Johnson v. Commonwealth of Va..

• Decision Date: 24 May 2011
• Docket Number: Record No. 0439–10–1.
• Citation: 709 S.E.2d 175,58 Va.App. 303
• Parties: Edward JOHNSONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 303

709 S.E.2d 175

Edward JOHNSON

v.COMMONWEALTH of Virginia.

Record No. 0439–10–1.

Court of Appeals of Virginia.

May 24, 2011.

Terry N. Grinnalds, Hampton, for appellant.Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: ELDER, PETTY and ALSTON, JJ.

OPINION

ALSTON, Judge.

Edward Johnson (appellant) appeals his convictions under Code §§ 18.2–51 and 18.2–41 for malicious wounding and maiming by mob, respectively. On appeal, appellant argues that the evidence was insufficient to support his convictions. Appellant further contends that his convictions under both statutes violate principles of double jeopardy. Finding no error, we affirm appellant's convictions.

I. BACKGROUND

On appeal, we view “the evidence in the light most favorable to the Commonwealth, the prevailing party in the circuit court, and we accord the Commonwealth the benefit of all reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008).

So viewed, the evidence indicated that on February 7, 2009, Daniel Ammons (Ammons) and Cameron James (James), two airmen in the United States Air Force, visited a McDonald's restaurant in Hampton, Virginia.¹ While there, they encountered a group of fifteen to twenty men, including appellant, Terry Batten, and a man known only as “Mike–Mike.” After Ammons and James ordered their food, a few men from this group, including Mike–Mike and Batten, saw that Ammons had a red bandana visible in his back pocket and approached the airmen and asked whether they were in a gang. According to James, he replied that he was not in a gang, and the group of men making the inquiry “acted just like everything was cool.”

The airmen then decided to leave the restaurant. As they collected their order, exited the restaurant, and entered the parking lot, Mike–Mike and Batten followed. James heard the two men saying, “[N]o, you—all cool, everything's good.” In response, Ammons and James turned around to face the men, one of whom reached out to shake Ammons' hand in what James described as “a gang kind of handshake.” Ammons was unfamiliar with this handshake and did not execute it properly. At that point most, if not all, of the group of men who had originally confronted Ammons and James in the McDonald's exited the restaurant and approached the two airmen. James could not recall specifically whether appellant was among the men who exited the McDonald's. Although James attempted to keep all of the men in his line of sight, he soon felt a blow to the back of his head. Subsequently, at least four or five members of the group were on top of him, hitting him from every side. At trial, James testified that he could not identify specifically who hit him. James further testified that when the beating ended, he was bleeding from his nose and had sustained a broken nose and fractured cheek as a result of this incident.

Thomas Nixon witnessed the attack as he was leaving a restaurant next door to the McDonald's on the evening of February 7, 2009. As he walked to his nearby car with his wife, he saw “a group of probably fifteen to twenty mix[ed] age males” in the McDonald's parking lot. Next, he realized that someone was being kicked, stomped, and punched and then saw the group converge on top of what looked to be one person. After someone yelled “[C]ops,” Nixon saw the group flee from the parking lot. At this point, Nixon rushed over to help the person who had been beaten. When he got to James, Nixon saw “a very large pool of blood beside his head.” Nixon also observed blood coming out of James' nose, mouth, and eye. In Nixon's view, there was “a huge amount of blood for a beating,” so much so that Nixon initially mistakenly believed that James had been shot.

As a result of the February 7, 2009 incident, appellant was indicted on July 6, 2009, for misdemeanor assault and battery by mob, participation in a criminal street gang, felonious malicious bodily injury, and malicious bodily injury by mob.

Tron Martinez, who was inside the McDonald's when Ammons and James entered, also saw the entire series of events. At trial, Martinez testified that, on February 7, 2009, he and a friend traveled from a party to the Wal–Mart located near the McDonald's on Mercury Boulevard, where they “met up” with approximately seven to eight other men, including Batten, Tevin Terry (Terry), Curtis Scott, and appellant, whom Martinez testified he had not met before that night.

Martinez then decided to go to the McDonald's, where he encountered the same group of men from the Wal–Mart, as well as approximately ten additional men. Martinez observed appellant sitting near the entrance of the restaurant, about thirty feet from Martinez, with Batten, Scott, Terry, and a man Martinez knew as “Ant.” Martinez testified that, before the airmen arrived, Terry initiated a confrontation with another patron by intentionally walking into the man. According to Martinez, Terry and appellant then followed the patron outside, and Terry cursed at the man and threw a drink at his car as he drove away.

Shortly thereafter, Martinez saw Ammons and James enter the restaurant. Batten asked Ammons whether the red bandana sticking out of Ammons' back pocket meant he was in a gang. According to Martinez, Ammons responded that he was “trying to get out of a gang.” Appellant was sitting about fifteen feet from Batten and Ammons during this exchange. At this point, Martinez heard an unknown speaker exclaim, “Knock him out, like you used to do up state.” A few moments later, as Ammons and James attempted to leave the restaurant, Martinez saw Batten attempt to “dap [Ammons] up,” or offer him a gang handshake. Ammons failed to properly execute the handshake, after which Batten “waved [Ammons] off.” Terry then stated, “I'm gonna [sic] hit the dude, I'm gonna [sic] step on him.” At trial, Martinez testified that Terry appeared “[h]ot headed and ready to fight” and that appellant's demeanor and “swagger” indicated that appellant was prepared to aid Terry.

According to Martinez, as Ammons and James exited, “everybody” got up and exited the restaurant. Terry and appellant came up behind Ammons and James. Terry struck Ammons, and appellant struck James. Next, Martinez, Batten, and Scott attacked Ammons. Martinez chased Ammons to another parking lot, and, after striking Ammons one time, Martinez returned to the McDonald's parking lot, where he saw “a whole bunch of people,” including appellant, standing around James, who was on the ground. Martinez estimated that only fifteen seconds elapsed between the time that appellant first struck James and the time that Martinez returned to the McDonald's parking lot to find James on the ground, surrounded.

After describing the previously cited circumstances in his trial testimony, Martinez was asked about his criminal record. Martinez admitted having been charged with eleven separate felonies, some from the February 7, 2009 incident and some from a second, later incident. Martinez stated that he was currently out on bail, but not through any agreement with the Commonwealth. He also denied being offered any deals from the Commonwealth in exchange for his testimony. On cross-examination, Martinez stated that he had graduated from Hampton High School, where he had played football, and that he hoped to play football in college. In response to defense counsel's questioning about his hopes for leniency in exchange for his testimony, Martinez responded by recognizing that a felony conviction would adversely affect his college plans; however, he also stated that he appreciated that false testimony would carry negative consequences. He further stated that he had testified truthfully.

At trial, Detective Earnest Corey Sales of the Hampton Police Division provided expert testimony on gang identification and ideology in the City of Hampton. Sales testified that “G-checking,” or the manner by which gangs identify fellow members, is the process by which a member of a gang asks another individual questions about his gang affiliation in order to “weed out ... false gang members.” According to Sales, if a person is “flagging,” or “wearing a bandana [associated with the gang in his] pocket or on [his] person,” it is common practice for a gang member to “G-check” the flagging person in order to test his knowledge of the gang. If the flagging person is unable to answer the questions posed to him, this can result in a range of repercussions, from stealing this individual's bandana to a potentially fatal “beat down.”

At the conclusion of the bench trial, the trial court found appellant guilty of felonious malicious wounding and maiming by mob and acquitted appellant of misdemeanor assault and battery by mob and participation in a criminal street gang. The trial court found, as a matter of fact, that appellant followed James out of the McDonald's and hit him. Furthermore, the trial court found that appellant and others from the group

bec[ame] so incensed that they did, in fact, form a mob mentality with a common plan to assault [James] and/or [Ammons]. And [they] got up from where they sat and went outside and began to accelerate the violence to an extent that resulted in [James'] wounding in a malicious fashion.

With regard to appellant's conviction for malicious wounding, the trial court found that appellant was “at the very least ... a principal [in the second degree].” In reaching its findings, the trial court specifically found that Martinez's testimony, while somewhat self-serving, was also accurate and thus credible. In making this credibility determination, the trial court found that Martinez's “demeanor and appearance on the stand, his body language, [and] his response[s] to all the questions he was asked” suggested that he was being truthful.

After his conviction, appellant moved to dismiss one of his two...