COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Alston Argued at Chesapeake, Virginia

WILLIAM TRAVIS NEWTON MEMORANDUM OPINION ∗ BY v. Record No. 0721-10-1 JUDGE WILLIAM G. PETTY JUNE 28, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Terry N. Grinnalds for appellant. Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
William Travis Newton appeals his conviction fo r participating in a criminal street gang, in violation of Code § 18.2-46.2. Newton assigns error to the trial court’s admission of the Commonwealth’s evidence of prior criminal acts committed by Deanthony Clark and Darryl Lollis. The Commonwealth introduced evidence of these acts to prove the existence of a criminal street gang. See Code § 18.2-46.1 (including “two or more predicate criminal acts” committed by members of a criminal street gang as one of the definitional elements of such a gang). Newton argues that the evidence of Cl ark’s offenses was inadmissible because the Commonwealth failed to establish the relevance of Clark’s convicti on order. Newton also argues that the evidence of Lollis’ offenses was inadmi ssible because there was insufficient proof of a working relationship or group dynamic between Ne wton and Lollis that would justify admitting

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - this evidence. For the reasons expressed belo w, we disagree with Newton’s arguments and therefore affirm his conviction. Because the parties are fully conversant w ith the record in this case and this memorandum opinion carries no precedential valu e, we recite below only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal. “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it a ll reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). Moreover, we review a trial court’s decisi on regarding the admissibility of evidence for abuse of discretion. Gonzales v. Commonwealth , 45 Va. App. 375, 380, 611 S.E.2d 616, 618 (2005) (en banc). We are mindful that “[a]n error of law by the trial court is ipso facto an abuse of its discretion.” Bynum v. Commonwealth , 57 Va. App. 487, 490, 704 S.E.2d 131, 133 (2011). Newton’s first argument is that the trial cour t erred in admitting th e conviction order of Deanthony Clark for two prior felonies. 1 The Commonwealth offered this evidence to establish an element of the offense—that other members of the gang had committed two or more predicate criminal acts. See Code § 18.2-46.1. Newton contends that the testimony of the gang expert, Detective Earnest Corey Sales, was insufficient to establish the relevanc e of Clark’s conviction order. We disagree. Detective Sales was qualified below as an e xpert in gang ideologies and identification. Detective Sales testified that Clark was a member of the Gangsta Disciples, a criminal street gang. He based this opinion on the fact that, as he testified, he “walked into the Dean of Boys

1 Clark had been convicted of carjacking, in violation of Code § 18.2-58.1, and use of a firearm in commission of a felony, in violation of Code § 18.2-53.1.- 3 - office at Bethel High School” one day, where he saw Clark “sitting in [a] chair, wearing black and blue beads.” As Detective Sa les explained, this indicated to him that Clark was a member of the Gangsta Disciples. The Commonwealth then sought to introduce Clar k’s conviction order. Newton objected to the introduction of the convic tion order on the grounds of relevance and lack of foundation. The trial court overruled the obje ctions and admitted Clark’s conviction order into evidence. On appeal, Newton contends th at the evidentiary basis of Detective Sales’ opinion that Clark was a member of the Gangsta Disciples was insufficient to justify this opinion. However, we note that Newton did not object to Det ective Sales’ opinion on these grounds below. 2 Although Newton expressed concerns about the basis of De tective Sales’ opinion, he did so in an objection to the introduction of Cl ark’s conviction order, not in an objection to the testimony of Detective Sales itself. Thus, th e issue before us is not whethe r Detective Sales’ testimony was admissible. Rather, the issue before us is wh ether Detective Sales’ testimony, taken at face value, adequately established the relevance of Clark’s conviction order. We hold that it did. The standard for establishing the relevance of proposed evidence is relatively low: “Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case.” Ragland v. Commonwealth , 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993). Furthermore, “‘[t]he test establishing relevance is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establ ish a fact at issue .’” Holsapple v. Commonwealth , 39 Va. App. 522, 537-38, 574 S.E.2d 756, 763 (2003) (en banc)

2 When the Commonwealth’s attorney first asked Detective Sales whether Clark was a member of a criminal street gang, Newton objected on the grounds that this question called for a legal conclusion and was outside the province of an expert. Subsequently, Newton made a hearsay and relevance objection to Dectective Sa les’ testimony describing the basis for his opinion. These objections are not before us. T hus, for purposes of this appeal, we consider Detective Sales’ testimony that Clark was a me mber of the Gangsta Disciples to have been properly admitted.- 4 - (emphasis added) (quoting Wise v. Commonwealth , 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988)). If the proposed evidence its elf does not have to conclusively prove a fact at issue, then neither should foundational tes timony showing the relevance of the proposed evidence have to conclusively prove any particular fact at issue. Thus, in order to show the relevance of Clark’s conviction order, the Commonwealth did not need to prove beyond a reasona ble doubt that Clark was a member of the Gangsta Disciples. Ra ther, the Commonwealth needed only to produce some credible evidence that Clark was a member of the Gangsta Disciples. This would satisfy the threshold requirement that Clark’s convictio n order have some “logical tendency, however slight,” Ragland , 16 Va. App. at 918, 434 S.E.2d at 678, to establish the fact that a member of the criminal street gang of which Newton was also a member had committed a predicate criminal

act. Here, since Detective Sales testified that Cl ark was a member of th e Gangsta Disciples, Clark’s conviction order was relevant. In light of Detective Sales’ te stimony, Clark’s conviction order had some tendency to establish an element of the offense. Whether the trier of fact should have believed Detective Sales’ op inion as sufficiently credible and reliable is not an issue before us in this appeal. Likewise, the issue of whethe r the evidence in this case is sufficient to prove beyond a reasonable doubt that Clark was a member of the Gangsta Disciples is not before us either. We simply hold that Detective Sales’ testimony here was sufficient to establish the relevance of Clark’s conviction order and that the order was therefore admissible. Newton also argues that Clark’s convicti on order was inadmissible because Clark’s personal connection with Newton was not proven to be as close as was the personal connection between the gang members in Corado v. Commonwealth , 47 Va. App. 315, 623 S.E.2d 452 (2005). It is true that in Corado , the predicate criminal acts used to prove the existence of a criminal street gang were prior convictions of two of the defenda nt’s associates who were also- 5 - involved in the incident for whic h the defendant was convicted. Id. at 321, 332, 623 S.E.2d at 455, 460. However, Corado simply does not stand for the pr oposition that predicate criminal

acts must be committed by gang members whom the defendant actually knows. 3 Thus, Newton’s attempt to bolster hi s argument by appealing to Corado is unavailing. Corado contain nothing that affects our analysis above regardi ng the admissibility of Clark’s conviction order. s

Newton’s second argument is that the trial court erred in ad mitting a sentencing order, plea agreement, and stipulation of facts showing that Darryl Lollis had been convicted for two prior felonies and was a memb er of the Gangsta Disciples. 4 Newton argues that there was not sufficient proof that Newton and Lollis were pa rt of a “dynamic group of people who know each other and work together.” We do not believe that such proof was necessary to justify admitting these documents into evidence. Again, we note that the issue of whether the evidence is sufficient to prove beyond a reasonable doubt that Newton and Lollis were members of the same criminal street gang is not before us in this appeal. Rather, we are simp ly faced with a question of admissibility. As noted above, “[e]vidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case.” Ragland , 16 Va. App. at 918, 434 S.E.2d at 678. “‘The test establishing relevance is not whether the proposed evidence c onclusively proves a fact, but whether it has any tendency to establish a fact at issue .’” Holsapple , 39 Va. App. at 537-38, 574 S.E.2d at 763 (emphasis added) (quoting Wise , 6 Va. App. at 188, 367 S.E.2d at 203). The

3 We note that the plain language of Code § 18.2-46.1 imposes no such requirement. It simply requires that a criminal street gang c ontain members who “individually or collectively have engaged in the commission of, attempt to comm it, conspiracy to commit, or solicitation of two or more predicate criminal act s, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.” Code § 18.2-46.1.

4 Lollis had been convicted of robbery, in vi olation of Code § 1 8.2-58, and participation in a criminal street gang, in violation of Code § 18.2-46.2.- 6 - stipulation of facts contains Lo llis’ admission that he was a memb er of the Gangsta Disciples. The sentencing order establishes that Lollis was c onvicted of two felonies, and the stipulation of facts indicates these crimes were committed by a member of, and for the benefit of, the Gangsta Disciples. Thus, regardless of whether the docume nts conclusively proved that Lollis was in the same criminal street gang as Newton, they di d have some tendency to show this fact. Accordingly, the documents were relevant, a nd Newton’s arguments prov ide no basis for holding them inadmissible. 5

5 To the extent that Newton attempts to argue issues of hearsay a nd constitutional rights, we do not address these issues, since in his br ief Newton did not devel op these arguments or provide legal support for them. See Rule 5A:20(e) (re quiring the argument in an appellant’s opening brief to contain “principles of law and authorities”). We find this failure significant. See Atkins v. Commonwealth , 57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010) (“Because appellant provides no legal argument or authority in his brief to support his argument, and we find this omission significant, appellant’s claim that the tria l court erred in not finding his [constitutional] rights were violated is waived unde r Rule 5A:20(e).”). Particularly with respect to Newton’s assertion that the admission of ev idence concerning Clark vi olated his rights under the Confrontation Clause of the Sixth Amendment, Newton ha s not provided us with any authority or argument for why eith er Clark’s behavior in wearing colored beads or his conviction order should be considered testimonial. See Melendez-Diaz v. Massachusetts , 129 S. Ct. 2527, 2539-40 (2009) (holding that “pub lic records are gene rally admissible absent confrontation” because they are not created “for the purpose of establishing or proving some fact at trial” and thus “are not testimonial”); Crawford v. Washington , 541 U.S. 36, 51, 68 (2004) (declining “to spell out a comprehensive definition of ‘testimo nial,’” but noting that the term “testimony” is defined as “‘[a] solemn declar ation or affirmation made for the purpose of establishing or proving some fact’” (alteration in original) (quoting 2 N. Webster, An American Dictionary of the English Language (1828))). Furthermore, Newton did not argue to the trial court that admitting Lollis’ plea agreement or stipulati on of facts violated his rights under the Confrontation Clause. Thus, we could not cons ider that issue even had Newton adequately presented such an argument in his brief. See Rule 5A:18. Additionally, although Newton argues the ev idence was insufficient to support his conviction, we note that the assignment of error before us simp ly challenges the trial court’s admission of certain evidence. Since the assignment of error does not challenge the sufficiency of the evidence, we do not consider this issue. See Rule 5A:12(c)(1); Kirby v. Commonwealth , 264 Va. 440, 444-45, 570 S.E.2d 832, 834 (2002) (refusing to consider an argument that “the assignment of error [did] not properly encompass”).- 7 - For the foregoing reasons, we hold that the trial court did not abuse its discretion in admitting the Commonwealth’s evidence of prio r criminal acts committed by Deanthony Clark and Darryl Lollis. Therefore, we affirm Newton’s conviction. Affirmed.- 8 - Elder, J., concurring, in part , dissenting, in part, and di ssenting from the judgment. Although I concur in the majo rity’s conclusion in footnote 5 that we may not consider Newton’s arguments regarding hearsay and the Confrontation Clause, I disagree with its assessment that appellant did not articulate an ad equate objection to De tective Sales’s testimony regarding Deanthony Clark and objec ted only to the admission of Clark’s conviction order. I would also hold on the merits that the trial court’s admission of Clark’s and Darryl Lollis’s conviction orders and related test imony and documentary evidence violated the principles set out
in Taybron v. Commonwealth , 57 Va. App. 470, 703 S.E.2d 270 (2011). Therefore, I respectfully dissent from the judgment.