COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Chaney and Lorish

Argued at Virginia Beach, Virginia

DARONE CORTOIN OWENS

MEMORANDUM OPINION* BY

v. Record No. 1055-21-1 JUDGE VERNIDA R. CHANEY

OCTOBER 11, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Christopher Papile, Judge

(Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant. 

Appellant submitting on brief.

Robin M. Nagel, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Following a jury trial in the Circuit Court of the City of Newport News (“trial court”), 

Darone Cortoin Owens (“Owens”) was convicted of malicious wounding, in violation of Code 

§ 18.2-51, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On 

appeal, Owens contends that the evidence is insufficient to support his convictions. Additionally, 

Owens argues that the trial court abused its discretion by admitting a purportedly irrelevant 

photograph of him. For the following reasons, this Court affirms the convictions.

I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the 

light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. 

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)). This Court “regard[s] as true all the credible evidence favorable to the Commonwealth 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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and all fair inferences to be drawn therefrom.” Id. at 473 (quoting Kelley v. Commonwealth, 289 

Va. 463, 467-68 (2015)).

On December 18, 2016, around 6:00 p.m., Goldie Clinton (“Goldie”) and his cousin Shawn 

Clinton (“Shawn”) noticed two young African-American males walking near Shawn’s apartment 

building in Newport News. When Goldie called Shawn’s attention to the unknown males, one of 

the males pulled a pistol from his pocket and shot Goldie in the groin. When Goldie yelled out, 

both males shot at him and missed. Then both males shot at Shawn, fatally shooting him in the 

head and chest. Goldie hid behind a dumpster in the parking lot and then fled across the street to a 

convenience store to seek help. Goldie was taken to the hospital for medical treatment.

Goldie did not know the two shooters and had never seen them before that day. Goldie 

testified that minutes before the shooting, he got a good look at the person who subsequently shot 

him when he observed the person walk up to Shawn’s apartment door and when he walked past him

“shoulder to shoulder on the sidewalk.” Goldie got a good look at both shooters when he observed 

them talking nearby for about thirty minutes before the shooting. 

Goldie testified that he also got a good look at the shooter at the time of the shooting when 

the shooter was directly in front of him, twenty feet away. According to Goldie’s testimony, the 

person who shot him “was exactly the same person that [he had] seen earlier that [he] passed on the 

sidewalk [and] that was standing at Shawn’s door.” Goldie testified that the person who shot him 

was an African-American male wearing a blue jacket with the hood pulled tightly around his face 

and “a bush of curly hair coming out the front.”

Almost a year after the shooting, while Goldie was viewing Facebook, he saw a picture of 

the person who shot him. Goldie promptly called the lead detective on the case and informed her 

about the shooter’s picture on Facebook. The next day, Goldie met with the detective at the police 

station and identified the shooter in a photo lineup. The shooter’s picture was the same picture that 
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Goldie had seen on Facebook. At trial, Goldie recognized and identified Owens as the person who 

shot him.

Over Owens’ objection at trial, the trial court admitted into evidence a photograph showing 

Owens wearing a blue jacket with a hood. Owens argued that there was no foundation establishing 

that it was “relevant to any material fact in this case.”1 The Commonwealth responded that the 

photograph was relevant because Goldie had testified that the shooter wore a blue jacket with a 

hood, and the photograph showed Owens wearing a blue jacket with a hood. Although the trial 

court overruled Owens’ objection to admission of the photograph, the trial court granted Owens’ 

request to redact the date from the photograph.

Goldie acknowledged at trial that he was currently serving a prison sentence. Goldie further

testified that he was a convicted felon with seven felony convictions. At the time of the shooting, 

Goldie was participating in a drug court program.

After the Commonwealth rested, Owens moved to strike the evidence, arguing that Goldie’s 

multiple identifications of Owens were insufficient to prove that Owens was the shooter, given that 

Goldie did not know Owens and did not identify him for almost a year after the shooting. The trial 

court overruled the motion, and the defense rested without presenting evidence. 

During its closing argument, the Commonwealth focused on Goldie’s multiple 

identifications of Owens as the shooter, but also noted that the jury would have “a picture of 

[Owens] wearing a blue jacket with a hood.” During Owens’ closing argument, defense counsel 

asserted that the jury should not credit Goldie’s multiple identifications of Owens as the shooter, 

given that Goldie first identified him almost a year after the shooting based on a picture Goldie saw 

on social media. Defense counsel then addressed the photograph, asserting that while the jacket 

Owens wore in the photograph was “distinctive,” Goldie merely described the shooter’s jacket as 

1 Owens did not contest that he was the person shown in the photograph.
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blue. Defense counsel contended that if the Commonwealth believed that the jacket shown in the 

picture was the same jacket the shooter wore, the Commonwealth would have asked Goldie to 

identify the jacket on the stand. Rather, the Commonwealth “manage[d] to find a picture of . . .

Owens wearing something blue.” Accordingly, defense counsel argued that the picture 

“corroborated nothing of what Goldie Clinton testified to.” 

The jury convicted Owens of malicious wounding and use of a firearm in the commission of 

a felony but acquitted him of murdering Shawn. Owens moved to set aside the verdict, arguing that 

the jury’s decision to acquit him of second-degree murder demonstrated that the jury did not believe 

beyond a reasonable doubt that he was the shooter, but the trial court upheld the jury’s verdict. This 

appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Owens asserts that the evidence is insufficient because Goldie’s testimony identifying him 

as the shooter is the only evidence linking him to the shooting. Owens also asserts that no 

reasonable trier of fact could credit this testimony because Goldie was not acquainted with 

Owens and first identified Owens almost a year after the shooting. We disagree.

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is 

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to 

support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting 

Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask 

itself whether it believes that the evidence at the trial established guilt beyond a reasonable 

doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting 

Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether 

‘any rational trier of fact could have found the essential elements of the crime beyond a 
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reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. 

Commonwealth, 278 Va. 190, 193 (2009)). “If there is 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.’” Chavez v. Commonwealth, 

69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)). 

“Under well-settled principles of appellate review, we consider the evidence presented at trial in the 

light most favorable to the Commonwealth, the prevailing party below.” Vay v. Commonwealth, 67 

Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625, 629 (2009)).

Goldie testified that he clearly saw the shooter’s face and was able to identify Owens as 

the shooter when he saw Owens’ picture on social media, when he selected Owens’ picture from 

a photo lineup, and when he saw Owens in person at trial. The jury observed Goldie’s 

testimony, considered Owens’ arguments as to why Goldie’s multiple identifications of Owens 

were unreliable, and ultimately credited these identifications. “Determining the credibility of 

witnesses . . . is within the exclusive province of the [finder of fact], which has the unique 

opportunity to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 

64 Va. App. 512, 525 (2015) (alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 

300, 304 (1993)). “When ‘credibility issues have been resolved by the [fact-finder] in favor of 

the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong.’” 

Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v. Commonwealth, 13 

Va. App. 296, 299 (1991)). Owens has not shown that the jury’s findings are plainly wrong or 

without evidence to support them, and those findings were sufficient to convict Owens as the 

shooter. See Satcher v. Commonwealth, 244 Va. 220, 252-54 (1992) (witness identification 

evidence sufficient to sustain conviction); Chavez, 69 Va. App. at 161 (convictions supported by 

evidence are not overturned even if the reviewing court might have reached a different result).
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Owens also contends—as he did in his post-trial motion to set aside the verdict—that the 

jury’s decision to acquit him of murdering Shawn demonstrates that the evidence was 

insufficient to prove beyond a reasonable doubt that he shot Goldie. Owens argues that by 

acquitting him of Shawn’s murder, the jury must necessarily have found that the evidence—

Goldie’s identification of Owens as one of two shooters responsible for shooting him and Shawn 

that evening—was insufficient to prove that Owens was one of the two shooters beyond a 

reasonable doubt. Indeed, under the facts of this case, if the jury had found beyond a reasonable 

doubt that Owens was one of the two shooters who shot at Goldie and Shawn, Owens would 

have been legally responsible for Shawn’s murder. However, Owens’ reliance on this jury’s 

acquittal on the murder charge is unavailing because our sufficiency analysis is not a subjective 

standard based on the findings made by a particular jury. Rather, it is an objective standard 

focused on what a rational jury could have found based on the evidence viewed in the light most 

favorable to the Commonwealth. See Vasquez, 291 Va. at 248. Applying that standard, the 

evidence that Goldie identified Owens as the person who shot him was sufficient to support 

Owens’ convictions.

B. Admission of the Photograph

Owens further contends that the trial court erred in admitting the photograph of him 

wearing a hooded blue jacket. Owens argues that this photograph was not relevant to any 

material issue in the case and that the Commonwealth failed to establish the requisite foundation

for its relevance. We review a trial court’s evidentiary rulings under a deferential 

abuse-of-discretion standard. See Fields v. Commonwealth, 73 Va. App. 652, 672 (2021). “A 

court can abuse its discretion in three ways: (1) by failing to consider a relevant factor that 

should have been given significant weight, (2) by considering and giving significant weight to an 

irrelevant or improper factor,” and (3) by committing a clear error of judgment while weighing 
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all proper factors. See id. (citing Lawlor v. Commonwealth, 285 Va. 187, 213 (2013)). This 

Court will not find an abuse of discretion in an evidentiary ruling unless we find that no 

reasonable jurist would have so ruled. See Hicks v. Commonwealth, 71 Va. App. 255, 270 

(2019).

“The proponent of the evidence bears the burden of establishing . . . the facts necessary to 

support its admissibility.” Church v. Commonwealth, 71 Va. App. 107, 122 (2019) (quoting 

Perry v. Commonwealth, 61 Va. App. 502, 509 (2013)). However, once the proponent satisfies 

this threshold, “any gaps in the evidence” go to the jury’s “assessment of its weight rather than 

its admissibility.” Id. at 122-23. 

“Generally, ‘[a]ll relevant evidence is admissible’ unless provided otherwise by other 

rules.” Jones v. Commonwealth, 71 Va. App. 70, 88 (2019) (quoting Va. R. Evid. 2:402). 

“[R]elevance typically presents a low barrier to admissibility.” United States v. Leftenant, 341 

F.3d 338, 346 (4th Cir. 2003). Evidence is relevant if it has “any tendency to make the existence 

of any fact in issue more probable or less probable than it would be without the evidence.” 

Va. R. Evid. 2:401. “The scope of relevant evidence in Virginia is quite broad, as ‘[e]very fact, 

however remote or insignificant, that tends to establish the probability or improbability of a fact 

in issue is relevant.’” Commonwealth v. Proffitt, 292 Va. 626, 634 (2016) (quoting Virginia 

Elec. & Power Co. v. Dungee, 258 Va. 235, 260 (1999)). Indeed, “[e]vidence is relevant if it has 

any logical tendency, however slight, to establish a fact at issue in the case.” Cousins v. 

Commonwealth, 56 Va. App. 257, 271 (2010) (emphasis added) (quoting Ragland v.

Commonwealth, 16 Va. App. 913, 918 (1993)).

Owens does not dispute that the shooter’s identity is a fact-in-issue. Goldie testified that 

the shooter was a light-skinned Black male wearing a hooded blue jacket. To establish that the 

photograph at issue was relevant to this testimony, the Commonwealth proffered to the trial court
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that it was a photograph of Owens depicting “a lighter-skinned Black male wearing a blue jacket

with a hood.” Owens argues on appeal that this proffered foundation was insufficient to 

establish the photograph’s relevance because the Commonwealth failed to establish when the 

photograph was taken and that it was taken on or near the date of the shooting.

2

 This Court 

concludes that these gaps in the evidence go to the weight of the photographic evidence, not to 

its admissibility. See Church, 71 Va. App. at 122-23. Had there been evidence that Owens 

never wore clothing describable as a hooded blue jacket, such evidence would be relevant 

because it would tend to decrease the probability that Owens was the shooter in the hooded blue 

jacket. Similarly, the photograph of Owens wearing a hooded blue jacket is relevant because 

proof that Owens at some point wore a hooded blue jacket increases the probability—however 

slightly—that Owens was the shooter in the hooded blue jacket. See Walker v. Commonwealth, 

258 Va. 54, 68 (1999) (“Every fact, however remote or insignificant, that tends to establish the 

probability or improbability of a fact in issue, is factually relevant and admissible.” (citing

Epperly v. Commonwealth, 224 Va. 214, 230 (1982))).3 

2 Owens also argues on appeal that (i) the Commonwealth’s proffered foundation was 

insufficient to establish the photograph’s relevance because the Commonwealth failed to 

establish when the photograph was posted on social media and when the investigating officer 

retrieved the photograph from social media; (ii) Goldie’s description of the shooter’s clothing 

was extremely vague; and (iii) Goldie did not identify Owens’ outfit in the photograph as the 

same outfit he saw on the day of the shooting. However, Owens did not raise these arguments in 

the trial court. Therefore, this Court will not consider these arguments on appeal. See Rule 

5A:18.

3

In support of its conclusion that the photograph of Owens is not relevant, the 

concurrence attempts to distinguish the facts in Walker and Epperly from the instant case. 

However, there is no basis for limiting the holdings in those cases to their facts. Even if the fact

that Owens wore a hooded blue jacket is more remote, less significant, and has less tendency to 

prove a fact-in-issue than the evidence at issue in Walker and Epperly, this does not render the 

photograph of Owens irrelevant. Some relevant evidence may be so remote or so insignificant 

that its slight probative value is outweighed by its prejudicial effect, but Owens did not object to 

the photograph on these grounds.
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The concurrence acknowledges that the standard for relevant evidence is low, but 

contends that the photograph at issue is not relevant because it has no “tendency to demonstrate 

that Owens was the shooter.”4 The concurrence arrives at this result by (i) recharacterizing the 

photograph as showing Owens in a “dark-colored camouflage coat[] with [a] hood[]” and 

(ii) arguing that this description “at best, marginally matches Goldie’s very generic description of 

a ‘blue jacket with a hood.’” But Owens’ relevance objection in the trial court did not include

any alleged discrepancy between the hooded blue jacket described by Goldie and the garment

depicted in the photograph. Nor did Owens argue to the trial court that a garment described as a 

“blue jacket with a hood” was so generic that it was irrelevant that Owens was photographed 

wearing a garment that matched that description. Owens’ sole objection at trial was that the 

photograph was not relevant because its creation date was unknown.

Although uncertainty about the timing of the photograph decreases the photograph’s 

slight effect on the probability that Owens was the shooter in the hooded blue jacket, such 

uncertainty does not render the photograph irrelevant to this fact-in-issue. Because the 

photograph of Owens is relevant and Owens did not object that its admission was more 

prejudicial than probative, the trial court did not abuse its discretion in admitting the photograph. 

III. CONCLUSION 

For the foregoing reasons, this Court affirms Owens’ convictions for malicious wounding 

and use of a firearm in the commission of a felony.

Affirmed.

4 Although the concurrence would hold that the photograph is not relevant, the 

concurrence contends that any error in admitting the photograph was harmless. At oral 

argument, the Commonwealth conceded that if the admission of the photograph was error, it was 

not harmless error. 
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Lorish, J., concurring in the judgment.

I join the majority in affirming the conviction below, but I write separately with respect 

to the assignment of error challenging the trial court’s decision to admit the undated photograph 

of Owens into evidence. Relevant evidence is “evidence having any tendency to make the 

existence of any fact in issue more probable or less probable than it would be without the 

evidence.” Va. R. Evid. 2:401. This standard is low, as the phrase “any tendency” necessarily 

suggests, and as our caselaw confirms. 

Sergeant Comer testified at trial that he found the photograph in question on Owens’s 

public Facebook page. He further testified that he recognized the person on the right as Owens 

and he also identified the person on the left (a man not otherwise mentioned at trial). In the 

photograph, this other man is “flipping off” the camera with both hands. Both Owens and the 

other man are wearing matching dark-colored camouflage coats with hoods. 
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The majority opinion concludes the photograph was relevant because the victim, Goldie, 

testified that the shooter wore “a blue jacket with a hood.” Goldie did not testify that he 

recognized the jacket in the photograph as the one the shooter was wearing, or that this was the 

image he saw on Facebook (almost a year later) that led him to identify Owens as the shooter in 

the first place. Nor did the Commonwealth make these arguments. 

Even under the lowest relevancy bar, I have difficulty concluding that the evidence 

presented here—that Owens, at some point in his life, wore a piece of clothing that, at best, 

marginally matches Goldie’s very generic description of a “blue jacket with a hood”—has any 

tendency to demonstrate that Owens was the shooter.5 Rather than stretch the notion of 

relevance so thin that it disappears entirely, I would find that any error in admitting the evidence 

was harmless.6 

Where no constitutional issue is raised, the court “determine[s] whether there has been a 

fair trial on the merits and whether substantial justice has been reached” by deciding “whether 

the alleged error substantially influenced the jury.” Commonwealth v. Kilpatrick, ___ Va. ___, 

5 At trial, Owens argued that the photograph should not be admitted because it lacked a 

date and also because there was insufficient evidence it was “relevant to any material fact in this 

case” and did not “make it more or less likely that Darone Owens committed any of these four 

offenses.” The majority cites two cases for the proposition that “[e]very fact, however remote or 

insignificant, that tends to establish the probability or improbability of a fact in issue, is factually 

relevant and admissible.” Both are easily distinguished. In Walker v. Commonwealth, 258 Va. 

54, 68 (1999), the language quoted by the majority relates to the admission of a cartridge that 

came from the same firearm as seven cartridge cases recovered at the scene of a murder, where 

the cartridge was found only three to four months after the murder. Similarly unpersuasive is 

Epperly v. Commonwealth, 224 Va. 214, 230 (1982), which affirmed that evidence of the 

victim’s “good character and peaceable nature” was relevant to demonstrate the unlikelihood that 

the victim “would take her own life, flee, or fall victim to accidental death because of some 

dangerous habit or practice.” 

6 The Commonwealth “conceded” at argument that an error in admitting the photograph 

would not be harmless. But because we are not bound by a party’s concession of law, see

Butcher v. Commonwealth, 298 Va. 393 (2020), this remark only reflects the very limited 

evidence the Commonwealth introduced to prove that Owens was the shooter here—indeed the 

only other evidence was Goldie’s eyewitness identification. 
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___ (Aug. 4, 2022) (alteration in original) (quoting Haas v. Commonwealth, 299 Va. 465, 467 

(2021)). “If it did not, the error is harmless.” Id. at ___. We must consider “the potential effect 

of the excluded evidence in light of all the evidence that was presented to the jury.” Id. at ___. 

Here, the jury was presented with the victim’s live testimony identifying Owens in the 

courtroom as the shooter. The victim also previously identified Owens in a photo lineup. It is 

worth noting that “there is almost nothing more convincing than a live human being who takes 

the stand, points a finger at the defendant, and says ‘That’s the one!’” Watkins v. Sowders, 449 

U.S. 341, 352 (1981) (Brennan, J., dissenting) (quoting E. Loftus, Eyewitness Testimony 19 

(1979)). And it is “[b]ecause eyewitness identification is so persuasive to jurors” that 

“eyewitness ‘[m]isidentification is widely recognized as the single greatest cause of wrongful 

convictions in this country.’” Watson v. Commonwealth, 298 Va. 197, 209 (2019) (quoting State 

v. Henderson, 27 A.3d 872, 885 (N.J. 2011) (alteration in original)). Indeed, I have previously 

detailed the due process concerns inherent to suggestive witness identifications. See, e.g.,

Walker v. Commonwealth, 74 Va. App. 475, 508-30 (2022) (Lorish, J., concurring in part and 

dissenting in part). But on appeal, Owens has not raised any challenge to Goldie’s identification 

of him as the shooter. Given the singular persuasiveness of eyewitness testimony, I must 

conclude the error in admitting the photograph was harmless under our precedent.7 

7

See, e.g., Satcher v. Commonwealth, 244 Va. 220, 256 (1992) (“While other evidence 

support[ed] all the convictions in this case, [a victim’s] in-court identification of [the defendant] 

was sufficient alone to establish him as her assailant.”); Henry v. Commonwealth, 211 Va. 48, 52 

(1970) (“If the jury accepted [the in-court identifications], which it did in fact accept, the jury 

was warranted in finding Henry guilty.”).