PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ., 

and Russell and Koontz, S.JJ.

CHRISTIAN LEE RUSHING

OPINION BY

v. Record No. 111569 SENIOR JUSTICE CHARLES S. RUSSELL

June 7, 2012

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal presents questions concerning the admissibility 

and sufficiency of the evidence offered to support a conviction 

of criminal street gang participation in violation of Code 

§ 18.2-46.2(A).

Facts and Proceedings

At a jury trial in the Circuit Court of the City of 

Hampton, Christian Lee Rushing was convicted of aggravated 

malicious wounding, use of a firearm while committing aggravated 

malicious wounding, burglary while armed, use of a firearm while 

committing burglary, and participation in a criminal street 

gang. On March 12, 2010, the circuit court sentenced him to a 

total of 51 years incarceration for those offenses, with 32

years suspended. Only two of those offenses are before this 

Court on appeal, criminal gang participation and use of a 

firearm in commission of burglary.

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. On August 1, 2008, 
2

Christian Lee Rushing and his co-defendant William Travis Newton 

were both 16-year-old residents of Newport News. According to 

Newton's later statement to the police, a member of the "Crips" 

gang had told Rushing that a certain house in nearby Hampton 

belonged to a drug dealer, that $15,000 in cash could be found 

there, and that no one would be at home. Newton and Rushing got 

a ride to Hampton and "scope[d] out" the house. They decided to 

break into the house and returned on August 1, 2008 for that 

purpose. They pried open a patio door with a crowbar and 

entered the house from the rear.

The house was occupied by 75-year-old Benjamin O'Dell, who 

was not a drug dealer and who lived there alone. O'Dell was at 

the top of a flight of four steps that descended from the living 

room level to the lower level where the front door was located. 

Newton and Rushing appeared below him, having come through 

another room on the lower level. Both Newton and Rushing were 

carrying handguns. Newton fired a shot at O'Dell that missed 

and hit the ceiling. O'Dell heard one of them say: "let's get 

out of here; we [have] got the wrong house." Rushing fled but 

Newton remained long enough to fire two more shots, both of 

which struck O'Dell in the side, penetrating his abdomen. 

O'Dell suffered injuries requiring extensive surgery that 

included removal of a kidney and repair of the duodenum. He 

remained in a hospital more than a month, followed by a period 
3

of rehabilitation. He was able to identify both defendants at 

trial as the perpetrators.

Rushing and Newton were both arrested by Newport News 

police officers and their homes were searched pursuant to search 

warrants. The two handguns the defendants had used were the 

property of Newton's grandfather, who identified them as his. 

Newton at first denied involvement but later, after being shown 

the handguns, admitted that it was he, and not Rushing, who had 

shot O'Dell. The search of Rushing's home produced nothing of 

consequence, but a search of his person incident to his arrest

produced brass knuckles, bandannas, and a straight razor. The 

search of Newton's home produced, in addition to the handguns, 

numerous indicia of gang membership including notebooks, 

drawings, writings, and bandannas.

Newton and Rushing were tried together. The Commonwealth 

presented the testimony of Detective Ernest Corey Sales, the 

officer in charge of the "gang unit" of the Hampton police. The 

court admitted his testimony as an expert witness on the 

subjects of gang identification and gang ideologies. He 

testified extensively as to the origins, alliances, rivalries, 

insignia, traditions, and lore of various street gangs extant 

throughout the country. Detective Sales opined that both 

Rushing and Newton were members of a gang originating in Chicago 

known as "Gangsta Disciples" (GD), who sometimes referred to 
4

themselves as the "Folk" or the "Folk Nation." He testified 

that he personally knew of 23 GD members in his immediate area 

and that the gang was active there and elsewhere. He stated 

that the primary purpose of all street gangs was the commission 

of crimes, including drug distribution, car theft, and robbery 

and that members advance in status within the gang by committing 

these crimes.

The detective testified that his opinion of Rushing's 

affiliation with GD was based primarily on two things. First 

was a photograph of Rushing making a GD recognition hand signal 

called "throwing up a pitchfork." The second was Rushing's 

participation with Newton in committing the crimes against 

O'Dell.1

 The photographer did not testify, nor did any witness 

identify the photograph as a fair representation of the scene it 

portrayed or describe the circumstances existing when it was 

taken. The court admitted the photograph in evidence over 

Rushing's objection that it lacked any foundation.

The statutory definition of "criminal street gang" 

contained in Code § 18.2-46.1 requires proof that the gang's 

members have committed, or attempted or conspired or solicited 

 

1 Sales, interviewing Newton, asked him if he was "Folk." 

Newton responded by saying: "[A]ll is one." Sales testified 

that this was the proper response to that question by a member 

of GD. The notebooks found in Newton's bedroom were filled with 

the gang's symbols, rules and insignia.
5

others to commit, two or more predicate criminal acts, at least 

one of which was a crime of violence. To comply with this 

requirement, the Commonwealth offered certified copies of court 

orders showing the convictions of two individuals. The first 

indicated that Darryl Brandon Lollis pleaded guilty in the 

Circuit Court of the City of Norfolk to robbery and criminal 

gang participation. In the attached plea agreement and 

stipulation of facts, Lollis admitted he was a member of GD.

The second conviction order indicated that Deanthony Clark

pleaded guilty in the Circuit Court of the City of Hampton to

carjacking and the use of a firearm. Detective Sales opined 

that Clark was a member of GD because he had once observed 

Clark, sitting in a chair in a school office, wearing black and 

blue beads. Sales testified that black and blue beads are 

insignia worn by GD members.

Rushing objected to the admission of these orders on the 

ground that there was no indication of any connection between 

Rushing and either Lollis or Clark, and on grounds of relevancy 

and hearsay. The court held that the orders were relevant as 

proof of predicate offenses required to establish an element of 

the crimes: that GD was a criminal street gang.

Rushing appealed his convictions to the Court of Appeals. 

A single judge denied his petition and he requested review by a 

three-judge panel. The panel granted the appeal as to a single 
6

assignment of error, denying two others. The Court of Appeals 

rephrased the granted assignment to read as follows, deleting 

matter contained in the assignment Rushing had made in his 

petition for appeal:

The circuit court erred by finding the evidence 

sufficient to convict appellant of gang 

participation because of insufficient evidence, 

because prior felony convictions of alleged gang 

members were improperly admitted, and a photo of 

appellant allegedly making a gang sign was 

improperly admitted.

By a published opinion, a divided panel affirmed the 

convictions. Rushing v. Commonwealth, 58 Va. App. 594, 712 

S.E.2d 41 (2011). The panel majority noted that Rushing had not 

asked for a new trial, which would be his remedy if evidence 

were to be held improperly admitted, but rather had asked that 

the gang participation conviction be reversed and the charge 

dismissed because the evidence was insufficient to support it. 

The panel majority therefore declined to address the issues of 

admissibility of evidence. The majority held that on appellate 

review of the sufficiency of the evidence, all the evidence must 

be considered, whether improperly admitted or not. Thus, 

including the challenged evidence of the photograph and the 

orders of conviction, the majority found the evidence sufficient 

to support the conviction and affirmed. Id. at 602-03, 712 

S.E.2d at 45-46. One judge dissented on the ground that the 

majority had erred in refusing to consider Rushing's challenge 
7

to the admissibility of the photograph and the conviction 

orders. Id. at 610-11, 712 S.E.2d at 49. We awarded Rushing an 

appeal.

Analysis

A. Gang Participation

Code § 18.2-46.1 defines the relevant terms as follows: 

"Criminal street gang" means any ongoing 

organization, association, or group of three or 

more persons, whether formal or informal, (i) 

which has as one of its primary objectives or 

activities the commission of one or more criminal 

activities; (ii) which has an identifiable name 

or identifying sign or symbol; and (iii) whose 

members individually or collectively have engaged 

in the commission of, attempt to commit, 

conspiracy to commit, or solicitation of two or 

more predicate criminal acts, at least one of 

which is an act of violence, provided such acts 

were not part of a common act or transaction.

"Predicate criminal act" means (i) an act of 

violence; (ii) any violation of [listing 29

specified sections of the Code of Virginia];(iii) 

a second or subsequent felony violation of 

subsection C of § 18.2-248 or of § 18.2-248.1; 

(iv) any violation of a local ordinance adopted 

pursuant to § 15.2-1812.2; or (v) any 

substantially similar offense under the laws of 

another state or territory of the United States, 

the District of Columbia, or the United States.

Code § 18.2-46.2 provides, in pertinent part:

A. Any person who actively participates in 

or is a member of a criminal street gang and who 

knowingly and willfully participates in any 

predicate criminal act committed for the benefit 

of, at the direction of, or in association with 

any criminal street gang shall be guilty of a 

Class 5 felony. . . .
8

The Commonwealth, therefore, had the burden of proving, 

beyond a reasonable doubt, that (1) Rushing had committed a 

"predicate criminal act," (2) that GD existed as an identifiable 

street gang, (3) that GD was a criminal street gang because its 

members had committed two or more "predicate criminal acts," at 

least one of which was a crime of violence, and (4) that Rushing 

committed his "predicate criminal act" as a member of or active 

participant with the gang.

Rushing contends that the Commonwealth's evidence was 

insufficient to prove the latter two of those elements. 

Specifically, he argues that Deanthony Clark's conviction order 

should not have been admitted in evidence because it was not 

shown to be relevant. Rushing points out that there was no 

evidence that he knew or had any relationship with Clark, and 

that the conviction order would only have been relevant if it 

had some tendency to show that Clark was a member of GD when 

Clark committed his crime.

We agree with Rushing's conclusion. Detective Sales 

expressed his opinion that Clark was a member of GD. Generally, 

expert opinion is only admissible in a criminal case if it is 

based on facts in evidence. Simpson v. Commonwealth, 227 Va. 

557, 565, 318 S.E.2d 386, 391 (1984). The only factual basis 

Sales had for that opinion was that he had once seen Clark, on 

an unspecified date, sitting in a chair in a school office, 
9

wearing black and blue beads. Because Sales also considered 

such beads to be GD insignia, he concluded that Clark was a GD 

member. Proof that GD members wear black and blue beads does 

not constitute proof that all who wear black and blue beads are 

GD members.2

Further, because Sales' observation of Clark's beads was 

not related in time to Clark's commission of his crime in 

Norfolk, it does not support the conclusion that he committed it 

as a member of the gang. Participation in the gang's 

activities, without more, is not sufficient to characterize an 

actor as a gang member in one of the two offenses prerequisite 

to proof of a criminal street gang's existence. A defendant 

charged with gang participation, although not an actual member 

of the gang, may be convicted upon a showing that he 

participated in a gang-related crime. The statute, however, 

 

2 The Commonwealth's reasoning illustrates the celebrated 

fallacy of the undistributed middle term in Aristotelian Logic. 

In the syllogism: "All gang members wear beads; Clark wears 

beads; therefore Clark is a gang member," the conclusion is 

fallacious because it does not account for those who wear beads 

who are not gang members. Some may wear them because they wish 

to become or be perceived as members, or for protection from 

members, or because they are enemies or even law enforcement 

officers seeking to infiltrate the gang, or because they simply 

like beads. See Spencer v. Texas, 385 U.S. 554, 578-79 (1967) 

(Warren, C.J., dissenting) (citing Stebbing, A Modern 

Introduction to Logic 88 (6th ed. 1949)); Allied Erecting & 

Dismantling Co. v. USX Corp., 249 F.2d 191, 202 n.1 (3d Cir. 

2001) (citing Rugero Aldisert, Logic For Lawyers (1997)).
10

requires membership in the case of those who committed the two 

unrelated crimes necessary to establish the existence of a 

criminal street gang.

We do not agree with Rushing's contention that proof of a 

personal connection between Rushing and Clark was necessary to 

make Clark's conviction relevant. The last sentence of Code 

§ 18.2-46.1 demonstrates a clear legislative intent to include 

within the sweep of the statute predicate crimes committed by 

gang members anywhere within the United States. Nevertheless, 

Detective Sales' opinion of Clark's gang membership was 

insufficiently grounded on facts in evidence to carry the 

Commonwealth's burden of proving one of the two requisite 

predicate crimes by gang members.3

Rushing also contends that the circuit court erred in 

admitting a photograph of his making what was described by 

Detective Sales as a GD hand signal. The photographer did not 

testify, nor did any other witness identify or authenticate the 

photograph, describe the circumstances existing when it was 

taken, or testify that it fairly represented the scene it 

appeared to portray. The circuit court therefore erred in 

admitting it into evidence without any foundation. See Charles 

 

3 By contrast, Lollis' conviction was relevant because he 

admitted GD gang membership in his stipulation and plea 

agreement.
11

E. Friend, The Law of Evidence in Virginia § 13-12(a) at 538

(6th ed. 2003). See Virginia Rule of Evidence 2:901 (enacted by 

2012 Acts chs. 688, 708 (requiring "evidence sufficient to 

support a finding that the thing in question is what its 

proponent claims").

As stated above, the Court of Appeals declined to address 

errors in the admission of evidence because Rushing had, in his 

assignment of error, described the improper admission of the 

photograph, along with the Clark and Lollis conviction orders, 

as the basis for his contention that, without them, the evidence 

was insufficient to support the conviction. It is certainly 

better appellate practice to put the appellant's finger on the 

precise error complained of by assigning errors separately when 

both evidentiary error and sufficiency questions are appealed.

We do not, however agree with the Court of Appeals' holding 

that review of an evidentiary error is precluded by giving it as 

the reason the evidence was insufficient. Put differently, an

appellant may properly contend (1) that evidence was entered 

erroneously and (2) without that error the record would not 

contain evidence sufficient to support the conviction. An 

appellate court, in those circumstances, cannot adjudicate the 

question of sufficiency without first deciding whether the 

evidence should have been admitted. If the evidence is 

determined to have been admitted in error, and the error has 
12

been properly preserved and is non-constitutional, and if there 

remains evidence in the record clearly sufficient to support the 

conviction without the evidence erroneously admitted, then the 

error is harmless and the judgment may be affirmed. If the 

appellate court is in doubt as to the extent to which the 

erroneously admitted evidence may have affected the verdict, the 

appellant is entitled to a reversal and a remand for a new 

trial. But if there remains in the record, without the 

erroneously admitted evidence, insufficient evidence to support 

the conviction, the appellate court must reverse and enter final 

judgment for the appellant.

The Court of Appeals cited Lockhart v. Nelson, 488 U.S. 33 

(1988), for the proposition that, on appellate review for 

sufficiency of the evidence, all evidence in the record, whether 

erroneously admitted or not, is to be considered. We have 

adopted a different standard of appellate review in Virginia.4 

In Crawford v. Commonwealth, 281 Va. 84, 111-12, 704 S.E.2d 107, 

123-24 (2011), we held that, on appellate review of the 

sufficiency of the evidence, "an appellate court may not

consider evidence illegally admitted at trial. To hold 

otherwise would circumvent on appeal the Constitutional 

 

4 The only issues before us in this appeal involve questions 

of the interpretation of Virginia statutes, Virginia appellate 

procedure, and Virginia's rules of evidence.
13

protections provided to a defendant at trial." (Emphasis added.) 

We adhere to that standard and the Court of Appeals was bound by

Crawford.5

Applying that standard, we hold that if the record is 

considered without the erroneously admitted evidence of 

Deanthony Clark's conviction, the Commonwealth proved only one 

predicate crime committed by a gang member rather than the two 

required by the statute. Therefore, the Commonwealth failed to 

prove an essential element of the crime and the Court of Appeals 

erred in affirming Rushing's conviction for gang participation. 

Because this holding requires reversal and final judgment for 

Rushing, we do not reach the effect of the erroneous admission 

of the photograph.6

B. Use of a Firearm in Commission of Burglary

The Commonwealth concedes on brief that, in light of this 

Court's decision in Rowland v. Commonwealth, 281 Va. 396, 402,

 

5 Here, as in Crawford, we are concerned with the rules of 

appellate review in Virginia. The Supreme Court of the United 

States, in Lockhart, in a federal habeas corpus appeal, 

considered whether the Double Jeopardy Clause barred a 

resentencing proceeding after evidence used to support an 

enhanced penalty was found to have been improperly admitted. If 

the Commonwealth should seek to retry Rushing, a double jeopardy 

question may arise, but that question is not before us in this 

appeal.

6 It is thus unnecessary to decide whether that error was 

harmless in light of other evidence from which the jury might 

have concluded that Rushing committed his crimes in 

participation with the gang.
14

707 S.E.2d 331, 334 (2011) (use of a firearm in commission of 

burglary requires proof that the firearm was used before entry 

was fully accomplished), the evidence was insufficient to 

support that conviction. Accordingly, we will reverse the 

conviction on that charge, and enter final judgment dismissing 

that charge.

Conclusion

For the reasons stated, we will reverse and dismiss 

Rushing's convictions for gang participation and for use of a 

firearm in the commission of burglary, entering final judgment 

here. Rushing's other convictions are unaffected by this 

appeal.

Reversed and final judgment.