                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Decker and O’Brien
              Argued at Norfolk, Virginia
UNPUBLISHED




              RAYNARD REGINALD BROWN
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0464-17-1                                    JUDGE MARY GRACE O’BRIEN
                                                                                   MARCH 6, 2018
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                              Johnny E. Morrison, Judge

                               W. McMillan Powers, Assistant Public Defender, for appellant.

                               Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Raynard Reginald Brown (“appellant”) was tried by a jury for murder, in violation of Code

              § 18.2-32, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1.

              Appellant asserted an insanity defense. The jury convicted him of the lesser-included offense of

              voluntary manslaughter and acquitted him of the firearm charge. Appellant contends that the court

              erred by allowing the Commonwealth’s expert to testify in rebuttal to his insanity defense and by

              denying appellant’s motions to strike the Commonwealth’s case and to set aside the verdict. We

              disagree and affirm appellant’s conviction.

                                                         BACKGROUND

                     On June 6, 2015, appellant shot and killed Jamal Spratley following a confrontation at a

              party. At trial, appellant presented testimony from Dr. Earl Williams, a court-appointed forensic

              clinical psychologist. Dr. Williams testified that appellant was suffering from schizoaffective



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
disorder at the time of the shooting. Dr. Williams defined schizoaffective disorder as a

“combination of schizophrenia and bipolar [disorder],” and opined that when appellant shot the

victim, appellant was “incapable of understanding the nature and consequences of [his] acts.”

        Dr. Weare Zwemer, a licensed clinical psychologist, testified for the Commonwealth in

rebuttal. As part of his evaluation of appellant’s sanity at the time of the offense, Dr. Zwemer

reviewed medical records from Central State Hospital, including the treatment notes of two doctors

involved in evaluating and restoring appellant’s competency to stand trial.

        When Dr. Zwemer began to testify about the medical records from Central State Hospital,

appellant’s attorney requested a sidebar conference. The conference was not recorded; the attorneys

conferred with the court off the record. Following the sidebar conference, Dr. Zwemer testified

about tests the Central State Hospital doctors administered to appellant and the doctors’ conclusion

that appellant was malingering. Dr. Zwemer also testified about tests he personally performed on

appellant, and referred to his interviews with appellant, appellant’s girlfriend, and appellant’s

mother.

        Dr. Zwemer explained that he administered the Miller’s Forensic Assessment of Symptoms

Test to appellant. The test objectively measures whether someone is feigning symptoms not

commonly associated with a particular diagnosis. During the test, appellant “enthusiastically

endorsed a symptom that had never been recognized as a coincident of psychotic compromise.”

Appellant claimed to have amnesia about the shooting, a symptom Dr. Zwemer found “relatively

infrequent” in his examination of more than 10,000 individuals and “not strongly associated at all

with schizophrenia or bipolar disorder.” Dr. Zwemer testified that he disagreed with Dr. Williams’s

conclusion that appellant could not distinguish between right and wrong at the time of the offense,

but he could not opine about appellant’s mental state because appellant claimed to have amnesia




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about the shooting. Dr. Zwemer opined that “at the least, [appellant] was amplifying the impact of

his mental illness.”

        At the conclusion of the evidence, appellant moved to strike the Commonwealth’s case

because the Commonwealth did not sufficiently rebut appellant’s evidence that he was insane at the

time of the offense. In his argument, appellant referred to his objection “based upon hearsay and

confrontation, in that [appellant] would not have the right to question [the Central State Hospital]

doctors regarding their reports.” The court acknowledged appellant’s objection but denied his

motion to strike. After the jury found appellant guilty, the court also denied his motion to set aside

the verdict.

                                            DISCUSSION

        Appellant raises four assignments of error, which can be summarized into two issues:

1) whether Dr. Zwemer’s expert opinion was impermissibly based upon hearsay, and 2) whether the

court erred in rejecting appellant’s argument that the Commonwealth failed to sufficiently rebut

evidence of appellant’s insanity. We will review appellant’s arguments in the order in which the

court considered the issues below.

                                     1. Dr. Zwemer’s Testimony

        Appellant contends that the court erroneously allowed Dr. Zwemer to testify about

appellant’s mental state because Dr. Zwemer’s opinions were based on hearsay and violated the

Confrontation Clause of the Sixth Amendment to the United States Constitution. We find that

because appellant failed to comply with the specificity requirement of Rule 5A:18, we are precluded

from reviewing the merits of his argument.

        Appellant requested a sidebar conference when Dr. Zwemer began testifying about the

conclusions of the doctors who evaluated appellant at Central State Hospital. The sidebar

conference was unrecorded; however, during appellant’s motion to strike, appellant reiterated that

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his objection to the testimony about the records was based on hearsay and confrontation grounds.

After the sidebar conference, Dr. Zwemer testified regarding the tests that the Central State Hospital

doctors administered to appellant and the subsequent conclusions the doctors reached about

appellant malingering. Dr. Zwemer continued testifying without further objection about tests he

administered to appellant, interviews he conducted with appellant and his mother, and a

conversation that Dr. Zwemer had with appellant’s girlfriend. Further, Dr. Zwemer’s testimony

concerning his conclusion that “at the least” appellant was “amplifying the impact of his mental

illness” was admitted without objection.1

        Rule 5A:18 requires appellant to make the same argument on appeal as the one that he

presented at trial. “A party will not be allowed to specify one or more grounds of objection to

evidence offered in the trial court and rely upon other grounds in the appellate court.” Branch v.

Commonwealth, 225 Va. 91, 96, 300 S.E.2d 758, 760 (1983) (quoting Jackson v. C. & O. Ry. Co.,

179 Va. 642, 650, 20 S.E.2d 489, 492 (1942)). “If the opinion of an expert witness lacks an

adequate foundation, the appropriate action at trial is to move to strike the testimony of the expert

witness.” Jeter v. Commonwealth, 44 Va. App. 733, 740 n.3, 607 S.E.2d 734, 737 n.3 (2005). See

also Countryside Corp. v. Taylor, 263 Va. 549, 552 n.2, 561 S.E.2d 680, 681 n.2 (2002)

(lack-of-foundation objection to expert’s testimony was preserved by appellant’s motion to strike

the testimony). Appellant’s objection was not to the foundation for Dr. Zwemer’s expert opinion,


        1
         Even assuming that the records from Central State Hospital constituted impermissible
hearsay evidence, Dr. Zwemer’s conclusion was not based solely on those records. His independent
evaluation of appellant, the tests he administered, and the interviews he conducted led to his own
opinion that appellant was malingering. See United States v. Johnson, 587 F.3d 625, 635 (4th Cir.
2009) (finding no Confrontation Clause violation “[a]s long as [the expert] is applying his training
and experience to the sources before him and reaching an independent judgment”). Dr. Zwemer
had a “sufficient factual basis for the admission” of his opinion without consideration of the Central
State Hospital records. See Simpson v. Commonwealth, 227 Va. 557, 566, 318 S.E.2d 386, 391-92
(1984) (expert permitted to testify as to cause of victim’s death when, in addition to considering
medical records not in evidence, expert conducted victim’s autopsy and also relied on his medical
experience and training).
                                                  -4-
but merely to the admissibility of his testimony about the records from Central State Hospital.

Further, appellant never moved to strike Dr. Zwemer’s expert opinion.

        “[T]he burden is on the appellant to present to us a sufficient record from which we can

determine whether the lower court has erred in the respect complained of. If the appellant fails to

do this, the judgment will be affirmed.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432

S.E.2d 2, 6 (1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)). An

unrecorded sidebar conference regarding an objection presents inherent difficulties in determining

the grounds of the objection and the basis for the ruling. Because the sidebar conference was not on

the record, we can only glean its substance from the subsequent comments made by the court and

counsel during the motion to strike the Commonwealth’s case. None of those comments indicate

that appellant was objecting to Dr. Zwemer’s expert opinion due to a lack of foundation.

        Accordingly, because appellant did not specifically move to strike Dr. Zwemer’s expert

opinion as inadmissible, we find appellant did not preserve his argument pursuant to Rule 5A:18.

                                 2. Failure to Rebut Insanity Defense

        Appellant contends that the court erred in denying his motion to set aside the verdict

because Dr. Zwemer’s testimony was insufficient to rebut Dr. Williams’s conclusion that he was

insane at the time of the offense. Accordingly, appellant argues, the jury was required to find

appellant not guilty by reason of insanity.2

        When reviewing a court’s decision to deny a motion to set aside a jury verdict, we will not

reverse the court’s judgment “unless it appears from the evidence that such judgment is plainly

wrong or without evidence to support it.” Code § 8.01-680. We have stated that “the trial judge


        2
         Appellant also asserts that the court erred in denying his motion to strike the
Commonwealth’s evidence. However, he fails to cite any relevant authority in support of this
argument. “Statements unsupported by argument, authority, or citations to the record do not merit
appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
See also Rule 5A:20(e).
                                                  -5-
cannot substitute his conclusion for that of the jury merely because he would have voted for a

different verdict if he had been on the jury.” Wagoner v. Commonwealth, 63 Va. App. 229, 246,

756 S.E.2d 165, 174 (2014) (quoting Doherty v. Aleck, 273 Va. 421, 424, 641 S.E.2d 93, 94

(2007)), aff’d on other grounds, 289 Va. 476, 770 S.E.2d 479 (2015).

        The Commonwealth was not required to present affirmative evidence that appellant

understood the nature and consequences of his actions. “Every man is presumed to be sane and to

possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to

the satisfaction of the [trier of fact].” Vann v. Commonwealth, 35 Va. App. 304, 312, 544 S.E.2d

879, 882 (2001) (quoting Jones v. Commonwealth, 202 Va. 236, 239-40, 117 S.E.2d 67, 70 (1960)).

A defendant bears the burden of proving that he was insane at the time of the offense. Morgan v.

Commonwealth, 50 Va. App. 120, 133-34, 646 S.E.2d 899, 905-06 (2007). The issue of a

defendant’s sanity is “a question for the jury to decide after consideration of all the evidence

adduced and under the court’s instructions.” Christian v. Commonwealth, 202 Va. 311, 317, 117

S.E.2d 72, 76 (1960).

        Appellant argues that the court erred by failing to set aside the jury’s verdict because the

expert testimony of his insanity at the time of the offense was uncontradicted. However,

Dr. Zwemer testified based on the tests he administered that appellant was fabricating at least part of

his mental illness, and he disagreed with Dr. Williams’s conclusion that at the time of the shooting,

appellant could not distinguish between right and wrong.

        Additionally, a jury is entitled to accept or reject any testimony, regardless of whether it is

uncontradicted. McLane v. Commonwealth, 202 Va. 197, 205-06, 116 S.E.2d 274, 281 (1960).

See also Street v. Street, 25 Va. App. 380, 387-88, 488 S.E.2d 665, 668-69 (1997) (en banc). We

have held that “jurors [are] not required to accept the testimony of [a witness] as conclusive merely

because he qualified as a medical expert.” McLane, 202 Va. at 205-06, 116 S.E.2d at 281. An

                                                  -6-
expert witness’ testimony “should be given the same consideration as is given that of any other

witness, considering his opportunity for knowledge of the subject and subject matter as to which he

testifies, his appearance, conduct, and demeanor on the stand.” Id. at 206, 116 S.E.2d at 281.

        Here, the jury was properly instructed that it was “not required to accept the opinion of any

expert witness as to whether [appellant] was sane or insane.” The court told the jury to “give the

testimony such consideration as you feel it is entitled along with the other evidence in the case.”

Even without Dr. Zwemer’s testimony, the jury was free to disregard Dr. Williams’s conclusion

regarding appellant’s sanity. Therefore, we find that the court did not err in denying appellant’s

motion to set aside the verdict.

                                           CONCLUSION

        For the reasons set forth above, we affirm appellant’s conviction for voluntary

manslaughter.

                                                                                             Affirmed.




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