COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Huff, Judges Decker and AtLee 

Argued at Chesapeake, Virginia 

CLYDE EDMOND STACKFIELD 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1753-14-1 CHIEF JUDGE GLEN 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 (“Hampton 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 Lion 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 [appellant] 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 opinion is not designated for publication. 

UNPUBLISHED 
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For the following reasons, this Court reverses appellant’s conviction and remands the case for a 

new trial if the City is so advised. 

I. BACKGROUND1

On appeal, “we consider the evidence and all reasonable inferences flowing from that 

evidence in the light most favorable to the Commonwealth, the prevailing 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 Freeman (“Freeman”) of the Hampton Police 

Department was dispatched to a Food Lion in response to a report of trespassing on the premises. 

Upon arrival, Freeman first spoke with the store’s manager. According to his testimony 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 appellant’s objection. Freeman next testified that appellant left 

the store, walked around the side of the building, removed his coat, and walked back inside the 

store. After being confronted by a private security guard, appellant “shouted obscenities,” at which 

point Freeman placed appellant under arrest. Appellant was charged with one count of 

misdemeanor trespassing, in violation of Hampton Code § 24-33. 

At the conclusion of the evidence at trial, appellant moved to strike the evidence arguing, 

first, that Freeman’s testimony about the manager barring appellant 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). 
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authority to do so under Hampton Code § 24-33. The trial court denied appellant’s motion and 

found appellant guilty of trespassing. 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 barred 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 the broad discretion of the trial court, and a 

ruling will not be disturbed on appeal in the absence 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 issue 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 the court but upon sound legal 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 the 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. Evid. 2:801(a); see also Tatum v. Commonwealth, 17 

Va. App. 585, 588, 440 S.E.2d 133, 135 (1994) (“Hearsay evidence is testimony in court, or 

written evidence, of a statement made out of court, the statement being offered as an assertion to 
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show the truth of matters asserted therein, and thus resting for its value upon the credibility of the 

out-of-court asserter.” (quoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 

781 (1977))). Generally, “hearsay evidence is incompetent and inadmissible, and . . . ‘the party 

seeking to rely upon an exception to the hearsay rule has the burden of establishing 

admissibility.’” Caison v. Commonwealth, 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 declaration 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 relevant.” 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 purpose 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 statement was Freeman’s testimony that he 

approached appellant and “informed him that the manager no longer wanted him on the 

supermarket premises.” At trial, appellant objected to this testimony, arguing “that it was 

hearsay that the Food Lion manager had barred [appellant] from the Food Lion premises.” 

It is not contested that the 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 hearsay because it was not offered 
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to prove the truth of the matter asserted.2

 Accordingly, this Court must “determine . . . the 

purpose for which the [City] offered the statement.” 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 goes 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 harmless. “No trial is perfect, and error will at 

times creep in.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913 

(1991) (en banc) (quoting Parsons v. Commonwealth, 154 Va. 832, 852, 152 S.E. 547, 554 

 2

 The City also argued, on brief, that Freeman’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 Virginia 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 satisfied. Neither the federal courts no[r] the 

vast majority of the states has accepted this view, however. And Virginia 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 admitted for whatever probative value it may have, 

including its truth. 
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(1930)). “Every man is entitled to a fair trial 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 varies widely ‘depending upon the circumstances of the 

case,’ . . . [e]ach case must . . . be analyzed individually 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 reached, no judgment shall be arrested 

or reversed . . . (2) For any other defect, imperfection, or omission 

in the record, or for any error 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 whether there has been ‘a fair trial on the merits’ and whether 

‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error 

substantially influenced the jury.” Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 

731 (2001) (quoting Code § 8.01-678). 

Accordingly, in Virginia the test for non-constitutional harmless error under Code 

§ 8.01-678 in a criminal case, as adopted by the Supreme 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 whole, 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. 
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262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 

(1946)). 

In the present case, this Court cannot say, “with fair assurance, . . . that the judgment was 

not substantially swayed by the error.” Id. Notably, Freeman’s testimony was not that he barred 

appellant from the premises, but that he informed 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” from “remain[ing] upon the . . . premises” by a 

“person lawfully in charge thereof.” Hampton Code § 24-33 (emphasis added). Accordingly, 

the trial court’s error was not harmless. 

B. Motion to Strike 

Next, appellant argues that the trial court erred in denying 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 evidence is challenged on appeal, the 

evidence and all reasonable inferences fairly drawn therefrom must 

be viewed in the light most favorable to the Commonwealth. The 

trial court’s judgment should be affirmed 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 review, “[a]n appellate court does not ‘ask itself 

whether it believes that the evidence at the trial established 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. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant 
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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 owner, lessee, custodian or other person lawfully in 

charge thereof.” In the present case, appellant challenges whether Freeman qualified as an 

individual who had authority under Hampton Code § 24-33 to forbid appellant from entering the 

Food Lion premises. Notably, appellant does not 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 that 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 Court considers the erroneously admitted hearsay 

when considering the sufficiency of the evidence to support appellant’s conviction – 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 denial of appellant’s motions to strike, we hold 

that the trial court abused its discretion by admitting inadmissible hearsay into evidence. 
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Accordingly, appellant’s conviction is reversed and the case is remanded for a new trial if the 

City is so advised. 

Reversed and remanded.