COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Huff and Chaney

Argued by videoconference

SOLOMON JEROME MILLER 

MEMORANDUM OPINION* BY

v. Record No. 1067-22-1 JUDGE GLEN A. HUFF

SEPTEMBER 5, 2023

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Mary Jane Hall, Judge

J. Barry McCracken, Assistant Public Defender, for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Solomon Jerome Miller (“appellant”) appeals his conviction from the City of Norfolk 

Circuit Court (the “trial court”) for possession of a firearm by a convicted violent felon. He 

contends the trial court erred in accepting, for the truth of the matter asserted, an extract of

preliminary hearing witness testimony consisting of inadmissible hearsay. He also asserts the 

Commonwealth’s evidence was insufficient to prove an essential element of the charged offense: 

that he had actual or constructive possession of a firearm. For the following reasons, this Court 

reverses appellant’s conviction and remands the case for further proceedings consistent with this 

opinion.

* This opinion is not designated for publication. See Code § 17.1-413(A).

UNPUBLISHED
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BACKGROUND1

On the evening of April 11, 2020, Officer Kyle Barnes of the Norfolk Police Department 

received a “call for service for a gunshot victim” at 800 East Princess Anne Road, a “mostly 

empty parking lot.” When Officer Barnes arrived at approximately 8:19 p.m., he saw appellant 

lying on the ground next to a black sedan with gunshot wounds to his chest and the lower left 

side of his body.

2

 Officer Barnes also discovered the body of the deceased, Alonzo Rone 

(“Rone”), in the driver’s seat of the black sedan with gunshot wounds to his chest and head. 

Although Officer Barnes saw three or four shell casings on the passenger side floorboard of the 

black sedan and additional shell casings on the ground near appellant, he did not find any 

firearms at the scene. And despite collecting multiple cartridge cases from the ground, Officer 

Logan Meyer, assigned to the forensics unit of the Norfolk Police Department, did not find any 

firearms either.3

1 This Court must view “the evidence in the light most favorable to the Commonwealth,” 

which includes “discard[ing] all evidence of the accused that conflicts with that of the 

Commonwealth and regard[ing] as true all credible evidence favorable to the Commonwealth 

and all fair inferences reasonably” drawn from that evidence. Kelley v. Commonwealth, 69 

Va. App. 617, 624 (2019) (quoting Parham v. Commonwealth, 64 Va. App. 560, 565 (2015)).

2 At trial, Officer Barnes referred to appellant by name but testified he would not be able 

to recognize appellant if he saw him again.

 

3 Officer Meyer collected three “Hornady nine-millimeter Luger cartridge case[s]” and a 

“Speer nine-millimeter Luger cartridge case” from the ground near the black sedan, and also 

logged five other cartridge cases found in another area of the parking lot. Forensic Detective 

Steven Sweder subsequently discovered ten additional casings inside the black sedan during his 

examination of the car on April 13, 2020.
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Appellant’s bench trial began on June 22, 2022, for the sole charge of possessing a 

firearm in violation of Code § 18.2-308.2(A).

4 The Commonwealth introduced testimony from 

the police officers involved in the case as well as from Gabriel Weaver (“Weaver”), a witness to 

and victim of the April 11, 2020 shooting. Weaver had previously testified on behalf of the 

Commonwealth at appellant’s preliminary hearing on February 11, 2021.

Weaver testified at trial that on the day of the shooting, at approximately 8:14 p.m., he 

had been sitting in the front passenger seat of the black sedan next to Rone and had seen 

appellant walking in the parking lot. Weaver referred to appellant by name and identified him in 

court on the record. When asked if he saw appellant “with anything in his hand,” Weaver stated 

he did not remember. The Commonwealth then asked whether he saw “anyone on the scene 

with a gun,” and Weaver stated that he saw “somebody, but it was dark outside.” He further

testified that he could not identify the person who shot him and Rone because he was sitting in 

the passenger seat while the shooter was standing “outside the driver’s side” of the car. Unlike 

Rone, Weaver was able to escape the scene and later received treatment from the police for his 

wounds.

In response to the Commonwealth’s next question about appellant’s presence during the 

shooting, Weaver responded: “I seen him earlier, but I’m not sure, like, if he was the person with 

the gun or not. I just don’t remember.” At that point, the Commonwealth asked Weaver whether 

he remembered testifying about this matter at the preliminary hearing on February 11, 2021. 

Appellant objected to the Commonwealth’s attempt to impeach its own witness.

4 A grand jury indicted appellant on March 3, 2021, for several charges, including 

second-degree murder, malicious wounding, use of a firearm in the commission of a felony, and 

possession of a firearm by a convicted violent felon. Prior to appellant’s trial, the 

Commonwealth nolle prosequied all charges except the single count of firearm possession by a 

convicted violent felon, in violation of Code § 18.2-308.2(A).
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After a brief recess, the trial court granted the Commonwealth’s request for permission to 

treat Weaver “as a hostile or adverse witness” for impeachment purposes. It reasoned that “the 

authority is ample to permit the Court to determine that Mr. Weaver has become an adverse 

witness” because his testimony surprised the Commonwealth.5 In response to that ruling, 

appellant noted his objection to the use of Weaver’s prior testimony “coming in for the truth of 

the matter asserted [because] [i]t can only come in as impeachment [material].” The trial court 

agreed that the former testimony could be used only to assess Weaver’s credibility but not “as 

[substantive] evidence for the Court to consider.”

The trial court then asked whether both parties agreed to “the import to be given to the 

prior inconsistent statement,” to which the Commonwealth responded:

I think that’s going to determine or be determined about how it 

comes out on Mr. Weaver’s testimony. For example, if the 

Commonwealth is able to elicit testimony that he was telling the 

truth and in effect refresh his memory about his testimony at the 

time of the preliminary hearing . . . [that] would be a very different 

situation [than] if he continues to deny it.

The trial court agreed, noting that the purpose for which the prior testimony would be admitted 

depended upon Weaver’s trial testimony regarding his former statements.

Weaver returned to the witness stand, and the Commonwealth repeated its question as to 

whether he remembered “testifying at the preliminary hearing back on February 11[,] 2021.” He 

said yes. The Commonwealth then handed Weaver a copy of the transcript from that hearing and 

5 Generally, “the credibility of a witness may be impeached by any party other than the 

one calling the witness.” Va. R. Evid. 2:607(a) (emphasis added). If, however, the trial court 

deems the witness “adverse,” the party producing the witness may seek to impeach the witness 

with proof of a prior statement inconsistent with his trial testimony. See Va. R. Evid. 2:607(c)(i);

Code § 8.01-403; Ragland v. Commonwealth, 16 Va. App. 913, 920 (1993) (“Code § 8.01-403, 

applicable in criminal as well as civil cases, allows impeachment of a party’s witness with prior 

inconsistent statements after that witness has been found by the trial court to be adverse.”). 

Appellant does not challenge on appeal the trial court’s factual finding that Weaver’s alleged 

inability to recall certain facts at trial rendered him an “adverse” witness.
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directed him to silently read a few specific lines of his testimony, after which it asked whether he 

recalled “giving that testimony during the preliminary hearing.” Weaver again answered yes and 

stated that, as far as he could remember, he had testified truthfully. He also answered in the 

affirmative to the Commonwealth’s following questions: “After reviewing your testimony from 

the preliminary hearing, does that refresh your recollection of what your testimony was then?” 

and “[D]o you recall testifying that [appellant] had the gun out and was pointing it at you?”

Yet, when the Commonwealth then asked whether the events Weaver had previously 

described were “what happened to the best of your recollection,” Weaver stated that he didn’t 

remember. In an attempt to clarify the situation, the Commonwealth explicitly asked Weaver: 

“You’re saying you don’t remember what happened, or you don’t remember the preliminary 

hearing?” Weaver stated he did not remember what happened the day of the shooting but did

remember testifying at the preliminary hearing. At that point, the Commonwealth sought to 

enter into evidence the limited portion of the transcript it had asked Weaver to read, namely his 

statement that appellant “had a gun out, just pointing it. . . . [He] had a gun pointing at us.”

Appellant objected on the ground that the Commonwealth was “conflating refreshing 

recollection and impeachment and trying to basically do both at once.” Without directly 

addressing those arguments or stating under which exception it was admitting the evidence, the 

trial court overruled appellant’s objection. In doing so, it stated that the excerpt from the 

transcript would be admitted as Commonwealth’s Exhibit 8 because Weaver “said he doesn’t 

remember today, and he told the truth then and he did apparently remember then.”6

6 As entered into evidence, Exhibit 8 consisted only of the specific portion of Weaver’s 

testimony the Commonwealth had instructed him to review at trial. The remainder of the 

transcript was fully removed, including all identifying information about the witness and the 

hearing itself.
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During subsequent cross-examination, when asked by defense counsel whether he 

remembered “ever seeing [appellant] with a gun,” Weaver reiterated that he did not remember “if 

I saw him or not with the gun.” At the end of the Commonwealth’s case-in-chief, appellant 

moved to strike the single charge of firearm possession by a convicted violent felon on the basis 

that the evidence of possession was insufficient.7 As part of that argument, appellant reiterated 

that “the only piece of direct evidence that’s come in over defense objection is a transcript page 

from February of 2021 of prior testimony of Mr. Weaver[,] . . . [which] originally came in as part 

of impeachment, but was presented as a recollection of his memory.” He claimed that evidence 

was insufficient based on Weaver’s credibility issues, which the Commonwealth had highlighted 

by impeaching its own witness.8

The trial court denied appellant’s motion to strike without addressing its rationale for 

admitting Exhibit 8, and the parties immediately delivered their closing statements.9 After 

acknowledging that the case was “largely circumstantial,” the trial court ultimately found the 

evidence “sufficient” to convict appellant “based upon, of course, the testimony of 

Mr. Weaver[,] . . . who didn’t put anybody else in the parking lot and who saw a gun in 

7 Appellant also argued that the evidence was insufficient to prove the functionality of the 

firearm appellant allegedly possessed because the police never recovered any gun from the 

scene. Appellant does not raise that argument on appeal.

8 On the issue of Weaver’s credibility, appellant alleged that “the Commonwealth is in 

one breath impeaching him and saying he’s essentially lying on the stand[,]” “but yet in the same 

breath, they are asking essentially their whole case to rest on this one sentence that he said over 

basically a year[-]and-a-half ago also under oath and also in court.”

9 Appellant introduced no evidence of his own. He then renewed his motion to strike on 

the same grounds and incorporated those arguments into his closing statement.
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[appellant]’s hand.” The trial court sentenced appellant to five years’ incarceration.10 This 

appeal followed.

ANALYSIS

Appellant raises two assignments of error on appeal. First, that the trial court erred in 

admitting a portion of witness testimony from the preliminary hearing for the truth of the matter 

asserted. Second, that the trial court erred in denying appellant’s motions to strike because the 

evidence was insufficient to prove he possessed a firearm.

I. Admission of Preliminary Hearing Testimony

The crux of appellant’s first argument is that the trial court erred in admitting and 

considering Exhibit 8—the extract of Weaver’s testimony from the preliminary hearing 

transcript—for the truth of the matter asserted therein because it was inadmissible hearsay. This 

Court agrees, finding that the trial court abused its discretion in accepting Exhibit 8 as 

substantive evidence where the hearsay exceptions the Commonwealth raised at trial do not 

permit that result and the trial court did not adhere to the procedures required for the admission 

of Weaver’s former testimony under Virginia Rule of Evidence 2:804(b)(1). This Court further 

agrees with appellant’s contention that the trial court’s error “was not harmless since it was an 

indispensable part of the Commonwealth’s proof of the commission of the alleged offense.”

“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound 

discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.

Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.

10 Included in Code § 18.2-308.2(A) is the provision that “any person who violates this 

section by knowingly and intentionally possessing or transporting any firearm and who was 

previously convicted of a violent felony as defined in [Code] § 17.1-805 shall be sentenced to a 

mandatory minimum term of imprisonment of five years.” At the start of appellant’s trial, the 

Commonwealth admitted a copy of appellant’s prior sentencing order for a 2016 robbery 

conviction, in violation of Code § 18.2-58, which constitutes a violent felony offense under Code 

§ 17.1-805(C).
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461, 465 (2006)). A trial court abuses its discretion by failing to consider a significant relevant 

factor, giving significant weight to an irrelevant or improper factor, committing a clear error of 

judgment in assigning weight to proper factors, or making a mistake of law. Commonwealth v. 

Thomas, 73 Va. App. 121, 127 (2021); Lawlor v. Commonwealth, 285 Va. 187, 213 (2013). As 

relevant here, “[s]uch an error may occur when the court . . . fails to fulfill a condition precedent 

that the law requires.” Lawlor, 285 Va. at 213; see also Turner v. Commonwealth, 284 Va. 198, 

208 (2012) (finding the trial court abused its discretion in ruling a witness unavailable for lack of 

memory when it failed to inquire into the genuineness of that claim).

At issue in this case are the rules governing the admissibility of hearsay evidence. 

“Hearsay” refers to “an out-of-court statement offered to prove the truth of the matter asserted.” 

Robinson v. Commonwealth, 258 Va. 3, 6 (1999). Because the admission of such statements is 

generally prohibited, the “party seeking to have a hearsay declaration admitted at trial” bears the 

burden of “‘clearly show[ing]’ that the evidence falls within an exception to the hearsay rule.” 

Swanson v. Commonwealth, 56 Va. App. 147, 156 (2010) (quoting Doe v. Thomas, 227 Va. 466, 

472 (1984)).

Rule of Evidence 2:801(d) provides that a witness’s hearsay statements may be 

admissible “under any hearsay exception provided in Rules 2:803 or 2:804.” Based on the

specific facts of this case, Rule 2:804(b)(1)’s “former testimony” exception is the only avenue by 

which the trial court could have properly considered Weaver’s statements from the preliminary 

hearing for their truth. Although the Commonwealth does not dispute that conclusion on appeal, 

it did not seek to introduce Exhibit 8 at trial pursuant to the “former testimony” exception.
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Rather, the Commonwealth only argued for the use of Exhibit 8 to either refresh Weaver’s 

memory or impeach his credibility.

11

Neither of those rationales, however, permits the admission and use of Exhibit 8 as 

substantive evidence.12 Nevertheless, the Commonwealth offered Exhibit 8 for that prohibited 

purpose, relying on the truth of Weaver’s prior testimony to prove appellant’s guilt.13 Likewise, 

11 Rule 2:801(d) permits the admission of a witness’s prior statement “for impeachment 

of the witness’s credibility,” if the prior statement “is inconsistent” with the witness’s current 

testimony and is “offered in compliance with Rule 2:613.” Va. R. Evid. 2:801(d)(1). Here, as a 

party impeaching its own “adverse” witness, the Commonwealth was bound by the limitations in 

Rules of Evidence 2:607(c)(i) and 2:613(a). On the other hand, “[t]he act of refreshing a 

witness’s recollection does not involve contradicting that witness’s testimony.” Ruhlin v. 

Samaan, 282 Va. 371, 379 (2011). “Rather, ‘when a witness has a memory lapse on the stand[’] 

. . . a party may attempt to ‘refresh’ the witness’s memory by having the witness examine 

materials relating to the matter for which they are testifying.” Id. (quoting McGann v. 

Commonwealth, 15 Va. App. 448, 451-52 (1992)). Only if the witness’s review of those 

materials restores his independent memory can he then “speak to the facts from his own 

recollection.” Id. (quoting Harrison v. Middleton, 52 Va. (11 Gratt.) 527, 544 (1854)). Here, 

even after reviewing the transcript of his preliminary hearing testimony, Weaver consistently 

averred that he could not remember whether he saw a gun in appellant’s hand on April 11, 2020.

 

12 Regarding impeachment, Weaver’s preliminary hearing testimony could only be 

considered in the context of assessing his credibility rather than for its truth. See Va. R. Evid. 

2:804(d); Code § 8.01-403; Roberts v. Commonwealth, 230 Va. 264, 269 (1985) (holding the 

trial court properly instructed the jury that the witness’s “prior statements were not substantive 

evidence and could not be considered on the question of the defendant’s guilt or innocence but 

solely for the purpose of affecting his credibility” where the Commonwealth used the witness’s 

prior preliminary hearing testimony only “in an effort to impeach” the witness); Stoots v. 

Commonwealth, 192 Va. 857, 866 (1951) (“[P]rior inconsistent statements are, of course, not 

substantive evidence. They are admissible only for the purpose of contradiction and the court 

must so instruct the jury if requested.”).

Conversely, any material used to refresh a witness’s recollection is itself inadmissible,

unless entered on other grounds, and the witness may not merely read aloud from the provided 

material. See Potts v. Commonwealth, 12 Va. App. 1093, 1095 (1991) (“‘Refreshed’ testimony 

is admissible [only] if it shows the witness’[s] memory was in fact refreshed and that he or she 

was then testifying from his or her independent recollection of the events.”).

13 See Swain v. Commonwealth, 28 Va. App. 555, 559 (1998) (“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.”); Davis v. Commonwealth, 73 

Va. App. 500, 509 (2021) (“[T]he actual use at trial by the proponent is a relevant consideration 

when determining the purpose for which an out-of-court statement is offered.”).
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the trial court accepted and relied on Weaver’s prior statements in Exhibit 8 as substantive 

evidence despite having previously acknowledged that such testimony introduced during a 

successful impeachment could be used only to assess the witness’s credibility.

Based on the trial court’s contradictory statements and the ambiguity of its reasoning, 

appellant now theorizes that it erroneously admitted Exhibit 8 pursuant to the so-called “past 

recollection recorded” exception in Rule of Evidence 2:803(5), which is often confused with the 

rules for refreshing a witness’s recollection. See James v. Commonwealth, 8 Va. App. 98, 

103-04 (1989) (discussing the differences between hearsay exceptions relying on extrinsic 

materials).14 But even if this Court could conclude from the record that the trial court applied 

one of those two theories, neither justified the use of Exhibit 8 as substantive evidence against 

appellant.15 And the Commonwealth does not argue otherwise on appeal, acknowledging that 

14 In contrast to the procedure for refreshing a witness’s recollection, “[t]he general rule 

of past recollection recorded allows . . . a witness with no independent recollection of an incident 

to testify directly from notes or reports if certain requirements are met.” James, 8 Va. App. at

102. A qualifying record “may be read into evidence but may not itself be received as an exhibit 

unless offered by an adverse party.” Va. R. Evid. 2:803(5). In the case at hand, the 

Commonwealth could arguably constitute “an adverse party” under Rule 2:803(5) based on the 

trial court’s designation of Weaver as an “adverse” witness for impeachment pursuant to Code 

§ 8.01-403. However, this Court declines to make a finding on this particular issue given that the 

parties have not briefed it and Exhibit 8 does not the meet the other required criteria for 

admission as a qualifying record under Rule 2:803(5).

15 Although hearsay evidence properly admitted under Rule 2:803(5) as a past 

recollection recorded may be considered for the truth of the matter, that exception applies only to 

a memorandum or record concerning a matter about which a 

witness once had firsthand knowledge made or adopted by the 

witness at or near the time of the event and while the witness had a 

clear and accurate memory of it, if the witness lacks a present 

recollection of the event, and the witness vouches for the accuracy 

of the written memorandum.

Va. R. Evid. 2:803(5) (emphasis added); see also James, 8 Va. App. at 104-05. The record in 

this case establishes that Exhibit 8 does not meet the requirements to qualify for admission as a 

“recorded recollection” under this exception. Nor may Exhibit 8 be admitted in connection with 

the Commonwealth’s attempt to refresh Weaver’s memory. See supra notes 11-12.
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Exhibit 8 could only be admitted for its truth pursuant to the “former testimony” exception in 

Rule 2:804(b)(1).

A. Exhibit 8 Not Properly Admitted Pursuant to “Former Testimony” Exception

The Commonwealth goes a step further, however, and contends that the trial court 

properly admitted Exhibit 8 under the “former testimony” exception even though the trial court 

“did not specifically articulate that it was admitting the transcript under this hearsay exception” 

and the Commonwealth never advocated for admission under Rule 2:804(b)(1) at trial.

For the former-testimony exception to apply, the trial court must make an initial finding 

that the declarant of the offered statement is either “dead or otherwise unavailable as a witness.” 

Va. R. Evid. 2:804(a).16 “Although the focus of the [unavailability] inquiry is often directed to 

the absence of a witness, the analysis also applies to circumstances when the witness is present, 

but for sufficient reasons the witness’s testimony is ‘unavailable.’” Sapp v. Commonwealth, 263

Va. 415, 424 (2002); see also Turner, 284 Va. at 207 (acknowledging a witness’s “lack of 

memory at trial is the functional equivalent of the unavailability of the witness himself”).

According to the Commonwealth, Weaver’s inability at trial to recall whether he saw 

appellant holding a gun on April 11, 2020, rendered him “unavailable” for purposes of Rule 

2:804(b)(1).17 This argument overlooks the fact that where such “unavailability” is based on a 

16 This Court notes that the declarant’s “unavailability” is a necessary but not sufficient 

condition to admitting a witness’s prior testimony pursuant to Rule 2:804(b)(1). See Sapp v. 

Commonwealth, 263 Va. 415, 427 (2002) (“Upon . . . demonstrated bona fide lack of memory, 

the testimony of a witness may be declared unavailable and prior testimony may be admitted, 

provided that the additional evidentiary foundations [of Rule 2:804(b)(1)], not at issue in this 

case, are met.”); Roberts, 230 Va. at 269 (“Had the Commonwealth then sought to introduce the 

transcript into evidence to show that [the witness] had answered as claimed, the burden would 

have been on the prosecution to prove the transcript was accurate.”). Neither party nor the trial 

court addressed whether the other requirements in Rule 2:804(b)(1) were proven in appellant’s 

case, and they are not the subject of this appeal.

17 “In such cases, the focus of the inquiry is not the unavailability of the witness but the 

unavailability of the testimony.” Jones v. Commonwealth, 22 Va. App. 46, 52 (1996).
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claim of memory loss (rather than the witness’s physical absence), trial courts must also comply 

with the “limiting principles” established by the Supreme Court “to ensure that the witness is not 

merely attempting to avoid his duty to testify.” Turner, 284 Va. at 207; see also Sapp, 263 Va. at

424.

18

 Simply put, the trial court cannot declare a witness claiming memory loss to be 

“unavailable” for purposes of Rule 2:804 without first “conducting an inquiry and observing the 

demeanor of the witness as it does so” as to “satisfy itself that the loss of memory is genuine.” 

Turner, 284 Va. at 208; see also Sapp, 263 Va. at 427 (“[T]he bona fides of a claim of loss of 

memory must be tested[] . . . [before] the testimony of a witness may be declared unavailable and 

prior testimony may be admitted . . . .”).

This factfinding process is a non-negotiable prerequisite to the admission of a witness’s 

prior testimony under Rule 2:804(b)(1). See Turner, 284 Va. at 208 (“In the absence of such an 

inquiry, the [trial] court had no basis for determining the authenticity of the claim, which is ‘a 

relevant factor that should have been given significant weight’ in determining whether [the 

witness] was unavailable.” (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 

282 Va. 346, 352 (2011))).19 The questioning of the witness by either party is no substitute for 

the trial court’s duty to directly test the witness’s claim. See id. (“[T]he court has an obligation 

18 The trial court’s duty to evaluate “whether memory loss is real or feigned is crucial 

because it determines how the court should proceed with the witness.” Turner, 284 Va. at 208 

n.1. For example, because “feigned loss of memory is nothing more than a refusal to testify,” 

such refusal “‘should be met with an order . . . directing the witness to testify.’” Id. (alteration in 

original) (quoting Sapp, 263 Va. at 425).

19 Although a trial court is not required to state every factual finding relevant to an 

evidentiary decision, a failure to do so may prevent an appellate court from affirming that 

judgment on alternate grounds where, as here, the record lacks crucial factual findings. Shannon 

v. Commonwealth, 289 Va. 203, 206 (2015); see also Rabeiro v. Commonwealth, 10 Va. App. 

61, 64 (1990) (explaining “[t]he factual determinations which are necessary predicates to rulings 

on the admissibility of evidence and the purposes for which it is admitted” fall within the 

exclusive purview of the trial court).
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to explore the claim reasonably to ensure that the witness has not feigned his loss of memory in 

an attempt to evade the obligation of testifying.”).

As evidenced by the record and conceded by the Commonwealth during oral argument, 

the trial court here conducted no such inquiry into the genuineness of Weaver’s memory loss. 

Nor did it find, either expressly or by implication, that Weaver was “unavailable.”20 Those 

omissions, taken together with the trial court’s complete silence as to any aspect of Rule 2:804, 

demonstrate that the trial court never considered applying the “former testimony” exception as a 

basis for admitting Exhibit 8.21 Further supporting that conclusion, the Commonwealth raised 

this rationale for the first time on appeal to retroactively justify the trial court’s substantive use of 

Exhibit 8.22 The fact that Exhibit 8 may have been properly admitted under the “former 

20 The Commonwealth claims that the trial court made a factual finding that Weaver’s 

lack of memory was genuine. The record, however, does not reflect any such factual finding by 

the trial court. And no facts in the record support such a finding other than Weaver’s own 

testimony, which is insufficient on its own to establish bona fide memory loss. See Turner, 284 

Va. at 208 (holding that the trial court “may not rely on the bare assertion of a witness that he is 

unable to answer when examined at trial because he no longer remembers what occurred”). 

Ultimately, the trial court’s failure to conduct its own inquiry as mandated by Turner renders a 

mere belief in the authenticity of Weaver’s memory loss insufficient to satisfy the prerequisites 

for admitting former testimony under Rule 2:804(b)(1).

21 Similar to Rule 2:804’s sequential set of factual determinations is the process by which 

the trial court may allow a party to impeach its own witness if the witness proves “adverse.” See

Maxey v. Commonwealth, 26 Va. App. 514, 519-20 (1998) (“The term ‘adverse,’ under this 

section, refers to a witness whose testimony is ‘injurious or damaging to the case of the party 

who called the witness.’ . . . Code § 8.01-403 allows a party to impeach his or her own witness 

by prior inconsistent statements only when the witness . . . has suddenly given unexpected, 

adverse testimony on the stand.” (quoting Ragland, 16 Va. App. at 920)). That the trial court 

here made those findings of adversity on the record, when granting the Commonwealth’s request 

to impeach Weaver, demonstrates its ability to conduct a multi-step factual inquiry in the context 

of evidentiary decisions. Accordingly, the trial court’s subsequent failure to undertake the 

factual analysis mandated by Turner before accepting Exhibit 8 as substantive evidence belies 

the Commonwealth’s claim on appeal that the court intentionally relied upon and complied with 

the procedures of Rule 2:804.

22 The Commonwealth argues, in the alternative, that even if “the prior testimony 

exception was not the rationale applied by the trial court,” this Court should nevertheless affirm 

that judgment under the right-result-wrong-reason doctrine. This Court disagrees. A trial court’s 
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testimony” exception, assuming the other requirements of Rule 2:804(b)(1) were also satisfied, 

does not excuse the trial court’s failure to conduct the mandatory factfinding inquiry into 

Weaver’s “unavailability.”

23

B. Trial Court’s Error Not Harmless

Under the mandates of Code § 19.2-324.1, an appellate court must remand a case for 

retrial “if it concludes that, absent the erroneously admitted evidence, the evidence as a whole 

was insufficient and that the error was not harmless.” Mason v. Commonwealth, 64 Va. App. 

599, 616 n.12 (2015). Although harmless error review is not a sufficiency-of-the-evidence 

analysis, Commonwealth v. White, 293 Va. 411, 422 (2017), “non-constitutional error may be 

harmless ‘[i]f other evidence of guilt is so overwhelming and the error [is] insignificant[] by 

comparison, supporting a conclusion that the error did not have a substantial effect on the 

verdict,’” Turner, 284 Va. at 209 (alterations in original) (quoting Angel v. Commonwealth, 281 

Va. 248, 268 (2011)). Here, the trial court’s erroneous use of Exhibit 8 served as the basis for 

the trial court’s judgment of appellant’s guilt, without which the remaining evidence was not so 

overwhelming as to render the trial court’s error harmless.

In the absence of Weaver’s preliminary hearing testimony—directly placing a gun in 

appellant’s hands—the Commonwealth’s evidence does not prove the necessary element of 

judgment may be affirmed under the right-result-wrong-reason doctrine only when the trial court 

“has reached the correct result for the wrong reason, but the record supports the right reason.” 

Perry v. Commonwealth, 280 Va. 572, 580 (2010). It does not apply when, as here, additional 

factfinding is necessary to support the alternate ground for affirmance. Id. at 579. Because the 

trial court left the record factually underdeveloped for appellate review on the question of 

Weaver’s “unavailability,” this Court may not rely upon the right-result-wrong-reason doctrine 

to affirm the trial court’s judgment.

23 See Turner, 284 Va. at 208 (holding that the trial court abused its discretion by 

admitting the preliminary hearing transcript of a witness deemed “unavailable” under Rule 

2:804(b)(1) because the trial court “conducted no inquiry into [the witness]’s claim of memory 

loss”).
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actual or constructive possession beyond a reasonable doubt. The Commonwealth never 

recovered any firearms connected with the April 11, 2020 shooting and did not provide any 

forensic evidence establishing appellant’s possession of a firearm on that date, such as the 

presence of gunshot residue on his hands or clothes. Nor did the Commonwealth introduce any 

other eyewitness testimony or video evidence to prove appellant was carrying a firearm. And the 

trial court found appellant guilty “based upon” Weaver’s prior statements that he didn’t see 

anyone else in the parking lot other than appellant and that he “saw a gun in [appellant]’s hand.”

As a result, this Court cannot conclude that the improperly admitted evidence “did not 

have a substantial effect” on the trial court’s judgment of guilt. Turner, 284 Va. at 209; see also 

Doe, 227 Va. at 473 (“[W]e cannot say as a matter of law that the inadmissible evidence did not 

affect the jury verdict.” (alteration in original) (quoting Nicholaou v. Harrington, 217 Va. 618, 

623 (1977))). Accordingly, this Court reverses appellant’s conviction and remands the case for a 

new trial at the Commonwealth’s election.

II. Sufficiency of the Evidence

Appellant was convicted of violating Code § 18.2-308.2(A), which states in relevant part 

that “[i]t shall be unlawful for (i) any person who has been convicted of a felony . . . to 

knowingly and intentionally possess or transport any firearm.” On appeal, he argues that the 

evidence was insufficient as to the element of possession, which “requires proof beyond a 

reasonable doubt of either actual or constructive possession of the firearm.” Hancock v. 

Commonwealth, 21 Va. App. 466, 468 (1995). Appellant contends that Weaver’s preliminary 

hearing testimony—even if properly considered for its truth—is insufficient to overcome the 

deficiencies in the Commonwealth’s circumstantial evidence. This Court disagrees.

“[W]hen a challenge to a conviction rests on a claim that the evidence was insufficient 

because the trial court improperly admitted evidence, the reviewing court shall consider all
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evidence admitted at trial to determine whether there is sufficient evidence to sustain the 

conviction.” Code § 19.2-324.1 (emphasis added); see also Lunsford v. Commonwealth, 55 

Va. App. 59, 62 (2009) (“When determining the sufficiency of the evidence, we consider all 

admitted evidence, including the evidence appellant here asserts was inadmissible.”). The 

purpose of this requirement is “to ensure that any retrial of th[e challenged] charge would not 

violate double jeopardy principles.” McArthur v. Commonwealth, 72 Va. App. 352, 366 (2020). 

If the evidence adduced at trial was insufficient to support the conviction, even when taking into 

account any improperly admitted evidence, “a remand for retrial would violate the Constitution’s 

prohibition against double jeopardy.” Wilder v. Commonwealth, 55 Va. App. 579, 594 (2010)

(quoting Parsons v. Commonwealth, 32 Va. App. 576, 581 (2000)).

In reviewing the sufficiency of the evidence here, including Weaver’s prior statements in 

Exhibit 8, this Court will not disturb the judgment of the trial court “unless it is plainly wrong or 

without evidence to support it.” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) 

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). So long as the record provides 

“evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own 

judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the 

trial.’” Id. (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). “Rather, the relevant 

question is whether ‘any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) 

(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)).

In the absence of clear error, this Court defers to the factfinder’s resolution of conflicts in 

the testimony, weight given to the evidence, and reasonable inferences drawn “from basic facts 

to ultimate facts.” Robinson v. Commonwealth, 70 Va. App. 509, 513 (2019) (en banc) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trial court’s decision to accept as true 
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Weaver’s prior statements from the preliminary hearing was based on its finding that Weaver’s 

trial testimony was credible, despite appellant’s accusations that the physical evidence 

contradicted Weaver’s statements.24 As the trial court itself acknowledged, the facts it relied on 

to convict appellant came from the totality of Weaver’s testimony at both trial and the 

preliminary hearing. This Court finds that evidence sufficient to support appellant’s conviction 

for possessing a firearm by a convicted violent felon in violation of Code § 18.2-308.2(A).

According to Weaver’s collective testimony, he was sitting in the front passenger seat of 

a black sedan next to Rone on April 11, 2020, at approximately 8:14 p.m. Although a few other 

cars were also parked nearby, no other people were in the parking lot except for appellant. 

Weaver saw appellant pointing a gun at him and Rone from outside the car in which they were 

sitting. Moments later, both Weaver and Rone were struck by bullets, the gunshot wounds to 

Rone proving fatal.

Those facts sufficiently establish that appellant, whom Weaver called by name and 

identified in court, had actual possession of a firearm on April 11, 2020. Given Weaver’s 

testimony, the fact that no firearm was ever recovered by the police is immaterial because the 

offense of possessing a firearm was completed as soon as Weaver observed appellant holding a 

gun. Furthermore, the lack of any weapon found on scene does not necessarily contradict 

Weaver’s testimony. Therefore, taken in the light most favorable to the Commonwealth, 

Weaver’s testimony on its own was sufficient to convict appellant because Code § 18.2-308.2(A) 

requires the Commonwealth to prove possession of a firearm—not its use.

Nevertheless, as discussed above, appellant’s conviction is reversed and the case is 

remanded because the trial court’s impermissible use of Weaver’s preliminary hearing testimony 

24 This Court finds no basis for disturbing the trial court’s discretionary decision to credit 

Weaver’s testimony. And appellant does not allege on appeal that this Court should find 

Weaver’s testimony inherently incredible.
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was not harmless error. See Code § 19.2-324.1 (“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.”).

CONCLUSION

The evidence presented at appellant’s trial for unlawfully possessing a firearm as a 

convicted violent felon supports the trial court’s finding of guilt, the lynchpin being Weaver’s 

preliminary hearing testimony that he saw appellant holding a firearm. However, because the 

trial court did not examine whether Weaver’s alleged memory loss at trial rendered him 

“unavailable” for purposes of Rule 2:804, the trial court erred in admitting and considering

Weaver’s prior testimony for the truth of the matter—that appellant in fact possessed a firearm. 

And that error was not harmless because the Commonwealth’s circumstantial evidence is 

insufficient to support appellant’s conviction in the absence of Weaver’s incriminating

preliminary hearing testimony. Accordingly, this Court reverses the judgment below, vacates 

appellant’s conviction, and remands the case for a new trial should the Commonwealth be so 

inclined.

Reversed and remanded.