Rankin v. Commonwealth (ORDER) , 825 S.E.2d 81 ( 2019 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Thursday the 28th day of March 2019.
Present: All the Justices
Stephen D. Rankin, Appellant,
against Record No. 180812
Court of Appeals No. 1671-16-1
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment
rendered by the Court of Appeals of
Virginia.
Upon consideration of the record, briefs, and argument of counsel, the Court is of the
opinion that the judgment of the Court of Appeals should be affirmed.
In April 2015, Stephen D. Rankin (“Rankin”), a police officer, responded to a call
regarding a suspected shoplifting incident at a Wal-Mart. Upon Rankin’s arrival in the store’s
parking lot, Gregory Provo (“Provo”), a loss-prevention officer for Wal-Mart, identified William
Lester Chapman (“Chapman”) as the suspect. Provo and Rankin then proceeded to the area of
the parking lot where Chapman was walking.
When Rankin approached Chapman, Chapman placed his left hand in his front pocket
and started walking away from Rankin at a “brisk pace.” In response, Rankin “grabbed”
Chapman’s left arm, positioned Chapman face forward on the hood of his police car, and ordered
Chapman to take his hand out of his pocket. Chapman did not take his hand out of his pocket
and resisted Rankin’s physical efforts to remove his hand. Rankin warned Chapman, stating
“[t]ake your hand out of your pocket or I’m going to tase you.” When Chapman did not comply,
Rankin attempted to subdue Chapman by deploying his taser. After Rankin “stunned” Chapman
with his taser, Chapman became “enraged” and knocked the taser out of Rankin’s hands. Rankin
then drew his firearm and ordered Chapman to “get on the ground.” Provo saw Chapman take a
“jab step” as “if he was [] about to fight” at which point Rankin fired two shots, fatally wounding
Chapman.
Shortly after the shooting, Rankin said to Provo, “I need you as a witness. It’s my second
one. Don’t leave.” Rankin’s taser was equipped with a camera, which recorded part of the
incident, including this statement.
Rankin was indicted for first-degree murder and use of a firearm in the commission of a
felony in the Circuit Court of the City of Portsmouth (“circuit court”). Before trial, Rankin filed
a motion in limine “to exclude from use at trial any evidence or reference, either oral or written,
to a shooting in 2011 by [Rankin].” In 2011, Rankin shot a suspect while on duty, but a grand
jury declined to indict him for voluntary manslaughter and he was found not liable in a civil
action brought by the suspect’s family.
After holding a hearing where it heard argument from counsel, the circuit court issued a
letter opinion in which it granted the motion in limine. The circuit court determined that
admitting evidence of the 2011 shooting “would be highly prejudicial to [Rankin] and that any
legitimate probative value of the evidence d[id] not outweigh such prejudice.” However, the
circuit court did not specifically address whether evidence of Rankin’s statement, “It’s my
second one,” was admissible.
A few months after the circuit court issued its letter opinion, Rankin filed a second
motion in limine “to exclude from evidence the phrase ‘It’s my second one’ from the
Commonwealth’s case in chief.” Rankin asserted that the circuit court had “already ruled that
any reference to any prior shooting by [Rankin] [wa]s inadmissible.” Therefore, Rankin argued
that “any reference on the Taser video and in Gregory Provo’s testimony to ‘It’s my second one’
[wa]s inadmissible pursuant to the [circuit] [c]ourt’s earlier ruling.” At a hearing on the motion,
Rankin further argued that the statement was “not probative” of any aspect of the
Commonwealth’s case. The Commonwealth responded that excluding the statement would
“sanitize the evidence in this case.” The Commonwealth contended that the “jury has a right to
know [all of the evidence] from the beginning to the end, so they can put everything in context.”
The circuit court denied the motion.
At trial, Rankin’s statement, “It’s my second one,” was admitted on multiple occasions
during the Commonwealth’s presentation of evidence. Provo testified that after the shooting, he
was “about to walk off” when Rankin said, “Don’t go far. This is my second one.” Jesse
Lindmar, a forensic scientist employed by the Virginia Department of Forensic Science,
authenticated the video captured by Rankin’s taser after it was played at trial. After the jury
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retired to deliberate, the foreperson informed the circuit court that the jury was unable to play the
taser video. The circuit court then arranged for the jury to view the video again.
The jury found Rankin not guilty of first-degree murder, not guilty of use of a firearm in
the commission of a felony, and guilty of voluntary manslaughter. The jury recommended a
sentence of two years and six months’ imprisonment, and the circuit court sentenced Rankin in
accordance with the jury’s recommendation.
Rankin filed a petition for appeal with multiple assignments of error in the Court of
Appeals. As relevant here, Rankin asserted in his first assignment of error that the circuit court
erred by admitting evidence of his statement, “It’s my second one.” In a per curiam order, the
Court of Appeals determined that the statement “did not indicate [Rankin] had shot and killed
another person.” Rankin v. Commonwealth, No. 1671-16-1, at *2 (Va. Ct. App. June 21, 2017).
Additionally, because the statement “was relevant to establishing [Rankin’s] premeditation,
motive or intent, feelings toward the victim, and the absence of mistake or accident,” it “came
within well established exceptions to the rule against admitting evidence that the accused had
committed other crimes.” Id. at *2-3.
The Court of Appeals also held that any error in admitting evidence of the statement was
harmless. Id. at *3. The Court of Appeals explained that “non-constitutional error” is harmless
if an “appellant had ‘a fair trial on the merits’ and ‘substantial justice’ was reached.” Id.
(quoting Clay v. Commonwealth, 262 Va. 253, 259 (2001) and Code § 8.01-678). The Court of
Appeals determined that Rankin had a fair trial on the merits and that substantial justice was
reached because the jury “heard testimony from all of the witnesses” and “found [Rankin] guilty
of the lesser-included offense of voluntary manslaughter.” Id. Accordingly, the Court of
Appeals denied Rankin’s petition for appeal. Id. at 1. Rankin appealed to a three-judge panel of
the Court of Appeals, which denied his petition for appeal with respect to his first assignment of
error for the reasons set forth in the per curiam order.
Rankin appealed to this Court, and we granted his appeal on the following assignment of
error:
The trial court erred and abused its discretion when it permitted,
over Mr. Rankin’s objection, the admission of the statement: “It’s
my second one,” which was made by Mr. Rankin to Mr. Provo
immediately following the shooting of Mr. Chapman. This
statement was unduly prejudicial to Mr. Rankin and it was
irrelevant as it was not probative of any fact before the court.
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Although this assignment of error challenges the circuit court’s ruling that evidence of Rankin’s
statement, “It’s my second one” was admissible, it does not challenge the Court of Appeals’
holding that any error in admitting evidence of the statement was harmless. *
“It is well-settled that a party who challenges the ruling of a lower court must on appeal
assign error to each articulated basis for that ruling.” Ferguson v. Stokes, 287 Va. 446, 452
(2014) (quoting Manchester Oaks Homeowners Ass’n, Inc. v. Batt, 284 Va. 409, 421 (2012)); see
also Parker–Smith v. Sto Corp., 262 Va. 432, 441 (2001) (“Since the court had an independent
basis for dismissing the fraud counts that is not the subject of an assignment of error, we cannot
consider the arguments advanced by [the appellant] regarding her fraud claims.”); Rash v. Hilb,
Rogal & Hamilton Co., 251 Va. 281, 286 (1996) (“[W]e cannot consider these arguments
advanced by the [appellants] because there is an independent basis to support the chancellor’s
ruling on these issues and that basis has not been challenged on appeal.”). “[O]therwise, ‘an
appellant could avoid the adverse effect of a separate and independent basis for the judgment by
ignoring it and leaving it unchallenged.’” Manchester Oaks, 284 Va. at 422 (alteration in
original) (citation omitted).
The fact that an appellant “has not assigned error to each basis for [a lower] court’s ruling
does not end the inquiry.” Id. Instead, we determine whether any unchallenged basis “provides
a sufficient legal foundation for the [lower court’s] ruling.” Id. In making this determination,
“we do not examine the underlying merits of the alternative holding—for that is the very thing
being waived by the appellant as a result of his failure to [assign error to it] on appeal.” Id.
(alteration in original) (citation omitted).
The Court of Appeals held that any error in admitting evidence of Rankin’s statement,
“It’s my second one,” was harmless because he “had ‘a fair trial on the merits’ and ‘substantial
justice’ was reached.’” Rankin, No. 1671-16-1, at *3 (quoting Clay, 262 Va. at 259 and Code
§ 8.01-678). A determination that error in a lower court’s ruling was harmless provides a
sufficient legal foundation for affirming the judgment of the lower court. See, e.g., Rose v.
Commonwealth, 270 Va. 3, 11-12 (2005) (affirming the judgment of the Court of Appeals
*
Rankin’s petition for appeal included four other assignments of error, which we did not
grant. None of these assignments of error challenged the Court of Appeals’ holding that any
error in admitting evidence of Rankin’s statement, “It’s my second one,” was harmless error.
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because admitting evidence of the appellant’s “prior criminal acts” in his criminal trial was
“harmless error”). Accordingly, because Rankin failed to assign error to the Court of Appeals’
holding that any error was harmless, we affirm the judgment of the Court of Appeals.
This order shall be published in the Virginia Reports and certified to the Court of Appeals
of Virginia and the Circuit Court of the City of Portsmouth.
A Copy,
Teste:
Douglas B. Robelen, Clerk
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