convictions, finding his arguments either lacking in merit or procedurally defaulted.

I.

On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

In addition, “an appellate court's ‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.’ ” Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). Instead, “an appellate court must consider all the evidence admitted at trial that is contained in the record.” Id. (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586); see also Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).

Viewed from this perspective, the record shows a fight broke out at a club in Hampton one night in April 2009. One of the combatants, a young man known as “Akeem,” was known to be a member of the “three-six” gang. When club security sprayed mace to break up the fight, Akeem and several fellow gang members fled outside.

Clyde Bell was with one of the young men who had fought against Akeem. As the group dispersed, he also went outside. Standing outside the club, Bell overheard one of the gang members ask, “Where them bitches at?” Bell called a friend inside the club and said, “I'm about to get jumped.” Moments later, Akeem and approximately six other gang members approached Bell. Johnson was one of them. Bell asked, “So you-all going to jump me, right?” As Akeem advanced toward Bell, Bell struck Akeem in an effort to defend himself. The effort failed. As Akeem began to beat Bell, the three-six gang members in the group joined one by one in the beating, which lasted about five minutes.

During the sustained assault, Bell heard several of the attackers say, “three-six, bitch.” A witness who knew Johnson saw him “in the middle of the fight” and “throwing punches” at Bell during the mêlée. The witness said he was “a hundred-percent sure” Johnson was “involved in the fight.” After the beating ended, the three-six gang members walked away. Bell heard them say “Who next?” and “Where the rest of them at?” The beating left Bell with two broken vertebrae in his lumbar spine.

A grand jury indicted Johnson for participating in a criminal street gang, maiming by mob, conspiracy to maim by mob, and robbery. At trial, a detective trained in investigating criminal street gangs testified as an expert concerning the 36th Street Bang Squad—known colloquially as the “three-six” gang. The detective described the unique hand signs and symbols associated with the three-six gang. He also explained in detail the gang's violent reputation and its association with other criminal street gangs like the “Bloods” and the “G–Shine” organizations.

Over Johnson's objection, the trial court admitted into evidence a 2009 conviction order finding Johnson guilty of two violent felonies. The trial court also admitted into evidence a plea agreement and sentencing order showing Jumar A. Turner, one of the participants in the beating, was found guilty of committing a violent felony earlier in 2009. Earlier in the trial, Johnson's counsel stated he would object to the Turner conviction, but when the prosecutor offered it into evidence, Johnson's counsel raised no objection. Upon the close of the evidence, the trial court denied Johnson's motion to strike and found him guilty of maiming by mob, conspiracy to maim by mob, and participating in a criminal street gang. The court acquitted Johnson of the robbery charge.

II.

On appeal, Johnson challenges the sufficiency of the evidence for each of the convicted offenses. He also argues that, even if the evidence is sufficient, the case must still be remanded for a new trial because the trial court erroneously admitted into evidence his prior conviction and Turner's plea agreement and sentencing order.

A. SUFFICIENCY OF THE EVIDENCE

We examine a trial court's factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004).

In a bench trial, a trial judge's “major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. (citation omitted). If the evidence passes the sufficiency test, “the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.” Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (citation omitted); see also Holloway v. Commonwealth, 57 Va.App. 658, 664, 705 S.E.2d 510, 513 (2011) ( en banc ).

1. Maiming by Mob

Code § 18.2–41 provides that any “person composing a mob which shall maliciously or unlawfully shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disable, disfigure or kill him, shall be guilty of a Class 3 felony.” The statutory text makes clear

malicious wounding by mob, as set out in Code § 18.2–41, is a different offense from malicious wounding as codified in Code § 18.2–51. Malicious wounding by mob does not require the Commonwealth to prove malice because it defines the crime as “maliciously or unlawfully [wounding] any person ... with intent to maim, disable, disfigure or kill him....” Code § 18.2–41. The disjunctive term “or,” which separates the terms “maliciously” and “unlawfully,” indicates that Code § 18.2–41 only requires proof that the wounding was unlawful. Code § 18.2–41 therefore criminalizes different conduct from malicious wounding under Code § 18.2–51.

Paiz v. Commonwealth, 54 Va.App. 688, 698, 682 S.E.2d 71, 76 (2009) (alterations in original).

Under Code § 18.2–38, “[a]ny collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2–297.1, without authority of law, shall be deemed a ‘mob.’ ” Thus,

to sustain a conviction of maiming by mob under Code § 18.2–41, the evidence must establish that the accused was a member of a group composing a mob; that the mob caused the victim bodily injury; and that the mob acted with the malicious [or unlawful] intent “to maim, disable, disfigure or kill” the victim.

Commonwealth v. Leal, 265 Va. 142, 146, 574 S.E.2d 285, 287–88 (2003).

An otherwise lawful assembly of people can become a “mob” simply by adopting an unlawful intent to commit violence. See Harrell v. Commonwealth, 11 Va.App. 1, 7–8, 396 S.E.2d 680, 683 (1990). “Whether a group of individuals has been so transformed into a ‘mob’ depends upon the circumstances; no particular words or express agreements are required to effect a change in a group's purpose or intentions.” Johnson v. Commonwealth, 58 Va.App. 303, 320, 709 S.E.2d 175, 184 (2011) (quoting Harrell, 11 Va.App. at 7–8, 396 S.E.2d at 683). “Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or stated call to join forces.” Id. Because the “impulsive and irrational forces that may exist to transform peaceable assembly into mob violence are to be evaluated on a case-by-case basis,” id., the determination is a question of fact for the factfinder.

The evidence showed a mob formed outside the club with the specific intent of committing violence. One of the mob's members voiced its collective question, “Where them bitches at?”—thereby signaling the mob's intent to find and assault those associated with the earlier fray. They found Bell, who had accompanied one of the men who had fought against Akeem. Apparently aware of what was about to happen, Bell asked rhetorically, “So you-all going to jump me, right?” The group then beat Bell for about five minutes, leaving him with two fractured vertebrae. As they walked away, Bell heard them say “Who next?” and “Where the rest of them at?”—further...