Lambert v. Commonwealth

• Decision Date: 15 October 2019
• Docket Number: Record No. 0773-18-2
• Citation: 70 Va.App. 740,833 S.E.2d 468
• Parties: Kevin Lamont LAMBERT v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

70 Va.App. 740

833 S.E.2d 468

Kevin Lamont LAMBERT

v.COMMONWEALTH of Virginia

Record No. 0773-18-2

Court of Appeals of Virginia, Richmond.

OCTOBER 15, 2019

C. David Sands, III (Winslow & McCurry, PLLC, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Petty and Huff

OPINION BY JUDGE GLEN A. HUFF

Kevin L. Lambert ("appellant") appeals his convictions for two counts of possession of a controlled substance with intent to distribute, one count of manufacture of a controlled substance, one count of possession of a firearm while possessing a controlled substance with intent to distribute, three counts of receiving money from prostitution, and three counts of sex trafficking.¹ After a jury trial, the Circuit Court of Chesterfield County imposed the jury’s recommended sentences totaling twenty-nine years’ and twelve months’ imprisonment.

Appellant raises three assignments of error. First, he asserts that the trial court erred by admitting evidence that he was a member of the gang known as the "Bloods." Second, he claims the trial court erred in limiting his cross-examination of a key prosecution witness, J.C., the woman he allegedly forced into prostitution. Finally, he argues the evidence was insufficient to sustain his convictions because J.C.’s testimony was incredible and the police did not attempt to forensically corroborate her story.

This Court disagrees. First, appellant’s communication to J.C. that he was in the Bloods gang was relevant and probative on the issue of intimidation in the sex trafficking charges. Second, evidence that J.C. had previously engaged in prostitution was irrelevant. Moreover, evidence she had previously engaged in dealing drugs had minimal probative value yet significant potential for confusion and undue prejudice. Thus, the trial court did not abuse its discretion in excluding it. Third, J.C.’s testimony was not so contrary to human experience that it was inherently incredible and forensic corroboration was not required.

I. BACKGROUND

"This Court considers ‘the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.’ " Hawkins v. Commonwealth, 64 Va. App. 650, 652, 770 S.E.2d 787 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584 (2008) ). So viewed the evidence is as follows:

J.C. was convicted of heroin possession in 2015, and testified at trial she was still struggling with heroin addiction

. She met appellant in January of 2016. She had no funds, and he offered to let her stay in his hotel room. He supplied her with drugs for several days. He then sent her to have sex for money. J.C. complied, and when she returned, appellant collected the money. He then provided her with more heroin. Over several weeks—until appellant was arrested—appellant and J.C. moved among several hotels.

While J.C. was with appellant, he posted an ad for J.C.’s prostitution services on Backpage.com. During those several weeks, appellant instructed J.C. to prostitute herself multiple times. Each time she gave all the money to appellant, and appellant continued to supply her with heroin. Although J.C. was unclear on precisely how many times overall she had prostituted herself at appellant’s instruction, she specifically stated that on three separate days before appellant was arrested, she had sex for money with one to three men each day.

J.C. complied with appellant’s instructions and never left or sought help because she was afraid of appellant, even though he never explicitly threatened her. She thought that he would beat or kill her if she crossed him, in part because appellant had told her he was a "general" in a gang, the Bloods. She did not know much about the Bloods but knew them to be violent and understood appellant to mean he had people under him who would do his bidding. He also told her that he had been in either prison or jail and, while imprisoned, threw hot water and baby oil on an individual, badly burning them. She also saw appellant carry a firearm throughout the day. Finally, one time when J.C. was sick and unable to engage in prostitution, appellant became angry and withheld drugs until she resumed prostitution.

While she was staying with appellant, J.C. also saw him and several other men attempt to make crack cocaine in the hotel room. She saw him selling both heroin and cocaine during her stay in his hotel room.

On February 12, 2016, J.C. and appellant were staying in Room 309 of a Super 8 motel. J.C. had rented the room in her name at appellant’s direction and using funds he provided. Police began knocking on the door. Appellant hid the drugs while J.C. was "freaking out." He attempted to get her to take his firearm, but when she threw it on the bed, he retrieved it and hid it in the toilet.

Police watching the motel from the outside then observed a man "hanging outside of the third floor window by one arm being held by a female." When an officer arrived at the ground under the window, the man was gone. Nevertheless, people at a restaurant next door directed the officer toward appellant. Police then found appellant, but he denied being at the hotel. After police arrested him on an outstanding warrant, the phone they retrieved from him received a text message, which displayed on the screen: "Just letting you know the police were knocking on your door." Appellant also had a room key card for the Super 8 motel and over six hundred dollars in cash.

When police returned to the room several minutes later to search it, they found J.C. just outside the room. She gave consent to search the room. The police found the firearm, loaded, in the back of the toilet, wrapped in a sock. Crack cocaine and heroin were hidden beneath an artificial plant in a pot on the television stand. Police also found marijuana, a digital scale, bullet cartridges, and a shoebox full of papers with handwritten copies of the "Blood’s" history and rules. A second digital scale, identical to the one in the hotel room, was on the ground outside the window through which appellant had exited the hotel.

Appellant later admitted to police he had jumped out of the hotel room window, but claimed he fled because of the outstanding warrant.

At appellant’s jury trial, in addition to J.C.’s testimony about appellant’s gang involvement, the Commonwealth also offered—and the trial court admitted, over appellant’s objection—expert testimony about gangs, including the Bloods. He explained that the Bloods in the Richmond area engaged in narcotics distribution, robberies, witness intimidation, and prostitution. He identified the documents found in the shoebox in the hotel room as a handwritten history of the Bloods which "Blood members are supposed to know" and "also the 31 rules, the gang rules." He also explained how the Bloods used intimidation and violence to keep their members in line.

Appellant sought to cross-examine J.C. about her drug dealing and prostitution before she met appellant. He proffered that she had engaged in both activities voluntarily before she met appellant. The trial court rejected appellant’s proposed cross-examination.

At the conclusion of the trial, appellant moved to strike. The trial court denied the motion. The jury convicted appellant and recommended a total sentence of twenty nine years’ and twelve months’ imprisonment. The trial court imposed the jury’s recommended sentence, and this appeal followed.

II. ADMISSIBILITY OF EVIDENCE

A. Standard of Review

This Court reviews "a circuit court’s decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb a circuit court’s decision to admit evidence absent a finding of abuse of that discretion." Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618 (2010). "In evaluating whether a trial court abused its discretion, ... ‘[this Court does] not substitute [its] judgment for that of the trial court. Rather, [this Court] consider[s] only whether the record fairly supports the trial court’s action.’ " Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634 (2009) (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898 (1997) ). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, adopted on reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). Nevertheless, "a trial court ‘by definition abuses its discretion when it makes an error of law.’ " Auer v. Commonwealth, 46 Va. App. 637, 643, 621 S.E.2d 140 (2005) (quoting Shooltz v. Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437 (1998) ).

B. Admissibility of Gang Membership Evidence

In his first assignment of error, appellant argues the trial court erred by admitting evidence that appellant was a member of the Bloods gang. This Court rejects appellant’s argument because appellant’s membership in the Bloods gang and the fact that he communicated he was a "general" to J.C. was relevant to proving the intimidation element of the sex trafficking offenses.

Although evidence of gang membership is not per se evidence of prior bad conduct, this Court analyzes admissibility of gang membership "under the prior bad act standard" because "a juror might associate a defendant with such an affiliation as a person of bad character or someone prone to aggressive or violent behavior." Utz v. Commonwealth, 28 Va. App. 411, 420, 505 S.E.2d 380 (1998). Like all prior bad act evidence, evidence of gang membership is not admissible to prove that a defendant was more likely to be guilty because "he is a person of bad or criminal character." Id. (quoting Reynolds v. Commonwealth, 24 Va. App. 220, 223-24, 481 S.E.2d 479 (1997) ). Nevertheless, if the evidence is relevant to some other issue in the case, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident,...