COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Deck er and AtLee Argued at Chesapeake, Virginia

CLYDE EDMOND STACKFIELD MEMORANDUM OPINION * BY v. Record No. 1753-14-1 CH IEF JUDGE GL EN A. HUFF DECEMBER 8, 2015 CITY OF HAMPTON

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Charles E. Haden for appellant. Graham M. Stolle, Assistant City Attorney (Vanessa T. Valldejuli, City Attorney; Lola Rodriguez Perkins, Senior Deputy City Attorney, on brief), for appellee.

Clyde Edmond Stackfield (“appellant”) appeals his conviction of trespassing, in violation of Hampton Municipal City Code § 24-33 (“Hamp ton Code”) – an analogue of Code § 18.2-119. Following a bench trial in the Circuit Court of the City of Hampton (“trial court”), appellant was fined $100 and received a suspended sentence of two days in jail. On appeal, appellant presents two assignments of error:
1. The trial court erred in admitting hearsay from Officer Deangelo Freeman that a Food Lion manager had barred [appellant] from the Food Li on premises, where Officer Freeman’s statements were not admissible under any exception to the hearsay rule.
2. The trial court erred in denying [appellant’s] motion to strike the trespassing charge where the City’s evidence failed to prove that [appella nt] had been barred from the Food Lion premises by one of the parties enumerated in [Hampton Code] § 24-33 as having authority to do so.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - For the following reasons, this Court reverses appellant’s conv iction and remands the case for a new trial if the City is so advised.
I. BACKGROUND 1 On appeal, “we consider the evidence and a ll reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevaili ng party at trial.” Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows. On December 5, 2013, Officer Deangelo Fr eeman (“Freeman”) of the Hampton Police Department was dispatched to a Fo od Lion in response to a report of trespassing on the premises. Upon arrival, Freeman first spoke with the store’s manager. Accord ing to his testim ony at trial, Freeman then “approached [appellant] inside the supermarket and informed him that the manager no longer wanted him on the supermarket premises.” Appellant objected to this testimony on the ground “that it was hearsay that the Food Lion manager had barred [appellant] from the Food Lion premises.” The trial court overruled appella nt’s objection. Fr eeman next testified that appellant left the store, walked around the side of the buildin g, removed his coat, and walked back inside the store. After being confronted by a private security guard, appellan t “shouted obscen ities,” at which point Freeman placed appellant under arrest. Appellant was charged with one count of misdemeanor trespassing, in viol ation of Hampton Code § 24-33. At the conclusion of th e evidence at trial, ap pellant moved to strike the evidence arguing, first, that Freeman’s te stimony about the manager barring appe llant from the store was hearsay and, second, that the evidence failed to demonstrate that appellant was barred by a person having

1 Appellant filed a written statement of facts in lieu of a transcript pursuant to Rule 5A:8(c).- 3 - authority to do so under Hampto n Code § 24-33. The trial cour t denied appellant’s motion and found appellant guilty of trespa ssing. This appeal followed.
II. ANALYSIS

A. Hearsay On appeal, appellant first contends that the trial court erred by admitting into evidence Freeman’s testimony that the Food Lion manager ba rred appellant from the store’s premises. Specifically, he argues that this testimony was hearsay and did not fall within any recognized exception. “The admissibility of evidence is within th e broad discretion of th e trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.” Jones v. Commonwealth, 50 Va. App. 437, 446, 650 S. E.2d 859, 863 (2007) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988)). “Evidence is admissible if it tends to prove a matter that is properly at issu e in the case and if its probative value outweighs policy considerations.” Id. ( quoting Blain, 7 Va. App. at 17, 371 S. E.2d at 842). “A trial court,” however, “has no discretion to admit clearly inadmissible evidence because admissibility of evidence depends not upon the discretion of th e court but upon sound le gal principles.” Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009) (quoting Norfolk & Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove th e truth of the matter asserted.” Va. R. Evid. 2:801(c). “A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended as an assertion.” Va. R. Evi d. 2:801(a); see also Ta tum v. Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135 (1994) (“Hearsa y evidence is testim ony in court, or written evidence, of a statement ma de out of court, the statement be ing offered as an assertion to- 4 - show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” (q uoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977))). Generally, “hearsay evidence is inco mpetent and inadmissible, and . . . ‘the party seeking to rely upon an exception to the hear say rule has the burden of establishing admissibility.’” Caison v. Commonwealt h, 52 Va. App. 423, 431, 663 S.E.2d 553, 557 (2008) (quoting Neal v. Commonwealth, 15 Va . App. 416, 420-21, 425 S.E.2d 521, 524 (1992)). “[I]f,” however, “the declarati on is offered solely to show that it was uttered, without regard to the truth or falsity of its content, the declaration is not excluded by the hearsay rule.” Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987). “Therefore, unless a statement is offered to show its truth, the out-of-court statement is not subject to the rule against hearsay and is admissible if releva nt.” Bryant v. Commonwealth, 39 Va. App. 465, 473, 573 S.E.2d 332, 336 (2002) (citing Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 826 (1985)). “Determining whether a statement is offered to prove the truth or falsity of the matter asserted requires an analysis of the pur pose for which the statement is offered into evidence.” Swain v. Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116, 118 (1998). In the present case, the challenged stat ement was Freeman’s testimony that he approached appellant and “informed him th at the manager no longer wanted him on the supermarket premises.” At trial, appellant objected to this testim ony, arguing “that it was hearsay that the Food Lion manager had barred [appellant] from the Food Lion premises.” It is not contested that th e Food Lion manager’s statement barring appellant from the premises constituted an out-of-court “statement” under Virginia Rule of Evidence 2:801(a). The City, however, primarily contends that this statement was not hear say because it was not offered- 5 - to prove the truth of the matter asserted. 2 Accordingly, this Court must “determine . . . the purpose for which the [City] offered the statem ent.” Swain, 28 Va. App. at 559-60, 507 S.E.2d at 118 (examining the “context” of the statement to “determine . . . the purpose for which the Commonwealth offered the statement”). Notably, Hampton Code § 24-33 requires proof that appellant went “upon or remain[ed] upon the” Food Lion premises “ after having been forbidden to do so .” (Emphasis added). The truth of the challenged statement was that the Food Lion manager had forbidden appellant from remaining on the store’s premises. The statement of facts merely states that appellant objected to this statement as hearsay, but this “objection was overruled.” 3 Thus, considering the context of the statement, and the fact that the truth of the statement goe s directly to proving a required element under Hampton Code § 24-33, this Court holds that it was admitted for its truth and was, therefore, inadmissible hearsay. Having determined that the trial court erred by admitting the challenged statement, this Court must now address whether this error was ha rmless. “No trial is perfect, and error will at times creep in.” Lavinder v. Common wealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913 (1991) ( en banc ) (quoting Parsons v. Commonwea lth, 154 Va. 832, 852, 152 S.E. 547, 554

2 The City also argued, on brief, that Freem an’s out-of-court statement to appellant was not hearsay because it was a previous statement by a presently testifying witness. This argument fails, however, because it has long been the law in Vi rginia that “prior statements of the presently testifying witness” still constitute hearsay. Charles E. Friend and Kent Sinclair, The Law of Evidence in Virginia, § 15-5, at 936 (7th ed. 2012) (“Prior statements of a witness are hearsay. Prior to the 1970s some academics argued that because the declarant is not a trial witness at least the cross-examination concern about hearsay is sa tisfied. Neither the fe deral courts no[r] the vast majority of the states has accepted this view, however. And Vi rginia treats prior statements of a witness as hearsay . . . .”).

3 While the reasons that the trial court admitted the testimony are not specified, the statement of facts merely provides that the trial court “overruled ” appellant’s “hearsay objection,” implying that the testimony was admitte d for whatever probative value it may have, including its truth.- 6 - (1930)). “Every man is entitled to a fair tria l and to nothing more, and so . . . out of the imperative demands of common sense, has grown the doctrine of harmless error.” Id. (quoting Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928)) (omission in original). As “[t]he effect of an error on a verdict vari es widely ‘depending upon the circumstances of the case,’ . . . [e]ach case must . . . be analyzed indi vidually to determine if an error has affected the verdict.” Id. (quoting Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978)). Code § 8.01-678, Virginia’s harmless error statute, provides that [w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reach ed, no judgment shall be arrested or reversed . . . (2) For any other defect, imperfection, or omission in the record, or for any e rror committed on the trial. Code § 8.01-678 has been applied in both criminal and civil cases. See, e.g., Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). “In a criminal case, it is implicit that, in order to determine wh ether there has been ‘a fair trial on the merits’ and whether ‘substantial justice has been reac hed,’ a reviewing court must d ecide whether the alleged error substantially influenced the jury.” Cl ay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (quoting Code § 8.01-678). Accordingly, in Virginia the test for n on-constitutional harmle ss error under Code § 8.01-678 in a criminal case, as adopted by the S upreme Court in Clay v. Commonwealth, is as follows: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whol e, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected . . . . If so, or if one is left in grave doubt, the conviction cannot stand.- 7 - 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Ko tteakos v. United States, 328 U.S. 750, 764-65 (1946)). In the present case, this Cour t cannot say, “with fair assuranc e, . . . that the judgment was not substantially swayed by the error.” Id. No tably, Freeman’s testimony was not that he barred appellant from the premises, but that he info rmed appellant that the Food Lion manager had barred him from the premises. Accordingly, without this testimony, there is no other evidence to prove that appellant had been “forbidden” fr om “remain[ing] upon the . . . premises” by a

“ person lawfully in charge thereof .” Hampton Code § 24-33 (em phasis added). Accordingly, the trial court’s error was not harmless. B. Motion to Strike Next, appellant argues that the trial court erred in de nying his motion to strike. Specifically, he argues that “the evidence failed to prove that [appellant] had been barred from the Food Lion . . . by one of the parties enumerated in Hampton Code § 24-33 as having authority to do so.” Our standard for reviewing the sufficiency of the evidence is firmly established: [W]hen the sufficiency of the ev idence is challenged on appeal, the evidence and all reasonable inferenc es fairly drawn therefrom must be viewed in the light most favorable to the Commonwealth. The trial court’s judgment should be affi rmed unless it appears that it is plainly wrong or without evidence to support it. Spencer v. Commonwealth, 238 Va. 275, 283, 384 S. E.2d 775, 779 (1989) (citations omitted). Additionally, under this familiar standard of revi ew, “[a]n appellate cour t does not ‘ask itself whether it believes that the evidence at the trial es tablished guilty beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in original) (quoting Jackson v. Vi rginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant- 8 - question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. Hampton Code § 24-33 provides that it is a Class 1 misdemeanor for a person to “go upon or remain upon the lands, buildings or premises of another . . . after having been forbidden to do so, either orally or in writing, by the owne r, lessee, custodian or other person lawfully in charge thereof.” In the present case, appell ant challenges whether Freeman qualified as an individual who had authority und er Hampton Code § 24-33 to forb id appellant from entering the Food Lion premises. Notably, appellant does no t challenge that the Food Lion manager was a “person lawfully in charge” for the purposes of Hampton Code § 24-33. Code § 19.2-324.1 provides that when an appeal challenges the admissibility of evidence along with the sufficiency of the evidence to support a conviction, the reviewing court shall consider all evidence admitted at trial to determine whether there is sufficient evidence to sustain the conviction. If the reviewing court determines th at evidence was erroneously admitted and that such error was not harmless, the case shall be remanded for a new trial if the Commonwealth elects to have a new trial. (Emphasis added). Accordingly, in the present case, this Cour t considers the erroneously admitted hearsay when considering the sufficiency of the evidence to support appellant’s c onviction – namely, that the Food Lion manager had barred appellant from the premises. As it is uncontested that the Food Lion manager was a “person lawfully in charge” for the purposes of Hampton Code § 24-33, appellant’s second assignment of error fails.
III. CONCLUSION While this Court affirms the trial court’s deni al of appellant’s moti ons to strike, we hold that the trial court abused its discretion by admitting inadmissible hearsay into evidence.- 9 - Accordingly, appellant’s conviction is reversed and the case is remanded for a new trial if the City is so advised. Reversed and remanded.