                       COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia


ANTWAN M. KINGSBERRY
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0142-99-1                  JUDGE ROBERT P. FRANK
                                              AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                  Christopher W. Hutton, Judge

          Jay E. Dugger (McDermott & Roe, on brief),
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Antwan M. Kingsberry (appellant) appeals his convictions

after a bench trial of robbery in violation of Code § 18.2-58, use

of a firearm in the commission of a robbery in violation of Code

§ 18.2-53.1, and wearing a mask in public in violation of Code

§ 18.2-422.   On appeal, he contends the trial court erred in:   1)

admitting into evidence the statement of codefendant Olivier

Dixon, 2) admitting into evidence a letter written by codefendant

Karsene Paden, and 3) finding the evidence sufficient to support

     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the convictions.    In finding the trial court erred in admitting

the statement of codefendant Dixon, we reverse and remand for

further proceedings if the Commonwealth be so advised.

                            I.   BACKGROUND

     On November 29, 1997, the general manager, Tom Sawyer, and

two employees, Eileen Metheny and Jenny Jamison, of the Regal

Cinema in Hampton were counting the day's receipts in an upstairs

office.   They heard loud noises outside the office, and Sawyer

went into the hallway to investigate.      He returned to the office

with his hands raised and told Metheny and Jamison not to move.

Then, three masked men, who were carrying guns, entered the room.

Jamison testified that all three men were black.     The men ripped

the phone lines from the wall.    One of the men struck Sawyer in

the head with a gun.   The men took the bag of money from the

counter and left the office.

      On December 10, 1997, Detective George Burton of the Hampton

Police Department arrested Dixon in connection with the robbery at

the Regal Cinema.    At trial, Detective Burton testified as to the

statement Dixon made to the police.      Appellant's counsel objected

to the admission of Burton's testimony on the basis of hearsay.

Appellant's counsel asserted that Dixon was available to testify,

and, therefore, his statement was inadmissible hearsay.     Counsel

for Dixon stated that Dixon was present and willing to testify.

Dixon eventually testified on behalf of appellant and on behalf of



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himself.    The trial court overruled the objection and admitted

Burton's testimony regarding Dixon's statement to the police.

     Burton testified that Dixon told the police he went to Regal

on November 29, 1997, with the intent of getting in to see a free

movie.   He told the police he was with two friends, Karsene Paden

and another man he knew only by the last name of Kingsberry.

Dixon identified photographs of Paden and appellant as the two men

who were with him at Regal.   Dixon told the police that Paden was

the first person to go upstairs in the theater.    Paden propped

open a door and allowed appellant to come inside.    Dixon then went

upstairs to see what was happening.     He told police that he saw

appellant and Paden going down a hall with masks on.    He said that

he saw them go into a room he described as the "money counting

room."   He said he knew the room's purpose because he had been in

the room with a former Regal employee.    He said that he looked

into the room and saw Paden and appellant putting money into a

backpack.   He also said Paden had a gun.   Dixon stated he then

went downstairs.   Paden and appellant came downstairs, and Paden

gave him $100.

     Perry Mendel testified that he had been incarcerated at the

Hampton City Jail when Paden told him that he and two other men

had robbed the Regal Cinema using guns and got $7,000.    Paden then

described how he and the other men spent the money.

     On April 5, 1998, Richard Elrod, a former employee at the

Hampton City Jail, testified he intercepted a letter with

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appellant's return address from the outgoing jail mail.      The

police determined the letter was written by Paden.    The letter

requested that appellant tell Paden what appellant had told the

police.

     Dixon testified that he went to the Regal Cinema on the day

of the robbery to pick up movie tickets.     After waiting

unsuccessfully for the tickets, he left.     He testified that the

statement he gave to the police was untrue.

     Paden testified that he did not participate in the robbery at

the Regal Cinema.   He stated that he wrote the letter to

appellant, who is his brother, because he was concerned for

appellant's welfare.

                           II.    ANALYSIS

     Appellant contends the testimony of Burton regarding the

statement Dixon gave to the police was inadmissible hearsay

because Dixon was available and prepared to testify. 1

     In Paden v. Commonwealth, 259 Va. 595, 529 S.E.2d 792 (2000),

the Supreme Court of Virginia addressed the denial of codefendant

Paden's petition for appeal by this Court.     Paden asserted

Burton's testimony regarding Dixon's statement was inadmissible




     1
       On brief, appellant argues the admission of Dixon’s
statement was a violation of his Sixth Amendment right to
confront and cross-examine witnesses. However, in his Question
Presented, he limited his assignment of error to whether the
statement was hearsay, a non-constitutional argument. Thus, we
only address the hearsay issue. See Rule 5A:20(c)-(e).

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hearsay.   See id. at 596, 529 S.E.2d at 793.   The Supreme Court

agreed, stating:

                According to Paden, the Commonwealth
           did not establish the first factor, Dixon's
           unavailability to testify, because Dixon was
           present at trial and his attorney stated
           that Dixon was prepared to testify. The
           Commonwealth argues that, regardless of the
           representations made by Dixon's counsel,
           Dixon was unavailable to testify because
           Dixon could not be compelled to give
           evidence against himself and because the
           decision whether to testify was personal to
           Dixon and not his attorney.

                The Commonwealth correctly recites the
           rights of codefendant Dixon. Nevertheless,
           until Dixon asserted those rights, he
           remained available to testify. Under these
           circumstances, the Commonwealth failed to
           establish that Dixon was unavailable to
           testify, and the trial court erred in
           admitting the hearsay testimony of Detective
           Burton.

Id. at 596-97, 529 S.E.2d at 793 (citations omitted).   Cf.

Randolph v. Commonwealth, 24 Va. App. 345, 356, 482 S.E.2d 101,

106 (1997) (holding the Commonwealth was not required to call a

codefendant as a witness in joint trial to establish

unavailability because, "as a codefendant in a joint trial, [he or

she] could not be compelled to testify").   Therefore, we adopt the

Supreme Court's reasoning and hold that Burton's testimony

regarding Dixon's statement was inadmissible because the

Commonwealth failed to establish Dixon was unavailable to testify.




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     Appellant next contends the trial court erred in admitting

the letter written by Paden.   Appellant argues the letter is

inadmissible hearsay.

               Whether an extrajudicial statement is
          hearsay depends upon the purpose for which
          it is offered and received into evidence.
          If the statement is received to prove the
          truth of its content, then it is hearsay
          and, in order to be admissible, must come
          within one of the many established
          exceptions to the general prohibition
          against admitting hearsay.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22

(1992) (citation omitted).

     "The admissibility of evidence is within the broad discretion

of the trial court . . . ."    Pavlick v. Commonwealth, 25 Va. App.

538, 543, 489 S.E.2d 720, 722 (1997) (citing Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

     In this case, the trial court stated the purpose for which

the letter was received into evidence.   The trial court

specifically said, "It does to my satisfaction show a connection

between Mr. Paden and Mr. Kingsberry.    But it's fairly innocuous

with regard to these alleged crimes.    And it is on that basis it

is admitted over the objection."   Therefore, the trial court did

not receive the letter for the fact that Paden wanted appellant to

tell him what appellant told the police.   Instead, the court

received it to show a connection between Paden and appellant.    We

find, therefore, appellant's argument that the letter was

inadmissible hearsay and violated his Sixth Amendment right to

                                - 6 -
confront and cross-examine witnesses is without merit.      The trial

court did not abuse its discretion in admitting the letter written

by Paden to show a connection between Paden and appellant.

     Finally, appellant contends the evidence was not sufficient

to support his convictions.2

     On appeal, in determining whether the evidence was

sufficient, we consider all admitted evidence, including any

illegally admitted evidence.    See Lockhart v. Nelson, 488 U.S. 33,

41 (1988).

                  The standard of review for determining
             the sufficiency of evidence on appeal is
             well established. We must examine the
             evidence in the light most favorable to the
             Commonwealth, the prevailing party at trial,
             and we will not disturb the trial court's
             judgment unless it is plainly wrong or
             without evidence to support it.

Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 640

(1999) (citations omitted).

     In this case, Dixon identified appellant and Paden as the men

who were with him at the Regal Cinema on November 29, 1997.     He

told the police that one man was named Karsene Paden and the other



     2
       We undertake a full sufficiency analysis for double
jeopardy purposes. See Parsons v. Commonwealth, 32 Va. App.
576, 581, 529 S.E.2d 810, 812-13 (2000). The evidence, the
sufficiency of which we address, is the evidence adduced at
trial, regardless of whether it was properly admitted. Thus,
our decision on sufficiency of the evidence is tied specifically
and exclusively to the body of evidence in the trial on appeal,
and is in no sense declaratory of the merits of the case, in the
face of an evidentiary reversal, and is in no sense declaratory
of the sufficiency of any future body of evidence.

                                 - 7 -
he knew only as Kingsberry.   He told police he followed appellant

and Paden upstairs in the theater.       Both men were wearing masks.

He observed them go into the "money counting room."      When he

looked into the room, he saw appellant and Paden putting money

into a backpack.   Paden had a gun.

     Jenny Jamison, a Regal employee, testified that all three men

who robbed the Regal Cinema were wearing masks and carrying guns.

     We find the evidence was sufficient to establish appellant

participated in the robbery, used a firearm in the commission of

the robbery, and wore a mask in a public place.      Therefore, the

trial court's determination that the evidence was sufficient to

support the convictions was not plainly wrong or without evidence

to support it.

                          III.   CONCLUSION

     We find the trial court did not err in admitting the letter

written by Paden or in finding the evidence sufficient to support

the convictions.   However, because we find the trial court erred

in admitting Burton's testimony regarding Dixon's statement to

police, we reverse and remand for further proceedings if the

Commonwealth be so advised.

                                                 Reversed and remanded.




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