Ja'Ron Russell Turner v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Senior Judge Frank
UNPUBLISHED
Argued at Norfolk, Virginia
JA’RON RUSSELL TURNER
MEMORANDUM OPINION* BY
v. Record No. 0034-16-1 JUDGE RICHARD Y. ATLEE, JR.
MARCH 7, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Louis R. Lerner, Judge Designate
Charles E. Haden for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Following a bench trial, a judge of the Circuit Court of the City of Newport News
convicted Ja’Ron Russell Turner of robbery, carjacking, and two counts of using a firearm in the
commission of a felony. On appeal, Turner asserts that the evidence was insufficient to prove
that he was the perpetrator of the crimes and that the trial court erred when it considered hearsay
testimony. We affirm Turner’s convictions.
I. BACKGROUND
A. The Crime
“[U]nder familiar rules, we must consider the evidence in the light most favorable to the
Commonwealth, the successful litigant in the trial court.” Leigh v. Commonwealth, 192 Va.
583, 587, 66 S.E.2d 586, 589 (1951). In March of 2014, two men robbed Alonzo Epps near his
Newport News apartment. Epps testified that when he approached his mailbox that evening,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Turner and another man offered to pay Epps fifty dollars to drive them to a movie theater in
Hampton. Epps agreed, and returned to his apartment for his wallet and car keys. When he
came outside again, Turner pointed a gun at him. Epps described the gun as a nine-millimeter
handgun. The other man demanded Epps’s keys, wallet, and phone. Epps turned over his
property, including the keys to his Chevrolet Impala, which was parked nearby. The two men
ordered Epps onto the ground, then got into his car and drove away. During the robbery, the
perpetrators were standing five feet from Epps, and nothing obstructed his view of them.
According to Epps, both men were wearing “black jackets, T-shirts, [and] jeans” at the time of
the robbery.
B. The Arrest
Within hours of the robbery in Newport News, Officer J. Umbel of the Richmond City
Police Department attempted to make a traffic stop of a Chevrolet Impala that was operating
without headlights in the City of Richmond. As Officer Umbel tried to stop the car, four people
exited it and ran. At first Officer Umbel ran after the driver, but soon he had to return to help
other officers stop the car, which though empty was still moving. Officer Umbel testified that
another officer stopped and detained Turner approximately two blocks away from the Chevrolet
Impala, after that officer “saw Mr. Turner and another male coming out of a backyard.” Officer
Umbel testified that the other officer observed that Turner was out of breath, “dirt-covered, [and
wearing] black clothing.” Turner’s trial counsel objected that Officer Umbel’s recitation of what
the other officer saw and did was hearsay, but the trial court overruled the objection. The trial
court explained that it allowed Officer Umbel’s testimony to the out-of-court statements of the
other officer “for the purpose of trying to get [Officer Umbel] to the point where he could tell me
what he said to [Turner].”
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Officer Umbel then testified to his own observations: Turner was “wearing a black
jacket” and had “dirt on his T-shirt.” Additionally, when Officer Umbel first saw Turner, he
“was still panting heavily.” After Turner provided identifying information, the police
determined there was an outstanding warrant for his arrest. Searching Turner incident to arrest
for that warrant, police found two of Epps’s stolen credit cards and a loaded nine-millimeter
handgun. The police also confirmed that the Chevrolet Impala Officer Umbel had tried to stop
was Epps’s car.
C. The Identification
The day after the robbery, Epps viewed a photographic lineup containing seven pictures,
including Turner’s. Epps did not identify Turner, selecting another man’s photograph instead.
Over a year and half later, at trial, Epps identified Turner as the man who had robbed him with
the gun. He explained that, “[a]t the time [of the robbery] Mr. Turner had a messed up eye,” so
he had selected a photograph of a man who “looked just like him [and] had a messed up eye.”
Officer Umbel testified at trial that on the day of Turner’s arrest, Turner “had some medical
condition with his eye that looks like it’s cleared up.” The officer who conducted the
photographic lineup testified that when he first saw Turner, he “had like a droopy eye or a pink
eye.” A photograph of Turner taken immediately after his arrest (but not used in the
photographic lineup) confirms that Turner’s left eye appears to be swollen. The photograph of
Turner used in the photographic lineup was not taken contemporaneously with the crime, but
was an older photograph that did not depict him with an eye condition.
At trial, Epps was confident that Turner was the gun-wielding perpetrator: “I looked at
him when he had the gun in his hand. I looked at him when he pointed the gun at my leg and I’m
looking at him now. . . . [W]hen a situation like that happens, you never forget the face, you
never forget distinctive features.” The trial court convicted Turner of all four crimes, and
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sentenced him to a total of thirty-eight years in the penitentiary, suspending all but eight years of
mandatory minimum time. Turner then appealed.
II. ANALYSIS
A. Sufficiency
Turner challenges the sufficiency of the evidence to support his convictions.
Specifically, he contends the evidence was insufficient to identify him as one of the perpetrators.
“When considering on appeal the sufficiency of the evidence presented below, we ‘presume the
judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly
wrong or without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584
S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570
S.E.2d 875, 876-77 (2002)); see also Code § 8.01-680. Because “we must consider the evidence
in the light most favorable to the Commonwealth,” Leigh, 192 Va. at 587, 66 S.E.2d at 589, we
“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
therefrom,” Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954). “The
inferences to be drawn from proven facts, so long as they are reasonable, are within the province
of the trier of fact.” Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306
(1991).
“The factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), are used to determine
‘whether the identification evidence is sufficient, standing alone or in combination with other
evidence, to prove beyond a reasonable doubt’ the identity of the perpetrator.” Cuffee v.
Commonwealth, 61 Va. App. 353, 364, 735 S.E.2d 693, 698 (2013) (quoting Brown v.
Commonwealth, 37 Va. App. 507, 522, 559 S.E.2d 415, 423 (2002)).
[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the
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criminal at the time of the crime, the witness’ degree of attention,
the accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation,
and the length of time between the crime and the confrontation.
Id. (quoting Biggers, 409 U.S. at 199-200). “In evaluating the reliability of the identification,
this Court looks to the totality of the circumstances.” Id. at 364, 735 S.E.2d at 699.
Epps had two opportunities to view the robbers: when they approached him seeking a
ride and after he returned from his apartment with his wallet and keys. Epps testified that the
two men were five feet from him during the robbery and that he had a clear view of them. He
was certain that Turner was the gunman, testifying that “when a situation like that happens, you
never forget the face, you never forget distinctive features.” Although Epps initially identified
another man in the photographic lineup, his explanation of this misidentification (that it was
influenced by Turner’s eye condition at the time of the crime) was corroborated by two different
police officers. Furthermore, although Epps’s in-court identification of Turner occurred over a
year and a half after the crime, the identification was corroborated by other evidence. When
police apprehended Turner, within hours of the crimes, Turner had two of Epps’s stolen credit
cards and a nine-millimeter handgun on his person. Turner was out of breath, consistent with
someone who had exited the Chevrolet Impala and fled after Officer Embel tried to stop that car.
Finally, Turner was wearing clothes consistent with Epps’s description of the perpetrators.
Considering all the facts and circumstances, the trial court was not plainly wrong when it found
the evidence sufficient to prove beyond a reasonable doubt that Turner was one of the
perpetrators and that he was guilty of the charged offenses.
B. Hearsay
Turner argues the trial court erred by admitting hearsay testimony when it allowed
Officer Umbel to testify to “information or assertions obtained from another officer” who was
not present at trial. “The admissibility of evidence is within the broad discretion of the trial
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court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.”
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
“Hearsay is ‘[a] statement other than one made by the declarant while testifying at
trial—offered in evidence to prove the truth of the matter asserted.’” Brown v. Commonwealth,
25 Va. App. 171, 177, 487 S.E.2d 248, 251 (1997) (en banc) (quoting Black’s Law Dictionary
649 (5th ed. 1979)). “Hearsay evidence is inadmissible at trial unless it falls into one of the
recognized exceptions to the rule.” Clay v. Commonwealth, 33 Va. App. 96, 104, 531 S.E.2d
623, 626 (2000) (en banc), aff’d, 262 Va. 253, 546 S.E.2d 728 (2001).
Turner maintains that Umbel’s testimony regarding the observations of the officer who
detained Turner was hearsay. Officer Umbel testified that another officer stopped and detained
Turner approximately two blocks away from the Chevrolet Impala, after that officer saw Turner
emerge from a backyard, out of breath and wearing dirty black clothes. However, as the trial
court found, Umbel’s testimony was not offered for the truth of the matters asserted, but to
explain Umbel’s actions subsequent to Turner’s detention. Because the trial court did not admit
Officer Umbel’s testimony for the truth of the matters asserted, that portion of his testimony was
not hearsay at all. “The hearsay rule does not operate to exclude evidence of a statement . . .
offered for the mere purpose of explaining or throwing light on the conduct of the person to
whom it was made.” Upchurch v. Commonwealth, 220 Va. 408, 410, 258 S.E.2d 506, 508
(1979) (quoting Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960)).
Because such evidence is “admitted not for the purpose of showing the guilt or innocence of the
defendant[,] but for the purpose of showing the reason for the police officers’ action in arresting
him” it will not be excluded on hearsay grounds. Id.-6-
The evidence to which Turner objected was not offered for the truth of the matters
asserted and, thus, was not hearsay. For that reason, the trial court did not abuse its discretion in
admitting such testimony.
III. CONCLUSION
We affirm Turner’s convictions. First, the evidence, including Epps’s identification of
Turner, was sufficient to find Turner guilty. Second, the out-of-court statements to which
Officer Umbel testified were not offered or admitted for the truth of the matters asserted, and
thus were not hearsay.
Affirmed.
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