Salcedo v. Commonwealth of Va..

• Decision Date: 19 July 2011
• Docket Number: Record No. 1325–10–3.
• Citation: 712 S.E.2d 8,58 Va.App. 525
• Parties: Matthew Antonio SALCEDOv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 525

712 S.E.2d 8

Matthew Antonio SALCEDO

v.COMMONWEALTH of Virginia.

Record No. 1325–10–3.

Court of Appeals of Virginia, Salem.

July 19, 2011.

Ross S. Haine, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.Karen Misbach, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., and ALSTON, J., and ANNUNZIATA, S.J.FELTON, Chief Judge.

Following a bench trial, Matthew Salcedo (“appellant”) was convicted by the Circuit Court of Rockbridge County (“trial court”), as a principal in the second degree, of robbery, in violation of Code § 18.2–58, use of a firearm in the commission of robbery, in violation of Code § 18.2–53.1, and participation in a criminal act for the benefit of a criminal street gang, in violation of Code § 18.2–46.2. On appeal, appellant contends the evidence was insufficient to sustain each of his convictions. For the following reasons, we affirm appellant's convictions.

I. BACKGROUND

“On appeal, we consider the evidence in the light most favorable to the Commonwealth, the prevailing party in the [trial] court, and we accord the Commonwealth the benefit of all reasonable inferences deducible from the evidence.” Brown v. Commonwealth, 278 Va. 523, 527, 685 S.E.2d 43, 45 (2009). The evidence presented at trial proved the following. On August 16, 2009, appellant met Juan Lebron,¹ Damon Turner,² Leon Hunt, and appellant's girlfriend, Stephanie Jarmillo.³ During the day, Jarmillo drove the group around in appellant's mother's van. They went to a convenience store in Rockbridge County several times during that day. While they drove around in the van, the group discussed their need for money to buy marijuana. Hunt was the only individual in the van with any money. Hunt saw two handguns laying “[b]arrel to butt” in the front of the van, in between the driver's and front passenger's seats.⁴ Prior to his leaving the group in the van around 9:30 p.m.,⁵ Hunt heard appellant tell Turner to “man up.”

On that same day, just prior to closing time at the convenience store, Sadie Claytor, a relative of the store's owner, was sitting on a bench outside the store. A man wearing clothing to conceal his face ran up to her, put a gun to her face, and said, “this is a stick up.” He then ran inside the store. Claytor immediately ran to a man in a nearby vehicle and asked him to call 911. As Claytor proceeded back toward the store, she saw the same masked man leave the store and run through a field toward two individuals. She saw the masked man and the men in the field speak to each other, but was unable to hear what they were saying.

Eva Moore, an employee of the convenience store, testified that at approximately 11:00 p.m. that day, an armed man, with clothing concealing his face, entered the store, put a gun to her head, and demanded money. That man then took the cash drawer and a change bag, and quickly left the store. ⁶

Rockbridge County Sheriff's Deputy Steve Funkhouser responded to the 911 call at the convenience store and found a trail of cash, receipts, checks made out to the convenience store, the store's bank bag, black gloves, and a BB gun. He found those items along the path where Claytor saw the masked man run from the store toward a nearby field. Funkhouser also found a blue shirt, a red shirt, and additional receipts from the convenience store scattered along Route 130.⁷ Turner's DNA was found on the black gloves.

The surveillance videotape from the convenience store showed the following:

• At 5:40 p.m., a van belonging to appellant's mother entered the parking lot of the store. Appellant, Lebron, and Turner entered the store. The three men left the store.

• At 6:48 p.m., Lebron and Turner re-entered the store.

• At 9:20 p.m., appellant, Lebron, and Turner re-entered the store.

• At 10:42 p.m., appellant's mother's van was parked at the rear of the store.

• At 10:49 p.m., appellant again entered the store.

• At 11:03 p.m., a person with clothing concealing his face, meeting Turner's height and physical characteristics, armed with a firearm, entered the convenience store, placed a gun to the head of the cashier, and took the cash register drawer.

Appellant's mother's van was not in the store's parking lot at the time the robbery occurred.

On August 17, 2009, the day following the robbery, Hunt, who had been in the van the day before, called the sheriff's department after hearing about the robbery at the convenience store. He told the officers that he had been with “Chino” ⁸ and “Blaze” ⁹ the day before and that they had BB guns, no money, and were riding around looking for marijuana.

During his investigation of the convenience store robbery, Investigator Funkhouser discovered an unrelated outstanding misdemeanor warrant for appellant charging possession of marijuana. He proceeded to appellant's mother's residence and there arrested appellant on the outstanding warrant. ¹⁰ Officers arrested Turner and Lebron later that day.

Lieutenant Timothy Hickman, a Rockbridge County Sheriff's Deputy, searched appellant's mother's residence, pursuant to a search warrant. Hickman seized multiple gang-related items, as well as seven computers belonging to appellant. Hickman described the colors, items, and tattoos associated with the Latin Kings. He testified appellant had tattoos associated with the Latin Kings. Numerous photographs were found on appellant's computer depicting appellant, Lebron, and others wearing gang colors, black and yellow “three-sixty” beads, and making Latin Kings hand gestures. Over five thousand items containing some indicia of gang affiliation were found on the seized computers, including documents listing “King Ceazan” as the “Inca” of the “Pennsylvania State Golden Crown Lion Tribe Almighty Latin King [and] Queen Nation.”

At trial, Virginia State Police Special Agent Eric Vega, qualified as an expert in criminal street gangs, testified as to the history of the Almighty Latin King and Queen Nation (“Latin Kings”) and the structure of the gang. He told the trial court that the Latin Kings are known to engage in criminal activity, including money laundering and narcotics trafficking. The colors for the gang were black and gold or yellow, and the members wore black and yellow “three-sixty” beads as part of their uniform. Vega identified color photographs, obtained during the search of appellant's mother's home, showing appellant wearing the black and yellow gang beads, wearing the colors for the gang, and giving a Latin Kings salute. Vega identified a photo of a tattoo on appellant's arm, depicting the name “King Ceazan.” Vega told the trial court that “[e]very [Latin King] has a [K]ing name and [this tattoo] is telling me that [appellant's] name is King Ceazan.” Vega identified another of appellant's tattoos, depicting an individual wearing a five-pointed crown where the points on the crown were diamonds. Vega stated that the diamonds signified a person of “high” rank in the Latin Kings. Vega noted that the convenience store's surveillance tape showed appellant wearing gang beads when he was inside the convenience store during one of the group's earlier visits prior to the robbery.

Special Agent Vega testified that “tribes” in each state represent the national Latin Kings organization and that each state or tribe has an assigned “Inca.” The “Inca” is the “top of the line, the boss,” and “[the Inca's] orders are not to be questioned.” The Inca “ensure[s] that the rules, regulations, [and] policies that they have within the structure are adhered to” and that punishment for failure to adhere to gang rules can result in “anything from monetary fines to physical discipline[,] up to and including death.” Special Agent Vega testified that within the Latin Kings, the phrase “man up” challenges a person's bravado, and “means ... that person has to come through with what they said they were going to do.” When used by a high-ranking gang member, the phrase is “basically an order, you know, what you have to do, you've got to do it.”

Turner testified as a defense witness for both appellant and Lebron during the joint trial. He admitted he robbed the convenience store while armed with a BB gun. He told the trial court that appellant and Lebron were not involved in the robbery and that appellant did not tell him to “man up.” He also testified that he was not a member of the Latin Kings and he could not remember whether he had ever seen appellant and Lebron wearing black and yellow beads. Turner, who was a juvenile at the time of the robbery, had known appellant for six or seven years. Appellant's mother and Turner's father had been friends before Turner's birth.

Dimitri Dunn, appellant's friend of four years, testified that Turner wore black and yellow beads and used Latin Kings hand signs. Deputy Sheriff C.J. Blaylock identified a photograph taken at the time of Turner's arrest, depicting a tattoo of a crown on Turner's body. Special Agent Vega testified that Turner had gang symbols on the jeans he wore to court for trial.

Testifying in his defense at the joint trial, appellant admitted that he was a member of the Latin Kings, that his title was King Ceazan, and that he was at one time the “Inca” for the Golden Crown Lion Tribe of Pennsylvania.¹¹ He also stated that Lebron was on the Latin Kings council. Appellant admitted to the trial court that his first two statements to Investigator Funkhouser were not accurate. In his third statement, appellant stated he, Lebron, and Turner stopped at Turner's house and there Turner retrieved items of clothing that he later wore during the robbery. Appellant denied telling Turner to “man up” the day of the robbery and denied that Turner was a member of the Latin Kings. Appellant testified he did not know Turner planned to rob the convenience store and did not realize Turner had done so until he reentered appellant's mother's van after...