COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Lemons∗ and Frank 

Argued at Chesapeake, 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 (McDermott & Roe, on brief), 

for appellant. 

 Eugene Murphy, Assistant 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. Kingsberry (appellant) appeals his convictions 

after a bench trial of robbery in violation of Code § 18.2-58, use 

of a firearm in the commission of a robbery in violation of Code 

§ 18.2-53.1, and wearing a mask in public in violation of Code 

§ 18.2-422. On appeal, he contends the trial court erred in: 1) 

admitting into evidence the statement of codefendant Olivier 

Dixon, 2) admitting into evidence a letter written by codefendant 

Karsene Paden, and 3) finding the evidence sufficient to support 
the convictions. In finding the trial court erred in admitting 

the statement of codefendant Dixon, we reverse and remand for 

further proceedings if the Commonwealth be so advised. 

I. BACKGROUND 

 On November 29, 1997, the general manager, Tom Sawyer, and 

two employees, Eileen Metheny and Jenny Jamison, of the Regal 

Cinema in Hampton were counting the day's receipts in an upstairs 

office. They heard loud noises outside the office, and Sawyer 

went into the hallway to investigate. He returned to the office 

with his hands raised and told Metheny and Jamison not to move. 

Then, three masked men, who were carrying guns, entered the room. 

Jamison testified that all three men were black. The men ripped 

the phone lines from the wall. One of the men struck Sawyer in 

the head with a gun. The men took the bag of money from the 

counter and left the office. 

 On December 10, 1997, Detective George Burton of the Hampton 

Police Department arrested Dixon in connection with the robbery at 

the Regal Cinema. At trial, Detective Burton testified as to the 

statement Dixon made to the police. Appellant's counsel objected 

to the admission of Burton's testimony on the basis of hearsay. 

Appellant's counsel asserted that Dixon was available to testify, 

and, therefore, his statement was inadmissible hearsay. Counsel 

for Dixon stated that Dixon was present and willing to testify. 

Dixon eventually testified on behalf of appellant and on behalf of 

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himself. The trial court overruled the objection and admitted 

Burton's testimony regarding Dixon's statement to the police. 

 Burton testified that Dixon told the police he went to Regal 

on November 29, 1997, with the intent of getting in to see a free 

movie. He told the police he was with two friends, Karsene Paden 

and another man he knew only by the last name of Kingsberry. 

Dixon identified photographs of Paden and appellant as the two men 

who were with him at Regal. Dixon told the police that Paden was 

the first person to go upstairs in the theater. Paden propped 

open a door and allowed appellant to come inside. Dixon then went 

upstairs to see what was happening. He told police that he saw 

appellant and Paden going down a hall with masks on. He said that 

he saw them go into a room he described as the "money counting 

room." He said he knew the room's purpose because he had been in 

the room with a former Regal employee. He said that he looked 

into the room and saw Paden and appellant putting money into a 

backpack. He also said Paden had a gun. Dixon stated he then 

went downstairs. Paden and appellant came downstairs, and Paden 

gave him $100. 

 Perry Mendel testified that he had been incarcerated at the 

Hampton City Jail when Paden told him that he and two other men 

had robbed the Regal Cinema using guns and got $7,000. Paden then 

described how he and the other men spent the money. 

 On April 5, 1998, Richard Elrod, a former employee at the 

Hampton City Jail, testified he intercepted a letter with 

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appellant's return address from the outgoing jail mail. The 

police determined the letter was written by Paden. The letter 

requested that appellant tell Paden what appellant had told the 

police. 

 Dixon testified that he went to the Regal Cinema on the day 

of the robbery to pick up movie tickets. After waiting 

unsuccessfully for the tickets, he left. He testified that the 

statement he gave 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 his brother, because he was concerned for 

appellant's welfare. 

II. ANALYSIS 

 Appellant contends the testimony of Burton regarding the 

statement Dixon gave to the police was inadmissible hearsay 

because Dixon was available and prepared to testify.1

 In Paden v. Commonwealth, 259 Va. 595, 529 S.E.2d 792 (2000), 

the Supreme Court of Virginia addressed the denial of codefendant 

Paden's petition for appeal by this Court. Paden asserted 

Burton's testimony regarding 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). 

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hearsay. See id. at 596, 529 S.E.2d at 793. The Supreme 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 (citations omitted). Cf.

Randolph v. Commonwealth, 24 Va. App. 345, 356, 482 S.E.2d 101, 

106 (1997) (holding the Commonwealth was not required to call a 

codefendant as a witness in joint trial to establish 

unavailability because, "as a codefendant in a joint trial, [he or 

she] could not be compelled to testify"). Therefore, we adopt the 

Supreme Court's reasoning and hold that Burton's testimony 

regarding Dixon's statement was inadmissible because the 

Commonwealth failed to establish Dixon was unavailable to testify. 

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 Appellant next contends the trial court erred in admitting 

the letter written by Paden. Appellant 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, 187, 416 S.E.2d 14, 22 

(1992) (citation omitted). 

 "The admissibility of evidence is within the broad discretion 

of the trial court . . . ." 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, 842 (1988)). 

 In this case, the trial court stated the purpose for which 

the letter was received into evidence. The trial court 

specifically said, "It does to my satisfaction show a connection 

between Mr. Paden and Mr. Kingsberry. But it's fairly innocuous 

with regard to these alleged crimes. And it is on that basis it 

is admitted over the objection." Therefore, the trial court did 

not receive the letter for the fact that Paden wanted appellant to 

tell him what appellant told the police. Instead, the court 

received it to show a connection between Paden and appellant. We 

find, therefore, appellant's argument that the letter was 

inadmissible hearsay and violated his Sixth Amendment right to 

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confront and cross-examine witnesses is without merit. The trial 

court did not abuse its discretion in admitting the letter written 

by Paden to show a connection between Paden and appellant. 

 Finally, appellant contends the evidence was not sufficient 

to support his convictions.2

 On appeal, in determining whether the evidence was 

sufficient, we consider all admitted evidence, including any 

illegally admitted 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) (citations 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 named 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. 

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he knew only as Kingsberry. He told police he followed appellant 

and Paden upstairs in the theater. Both men were wearing masks. 

He observed them go into the "money counting room." When he 

looked into the room, he saw appellant and Paden putting money 

into a backpack. Paden had a gun. 

 Jenny Jamison, a Regal employee, testified that all three men 

who robbed the Regal Cinema were wearing masks and carrying guns. 

 We find the evidence was sufficient to establish appellant 

participated in the robbery, used a firearm in the commission of 

the robbery, and wore a mask in a public place. Therefore, the 

trial court's determination that the evidence was sufficient to 

support the convictions was not plainly wrong or without evidence 

to support it. 

III. CONCLUSION 

 We find the trial court did not err in admitting the letter 

written by Paden or in finding the evidence sufficient to support 

the convictions. However, because we find the trial court erred 

in admitting Burton's testimony regarding Dixon's statement to 

police, we reverse and remand for further proceedings if the 

Commonwealth be so advised. 

Reversed and remanded.

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