                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Malveaux and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              MELVIN YOVANY ARGUETA-DIAZ
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 1141-18-2                                JUDGE JEAN HARRISON CLEMENTS
                                                                                NOVEMBER 5, 2019
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                            Richard S. Wallerstein, Jr., Judge

                               Jesse Baez (Hairfield Morton PLC, on briefs), for appellant.

                               Robert H. Anderson, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Appellant was convicted in a bench trial of participating as an adult in a predicate

              criminal act committed against a juvenile on school property for the benefit of, at the direction

              of, or in association with any criminal street gang, in violation of Code §§ 18.2-46.2 and

              18.2-46.3:3.1 He argues on appeal that the trial court erred in denying his motion to suppress,

              admitting certain evidence, and finding the evidence sufficient to convict him. We find no error

              in the trial court’s rulings and affirm his conviction.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Appellant was convicted in the same trial of assault and battery, in violation of Code
              § 18.2-57. He did not challenge that conviction.
                                        BACKGROUND

       Consistent with familiar principles, we state the facts in the light most favorable to the

Commonwealth, the party prevailing at trial. See Gerald v. Commonwealth, 295 Va. 469,

472-73 (2018). So viewed, the evidence established that in March 2017, John Marshall, an

associate principal at Freeman High School in Henrico County, learned that appellant, a student

at the school, had made drawings containing possible gang symbols. Detective Richter of the

Henrico Police Department interviewed appellant, then age seventeen years, eight months, on

March 17, 2017, in the principal’s office at the school. A school resource officer, Henrico

County Police Officer Rodriguez, participated in the interview as the Spanish translator for

appellant. Marshall also was present. Richter was not investigating any particular crime. He

told appellant that being in a gang was not illegal in the United States and asked if he was

involved in a gang. Appellant said that he had been a member of MS-13 when he was a child

living in Honduras and acknowledged that he was still an active member.

       During the first week of school in September 2017, Marshall learned that appellant had

made certain markings on his name tag and his hands that were consistent with symbols used by

the MS-13 gang. Marshall and Officer Medina, a school resource officer, met with appellant on

September 6, 2017. Medina observed the Roman numeral X on appellant’s hands, as well as

“the class marks for one, two, and three, and then double horns on his wrists.” Medina saw an

“X and the 3 for 13 and then LAS, ALCS”2 on appellant’s right ring finger. Appellant also wore

a cap with a Chicago Bulls logo depicting horns, a symbol adopted by MS-13. Appellant was

then eighteen years of age and in the tenth grade.

       On September 14, 2017, at about 1:15 p.m., Assistant Principal Marshall and Officer

Medina were standing by the cafeteria doors to supervise students as they entered and exited


       2
           “ALCS” is Alaska Los Criminales Salvatrucha, a clique of MS-13.
                                             -2-
during the lunch hour when they saw appellant approach Danny Murillo Santos, who was in the

ninth grade. Appellant “crowded [Santos’] space, had a frown on his face, and whispered

something” to him. Marshall walked over to appellant and Santos to divert any confrontation.

Santos tried to walk away, but appellant blocked his path. Appellant bumped Santos’ shoulder

with his chest at least twice. Medina grabbed appellant and took him to Marshall’s office where

Marshall questioned him about the incident. Appellant admitted that he had wanted to fight

Santos because the latter had a symbol drawn on his hand that appellant believed “indicated

something about the 18th Street Gang.” Appellant also pointed to his own hand and said

“dieciocho,” Spanish for “eighteen.” According to Medina, Santos was not a member of the 18th

Street Gang.

       Santos testified at trial that he had drawn a triangle on his hand before lunch on

September 14, 2017, but that it had nothing to do with any gang affiliation. He further testified

that appellant had confronted him as he was eating lunch and asked about the drawing. Although

Santos said that he had just drawn it, appellant told him, “this is a warning,” and grabbed him on

the back of the neck. Then appellant chest bumped him two or three times as he tried to leave

the cafeteria. Santos testified that appellant had asked him the day before whether he was a

member of the 18th Street Gang and had threatened to kill him, his family, and his friends.

       Appellant moved to suppress the statements he had made during the March 2017

interview with Detective Richter. The trial court heard appellant’s motion to suppress

immediately before the trial began and denied the motion. Appellant did not object to adopting

Richter’s testimony from the suppression hearing for use at trial. The court then found appellant

guilty. This appeal followed.




                                               -3-
                                            ANALYSIS

                                       I. Motion to Suppress

       The denial of a motion to suppress evidence is reviewed on appeal in the light most

favorable to the Commonwealth with the benefit of all reasonable inferences fairly deducible

from that evidence accorded to the Commonwealth. See Payne v. Commonwealth, 65 Va. App.

194, 198 (2015), aff’d, 292 Va. 855 (2016). In considering whether to affirm the trial court’s

pretrial suppression ruling, this Court “reviews not only the evidence presented at the pretrial

hearing but also the evidence later presented at trial.” Hill v. Commonwealth, ___ Va. ___, ___

(Aug. 30, 2019) (quoting Commonwealth v. White, 293 Va. 411, 414 (2017)); see Ross v.

Commonwealth, 61 Va. App. 752, 757 (2013). The appellant must show that the denial of the

suppression motion was reversible error. See Sidney v. Commonwealth, 280 Va. 517, 522

(2010). The appellate court is bound by the circuit court’s findings of fact unless “plainly wrong

or without evidence to support them.” Gregory v. Commonwealth, 64 Va. App. 87, 93 (2014).

This Court gives deference to the trial court’s findings of fact, but reviews de novo the trial

court’s application of the law to the particular facts of the case. Glenn v. Commonwealth, 275

Va. 123, 130 (2008).

       Appellant argues that he was in police custody when Detective Richter questioned him

about his possible gang involvement in March 2017 and thus should have been given Miranda3

warnings. The record, however, establishes that Miranda warnings were not required because

appellant was not in police custody during the interview.

       Richter testified at the suppression hearing that he explained to appellant that he was

investigating possible gang membership but that appellant was “not in trouble in any way, that

it’s not illegal to be a gang member and part of a gang unit.” Richter was not in uniform but was


       3
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                              -4-
wearing his police badge; Officer Rodriguez, who was acting as a Spanish translator for

appellant, was in uniform. Neither Richter nor Rodriguez displayed a weapon. Appellant never

indicated that he did not wish to talk with the detective and appeared to understand the questions

as translated by Rodriguez. He was not placed under any physical restraints during the interview

and was free to leave at any time. Rodriguez estimated that the interview lasted about fifteen

minutes.4

       “[P]olice officers are not required to administer Miranda warnings to everyone whom

they question.” Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Miranda warnings are not

required unless an individual is “both in ‘custody’ and subjected to ‘interrogation.’” Blain v.

Commonwealth, 7 Va. App. 10, 13 (1998). In determining whether appellant was “in custody”

when Richter questioned him, we consider whether his “freedom of movement” was restrained to

“the degree associated with a formal arrest.” Brooks v. Commonwealth, 282 Va. 90, 96 (2011)

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). This assessment is “based on how

a reasonable person in the suspect’s situation would perceive his circumstances.” Yarborough v.

Alvarado, 541 U.S. 652, 662 (2004). “[T]he subjective perspective of either the suspect or the

interrogating police officer has no bearing on the issue whether the suspect was ‘in custody’ at

the time he was questioned by the police.” Dixon v. Commonwealth, 270 Va. 34, 40 (2005).

       In evaluating whether an individual is in custody when questioned by the police, no

single factor is dispositive. See Wass v. Commonwealth, 5 Va. App. 27, 32 (1987). Rather, “the

totality of the circumstances must be considered.” Id. Factors to be examined are

               (1) the manner in which the individual was summoned by the
               police, (2) the familiarity or neutrality of the surroundings, (3) the
               number of officers present, (4) the degree of physical restraint,
               (5) the duration and character of the interrogation, and (6) the

       4
          Although Richter estimated that the interview lasted about sixty to ninety minutes, when
the testimony of two police officers conflicts on some point, “the version more favorable to the
Commonwealth” governs on appeal. Eaton v. Commonwealth, 240 Va. 236, 249-50 (1990).
                                                -5-
               extent to which the officers’ beliefs concerning the potential
               culpability of the individual being questioned were manifested to
               the individual.

Harris v. Commonwealth, 27 Va. App. 554, 565 (1998). The fact that an investigation focuses

upon an individual “is not determinative of the question of custody.” Smith v. Commonwealth,

219 Va. 455, 470 (1978).

       Consistent with the applicable law, the trial court properly held that appellant was not in

custody when he met at his high school with his assistant principal and the two officers on March

17, 2017. First, the trial judge correctly noted that there was no evidence “as to the manner in

which [appellant was] summoned by the police.” Second, the interview took place at the school

where appellant was a student, which the trial court considered a more “neutral surrounding”

than the police station, and the only officer in uniform was a school resource officer whose

function at the interview was to translate for appellant. Third, the trial court found as fact that

“there was no physical restraint” and that Richter had explained to appellant “that he was not in

trouble in any way, that it is not illegal to be a gang member in the United States.” Fourth, the

trial judge found that appellant had been sitting closest to the door and was positioned between

Richter and Rodriquez. The trial judge implicitly credited Richter’s testimony that he had not

been investigating any particular crime, that no guns were drawn during the interview, and that

appellant had been free to leave throughout the interview. The court also determined that at the

time of the interview appellant was seventeen years, eight months old. Under these collective

circumstances, the trial court correctly ruled that appellant was not in custody during the

conversation on March 17, 2017.

       Nothing in J.D.B. v. North Carolina, 564 U.S. 261 (2011), on which appellant relies,

warrants a different result. There, a thirteen-year-old seventh grade student was taken from his

classroom by a uniformed police officer, escorted to a closed-door conference room, and

                                                 -6-
questioned by police for at least thirty minutes. Id. at 265. The police had questioned him once

before in connection with two burglaries and thefts occurring five days earlier. Id. The Supreme

Court held that

                  so long as the child’s age was known to the officers at the time of
                  police questioning, or would have been objectively apparent to a
                  reasonable officer, its inclusion in the custody analysis is
                  consistent with the objective nature of that test. This is not to say
                  that a child’s age will be determinative, or even a significant,
                  factor in every case.

Id. at 277. The Court did not make a finding that the student was in custody and remanded the

case for that determination. Id. at 281. Contrary to appellant’s contention, the case does not

stand for the proposition that Miranda warnings are always required when the police question a

minor.

         We note that appellant was not charged with any offense following the March 17, 2017

interview. Rather, he was prosecuted for assaulting Santos on September 14, 2017, which

occurred almost six months after the interview. The Commonwealth made an additional

argument before this Court that Miranda warnings were not required at the March 17, 2017

interview because appellant was not then subjected to interrogation within the meaning of

Miranda. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). We do not address that

argument because we decide the case on the basis of custody.

                     II. Admission into Evidence of Gang Members’ Convictions

         To convict appellant of violating Code § 18.2-46.2, the Commonwealth had to prove that

he “actively participate[d] in or [was] a member of a criminal street gang.” Code § 18.2-46.2(A).

Establishing the existence of a “criminal street gang” requires proof that gang “members

individually or collectively have engaged in the commission of, attempt to commit, conspiracy to

commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of

violence, provided such acts were not part of a common act or transaction.” Code § 18.2-46.1.
                                                   -7-
A “predicate criminal act” includes specified Virginia statutes and “any substantially similar

offense under the laws of another state or territory of the United States, the District of Columbia,

or the United States.” Id.

       To this end, Detective Richter testified that Michael Arevalo had been documented in

May 2011 as a MS-13 gang member and currently was incarcerated on federal convictions for

conspiracy to commit murder in aid of racketeering and use of a firearm. Arevalo had

committed the crimes in July 2011. Richter also testified that Justyn Amador had been

prosecuted in federal court for an offense committed in January 2012 that “involved . . . a MS-13

murder, where they murdered a fellow gang member within the same clique, that they believed

was providing information to the police.”

       At trial, appellant challenged the evidence about Arevalo’s conviction on the ground that

Richter had been on the Gang Task Force for only two years and had not “personally” worked on

the case resulting in Arevalo’s conviction. Appellant argued that the evidence regarding

Amador’s conviction did not meet the definition of “criminal street gang” under Code

§ 18.2-46.1 because his conviction was the “same event” as Arevalo’s conviction. Appellant

argues on appeal that the trial court erred in allowing evidence about Arevalo’s and Amador’s

federal convictions.5 We disagree.


       5
           Appellant makes arguments on appeal that he did not make at trial. He contends that
the trial court should have excluded the testimony under Virginia Rule of Evidence 2:703
because Richter did not base his expert opinion on “facts personally known or observed by” him.
He also asserts that Richter’s testimony should have been excluded because it did not
demonstrate that any acts by Arevalo or Amador were done as MS-13 gang members. These
arguments are barred by Rule 5A:18 because they were not made at trial. The Rule provides that
“[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection
was stated with reasonable certainty at the time of the ruling, except for good cause or to enable
the Court of Appeals to attain the ends of justice.” “Specificity and timeliness undergird the
contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to
resonate with simplicity: ‘Not just any objection will do. It must be both specific and timely —
so that the trial judge would know the particular point being made in time to do something about
it.’” Bethea v. Commonwealth, ___ Va. ___, ___ (Aug. 28, 2019) (quoting Dickerson v.
                                                    -8-
        “‘[T]he admissibility of evidence is within the discretion of the trial court’ and an

appellate court will not reject the decision of the trial court unless it finds an abuse of discretion.”

Hicks v. Commonwealth, 60 Va. App. 237, 244-45 (2012) (quoting Midkiff v. Commonwealth,

280 Va. 216, 219 (2010)). “Under this deferential standard, a ‘trial judge’s ruling will not be

reversed simply because an appellate court disagrees;’ only in those cases where ‘reasonable

jurists could not differ’ has an abuse of discretion occurred.” Campos v. Commonwealth, 67

Va. App. 690, 702 (2017) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted

upon reh’g en banc, 45 Va. App. 811 (2005)).

        Code § 18.2-46.1 does not require that Richter had been personally involved in Arevalo’s

prosecution. A “predicate criminal act” may be “any substantially similar” federal offense or

one committed “under the laws of another state or territory of the United States, the District of

Columbia, or the United States.” Code § 18.2-46.1. That language “demonstrates a clear

legislative intent to include within the sweep of the statute predicate crimes committed by gang

members anywhere within the United States.” Rushing v. Commonwealth, 284 Va. 270, 279

(2012). Requiring a local law enforcement officer to have personal involvement in the

investigation or prosecution of any crime committed anywhere in order to testify that the offense

was a “predicate criminal act” would violate legislative intent, as well as defy reason and logic.




Commonwealth, 58 Va. App. 351, 356 (2011)); see also Floyd v. Commonwealth, 219 Va. 575,
584 (1978) (holding that the appellate court will not consider an argument that differs from the
specific argument presented to the trial court, even if it relates to the same general issue). Thus,
appellant’s arguments are waived.
        Additionally, appellant made separate arguments at trial regarding the admissibility of
Arevalo’s and Amador’s convictions. On appeal, however, in arguing that the trial court erred in
allowing the evidence, appellant applies the rationale for his separate objections to both Arevalo
and Amador. While his separate objections are preserved, they may not be attributed jointly on
appeal. Cf. Linnon v. Commonwealth, 287 Va. 92, 102 (2014) (holding that objection made by
one defendant in a joint trial could not be imputed to co-defendant absent an express joint
objection). Accordingly, appellant has waived any argument except the specific objections that
he made at trial for each predicate conviction. See id.
                                                 -9-
Richter’s familiarity with MS-13 gang members in the Richmond area and knowledge of

Arevalo’s conviction satisfied the statute. See Salcedo v. Commonwealth, 58 Va. App. 525, 538

n.13 (2011) (noting that the two gang members whose “predicate criminal acts” were used to

prove the existence of the Latin Kings gang were “a founding member of the Latin Kings on the

East Coast” and “the Supreme Inca for the Latin Kings of New York”).

        Further, Arevalo was convicted of two offenses committed on July 24, 2011, while

Amador was convicted of an offense committed on January 14, 2012. Although they had a

common co-defendant (Jose Bran), Arevalo and Amador were not co-defendants in their separate

crimes, which occurred almost six months apart. Their offenses reasonably cannot be

characterized as “part of a common act or transaction.”

        The Supreme Court also held in Rushing that a detective’s expert opinion that a second

man was a member of a criminal street gang when he committed his crime was inadmissible

because it was based only on the detective’s once having seen the man wearing black and blue

beads, which the detective believed signified his gang membership. Rushing, 284 Va. at 278.

The Court held that this opinion “was insufficiently grounded on facts in evidence to carry the

Commonwealth’s burden of proving one of the two requisite predicate crimes by gang

members.” Id. at 279. And, because the detective’s observation of the man’s beads was “not

related in time” to his commission of his crime, it did not show that he had committed it as a

gang member. Id. at 278. Appellant thus argues that Rushing supports his argument, but the

case is distinguished on its facts.

        Here, Richter’s testimony and the federal conviction orders sufficiently established that

both Arevalo and Amador were MS-13 gang members and had committed the requisite criminal

acts. Therefore, the trial court did not abuse its discretion in admitting the evidence to prove the

existence of a “criminal street gang.”

                                               - 10 -
            III. Admission into Evidence of Appellant’s Drawings and Photographs

       At trial, the Commonwealth presented seven exhibits to establish that appellant was a

member of a criminal street gang. Exhibits 1 and 2 were drawings that appellant had done in

March 2017. Exhibits 3 and 4 were photographs of appellant’s hand on which he had drawn two

“devil horns,” “XIII,” and “ACLS.” The photographs were taken on September 6, 2017, and

Exhibit 3 also showed that appellant was wearing a “grim reaper” shirt. Exhibit 5 was a

photograph of the Chicago Bulls cap appellant had worn on September 6, and Exhibit 6 was a

name tag on which appellant had drawn “devil horns.” Exhibit 10 was a photograph of two blue

bandanas, which were found in appellant’s jail cell on September 23, 2017.

       The Commonwealth introduced Exhibits 1, 2, 3, 4, 5, and 6 through the testimony of

Associate Principal Marshall. Appellant objected that Exhibits 3, 4, 5, and 6 were not relevant

because no foundation had been laid to connect the items to his charges. When the trial court

asked the prosecutor to explain the relevance of the name tag, she said that the purpose of the

evidence was to prove that appellant was a gang member and that its significance would be

established by later expert testimony on criminal street gangs. The trial court overruled

appellant’s objections.

       Detective Richter subsequently testified as an expert on criminal street gang activity and

gang culture, particularly the MS-13 gang. He described the origins of MS-13 in El Salvador

and its later emergence in the United States. He explained that some MS-13 gang members are

devil worshippers, “so you might see . . . anything with a horn, Chicago Bulls jersey shirt, or

drawn devil horns.” Richter stated that the drawings on appellant’s hands and his name tag, his

“grim reaper” shirt, and his Chicago Bulls cap, which were depicted in Exhibits 3, 4, 5, and 6, all

contained items consistent with MS-13 gang membership. Appellant did not object to the




                                               - 11 -
detective’s testimony, nor did he renew his earlier objections to the exhibits when Richter

testified.

        We hold that the trial court properly exercised its discretion in admitting Exhibits 3, 4, 5,

and 6. See Huguely v. Commonwealth, 63 Va. App. 92, 115 n.12 (2014) (trial court has

substantial discretion as to order of witnesses and manner of examination). Richter’s testimony

connected the exhibits to appellant’s charges and sufficed to authorize their admission into

evidence.

        Additionally, even assuming the trial court’s ruling was error, the error was harmless. “A

non-constitutional error is harmless if it plainly appears from the record that the parties had ‘a

fair trial on the merits and substantial justice has been reached.’” Angel v. Commonwealth,

281 Va. 248, 268 (2011) (quoting Code § 8.01-678). The potential effect of the error must be

considered in light of the entire record. See Commonwealth v. Proffitt, 292 Va. 626, 642 (2016).

Where “the error did not have a substantial effect on the verdict,” the error is harmless. Angel,

281 Va. at 268.

        Appellant did not object to admitting Exhibits 1 and 2. Richter testified, without

objection, that Exhibit 1 contained various indicia of MS-13 gang membership. He identified

several items on appellant’s drawing as

               [c]onsistent with MS-13 gang membership. The upper left corner
               of the drawings, there is the double horn . . . , there’s Roman
               numeral 13, X and then three ones. It’s got MS written under the
               double horns, 504 which is the country of Honduras . . . which
               Mr. Argueta-Diaz is from . . . . ACLS, which is Alaska Los
               Criminales Salvatrucha, which is a clique of MS-13. There is 13,
               obviously a Mexican Mafia 13. We have the upside-down cross,
               which is a Satanic idea towards MS-13, and then there’s actually a
               hand-drawn . . . picture of a hand . . . where the index and pinkie
               fingers are extended straight upwards and out as much as possible
               and the two middle fingers are held downwards.




                                                - 12 -
Richter also said that the two blue bandanas shown in Exhibit 10 were “consistent with MS-13

gang membership.” Thus, any possible error was harmless because we can conclude “with fair

assurance,” that admitting Exhibits 3, 4, 5, and 6 did not affect or had only “slight effect” on the

court’s verdict. Clay v. Commonwealth, 262 Va. 253, 259-60 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)).

                                  IV. Sufficiency of the Evidence

        Appellant argues that the evidence did not prove that he was a gang member or that his

assault on Santos was done for the benefit of, at the direction of, or in association with a street

gang. “In general, when reviewing a challenge to the sufficiency of the evidence to support a

conviction, an appellate court considers the evidence in the light most favorable to the

Commonwealth, the prevailing party below, and reverses the judgment of the trial court only

when its decision is plainly wrong or without evidence to support it.” Marshall v.

Commonwealth, 69 Va. App. 648, 652-53 (2019). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its

opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.

273, 288 (2017)).

        Appellant maintains that the evidence did not prove that he was a member of MS-13

because he testified at trial that he was not a member of MS-13. However, the trial judge, sitting

as the trier of fact, did not have to accept this assertion, and did not, crediting, instead, Richter’s

testimony that appellant had admitted to him that he was “still an active member” of MS-13. “It

is the prerogative of the trier of fact ‘to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.’” Sierra v. Commonwealth,

59 Va. App. 770, 776 (2012) (quoting Brown v. Commonwealth, 56 Va. App. 178, 185 (2010)).

                                                 - 13 -
The fact finder’s conclusions regarding “credibility issues . . . will not be disturbed on appeal

unless plainly wrong.” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin

v. Commonwealth, 13 Va. App. 296, 299 (1991)).

       Additionally, appellant asserts that he was not a gang member because his actions against

Santos on September 14, 2017, did not follow the “cardinal rule” testified to by Richter that once

an MS-13 gang member confirms that a person is a member of a rival gang, such as the 18th

Street Gang, he must immediately attack the rival member. However, the fact that appellant did

not brutally attack Santos in the high school cafeteria, with an assistant principal and a school

resource officer nearby, does not disprove appellant’s gang membership. The record indicates

that appellant was unable to “confirm” Santos’ membership in the 18th Street Gang. Appellant

testified that he did not think that Santos belonged to a rival gang. Santos testified that he told

appellant that he was not a member of the 18th Street Gang and that the drawing on his hand had

nothing to do with that gang. Officer Medina testified that Santos was not a member of the 18th

Street Gang. And, as the trial court noted, even if appellant had been under a gang imperative to

attack Santos, he may have declined to do so because he was not “a great follower of rules.”

Yet, appellant did assault Santos on September 14, 2017, and his assault and battery conviction is

unchallenged on appeal.

       The trial judge expressly found as fact that appellant was a member of MS-13. The court

relied, in part, on the various exhibits introduced by the Commonwealth and Richter’s expert

testimony linking them to MS-13 membership. This finding was not plainly wrong or lacking in

supporting evidence. See Hamilton v. Commonwealth, 279 Va. 94, 109 (2010) (holding that

evidence that defendant wore red and black clothing, colors associated with the Bloods gang,

was proof of his membership in the “Nine Trey Bloods” gang); see also Salcedo, 58 Va. App. at

525 (holding that the testimony of an expert in criminal street gangs regarding the identifying

                                                - 14 -
colors, symbols, and particular hand signs associated with a certain group established that they

were a criminal street gang as defined in Code § 18.2-46.1).

       Finally, we find unpersuasive appellant’s contention that the assault and battery was not

shown to be for the benefit of, at the direction of, or in association with the MS-13 gang. The

trial judge found as fact that appellant “admitted that he wanted to fight [Santos] because he had

something to do with the 18th Street gang.” Further, appellant had referred to the drawing on

Santos’ hand with the Spanish word for 18. Given all of the trial judge’s factual findings, he

reasonably concluded that appellant’s assault on Santos was done in association with a street

gang. See Morris v. Commonwealth, 58 Va. App. 744, 749-52 (2011) (holding that the trial

court’s finding that defendant acted “in association with” a criminal street gang when he

participated in a random attack on three persons was not “plainly wrong or unsupported by the

evidence”).

                                         CONCLUSION

       We hold that the trial court did not err in denying the motion to suppress, admitting the

convictions of two MS-13 gang members, admitting evidence that established appellant was a

member of MS-13, and finding the evidence sufficient to convict appellant of violating Code

§§ 18.2-46.2 and 18.2-46.3:3. We affirm appellant’s conviction.

                                                                                         Affirmed.




                                              - 15 -
