Rushing v. Commonwealth of Va..

• Decision Date: 26 July 2011
• Docket Number: Record No. 0723–10–1.
• Citation: 712 S.E.2d 41,58 Va.App. 594
• Parties: Christian Lee RUSHINGv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 594

712 S.E.2d 41

Christian Lee RUSHING

v.COMMONWEALTH of Virginia.

Record No. 0723–10–1.

Court of Appeals of Virginia.

July 26, 2011.

Kimberly Enderson Hensley(Office of the Public Defender, on brief), for appellant.Virginia B. Theisen, Senior Assistant Attorney General(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: KELSEY, PETTY and BEALES, JJ.KELSEY, Judge.

A jury convicted Christian Lee Rushing of participating in a criminal street gang in violation of Code§ 18.2–46.2(A).On appeal, Rushing asserts a single assignment of error challenging the sufficiency of the evidence and requesting we reverse his conviction and dismiss the charge.Finding the evidence sufficient, we affirm.

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 determining whether there is sufficient evidence to sustain a conviction, moreover, an appellate court must consider “all the evidence” admitted at trial that is contained in the record.Hamilton v. Commonwealth,279 Va. 94, 103, 688 S.E.2d 168, 173(2010)(quotingBolden v. Commonwealth,275 Va. 144, 147, 654 S.E.2d 584, 586(2008)).

From this perspective, the evidence at trial proved Rushing and an accomplice, William Travis Newton, went to the Hampton home of a person they believed to be a drug dealer, intending to rob him.Rushing targeted the victim after learning from his friend “Snails”(a member of the “Crips” gang) that the intended victim had $15,000 in cash inside the home.Armed with handguns, Rushing and Newton broke into the home wearing bandannas over their faces while the getaway car (driven by Newton's grandmother) waited a block away.Inside the home, they did not find the expected drug dealer but rather a 75–year–old man who owned the home.One of the intruders exclaimed, “let's get out of here; we got the wrong house.”Newton shot the man, and both he and Rushing fled the scene.

Hampton police officers later arrested Newton and Rushing.At the time of his arrest, Rushing had in his pockets a set of brass knuckles, a straight razor, and several bandannas with blue, black, and white coloring.During a search of Newton's home, police found extensive evidence of gang activity, including gang notebooks, rules, graffiti, and eighteen blue, black, and white bandannas.Officers also found at Newton's address the two handguns Newton and Rushing used during the break-in.

At the joint jury trial of Newton and Rushing, the trial court admitted into evidence the gang notebooks, writings, drawings, and bandannas found in Newton's home.Over Rushing's objection, the court also admitted a photograph of Rushing making a pitchfork hand sign.Rushing's counsel argued no foundation had been laid for admitting the photograph.The prosecution's main witness was a police detective with expertise in identifying criminal gangs.Testifying as an expert, the detective stated the gang materials found in Newton's home were those of a street gang called the Gangsta Disciples.The pitchfork hand sign and the gang affiliating colors of blue and black, the detective explained, identified the gang as the Gangsta Disciples.

The detective testified he spoke with Newton prior to trial.The detective used the secret greeting for the Gangsta Disciples (asking Newton if he was “Folk”) and received from Newton the appropriate reply (“all is one”).Additional questions by the detective further confirmed Newton's membership in the gang.Newton also used the pitchfork hand sign, among others, to identify his gang membership.

The Gangsta Disciples, the detective testified, originated in Chicago and had twenty-three known members in Hampton.The detective stated Gangsta Disciples are “involved in all sorts of criminal activities, from robberies to burglaries, stolen cars, narcotics distribution.”“That's what Larry Hoover is incarcerated for,” the detective added, “one of the leaders.”Advancement within the hierarchy of the gang, the detective added, required a member to commit various crimes escalating in seriousness.

The detective identified Deanthony Clark as a local member of the Gangsta Disciples.During the detective's testimony, the trial court admitted into evidence a conviction order showing Clark had pled guilty to carjacking and using a firearm during a felony.Over Rushing's objection, the trial court also admitted into evidence a sentencing order, plea agreement, and stipulation of facts showing Darryl Brandon Lollis had been convicted of gang participation and robbery.In the stipulation of facts, Lollis admitted to being a member of the Gangster Disciples—a phrase used at trial and on appeal interchangeably with Gangsta Disciples.¹

The jury convicted Rushing of participating in a criminal street gang.Rushing moved to set aside the gang participation verdict on the ground that no evidence proved his “membership in a gang, his active membership in a gang, or any transaction showing he participated in something for a gang.”The trial court denied the motion and entered final judgment.

II.

A.THE SCOPE OF APPELLATE REVIEW

After reciting the standard of review governing sufficiency claims, the argument section of Rushing's brief opens with this assertion: “The Circuit Court erred by finding the evidence sufficient to convict appellant of gang participation.”Appellant's Br.at 6.The argument then proceeds to challenge individual items of evidence, claiming they were either inadmissible or insufficient to prove guilt.The brief ends with exactly the same point:

The evidence was insufficient to convict appellant of gang participation because there was no evidence that he had any knowledge of writings, drawings or gang paraphernalia found at 40 Deep Creek Road, the prior felony convictions of Mr. Clark and Mr. Lollis were improperly admitted, and the photo of appellant was improperly admitted and failed to prove any membership in Gangsta Disciples.

Id. at 10–11(emphasis added).On this ground, Rushing contends we should “reverse” his conviction and “dismiss the charge against him.”Id. at 11;see generallyRule 5A:20(f)(requiring appellant's brief to state “the precise relief sought” on appeal).

At oral argument, Rushing's counsel clarified that the evidentiary issues are “subsets” of the sufficiency assignment of error.Oral Argument Audio at 00:50.In other words, counsel explained, the argument on appeal was “two-pronged”—challenging the sufficiency of the properly admitted evidence, and, alternatively, challenging the sufficiency of all the evidence.Id. at 2:25 to 2:34, 6:26 to 6:28.When asked at oral argument how counsel could “meld and blend” the arguments together to “make one argument,”she replied that “even if” the improperly admitted exhibits are considered, the evidence “remains insufficient.”Id. at 6:14 to 6:50.

In his brief, the Attorney General accurately restates Rushing's argument on appeal: “The defendant contends in his Assignment of Error that the evidence was insufficient to prove the charge of gang participation because prior felony convictions of gang members and a photograph of the defendant were improperly admitted.”Appellee's Br.at 12(emphasis added).Realizing Robinson's conflated argument can be defeated in either one of two ways, the Attorney General argues

(i) our sufficiency review on appeal should take into account “ all the evidence at trial, including evidence alleged to have been erroneously admitted,”id. at 11(citations omitted and emphasis added), and,

(ii) the evidence challenged by Rushing “was properly admitted and was sufficient to sustain the conviction for gang participation,”id. at 14(emphasis added).

See also Oral Argument Audio at 14:03 to 14:11 (Assistant Attorney General pointing out that sufficiency of the evidence is the “overriding question” presented by this case).

We present in detail Rushing's argument on appeal to clarify the scope of our review.When a “reversal is for mere trial error, and not for evidentiary insufficiency, we will remand the case for a new trial.”Gray v. Commonwealth,220 Va. 943, 946, 265 S.E.2d 705, 706(1980)(citations omitted).In this case, however, Rushing does not ask whether the claimed evidentiary errors warrant a remand for a new trial.“We thus do not answer this unasked question.”Lay v. Commonwealth,50 Va.App. 330, 336 n. 3, 649 S.E.2d 714, 716 n. 3(2007).Under the adversarial model of adjudication, the litigants—not the judges—determine the issues to be decided, the facts to be presented, and the range of remedies to be sought.By necessity, the adversarial model “is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”Castro v. United States,540 U.S. 375, 386, 124 S.Ct. 786, 794, 157 L.Ed.2d 778(2003)(Scalia, J., concurring in part).

For these reasons, we address only the sufficiency argument Rushing makes on appeal.²Under his “two-pronged” argument, Rushing contends we must limit our sufficiency review to the properly admitted evidence, and “even if”we consider the improperly admitted evidence, we should nevertheless find the evidence, in its entirety, insufficient to support the jury verdict.Oral Argument Audio at 2:25 to 2:34, 6:14 to 6:50;see alsoAppellant's Br.at 7–8(arguing the court“erred by admitting certified copies of prior convictions of alleged gang members” because “the evidence was insufficient to show that Mr. Clark was a [gang] member”);id. at 9–10(arguing...