                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
              Argued at Chesapeake, Virginia
UNPUBLISHED




              CLYDE EDMOND STACKFIELD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1753-14-1                                    CHIEF JUDGE GLEN A. HUFF
                                                                                 DECEMBER 8, 2015
              CITY OF HAMPTON


                                    FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                                 Wilford Taylor, Jr., Judge

                               Charles E. Haden for appellant.

                               Graham M. Stolle, Assistant City Attorney (Vanessa T. Valldejuli,
                               City Attorney; Lola Rodriguez Perkins, Senior Deputy City
                               Attorney, on brief), for appellee.


                     Clyde Edmond Stackfield (“appellant”) appeals his conviction of trespassing, in violation

              of Hampton Municipal City Code § 24-33 (“Hampton Code”) – an analogue of Code § 18.2-119.

              Following a bench trial in the Circuit Court of the City of Hampton (“trial court”), appellant was

              fined $100 and received a suspended sentence of two days in jail. On appeal, appellant presents

              two assignments of error:

                               1.      The trial court erred in admitting hearsay from Officer
                                       Deangelo Freeman that a Food Lion manager had barred
                                       [appellant] from the Food Lion premises, where Officer
                                       Freeman’s statements were not admissible under any
                                       exception to the hearsay rule.

                               2.      The trial court erred in denying [appellant’s] motion to
                                       strike the trespassing charge where the City’s evidence
                                       failed to prove that [appellant] had been barred from the
                                       Food Lion premises by one of the parties enumerated in
                                       [Hampton Code] § 24-33 as having authority to do so.

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
For the following reasons, this Court reverses appellant’s conviction and remands the case for a

new trial if the City is so advised.

                                          I. BACKGROUND1

        On appeal, “we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

        On December 5, 2013, Officer Deangelo Freeman (“Freeman”) of the Hampton Police

Department was dispatched to a Food Lion in response to a report of trespassing on the premises.

Upon arrival, Freeman first spoke with the store’s manager. According to his testimony at trial,

Freeman then “approached [appellant] inside the supermarket and informed him that the manager

no longer wanted him on the supermarket premises.” Appellant objected to this testimony on the

ground “that it was hearsay that the Food Lion manager had barred [appellant] from the Food Lion

premises.” The trial court overruled appellant’s objection. Freeman next testified that appellant left

the store, walked around the side of the building, removed his coat, and walked back inside the

store. After being confronted by a private security guard, appellant “shouted obscenities,” at which

point Freeman placed appellant under arrest. Appellant was charged with one count of

misdemeanor trespassing, in violation of Hampton Code § 24-33.

        At the conclusion of the evidence at trial, appellant moved to strike the evidence arguing,

first, that Freeman’s testimony about the manager barring appellant from the store was hearsay and,

second, that the evidence failed to demonstrate that appellant was barred by a person having


        1
            Appellant filed a written statement of facts in lieu of a transcript pursuant to Rule
5A:8(c).
                                                   -2-
authority to do so under Hampton Code § 24-33. The trial court denied appellant’s motion and

found appellant guilty of trespassing. This appeal followed.

                                          II. ANALYSIS

                                            A. Hearsay

       On appeal, appellant first contends that the trial court erred by admitting into evidence

Freeman’s testimony that the Food Lion manager barred appellant from the store’s premises.

Specifically, he argues that this testimony was hearsay and did not fall within any recognized

exception.

       “The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Jones v.

Commonwealth, 50 Va. App. 437, 446, 650 S.E.2d 859, 863 (2007) (quoting Blain v.

Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988)). “Evidence is admissible if

it tends to prove a matter that is properly at issue in the case and if its probative value outweighs

policy considerations.” Id. (quoting Blain, 7 Va. App. at 17, 371 S.E.2d at 842). “A trial court,”

however, “has no discretion to admit clearly inadmissible evidence because admissibility of

evidence depends not upon the discretion of the court but upon sound legal principles.”

Commonwealth v. Wynn, 277 Va. 92, 97, 671 S.E.2d 137, 139 (2009) (quoting Norfolk &

Western Ry. Co. v. Puryear, 250 Va. 559, 563, 463 S.E.2d 442, 444 (1995)).

       “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid.

2:801(c). “A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if

it is intended as an assertion.” Va. R. Evid. 2:801(a); see also Tatum v. Commonwealth, 17

Va. App. 585, 588, 440 S.E.2d 133, 135 (1994) (“Hearsay evidence is testimony in court, or

written evidence, of a statement made out of court, the statement being offered as an assertion to

                                                -3-
show the truth of matters asserted therein, and thus resting for its value upon the credibility of the

out-of-court asserter.” (quoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779,

781 (1977))). Generally, “hearsay evidence is incompetent and inadmissible, and . . . ‘the party

seeking to rely upon an exception to the hearsay rule has the burden of establishing

admissibility.’” Caison v. Commonwealth, 52 Va. App. 423, 431, 663 S.E.2d 553, 557 (2008)

(quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21, 425 S.E.2d 521, 524 (1992)).

       “[I]f,” however, “the declaration is offered solely to show that it was uttered, without

regard to the truth or falsity of its content, the declaration is not excluded by the hearsay rule.”

Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 441 (1987). “Therefore,

unless a statement is offered to show its truth, the out-of-court statement is not subject to the rule

against hearsay and is admissible if relevant.” Bryant v. Commonwealth, 39 Va. App. 465, 473,

573 S.E.2d 332, 336 (2002) (citing Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d

823, 826 (1985)). “Determining whether a statement is offered to prove the truth or falsity of the

matter asserted requires an analysis of the purpose for which the statement is offered into

evidence.” Swain v. Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116, 118 (1998).

       In the present case, the challenged statement was Freeman’s testimony that he

approached appellant and “informed him that the manager no longer wanted him on the

supermarket premises.” At trial, appellant objected to this testimony, arguing “that it was

hearsay that the Food Lion manager had barred [appellant] from the Food Lion premises.”

       It is not contested that the Food Lion manager’s statement barring appellant from the

premises constituted an out-of-court “statement” under Virginia Rule of Evidence 2:801(a). The

City, however, primarily contends that this statement was not hearsay because it was not offered




                                                 -4-
to prove the truth of the matter asserted.2 Accordingly, this Court must “determine . . . the

purpose for which the [City] offered the statement.” Swain, 28 Va. App. at 559-60, 507 S.E.2d

at 118 (examining the “context” of the statement to “determine . . . the purpose for which the

Commonwealth offered the statement”).

       Notably, Hampton Code § 24-33 requires proof that appellant went “upon or remain[ed]

upon the” Food Lion premises “after having been forbidden to do so.” (Emphasis added). The

truth of the challenged statement was that the Food Lion manager had forbidden appellant from

remaining on the store’s premises. The statement of facts merely states that appellant objected to

this statement as hearsay, but this “objection was overruled.”3 Thus, considering the context of

the statement, and the fact that the truth of the statement goes directly to proving a required

element under Hampton Code § 24-33, this Court holds that it was admitted for its truth and was,

therefore, inadmissible hearsay.

       Having determined that the trial court erred by admitting the challenged statement, this

Court must now address whether this error was harmless. “No trial is perfect, and error will at

times creep in.” Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913

(1991) (en banc) (quoting Parsons v. Commonwealth, 154 Va. 832, 852, 152 S.E. 547, 554



       2
          The City also argued, on brief, that Freeman’s out-of-court statement to appellant was
not hearsay because it was a previous statement by a presently testifying witness. This argument
fails, however, because it has long been the law in Virginia that “prior statements of the presently
testifying witness” still constitute hearsay. Charles E. Friend and Kent Sinclair, The Law of
Evidence in Virginia, § 15-5, at 936 (7th ed. 2012) (“Prior statements of a witness are hearsay.
Prior to the 1970s some academics argued that because the declarant is not a trial witness at least
the cross-examination concern about hearsay is satisfied. Neither the federal courts no[r] the
vast majority of the states has accepted this view, however. And Virginia treats prior statements
of a witness as hearsay . . . .”).
       3
         While the reasons that the trial court admitted the testimony are not specified, the
statement of facts merely provides that the trial court “overruled” appellant’s “hearsay
objection,” implying that the testimony was admitted for whatever probative value it may have,
including its truth.
                                                 -5-
(1930)). “Every man is entitled to a fair trial and to nothing more, and so . . . out of the

imperative demands of common sense, has grown the doctrine of harmless error.” Id. (quoting

Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928)) (omission in original).

As “[t]he effect of an error on a verdict varies widely ‘depending upon the circumstances of the

case,’ . . . [e]ach case must . . . be analyzed individually to determine if an error has affected the

verdict.” Id. (quoting Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978)).

       Code § 8.01-678, Virginia’s harmless error statute, provides that

               [w]hen it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . (2) For any other defect, imperfection, or omission
               in the record, or for any error committed on the trial.

Code § 8.01-678 has been applied in both criminal and civil cases. See, e.g., Greenway v.

Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). “In a criminal case, it is implicit

that, in order to determine whether there has been ‘a fair trial on the merits’ and whether

‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error

substantially influenced the jury.” Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728,

731 (2001) (quoting Code § 8.01-678).

       Accordingly, in Virginia the test for non-constitutional harmless error under Code

§ 8.01-678 in a criminal case, as adopted by the Supreme Court in Clay v. Commonwealth, is as

follows:

               If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but slight effect, the verdict and
               the judgment should stand . . . . But if one cannot say, with fair
               assurance, after pondering all that happened without stripping the
               erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude that
               substantial rights were not affected . . . . If so, or if one is left in
               grave doubt, the conviction cannot stand.



                                                 -6-
262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65

(1946)).

       In the present case, this Court cannot say, “with fair assurance, . . . that the judgment was

not substantially swayed by the error.” Id. Notably, Freeman’s testimony was not that he barred

appellant from the premises, but that he informed appellant that the Food Lion manager had

barred him from the premises. Accordingly, without this testimony, there is no other evidence to

prove that appellant had been “forbidden” from “remain[ing] upon the . . . premises” by a

“person lawfully in charge thereof.” Hampton Code § 24-33 (emphasis added). Accordingly,

the trial court’s error was not harmless.

                                        B. Motion to Strike

       Next, appellant argues that the trial court erred in denying his motion to strike.

Specifically, he argues that “the evidence failed to prove that [appellant] had been barred from

the Food Lion . . . by one of the parties enumerated in Hampton Code § 24-33 as having

authority to do so.”

       Our standard for reviewing the sufficiency of the evidence is firmly established:

               [W]hen the sufficiency of the evidence is challenged on appeal, the
               evidence and all reasonable inferences fairly drawn therefrom must
               be viewed in the light most favorable to the Commonwealth. The
               trial court’s judgment should be affirmed unless it appears that it is
               plainly wrong or without evidence to support it.

Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775, 779 (1989) (citations omitted).

Additionally, under this familiar standard of review, “[a]n appellate court does not ‘ask itself

whether it believes that the evidence at the trial established guilty beyond a reasonable doubt.’”

Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant




                                                -7-
question is whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Id.

       Hampton Code § 24-33 provides that it is a Class 1 misdemeanor for a person to “go

upon or remain upon the lands, buildings or premises of another . . . after having been forbidden

to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in

charge thereof.” In the present case, appellant challenges whether Freeman qualified as an

individual who had authority under Hampton Code § 24-33 to forbid appellant from entering the

Food Lion premises. Notably, appellant does not challenge that the Food Lion manager was a

“person lawfully in charge” for the purposes of Hampton Code § 24-33.

       Code § 19.2-324.1 provides that when an appeal challenges the admissibility of evidence

along with the sufficiency of the evidence to support a conviction, the reviewing court

               shall consider all evidence admitted at trial to determine whether
               there is sufficient evidence to sustain the conviction. If the
               reviewing court determines that evidence was erroneously
               admitted and that such error was not harmless, the case shall be
               remanded for a new trial if the Commonwealth elects to have a
               new trial.

(Emphasis added).

       Accordingly, in the present case, this Court considers the erroneously admitted hearsay

when considering the sufficiency of the evidence to support appellant’s conviction – namely, that

the Food Lion manager had barred appellant from the premises. As it is uncontested that the

Food Lion manager was a “person lawfully in charge” for the purposes of Hampton Code

§ 24-33, appellant’s second assignment of error fails.

                                        III. CONCLUSION

       While this Court affirms the trial court’s denial of appellant’s motions to strike, we hold

that the trial court abused its discretion by admitting inadmissible hearsay into evidence.



                                                -8-
Accordingly, appellant’s conviction is reversed and the case is remanded for a new trial if the

City is so advised.

                                                                          Reversed and remanded.




                                               -9-
