COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Norfolk, Virginia

RAYNARD REGINALD BROWN MEMORANDUM OPINION * BY v. Record No . 0464-17-1 JUDGE MAR Y GRACE O’BRIEN MARCH 6, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Morrison, Judge W. McMillan Powers, Assistant P ublic Defender, for appellant. Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Raynard Reginald Brown (“appellant”) was tried by a jury for m urder, in violation of Code § 18.2-32, and use of a firearm in the c ommission of a felony, in violation of Cod e § 18.2-53.1. Appellant asserted an insanity def ense. The jury convicted him of the lesser-included offense of voluntary manslaughter and acquitted him of the firearm charge. Appellant contends that the court erred by allowing the Commonwealth’s expert to testify in rebut tal to his insanity defense and by denying appellant’s motions to st rike the Commonwealth’s case a nd to set aside the verdict. We disagree and affirm appellant’s conviction.
BACKGROUND On June 6, 2015, appellant shot and killed Jama l Spratley foll owing a confrontation at a party. At trial, appe llant presented testi mony from Dr. Earl W illiams, a court-appointed forensic clinical psychologist. Dr. Willia ms testified th at appellant w as suffering from schizoaffective

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - disorder at the time of the shoo ting. Dr. Williams defined sch izoaffective disorder as a “combination of schizophrenia an d bipolar [disorder],” and opin ed that when appellant shot the victim, appellant was “incapable of understandin g the nature an d consequences of [his] acts.” Dr. Weare Zwemer, a licensed clinical psychologist, testified for the Commonwealth in rebuttal. As part of his evaluati on of appellant’s sanity at t he time of the offense, Dr. Zwemer reviewed medical records from Central State Hospital, includingthe treatment notes of two doctors involved in evaluating and resto ring appellant’s competency to stand trial. When Dr. Zwemer began to testi fy about the medical records fro m Central State Hospital, appellant’s attorney requested a s idebar conference. The confe rence was not recorded; the attorneys conferred with the court off the record. Following the sidebar conference, Dr. Zwemer testified about tests the Central State Ho spital doctors administered to appellant and the doctors’ conclusion that appellant was malingering. Dr. Zwemer also testified about tests he personally performed on appellant, and referred to his interviews with appellant, appel lant’s girlfriend, and appellant’s mother. Dr. Zwemer explained that he administered the Miller’s Forensic Assessment of Symptoms Test to appellant. The test obj ectively measures whether someo ne is feigning symptoms not commonly associated w ith a particular diagno sis. During the te st, appellant “enthusiastically endorsed a symptom that had never been recognized as a coincide nt of psychotic compromise.” Appellant claimed to have amnesia about the shooting, a symptom Dr. Zwemer foun d “relatively infrequent” in his examination of more than 10,000 individuals and “not strongly associated at all with schizophrenia or bipolar di sorder.” Dr. Zwemer testified that he disagreed w ith Dr. Williams’s conclusion that appellant could n ot distinguish between right a nd wrong at the time of the offense, but he could not opine about appellant’s mental state because a ppellant claimed to have amnesia- 3 - about the shooting. Dr . Zwemer opined that “at the least, [app ellant] was amplifying the impact of his mental illness.” At the conclusion of the evidence, appellant moved to strike th e Commonwealth’s case because the Commonwealth did not sufficiently rebut appellant’s evidence that he was insane at the time of the offense. In his ar gument, appellant referred to hi s objection “based upon hearsay and confrontation, in that [appella nt] would not have the right to question [the Centra l State Hospital] doctors regarding their reports.” The court acknowledged appel lant’s objection but denied his motion to strike. After the jur y found appellant guilty, the c ourt also denied his m otion to set aside the verdict.
DISCUSSION Appellant raises four assignme nts of error, which can be summa rized into two issues: 1) whether Dr. Zwemer’s expert opinion was impermissibly based upon hearsay, and 2) whether the court erred in rejecting appellant’s argument that the Commonwe alth failed to sufficiently rebut evidence of appellant’s insanity. We will review appellant’s a rguments in the or der in which the court considered the issues below. 1. Dr. Zwemer’s Testimony Appellant contends th at the court erroneou sly allowed Dr. Zwem er to testify about appellant’s mental state because Dr. Zwemer’s opinions were bas ed on hearsay and violated the Confrontation Clause of the Sixt h Amendment to the United State s Constitution. We find that because appellant failed to comply with the specificity require ment of Rule 5A:18, we are precluded from reviewing the merits of his argument. Appellant requested a sidebar conf erence when Dr. Zwemer began testifying about the conclusions of the doc tors who evalu ated appellant at Central S tate Hospital. The sidebar conference was unrecorded; however, during appellant’s motion t o strike, appellant reiterated that- 4 - his objection to the testimony abo ut the records was based on h earsay and confrontation grounds. After the sidebar conference, Dr . Zwemer testified regarding th e tests that the Cen tral State Hospital doctors administered to appellant and the subsequent conclusion s the doctors reached about appellant malingering. Dr. Zwemer continued testifying without further objection about tests he administered to appellant, interviews he conducted with appella nt and his mother, and a conversation that Dr. Zwemer ha d with appellant’s girlfriend. Further, Dr. Zwemer’s testimony concerning his conclusion that “at the least” appellant was “am plifying the impact of his mental illness” was admitted without objection. 1 Rule 5A:18 requires appellant to make the same argument on app eal as the one that he presented at trial. “A party w ill not be allowed to specify on e or more grounds of objection to evidence offered in the trial c ourt and rely upon other grounds in the appellate court.” Branch v. Commonwealth, 225 Va. 91, 96, 30 0 S.E.2d 758, 760 (1983) (quoti ng Jackson v. C. & O. Ry. Co., 179 Va. 642, 650, 20 S.E.2d 489, 492 (1942) ). “If the opinion of an expert witness lacks an adequate foundation, the appropriate action at trial is to move to strike the testimony of the expert witness.” Jeter v. Commonwealth , 44 Va. App. 73 3, 740 n.3, 607 S.E.2d 734, 737 n.3 (2005). See also Countryside Corp. v. Taylor , 263 Va. 549, 55 2 n.2, 561 S.E .2d 680, 681 n.2 (2002) (lack-of-foundation objection to expert’s testimony was preserv ed by appellant’s motion to strike the testimony). Appellant’s obje ction was not to the foundatio n for Dr. Zwemer’s expert opinion,

1 Even assuming that the records from Central State Hospital cons tituted impermissible hearsay evidence, Dr. Zwemer’s conclusion was not based solely on those records. His independent evaluation of appellant, the tests he administered, and the int erviews he conducted led to his own opinion that appellant was malinge ring. See United States v. J ohnson, 587 F.3d 625, 635 (4th Cir. 2009) (finding no Confrontation Clause violation “[a]s long as [the expert] is appl ying his training and experience to the sources before him and reaching an indepe ndent judgment”). Dr. Zwemer had a “sufficient factual basis for the admission” of his opini on without consideration of the Central State Hospital records. See Si mpson v. Commonwea lth, 227 Va. 5 57, 566, 318 S.E.2d 386, 391-92 (1984) (expert permitte d to testify as to cau se of victim’s dea th when, in additio n to considering medical records not in evidence, expert conducted victim’s auto psy and also relie d on his medical experience and training).- 5 - but merely to the admi ssibility of his testim ony about the reco rds from Central State Hospital. Further, appellant never moved to strike Dr. Zwemer’s expert op inion. “[T]he burden is on the appellant to present to us a sufficien t record from which we can determine whether the lower court has erred in the respect comp lained of. If the appellant fails to do this, the judgment will be a ffirmed.” Smith v. Commonwealth , 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (199 3) (quoting Justis v. Yo ung, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)). An unrecorded sidebar conference r egarding an objection presents i nherent difficulties in determining the grounds of the objection and the basis for the ruling. Bec ause the sidebar conference was not on the record, we can only glean its substance from the subsequent comments made by the court and counsel during the motion to strike the Commonwea lth’s case. N one of those comments indicate that appellant was objecting to Dr. Zwemer’s expert opinion due to a lack of foundation. Accordingly, because appellant did not specifically move to st rike Dr. Zwemer’s expert opinion as inadmissible, we find appellant did not preserve his argument pursuan t to Rule 5A:18. 2. Failure to Rebut Insanity Defense Appellant contends that the cour t erred in denyin g his motion t o set aside the verdict because Dr. Zwemer’s testimony wa s insufficient to rebut Dr. Wi lliams’s conclusion that he was insane at the time of the offense. Accordingly, appellant argu es, the jury was re quired to find appellant not gu ilty by reason of insanity. 2 When reviewing a court’s decision to deny a motion to set aside a jury verdict, we will not reverse the court’s judgment “unless it appears from the eviden ce that such judgment is plainly wrong or without evidence to sup port it.” Code § 8.01-680. We have stated that “ the trial judge

2 Appellant also asserts that t he court erred in denying his mot ion to strike the Commonwealth’s evidence. Howeve r, he fails to cite any relevan t authority in support of this argument. “Statements unsupporte d by argument, a uthority, or c itations to the reco rd do not merit appellate consideration.” Buch anan v. Buchanan , 14 Va. App. 53 , 56, 415 S.E .2d 237, 239 (1992). See also Rule 5A:20(e).- 6 - cannot substitute his conclusion for that of the jury merely be cause he would have voted for a different verdict if he had been on the jury.” Wagoner v. Comm onwealth, 63 Va . App. 229, 246, 756 S.E.2d 165, 174 ( 2014) (quoting Dohert y v. Aleck, 273 Va. 4 21, 424, 641 S. E.2d 93, 94 (2007)), aff’d on other grounds, 289 Va. 47 6, 770 S.E .2d 479 (2 015). The Commonwealth was not required to present affirmative eviden ce that appellant understood the nature and consequ ences of his actions. “Every man is presumed to be sane and to possess a sufficient degree of re ason to be responsible for his crimes until the contrary is proved to the satisfaction of the [trier of fact].” Vann v. Commonwealth , 35 Va. App. 304, 312, 544 S.E.2d 879, 882 (2001) (quoting Jones v . Commonwealth, 202 Va. 236, 23 9-40, 117 S.E.2d 67, 70 (1960)). A defendant bears the burden of pr oving that he was insane at the time of the offe nse. Morgan v. Commonwealth, 50 Va. A pp. 120, 133-34, 646 S.E.2d 899, 905-06 ( 2007). The issue of a defendant’s sanity is “a question for the jury to decide after consideration of a ll the evidence adduced and under the court’s in structions.” Christian v. Comm onwealth, 202 Va. 311, 317, 117 S.E.2d 72, 76 (1960). Appellant argues that the court erred by failing to set aside t he jury’s verdict because the expert testimony of his insanit y at the time of the offense was uncontradicted. However, Dr. Zwemer testified based on the tests he administered that ap pellant was fabricatin g at least part of his mental illness, and he disag reed with Dr. Williams’s conclu sion that at the time of the shooting, appellant could not distingui sh between right and wrong. Additionally, a jur y is entitled to accept or reject anytestimony, regardless of whether it is uncontradicted. McLane v. Commo nwealth, 202 Va. 197, 205-06, 1 16 S.E.2d 274, 281 (1960). See also Street v. Street, 25 Va . App. 380, 387-88, 488 S.E.2d 665, 668-6 9 (1997) ( en banc ). We have held that “jurors [are] n ot required to accept the testimo ny of [a witness] as conclusive merely because he qualified as a medical expert.” McLan e, 202 Va. at 205-06, 116 S.E. 2d at 281. An- 7 - expert witness’ testimony “should be given the same considerati on as is given that of any other witness, considering his opport unity for knowledge of the subje ct and subject matter as to which he testifies, his appearance, cond uct, and demeanor on the stand.” Id. at 206, 116 S.E.2d at 281. Here, the jury was properly instr ucted that it was “not require d to accept the opinion of any expert witness as to whether [appellant] was sane or insane.” The court told the jury to “give the testimony such consi deration as you feel i t is entitled along w ith the other evidence in the case.” Even without Dr. Zwemer’s testimony, the jury was free to disre gard Dr. Williams’s conclusion regarding appellant’s sanity. Therefore, we find that the cour t did not err in denying appellant’s motion to set aside the verdict.
CONCLUSION For the reasons set fo rth above, we affirm appellant’s convicti on for voluntary manslaughter. Affirmed.