                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia


JORGE ROBERTO AGUILAR
                                            MEMORANDUM OPINION * BY
v.   Record No. 2375-98-4                 JUDGE JAMES W. BENTON, JR.
                                               DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  William T. Newman, Jr., Judge

          John C. Kiyonaga (Kiyonaga & Kiyonaga, on
          briefs), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     The trial judge convicted Jorge Roberto Aguilar of two counts

of malicious wounding by mob in violation of Code § 18.2-41.

Aguilar contends that the judge erred (1) in admitting as evidence

the statement of a non-testifying codefendant and (2) in allowing

a witness to testify from an unauthenticated document created by

another person.   For the reasons that follow, we reverse the

convictions and remand for a new trial.

                                 I.

     The Commonwealth's evidence proved that Jorge Roberto

Aguilar, who is associated with a street gang, and several members


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
of that street gang fought Selden Najera and Alfie Bacchus, who

are associated with an opposing street gang.    During the fight,

someone stabbed Najera and Bacchus with a knife.    Through the

testimony of several associates of Najera's gang, the Commonwealth

proved that Aguilar stabbed Najera and Bacchus.

     During the Commonwealth's case-in-chief, a detective

testified and related the details of a statement made by a

non-testifying codefendant, Robin Meadows, implicating Aguilar in

the stabbing incident.    The trial judge overruled Aguilar's

objection that the testimony was in violation of his right to

confront the witness.    According to Meadows' statement, she

transported Aguilar and other gang members to the restaurant to

fight the other gang in retaliation for damage done to her

apartment.   In her statement, she said Aguilar had a knife in her

car that was involved in the fight.

                                 II.

     On brief, the Commonwealth concedes that "the United States

Supreme Court has . . . ruled the hearsay exception upon which the

trial [judge] admitted the statements violates the confrontation

clause" of the constitution.    See Lilly v. Virginia, 119 S. Ct.

1887 (1999).    The Commonwealth contends, however, that the error

was harmless.   We conclude that it was not.

     Confrontation Clause error is a constitutional error that is

subject to harmless error analysis.     See Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986).    Constitutional error is harmless,

                                - 2 -
however, only if "the beneficiary of the constitutional error

. . . prove[s] beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained."    Chapman v.

California, 386 U.S. 18, 24 (1967).     As the Supreme Court has

stated, "the correct inquiry is whether, assuming that the

damaging potential of the [evidence] were fully realized, a

reviewing court might nonetheless say that the error was harmless

beyond a reasonable doubt."    Van Arsdall, 475 U.S. at 684; see

also Olden v. Kentucky, 488 U.S. 227, 232 (1988).

     "[A] harmless error analysis . . . [is not] simply a

sufficiency of the evidence analysis."     Hooker v. Commonwealth, 14

Va. App. 454, 458, 418 S.E.2d 343, 345 (1992).    Even if "the other

evidence amply supports the . . . verdicts, [error is not harmless

when] the disputed testimony may well have affected the . . .

decision."   Cartera v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d

784, 786 (1978).   Indeed, an "emphasis and perhaps overemphasis,

upon the [concept] of 'overwhelming evidence,'" has the effect of

clouding the relevant question "'whether there is a reasonable

possibility that the evidence complained of might have contributed

to the conviction.'"    Chapman, 386 U.S. at 23 (footnote and

citations omitted).    Applying this standard, we hold that the

error was not harmless.

     The evidence proved that the fight was between members and

associates of rival gangs.    The evidence also proved that other

persons in the fight may have also been armed with another knife

                                - 3 -
or screwdriver.   Neither Bacchus nor Najera saw the person who

stabbed them.

     Three of the Commonwealth's witnesses were associates of the

gang hostile to the gang with which Aguilar was affiliated.   The

other eyewitness who testified for the Commonwealth denied being a

member of the gang; however, she admitted that before the fight

she was with Najera and Bacchus.   She believed Aguilar was named

"Jose Damingas" and testified that Damingas "had a problem . . .

with [her] other friend."   Thus, all of the eyewitnesses who said

Aguilar had a knife during the fight had a gang connection or bias

that rendered them antagonistic to Aguilar.

     Aguilar testified that he did not have a knife during the

fight, and, thus, contradicted the testimony of the opposing gang

members.   The evidence also proved that Aguilar previously had

given a statement to the police denying he had a knife during the

fight.

     By proving Meadows' statement that Aguilar had a knife, the

prosecutor provided evidence that enhanced the credibility of the

opposing gang members.   At the time of the event, Meadows was

affiliated with the same gang members as Aguilar.   Her statement

had the tendency to add force to the Commonwealth's case because

she was a witness who had no apparent hostility toward Aguilar.

     "[A]ssuming that the damaging potential of [Meadows'

statement was] realized," Van Arsdall, 475 U.S. at 684, it was

significant because the statement provided a version of the

                               - 4 -
critical event consistent with the testimony of opposing gang

members whose credibility might otherwise be questioned.   Given

the degree of antagonism between the Commonwealth's witnesses and

Aguilar, we cannot conclude beyond a reasonable doubt that

Meadows' statement did not sway the trier of fact in giving added

credence to the Commonwealth's witnesses.   Because the disputed

evidence may have affected the verdict, we hold that the evidence

was not harmless.

                                III.

     Aguilar also contends that the detective testified from

another officer's notes as to matters the detective did not

remember.   The Commonwealth counters that the objection which was

made at the conclusion of the detective's testimony came too late.

Because we conclude that this matter, if it arises again, will not

occur in the same context, we do not address the claim.

     For the reason stated above, we hold that a violation of the

confrontation clause occurred and that the error was not harmless.

Accordingly, we reverse the convictions and remand for a new

trial.

                                         Reversed and remanded.




                               - 5 -
