                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Kelsey
Argued by teleconference


SHAWN ORLANDO HUBBARD
                                                               MEMORANDUM OPINION* BY
v.        Record No. 2511-04-3                               JUDGE JEAN HARRISON CLEMENTS
                                                                    FEBRUARY 28, 2006
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                                 Mosby G. Perrow, III, Judge

                    Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for appellant.

                    Leah A. Darron, Assistant Attorney General (Judith Williams
                    Jagdmann, Attorney General, on brief), for appellee.


          Shawn Orlando Hubbard was convicted by a jury of malicious wounding, in violation of

Code § 18.2-51, and use of a firearm during the commission of a felony, in violation of

Code § 18.2-53.1. On appeal, he contends the trial court erred in admitting expert testimony

adduced by the Commonwealth on gang culture. For the reasons that follow, we affirm the trial

court’s judgment and Hubbard’s convictions.

          As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.




          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       “Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.”

Slade v. Commonwealth, 43 Va. App. 61, 64, 596 S.E.2d 90, 92 (2004).

       So viewed, the evidence established that, around 9:30 p.m. on December 22, 2003, three

men in black clothing with red bandanas around their necks or faces approached Kevin Napier, who

was standing with several other people on a poorly lit street corner in Lynchburg. Upon reaching

the group, one of the men, who was later identified as Chase Irvine, asked, “What’s popping?” and

indicated he was looking for Napier. Following a brief verbal exchange with Napier, Irvine pulled

out a gun and shot Napier in the stomach. As Napier lay wounded on the ground, Irvine and one of

the other men wearing a red bandana shot him repeatedly. Napier identified Hubbard as the other

man who shot him.

       Interviewed later that night by police, Eric Jones, a bystander at the scene of the shooting,

identified Irvine and Hubbard from photo lineups as two of the men who had approached Napier.

He did not know the identity of the third man.

       Executing search warrants, the police recovered black clothing and red bandanas from the

homes of Irvine and Hubbard. Upon his arrest, Hubbard denied being involved in or at the scene of

the shooting.

       At trial on July 1, 2004, Napier testified that he was a “Lieutenant” in a gang called the

Crips. He explained that a “Lieutenant” is a high-ranking member of the gang who “give[s]

orders and call[s] shots.” Napier also testified that Hubbard and Irvine were members of a gang

called the Bloods. Asked why he thought Irvine was looking for him and shot him, Napier

responded, “The only reason I can think of is I was a Crip.” On cross-examination, Napier

denied being a drug user but conceded he had used drugs in the past. He testified that the corner

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on which he was standing when he got shot was known to be a drug-trafficking area, but he

denied that he was there for the purpose of buying or selling drugs.

       Jones testified that the red bandanas Hubbard and Irvine wore when they approached and

shot Napier signified their membership in a gang called the Bloods. He also testified that members

of the Bloods used the greeting, “What’s popping?” and that he “heard somebody say where Blood

at” when Hubbard and the two men were fleeing after the shooting.

       Theorizing that Hubbard and Irvine shot Napier because he was in a rival gang, the

Commonwealth sought to present the testimony of Investigator Randall Trent, who qualified as an

expert on gang culture in Lynchburg. Hubbard objected to the admissibility of Trent’s testimony,

arguing that expert testimony on gangs would be prejudicial to him and was irrelevant because the

shooting was drug-related rather than gang-related. Hubbard further argued at trial that the

Commonwealth had presented no evidence that the shooting was gang-related and, consequently,

had failed to lay an evidentiary foundation for gang-culture testimony. The trial court denied

Hubbard’s objection and admitted Trent’s testimony.

       Investigator Trent testified that the Crips and the Bloods were active, rival gangs in the area

and that the rivalry between the two gangs sometimes resulted in violence. Specifically, he testified

that “just being in the same place at the same time” could incite violence between the two gangs,

“especially if at that moment the gang members [were] wearing their colors, displaying their

allegiance to one gang or another.” Trent further explained that one way members of the Bloods

identified themselves as being members of that gang was by wearing red bandanas around their

necks or heads.

       Hubbard presented an alibi defense and theorized that the shooting in this case “was a drug

transaction that went bad involving Mr. Jones and Mr. Napier.” In so theorizing, he highlighted

Napier’s history of drug activity and the fact that the area where Napier was shot was known for

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drug-trafficking. Testifying on his own behalf, Hubbard stated he had nothing to do with the

shooting and that he was at home on the evening of the shooting except when he went with his

girlfriend to pick up their son at his girlfriend’s grandmother’s house. Hubbard’s girlfriend testified

that Hubbard was with her the entire night, both at home and when they went together to her

grandmother’s house to get their son. Hubbard’s mother and grandmother also testified that

Hubbard was at home on the evening of the shooting, except when he and his girlfriend went to pick

up their son from 9:00 p.m. to 12:00 a.m.

       Called by the defense, Kenneth Slaughter, a bystander at the scene of the shooting, testified

that Hubbard and Irvine did not shoot Napier. Rather, he testified, four “much bigger and taller”

men from New York shot him.

       Following its deliberations, the jury convicted Hubbard of malicious wounding and use of a

firearm in the commission of a felony.

       This appeal followed.

                                            II. ANALYSIS

       Hubbard contends the trial court abused its discretion in admitting Investigator Trent’s

testimony on gang culture into evidence. Initially, Hubbard asserts the Commonwealth presented

no evidence that he was a gang member or that the shooting was gang-related and, thus, failed to lay

a proper foundation for the expert testimony on gang culture. He further asserts the testimony on

gang culture was not probative of the essential issue whether he shot Napier. Thus, Hubbard argues,

the evidence was not relevant to prove his culpability and merely served to prejudice him before

the jury.1 We disagree and find no abuse of discretion by the trial court.




       1
         Hubbard does not challenge Investigator Trent’s qualification as an expert witness. Nor
does he claim, on appeal, that Trent’s testimony regarding gang culture was inadmissible
because it was within the ken of the jury. Accordingly, we will not address those issues.
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       It is well settled that “[t]he admission of expert testimony is committed to the sound

discretion of the trial judge.” Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992).

Thus, we will not disturb such a decision absent an abuse of discretion. Id.

       Where expert testimony on gang culture is elicited “in the prosecution’s case-in-chief,”

the prosecution is “required to lay a proper foundation by closely linking the gang-related

evidence to the charged offense.” Utz v. Commonwealth, 28 Va. App. 411, 422 n.1, 505 S.E.2d

380, 385 n.1 (1998). Here, in overruling Hubbard’s objection to the admissibility of Investigator

Trent’s testimony on gang culture, the trial court determined that the Commonwealth had laid a

proper foundation for the admission of the testimony. The record supports that determination

and contradicts Hubbard’s assertion that the Commonwealth presented no evidence that he was a

gang member or that the shooting was gang-related.

       Charged with the burden of proving that Hubbard shot Napier, the Commonwealth

theorized from the outset that the shooting was gang-related. In support of that theory, the

prosecution presented evidence, prior to the adduction of Investigator Trent’s expert testimony,

that (1) Hubbard and Irvine were members of the Crips and were wearing red bandanas when

they approached Napier on the night of the shooting; (2) Napier was a high-ranking member of

the Bloods; (3) immediately prior to the shooting, Irvine greeted Napier and the others standing

on the corner with a distinctive greeting used by the Bloods; and (4) the only reason Napier

could discern for the shooting was his membership in the Crips gang. Viewed in the light most

favorable to the Commonwealth, this evidence demonstrated that the victim and the alleged

perpetrators of the shooting were affiliated with different gangs and that those affiliations may

have been the catalyst for the shooting. Thus, it closely linked Trent’s testimony regarding the

rivalry between the Crips and Bloods and the propensity of that rivalry to be the cause of




                                               -5-
violence between those gangs to the shooting of Napier. Accordingly, it provided a sufficient

foundation for the admission of Trent’s expert testimony on gang culture.

       A proper foundation alone, however, is not enough. To be admissible, “expert testimony

must be relevant.” Id. at 423, 505 S.E.2d at 386. “‘Evidence is relevant if it has any logical

tendency, however slight, to establish a fact at issue in the case.’” Id. (quoting Ragland v.

Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)).

       Specifically addressing the admissibility of expert testimony regarding gang culture in

Utz, we noted that gang-related evidence may “‘be admissible if it is sufficiently relevant to a

proper issue in the case.’” Id. at 421, 505 S.E.2d at 385 (quoting John E. Theuman,

Admissibility of Evidence of Accused’s Membership in Gang, 39 A.L.R.4th 775 (1985)). Such

evidence, we further noted, “‘has frequently been found to be probative and admissible, for

example, as evidence of a possible motive for the crime . . . where the defendant and his victim

are shown to have been members of rival gangs.’” Id. (quoting Theuman, supra).

       Accordingly, we held in Utz that expert testimony of gang culture may be “relevant to

establish a motive for the [charged crime].” Id. at 423, 505 S.E.2d at 386. Although motive “is

not an element of any crime,” it is “a circumstance tending to prove the guilt of the alleged

perpetrator” and is, thus, “relevant and probative on the issue of identity of the criminal agent.”

Cantrell v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d 22, 28-29 (1985); see also Brown v.

Commonwealth, 238 Va. 213, 221, 381 S.E.2d 225, 230 (1989) (“[M]otive is the reason that

induces the mind to desire [a certain] result.”).

       As Hubbard points out, the fundamental issue in this case was whether he shot Napier.

As previously mentioned, the prosecution’s theory in this case was that the victim, a

high-ranking member of the Crips gang, was shot by two members of the rival Bloods gang.

After presenting evidence that the victim and alleged perpetrators were members of the Crips and

                                                    -6-
Bloods, respectively, the Commonwealth adduced the testimony of Investigator Trent to explain

the potential significance of those gang affiliations. With no specific reference to Hubbard,

Irvine, or Napier, Trent explained that the Crips and Bloods were active, rival gangs in the area

and that violence between members of the two gangs sometimes resulted from their “just being in

the same place at the same time,” particularly if the gang members were “wearing their colors,

displaying their allegiance to one gang or another.” Trent also explained that members of the

Bloods gang wore red bandanas to show their allegiance to that gang. If given weight by the jury,

this evidence had a logical tendency to prove that Hubbard had a motive for shooting Napier and

may indeed have shot him. Hence, Trent’s expert testimony on gang culture was relevant to

establish a motive for the shooting and, thus, the identity of the criminal agent.

       That conclusion, however, does not end our inquiry. We have recognized that the

admission of expert testimony on gang culture may be prejudicial because it creates a risk the

jury will improperly infer from that evidence that the defendant is “a person of bad character and

more likely to commit the offense charged.” Utz, 28 Va. App. at 420, 505 S.E.2d at 384. Thus,

even where gang-related expert testimony is deemed relevant, because it may have an

inflammatory effect upon the jury, “the trial judge must balance its relevance against the

resultant prejudice.” Id. “Relevant evidence may be excluded only if the prejudicial effect of the

evidence outweighs its probative value.” Goins v. Commonwealth, 251 Va. 442, 461, 470

S.E.2d 114, 127 (1996).

       Here, Hubbard challenges only the admission of Investigator Trent’s expert testimony on

appeal. He does not object to the testimony of Napier or Jones regarding Hubbard’s membership

in the Bloods. Given that Trent’s testimony merely explained the significance of Napier’s and

Jones’s testimony regarding Hubbard’s affiliation with the Bloods and was manifestly probative

of the central issue in the case, we cannot say the trial court abused its discretion in finding that

                                                 -7-
the probative value of Trent’s testimony was not outweighed by any incidental prejudice of that

evidence.

       Accordingly, we hold the trial court did not abuse its discretion in admitting the expert

testimony of Investigator Trent on gang culture, and we affirm Hubbard’s convictions.

                                                                                         Affirmed.




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