COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Dec ker, Judges Petty and Huff Argued at Richmond, Virginia

ALEX MICHAEL RAMOS OPINION BY v. Record No. 1595-18-2 JUDGE GLEN A. HUFF NOVEMBER 12, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Richard E. Moore, Judge John P. Joyce (Snook & Haughey, P.C., on brief), for appellan t. Rosemary V. Bourne, Senior Assist ant Attorney General (Mark R

. Herring, Attorney General, on brief), for appellee.

Alex Michael Ramos (“appellant” ) appeals his conviction for mal icious wounding in violation of Code § 18.2-51 for his pa rticipation in a fight at the disturbances a rising out of the “Unite the Right” rally in Char lottesville. After a jury trial in the Circuit Court for the City of Charlottesville, the jury convict ed appellant, and the trial co urt sentenced him to six years’ imprisonment in accordance with the jury’s recommended sentence

. Appellant raises three assignm ents of error. First, he argues the trial court erred by not excusing, for cause, jurors who wer e aware that another defenda nt was convicted the prior day for a malicious wounding of the sam e victim in the same inciden t. Second, he argues the trial court erred by denying his moti on to change venue. Third, he a rgues the trial court erred in denying his motion to strike because the evidence was insuffici ent to prove he acted with the requisite malice. This Court disagrees with appellan t’s assertions. First, this Court declines to create a per

se rule requiring a trial court to strike those familiar with ano ther defendant’s conviction.PUBLISHED- 2 - Second, appellant waived his change of venue claim by failing t o renew it after a jury was empaneled. Third, a single punch t o the head is a significant enough attack from which the jury could infer malice when the blow was struck after the victim wa s already on the ground having been repeatedly struck b y a mob of individuals.
I. BACKGROUND “This Court considers ‘the evide nce presented at trial in the l ight most favorable to the Commonwealth, the prevailing part y below.’” Hawkins v. Commonw ealth, 64 Va. App. 650, 652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2 008)). So viewed the evidence is as follows: On August 12, 2017, several white-s upremacist groups held the “ Unite the Right” rally in Charlottesville. Deandre Harris, the victim of the malicious w ounding, gathered with several friends in the area and joined agroup of counter-protesters. After several hours of conflict— before the rally was schedule d to start—between rally participa nts and the counter-protestors, the police ordered everyone to disperse. As the participants and counter-p rotesters headed back toward t he parking garages, Harris observed an acquaintance in a di spute over a flag. Believing h is acquaintance was about to be stabbed with the flagpole, Harri s intervened and struck the fla gpole with a Maglite flashlight he had been given earlier in the morning. Harris was pepper spray ed. A general melee broke out. As Harris stumbled away, he was struck. The group of people fi ghting moved away from him. Harris staggered to his feet a nd ended up surrounded again. Atleast three individuals other than appellant struck Harris. One us ed poles; one used a large stic k of wood like a 2” x 4”; and another used a shield. Several of them, and a few others, kick ed him at the same time. Harris fell to the ground. Appellant joi ned the fray. He had a shirtwrapped around his fist and might have had an object in his hand c oncealed by the shirt. He woun d up with his fist and struck- 3 - Harris while Harris was still on the ground. Harris then got u p and ran away with a bloody face, stumbling as he went. Appellant was indicted for ma licious wounding in violation of C ode § 18.2-51. Before trial, he moved for a change of venue. He argued the publicity and public outcry over the violent events of that day made it impossible for him to receive a fair trial before an impartial jury. The trial court declined to grant the motion before jury selection, taking the motion under advisement and inviting appellant to renew his motion during voir dire . Appellant never r enewed the motion or further requested a ruli ng on the motion. After the jury ha d been sworn and the first witness had testified, the Com monwealth noted that the motion for a cha nge of venue had not been finally ruled on, and the trial c ourt then denied the motion. Jacob Goodwin, the individual wi th the shield who participated in attacking Harris, was tried on the two days immediatel y before appellant’s trial. Go odwin was found guilty of malicious wounding and sentenced to ten years’ imprisonment. S ee Goodwin v. Commonwealth, ___ Va. App. ___, ___ (Nov. 12, 2019). During voir dire in appellant’s trial, it was discovered that some in the venire were aware, to varying e xtents, of Goodwin’s conviction. One potential juror, R.A., saw aheadline about Goodwin’s convi ction, but did not read the story. Another, M.W., knew Goodwin was c onvicted and sentenced to ten years’ imprisonment, but did not know the charge on which he w as convicted. The potential j uror who knew the most, L.T., stated he knew the previous defe ndant was convicted of maliciou s wounding and sentenced to ten years. Four more potential jurors knew something, but thre e had knowledge that was similar to M.W., R.A., or L.T. and one was never asked specifically wha t she knew. 1

1 A fifth who also had knowledge w as excluded for cause when the trial court doubted her answer that she could set aside what she knew.- 4 - After the individual voir dire of the last of the potential jurors, M.W., appellant moved to strike M.W. and “people who know a bout the Goodwin verdict.” T he trial court denied the motion. It concluded appellant c ould not make a general object ion to multiple jurors in that fashion, but stated it would perm it appellant to question any o f the jurors more specifically if he wanted to so he could make indi vidualized motions. Appellant d id not question any potential juror further. At the close of the evidence, a ppellant moved to strike on the ground that the Commonwealth had not proved malice because appellant only hit t he victim once. The trial court denied the motion. The j ury convicted appellant and reco mmended a sentence of six years’ imprisonment. The trial court im posed the jury’s recommended s entence, and this appeal followed.
II. ANALYSIS A. Juror Selection Appellant argues the trial cour t erred by not striking jurors w ho were aware Goodwin had been convicted of malicious wounding the previous day. Appella nt argues that because they knew Goodwin had been convicted t he day before for his particip ation in the same beating, they would defer to the earlier jury on the issue of whether the Com monwealth had proved a malicious wounding occurred. He argues that when a defendant i s accused based on a concert of action theory and prospective jurors know about the conviction of a co-defendant who was tried separately, those pros pective jurors are per se disqualified. This Court disagrees. 2

2 The Commonwealth argues that appellant waived his argument as it relates to any potential juror except Juror M.W. Appellant makes no individua lized argument in his brief. He contends that any knowledge of Goo dwin’s conviction creates a b ar to serving on the jury. As he confirmed at oral argument , he is only arguing for a per se rule. If he is correct that a per se bar is warranted, then a general ob jection to all who possessed tha t knowledge, like appellant made in this case, would sufficiently a lert the trial court to the i ssue to be determined.- 5 - On review, this Court gives signi ficant deference to a trial co urt’s decision to strike a prospective juror or not, “because the trial court was able to see and hear each member of the venire respond to the questions posed.” Lovitt v. Commonwealth , 260 Va. 497, 510 (2000), cert. denied, 534 U.S. 815 (2001). Accordi ngly, our review is “for a n abuse of discretion and [the trial court’s] ruling will not be disturbed on appeal unless itappears from the record that the trial court’s action constitutes mani fest error.” Cressell v. Common wealth, 32 Va. App. 744, 755 (2000). “In conducting our review, w e consider the juror’s ent ire voir dire , not merely isolated statements.” DeLeon v. Commonwealth, 38 Va. App. 409, 412-13 ( 2002) (quoting Lovitt, 260 Va. at 510). A defendant in a criminal case i n Virginia is entitled to a jur y panel free of potential bias or other disqualifying character istics before exercising peremp tory challenges. Id. at 412. A prospective juror must be able to give the defendant “a fair an d impartial trial.” Breeden v. Commonwealth, 217 Va. 297, 298 (1976). Through the voir dire process, “the trial judge must probe the conscience and mental attitude of the prospective jur ors to ensure impartiality.” Griffin v. Commonwealth, 19 Va. App. 619, 621 (1995). Although a potential juror may have some knowledge of the case, or p reconceived or even erroneous n otions about the legal system, the “test of impartiality is whether the venireperson can lay a side the preconceived views and render a verdict based solely on th e law and evidence presented at trial.” Id. Appellant argues that Farra r v. Commonwealth, 201 Va. 5 (1959), mandates reversal. In Farrar, the defendant and anothe r man were charged with consens ual sodomy with each other. Their trials were severed. The other man was tried first. Whe n Farrar was later tried, eight members of the venire from the other man’s trial were part of t he venire for Farrar’s trial. Although those prospective jurors did not hear the evidence in the earlier trial, they did hear the other defendant’s arraignment and the charges, which mentioned Farrar’s name. Although Farrar- 6 - did not establish that the prosp ective jurors had read the news papers, the other defendant’s conviction had been reported in t he paper. The Supreme Court h eld that those pros pective jurors should have been excluded from the venire. Id. at 9. The Cour t noted that the jurors had such an

“ association with [the first defendant]’s case that it may be reasonably in ferred that bias on their part operated in the trial of Farrar.” Id. at 8 (emphasis added). Appellant contends that the juror’s awareness of the verdi ct in Goodwin’s case creates the same reasonably inferred bias that should require a per se exclusion of those pr ospective jurors. 3 Nevertheless, a key distinction sep arates this case from the ci rcumstances of Farrar. 4 Even assuming, without deciding, that Farrar created a per se rule of exclusion, the prospective jurors in Farrar learned about F arrar’s potential involvement i n the crime in official proceedings related to his co-defendant. A ba seline of what they knew coul d be obtained from the official record of the proceedings, and all the prospective jurors knew that Farrar had been named in the other defendant’s charges. Her e, the prospective jurors’ knowl edge of Goodwin’s case, and its

3 Appellant also contends that hi s jury would be likely to defer to the Goodwin jury on its findings because some members of his jury knew about the Goodwi n verdict. Although both juries returned guilty verdicts, the two juries recommended sig nificantly different sentences. This suggests appellant’s jur y did not rely on the Goodwin verd ict despite having some knowledge of it.

4 A second distinction also limits F arrar’s applicability. Farr ar and the other defendant had been charged with consensual sodomy with each other, and th eir names were in each other’s indictments. Convicting the firs t defendant—under those circum stances—necessarily meant the jury found Farrar had also engage d in consensual sodomy. Here, although the Commonwealth proceeded on a concert of action theory, Ramos was not named inGoodwin’s indictment. Moreover, given the number of pe ople in the crowd attacking Har ris, Goodwin’s jury did not necessarily conclude that Ramos was part of the concert of acti on. Given the unique circumstances, if Farrar creates a per se rule, it is limited to cases w here the conviction of one defendant necessarily means the other defendant engaged in crim inal conduct.- 7 - connection to appellant’s, varie d greatly, and the source of th at knowledge was the media, not the court itself. 5

“ Per se rules of disqualification, whic h are based on ‘a presumption o f bias or prejudice,’ are disfavored in Virginia.” 6 McGann v. Commonwealth, 15 Va. App. 448, 454 (1992) (quoting Scott v. Commonwealth, 1 Va . App. 447, 452 (1986)). Given that“jurors need not be totally unaware of the facts and issues involved in the case,” Mueller v. Commonwealth, 244 Va. 386, 404 (1992), overruled on other gr ounds by Morrisette v. Warden of Sussex I State Prison, 270 Va. 188 (2005), this Court concludes that per se disqualification is not warranted merely because a potential juror has knowledge of the conviction of a separate ly tried co-defendant. When the prospective juror learns about separate proceedings in volving a co-defendant, the extent of the venireperson’s knowledge about the other case will be critical in determining whether they can remain impartial . A prospective juror who vag uely knows that another person was convicted of some crime will not need to be excluded on that basis, but a pr ospective juror who knows the details of the othe r case and how it is connected to the case for which he is being

5 One potential juror, L.B., had bee n a part of the venire in Go odwin’s trial and had been stricken from that jury with apreemptory strike. He knew abou t the guilty verdict and assumed the conviction was for malici ous wounding. Nevertheless, appel lant moved to strike him for cause because of his associations with movements associated wit h the counter-protestors and his admitted beliefs about the particip ants in the Unite the Right rally. Appellant did not move to strike him, pursuant to Farrar, because he was part of the veni re for Goodwin’s trial. Thus, any argument that L.B. should not have been seated on the jury beca use he was part of Goodwin’s venire is waived. Rule 5A:18.

6 Nevertheless, per se disqualification of s ome jurors to “maintain public confidence in the judicial system,” is sometimes warranted. Mayfield v. Comm onwealth, 59 Va. App. 839, 846 (2012). Challenging a juror f or cause based on potential b ias does not preserve an argument that the juror is one who is per se disqualified to pre serve the public confidence. Id. Here, appellant only argued, both in thi s Court and the trial court, that the jurors were potentially biased against him. Thus, this Court will not consider whether jurors who have some knowledge of the conviction of a separatel y tried co-defendant should be per se disqualified to preserve public confidence in the judicial system.- 8 - considered might warrant fur ther questioning about potential bi as. The trial court would need to evaluate that individually. 7 Thus, the trial court did not abus e its discretion in rejecti ng appellant’s challenge to all th e prospective jurors who had any knowledge of Goodwin’s conviction. 8 B. Change of Venue Appellant argues that the tri al court erred by denying his moti on for a change of venue. He argues it was impossible for him to have a fair trial in Cha rlottesville, i. e. to be tried by an impartial jury. He claims that there was significant danger th at he would be punished because he was a part of the Unite the Right rally that caused the disturb ances in the city. He also claims that there is a danger that t he jurors would be overly concerne d with the fallout from an acquittal and would convict him merely to a void another riot. He thus cl aims that jurors from Charlottesville would likely deci de his case for reasons other than the evidence and the applicable law. Appellant, however , failed to preserve these arguments. Although appellant moved to c hange venue, he did not timely obt ain a ruling on the motion. The trial court did not initially deny the motion. In stead, the trial court took the motion under advisement and nothing further was said until after the j ury was empaneled and the case

7 Obviously, the trial court a nd counsel will have to exercise c are during voir dire , even during individual questioning, t o ensure they do not provide a juror with information about the other case, or the connection betw een the cases, that the juror does not already have. Although that may be a difficult task, tha t difficulty does not warrant a per se rule of exclusion.

8 Although the Commonwealth concedes that appellant preserved anargument that prospective juror M.W. should have been excluded based on his k nowledge of the Goodwin conviction, appellant does not mak e an argument in this Court w hy, when considered individually, M.W.’s knowledge spe cifically justified his exclu sion. Appellant’s argument is all or nothing. By failing to make an individualized argument, app ellant has waived any argument as to M.W.’s specific knowledge a nd whether it ju stified his ex clusion. Accordingly, this Court need not consider it. See Rule 5A :20(e) (requiring appellant’s brief include argument and authorities in support of hi s claims on appeal).- 9 - was being heard. The Supreme Court has held that when a trial court takes a change of venue motion under advisement, it is “ incumbent upon [the defendant] to renew the motion before the jury was empaneled and sworn, or at least remind the court that it was still pending and that he wanted the court to rule on it. ” Riner v. Commonwealth, 268 Va . 296, 310 (2004) (quoting Green v. Commonwealth, 266 Va. 81, 94 (2003)). Appellant did n ot renew his motion for a change of venue, or insist on a ru ling, before the jury was emp aneled. Although the Commonwealth eventually request ed a ruling on the motion, it wa s not until after the jury was sworn, the first witness had t estified, and je opardy had attach ed. Cummings v. Commonwealth, 24 Va. App. 248, 251 (1997) (“[J]e opardy attaches . . . after a jury is empaneled and sworn in a jury trial . . . .” (quoting Ma rtin v. Commonwealth, 242 Va. 1, 8 (1991))). That was too late. Thus, appellant has waived his claim, and this Court will not c onsider it. Rule 5A:18. C. Sufficient Evidence of Malice Appellant argues the evidence was insufficient to support his c onviction. He argues there is insufficient evidence of ma lice, and therefore the trial cou rt should have stricken the malicious wounding charge and only allowed t he jury to consider unlawful wounding or some lesser assault charge. Specifically, app ellant argues that the eviden ce shows that at most he struck the victim once and that a single bl ow cannot demonstrate sufficien t malice to support a malicious wounding conviction. This Court disagrees. “When the sufficiency of the e vidence to support a conviction i s challenged, it is [the appellate court’s] dut y to view the eviden ce in the light most favorable to the Commonwealth and to uphold the conviction unle ss it is plainly wrong or with out evidence to support it.” Case v. Commonwealth, 63 Va. App. 14 , 22 (2014) (quoting Powers v. C ommonwealth, 211 Va. 386, 388 (1970)). “If there is evidenti ary support for the convicti on, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion m ight differ from the conclusions- 10 - reached by the finder of fact at the trial.’” Chavez v. Common wealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Co mmonwealth, 67 Va. App. 273, 288 (20 17)). “[T]he question is whether any rational trier of fact could have found the essenti al elements of the crime beyond a reasonable doubt.” Lawlor v. Commonwealth, 285 Va. 187, 223-24 (2013). “To be convicted of malicious w ounding, the Commonwealth must p rove that the defendant maliciously stabbe d, cut, or wounded ‘any person or b y any means cause[d] him bodily injury, with the intent t o maim, disfigure, disable, or kill.’” Burkeen v. Commonwealth, 286 Va. 255, 259 (2013) (quoting Code § 18.2-51) (alteration in original). “The element in malicious wounding that distinguis hes it from unlawful wounding is malice, expressed or implied . . . .” Hernandez v. C ommonwealth, 15 Va. App. 626, 6 31 (1993). “Malice inheres in the doing of a wrongful act inten tionally, or without just caus e or excuse, or as a result of ill will. [Malicious intent to wound] may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury.” Burkeen, 286 Va. at 259 (quoting Dawkins v. Commonwealth, 186 Va. 55, 61 (1947)) (a lterations in original). “Under ordinary circumstances an intent to maim may not be pres umed from a blow with a bare f ist.” Fletcher v. Commonwealth, 209 Va. 636, 640 (1969). Nevertheless, “an assau lt with a bare fist may be attended with such circumstances of violence and brutality that [malice] may be presumed.” Id. Assuming appellant only struck the victim once, 9 the circumstances under which that blow was struck support the conc lusion that appellant acted wit h malice. Appellant punched the

9 The Commonwealth argues appell ant also stomped, or attempted t o stomp, on the victim. It argues this was furth er evidence of malice. It poi nts to the videos of the altercation as support for that argument. Having viewed the videos, it is dif ficult to determine if the videos support such a conclusion. This C ourt need not resolve that qu estion, because eve n if appellant did not attempt to stomp on the vi ctim, his single blow still e videnced malice. See Foltz v. Commonwealth, 58 Va. App. 107, 114 (2011) (“In this case, as inall others, we seek to decide cases, ‘on the best and narrowest ground available’ from the re cord.” (quoting Kirby v. Commonwealth, 50 Va. App. 691, 698 n.2 (2007))), aff’d, 284 Va. 467 (2012).- 11 - victim only after the victim had already been kicked multiple t imes and beaten with poles, a board, and a shield. The vict im was already on the ground and had stumbled trying to rise at least once. And although it is unclear how much force appellan t imparted when he connected, it is apparent from the video of t he altercation that appellant ut ilized a large wi nd-up to deliver a significant blow. Under these circ umstances, the trial court’s finding that appellant acted with malice is not “without evidence to support it.” Thus, this Cou rt affirms.
III. CONCLUSION This Court affirms. First, knowle dge of a separately tried co- defendant’s earlier conviction does not create a per se bar to jury service. Second, appellant waived his second assignment of error because appell ant failed to renew his motio n for a change of venue before the jury was sworn. Third, the e vidence was sufficient to prov e malice, because a single punch can be malicious when delivered at the tail end of a beating bya mob. Affirmed.