COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons ∗ and Frank Argued at Ches apeake, Virginia

ANTWAN M. KINGSBERRY MEMORANDUM OPINION ∗∗ BY v. Record No. 0142-99-1 JUDGE ROBERT P. FRANK AUGUST 22, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Jay E. Dugger (McDer mott & Roe, on brief), for appellant. Eugene Murphy, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Antwan M. Kingsber ry (appellant) appe als his co nvictions after a bench tria l of robbery in violation of Code § 18.2-58, use of a firearm in the co mmission of a robbery in violation of Code § 18.2-53.1, and wearin g a mask in pu blic in violat ion of Code § 18.2-422. On appeal, he contends the tr ial court erre d in: 1) admitting into eviden ce the statement of codefendan t Olivier Dixon, 2) admitt ing into evidence a letter written by codefendant Karsene Paden, and 3) finding the evid ence sufficient to supportthe conviction s. In finding the trial court er red in admitting the statement of codefendant Dixo n, we reverse and remand for further proceedi ngs if the Commonweal th be so advised. I. BACKGROUND On November 29, 1997, the ge neral manager, Tom Sawyer, and two employees, Eileen Metheny and Jenny Ja mison, of the Regal Cinema in Hampton were counting the day's re ceipts in an upstairs office. They heard lo ud noises outside th e office, an d Sawyer went into the hall way to investigat e. He returned to the office with his hands raised and told Metheny and Ja mison not to move. Then, three masked men, who were carrying guns, entered the room. Jamison testif ied that all three men were black. Th e men ripped the phone lines fr om the wall. One of th e men struck Sawyer in the head with a gun. The men took the ba g of money from the counter and left the office. On December 10, 19 97, Detective Ge orge Burton of the Hampton Police Department arrest ed Dixon in connection with the robbery at the Regal Cinema. At trial, Dete ctive Burton test ified as to the statement Dixon ma de to the police. Appe llant's counse l objected to the admission of Burton's test imony on the basi s of hearsay. Appellant's co unsel asserted that Dixon was availa ble to testify, and, therefore, his st atement was inad missible hearsa y. Counsel for Dixon stated that Dixon was present an d willing to testify. Dixon eventually testified on beha lf of appellant an d on behalf of

- 2 -himself. The tr ial court overruled the objectio n and admitted Burton's testimony rega rding Dixon's st atement to the police. Burton testified that Dixon told the police he went to Regal on November 29, 1997, wi th the intent of gett ing in to see a free movie. He told the police he wa s with two friend s, Karsene Paden and another man he knew only by the last name of Ki ngsberry. Dixon identifi ed photographs of Paden an d appellant as the two men who were with him at Re gal. Dixon to ld the police that Paden was the first person to go upstairs in the theater. Paden propped open a door and al lowed appellant to come inside. Dixon then went upstairs to see wh at was happening. He told poli ce that he saw appellant and Pa den going down a ha ll with masks on. He said that he saw them go into a room he desc ribed as the "m oney counting room." He said he kn ew the room's purpose be cause he had been in the room with a former Regal employee . He said th at he looked into the room and sa w Paden and appe llant putting money into a backpack. He also said Paden ha d a gun. Dixon stated he then went downstairs. Pade n and appellant came downstai rs, and Paden gave him $100. Perry Mendel testified that he had been incarc erated at the Hampton City Jail when Paden told him th at he and tw o other men had robbed the Regal Ci nema using guns and go t $7,000. Paden then described how he and the other men spent the money. On April 5, 1998, Richard Elrod, a form er employee at the Hampton City Jail, te stified he intercep ted a letter with

- 3 -appellant's re turn address from the ou tgoing jail mail. The police determined the letter was written by Paden. Th e letter requested that appellan t tell Paden what ap pellant had told the police. Dixon testified that he went to the Regal Cine ma on the day of the robbery to pi ck up movie ticket s. Afte r waiting unsuccessfully for the tickets, he le ft. He testif ied that the statement he ga ve to the police was untrue. Paden testified that he did not participate in the robbery at the Regal Cinema . He stated that he wrote the letter to appellant, who is hi s brother, because he was concerned for appellant' s welfare. II. ANALYSIS Appellant cont ends the testimony of Burton regarding the statement Dixon gave to the po lice was inadmi ssible hearsay because Dixon was available and prep ared to testify. 1

In Paden v. Commonwealth , 259 Va. 595, 529 S.E.2d 792 (2000), the Supreme Court of Virginia addressed th e denial of codefendant Paden's petiti on for appeal by this Court. Paden asserted Burton's testimony re garding Dixon's statement was inadmissible

1 On brief, appellant argues the admission of Dixon’s statement was a violation of his Sixth Amendment right to confront and cross-examine witnesses. However, in his Question Presented, he limited his assignment of error to whether the statement was hearsay, a non-constitutional argument. Thus, we only address the hearsay issue. See Rule 5A:20(c)-(e). - 4 -hearsay. See id. at 596, 529 S.E.2d at 793. The Su preme Court agreed, stating: According to Paden, the Commonwealth did not establish the first factor, Dixon's unavailability to testify, because Dixon was present at trial and his attorney stated that Dixon was prepared to testify. The Commonwealth argues that, regardless of the representations made by Dixon's counsel, Dixon was unavailable to testify because Dixon could not be compelled to give evidence against himself and because the decision whether to testify was personal to Dixon and not his attorney. The Commonwealth correctly recites the rights of codefendant Dixon. Nevertheless, until Dixon asserted those rights, he remained available to testify. Under these circumstances, the Commonwealth failed to establish that Dixon was unavailable to testify, and the trial court erred in admitting the hearsay testimony of Detective Burton. Id. at 596-97, 529 S. E.2d at 793 (citat ions omitted). Cf. Randolph v. Commonwealth , 24 Va. App. 345, 35 6, 482 S.E.2d 101, 106 (1997) (holding th e Commonwealth was not required to call a codefendant as a witness in joint trial to establish unavailability because, "as a codefend ant in a joint trial, [he or she] could not be compel led to testify"). Th erefore, we adopt the Supreme Court's reasoning and ho ld that Burton's testimony regarding Dixon' s statement wa s inadmissible because the Commonwealth failed to establish Dixo n was unavailable to testify.

- 5 -Appellant next cont ends the trial court erred in admitting the letter written by Paden. Appell ant argues the letter is inadmissible hearsay. Whether an extrajudicial statement is hearsay depends upon the purpose for which it is offered and received into evidence. If the statement is received to prove the truth of its content, then it is hearsay and, in order to be admissible, must come within one of the many established exceptions to the general prohibition against admitting hearsay. Hanson v. Commonwealth , 14 Va. App. 173, 18 7, 416 S.E.2d 14, 22 (1992) (citatio n omitted). "The admissibility of evidence is within the broa d discretion of the trial co urt . . . ." Pavlick v. Commonwealth , 25 Va. App. 538, 543, 489 S. E.2d 720, 722 (1997) (citing Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S. E.2d 838, 84 2 (1988)). In this case, the trial court st ated the purp ose for which the letter was received into evidence. Th e trial court specifically said, "It does to my satisfaction sh ow a connection between Mr. Paden and Mr. Kingsberry . But it's fa irly innocuous with regard to these al leged crimes. And it is on that basis it is admitted over the objection." Therefore, the trial court did not receive the le tter for the fact that Pa den wanted appellant to tell him what appell ant told the police. Instead, the court received it to show a connection between Pade n and appell ant. We find, therefore, appellant's ar gument that th e letter was inadmissible hearsay and violated his Sixt h Amendment right to

- 6 -confront and cross-exam ine witnesses is without merit. The trial court did not abus e its discretion in admitting the letter written by Paden to show a connection between Paden and appellant. Finally, appellant contends the evidence was not su fficient to support his convictions. 2 On appeal, in determinin g whether the evidence was sufficient, we consid er all admitted evid ence, including any illegally admitt ed evidence. See Lockhart v. Nelson , 488 U.S. 33, 41 (1988). The standard of review for determining the sufficiency of evidence on appeal is well established. We must examine the evidence in the light most favorable to the Commonwealth, the prevailing party at trial, and we will not disturb the trial court's judgment unless it is plainly wrong or without evidence to support it. Hedrick v. Commonwealth , 257 Va. 328, 340, 513 S.E.2d 634, 640 (1999) (citatio ns omitted). In this case, Dixon identified appellant and Paden as the men who were with him at the Regal Cinema on November 29, 1997. He told the police that one man was name d Karsene Paden and the other

2 We undertake a full sufficiency analysis for double jeopardy purposes. See Parsons v. Commonwealth , 32 Va. App. 576, 581, 529 S.E.2d 810, 812-13 (2000). The evidence, the sufficiency of which we address, is the evidence adduced at trial, regardless of whether it was properly admitted. Thus, our decision on sufficiency of the evidence is tied specifically and exclusively to the body of evidence in the trial on appeal, and is in no sense declaratory of the merits of the case, in the face of an evidentiary reversal, and is in no sense declaratory of the sufficiency of any future body of evidence. - 7 -he knew only as Kingsberry. He told police he followed appellant and Paden upstai rs in the theater. Both men were wearing ma sks. He observed them go into the "money counti ng room." When he looked into the room , he saw appellant an d Paden putt ing money into a backpack. Paden had a gun. Jenny Jamison, a Regal employee , testified that all three men who robbed the Regal Ci nema were wear ing masks and ca rrying guns. We find the eviden ce was sufficient to establish appellant participated in the robbery, used a firearm in th e commission of the robbery, and wore a mask in a pu blic place. Therefore, the trial court's dete rmination that the eviden ce was sufficient to support the convic tions was not plai nly wrong or wi thout evidence to support it. III. CONCLUSION We find the trial court did not er r in admittin g the letter written by Paden or in finding the ev idence sufficie nt to support the conviction s. However, because we find the tria l court erred in admitting Burt on's testimony regardin g Dixon's st atement to police, we reverse an d remand for further proceedings if the Commonwealth be so advised. Reversed and remanded.

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