COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Humphreys, Chaney and Lorish Argued at Virginia Beach, Virginia
DARONE CORTOIN OWENS MEMORANDUM OPINION* BY v. Record No. 1055-21-1 JUDGE VERNIDA R. CHANEY OCTOBER 11, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Christopher Papile, Judge
(Joshua A. Goff; Goff Voltin, PLLC, on brief), for appellant. Appellant submitting on brief.
Robin M. Nagel, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial in the Circuit Court of the City of Newport News (“trial court”),
Darone Cortoin Owens (“Owens”) was convicted of malicious wounding, in violation of Code
§ 18.2-51, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On
appeal, Owens contends that the evidence is insufficient to support his convictions. Additionally,
Owens argues that the trial court abused its discretion by admitting a purportedly irrelevant
photograph of him. For the following reasons, this Court affirms the convictions.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)). This Court “regard[s] as true all the credible evidence favorable to the Commonwealth
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. and all fair inferences to be drawn therefrom.” Id. at 473 (quoting Kelley v. Commonwealth, 289
Va. 463, 467-68 (2015)).
On December 18, 2016, around 6:00 p.m., Goldie Clinton (“Goldie”) and his cousin Shawn
Clinton (“Shawn”) noticed two young African-American males walking near Shawn’s apartment
building in Newport News. When Goldie called Shawn’s attention to the unknown males, one of
the males pulled a pistol from his pocket and shot Goldie in the groin. When Goldie yelled out,
both males shot at him and missed. Then both males shot at Shawn, fatally shooting him in the
head and chest. Goldie hid behind a dumpster in the parking lot and then fled across the street to a
convenience store to seek help. Goldie was taken to the hospital for medical treatment.
Goldie did not know the two shooters and had never seen them before that day. Goldie
testified that minutes before the shooting, he got a good look at the person who subsequently shot
him when he observed the person walk up to Shawn’s apartment door and when he walked past him
“shoulder to shoulder on the sidewalk.” Goldie got a good look at both shooters when he observed
them talking nearby for about thirty minutes before the shooting.
Goldie testified that he also got a good look at the shooter at the time of the shooting when
the shooter was directly in front of him, twenty feet away. According to Goldie’s testimony, the
person who shot him “was exactly the same person that [he had] seen earlier that [he] passed on the
sidewalk [and] that was standing at Shawn’s door.” Goldie testified that the person who shot him
was an African-American male wearing a blue jacket with the hood pulled tightly around his face
and “a bush of curly hair coming out the front.”
Almost a year after the shooting, while Goldie was viewing Facebook, he saw a picture of
the person who shot him. Goldie promptly called the lead detective on the case and informed her
about the shooter’s picture on Facebook. The next day, Goldie met with the detective at the police
station and identified the shooter in a photo lineup. The shooter’s picture was the same picture that
-2- Goldie had seen on Facebook. At trial, Goldie recognized and identified Owens as the person who
shot him.
Over Owens’ objection at trial, the trial court admitted into evidence a photograph showing
Owens wearing a blue jacket with a hood. Owens argued that there was no foundation establishing
that it was “relevant to any material fact in this case.”1 The Commonwealth responded that the
photograph was relevant because Goldie had testified that the shooter wore a blue jacket with a
hood, and the photograph showed Owens wearing a blue jacket with a hood. Although the trial
court overruled Owens’ objection to admission of the photograph, the trial court granted Owens’
request to redact the date from the photograph.
Goldie acknowledged at trial that he was currently serving a prison sentence. Goldie further
testified that he was a convicted felon with seven felony convictions. At the time of the shooting,
Goldie was participating in a drug court program.
After the Commonwealth rested, Owens moved to strike the evidence, arguing that Goldie’s
multiple identifications of Owens were insufficient to prove that Owens was the shooter, given that
Goldie did not know Owens and did not identify him for almost a year after the shooting. The trial
court overruled the motion, and the defense rested without presenting evidence.
During its closing argument, the Commonwealth focused on Goldie’s multiple
identifications of Owens as the shooter, but also noted that the jury would have “a picture of
[Owens] wearing a blue jacket with a hood.” During Owens’ closing argument, defense counsel
asserted that the jury should not credit Goldie’s multiple identifications of Owens as the shooter,
given that Goldie first identified him almost a year after the shooting based on a picture Goldie saw
on social media. Defense counsel then addressed the photograph, asserting that while the jacket
Owens wore in the photograph was “distinctive,” Goldie merely described the shooter’s jacket as
1 Owens did not contest that he was the person shown in the photograph. -3- blue. Defense counsel contended that if the Commonwealth believed that the jacket shown in the
picture was the same jacket the shooter wore, the Commonwealth would have asked Goldie to
identify the jacket on the stand. Rather, the Commonwealth “manage[d] to find a picture of . . .
Owens wearing something blue.” Accordingly, defense counsel argued that the picture
“corroborated nothing of what Goldie Clinton testified to.”
The jury convicted Owens of malicious wounding and use of a firearm in the commission of
a felony but acquitted him of murdering Shawn. Owens moved to set aside the verdict, arguing that
the jury’s decision to acquit him of second-degree murder demonstrated that the jury did not believe
beyond a reasonable doubt that he was the shooter, but the trial court upheld the jury’s verdict. This
appeal followed.
II. ANALYSIS
A. Sufficiency of the Evidence
Owens asserts that the evidence is insufficient because Goldie’s testimony identifying him
as the shooter is the only evidence linking him to the shooting. Owens also asserts that no
reasonable trier of fact could credit this testimony because Goldie was not acquainted with
Owens and first identified Owens almost a year after the shooting. We disagree.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
-4- reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “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)).
“Under well-settled principles of appellate review, we consider the evidence presented at trial in the
light most favorable to the Commonwealth, the prevailing party below.” Vay v. Commonwealth, 67
Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625, 629 (2009)).
Goldie testified that he clearly saw the shooter’s face and was able to identify Owens as
the shooter when he saw Owens’ picture on social media, when he selected Owens’ picture from
a photo lineup, and when he saw Owens in person at trial. The jury observed Goldie’s
testimony, considered Owens’ arguments as to why Goldie’s multiple identifications of Owens
were unreliable, and ultimately credited these identifications. “Determining the credibility of
witnesses . . . is within the exclusive province of the [finder of fact], which has the unique
opportunity to observe the demeanor of the witnesses as they testify.” Dalton v. Commonwealth,
64 Va. App. 512, 525 (2015) (alteration in original) (quoting Lea v. Commonwealth, 16 Va. App.
300, 304 (1993)). “When ‘credibility issues have been resolved by the [fact-finder] in favor of
the Commonwealth, those findings 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)). Owens has not shown that the jury’s findings are plainly wrong or
without evidence to support them, and those findings were sufficient to convict Owens as the
shooter. See Satcher v. Commonwealth, 244 Va. 220, 252-54 (1992) (witness identification
evidence sufficient to sustain conviction); Chavez, 69 Va. App. at 161 (convictions supported by
evidence are not overturned even if the reviewing court might have reached a different result).
-5- Owens also contends—as he did in his post-trial motion to set aside the verdict—that the
jury’s decision to acquit him of murdering Shawn demonstrates that the evidence was
insufficient to prove beyond a reasonable doubt that he shot Goldie. Owens argues that by
acquitting him of Shawn’s murder, the jury must necessarily have found that the evidence—
Goldie’s identification of Owens as one of two shooters responsible for shooting him and Shawn
that evening—was insufficient to prove that Owens was one of the two shooters beyond a
reasonable doubt. Indeed, under the facts of this case, if the jury had found beyond a reasonable
doubt that Owens was one of the two shooters who shot at Goldie and Shawn, Owens would
have been legally responsible for Shawn’s murder. However, Owens’ reliance on this jury’s
acquittal on the murder charge is unavailing because our sufficiency analysis is not a subjective
standard based on the findings made by a particular jury. Rather, it is an objective standard
focused on what a rational jury could have found based on the evidence viewed in the light most
favorable to the Commonwealth. See Vasquez, 291 Va. at 248. Applying that standard, the
evidence that Goldie identified Owens as the person who shot him was sufficient to support
Owens’ convictions.
B. Admission of the Photograph
Owens further contends that the trial court erred in admitting the photograph of him
wearing a hooded blue jacket. Owens argues that this photograph was not relevant to any
material issue in the case and that the Commonwealth failed to establish the requisite foundation
for its relevance. We review a trial court’s evidentiary rulings under a deferential
abuse-of-discretion standard. See Fields v. Commonwealth, 73 Va. App. 652, 672 (2021). “A
court can abuse its discretion in three ways: (1) by failing to consider a relevant factor that
should have been given significant weight, (2) by considering and giving significant weight to an
irrelevant or improper factor,” and (3) by committing a clear error of judgment while weighing
-6- all proper factors. See id. (citing Lawlor v. Commonwealth, 285 Va. 187, 213 (2013)). This
Court will not find an abuse of discretion in an evidentiary ruling unless we find that no
reasonable jurist would have so ruled. See Hicks v. Commonwealth, 71 Va. App. 255, 270
(2019).
“The proponent of the evidence bears the burden of establishing . . . the facts necessary to
support its admissibility.” Church v. Commonwealth, 71 Va. App. 107, 122 (2019) (quoting
Perry v. Commonwealth, 61 Va. App. 502, 509 (2013)). However, once the proponent satisfies
this threshold, “any gaps in the evidence” go to the jury’s “assessment of its weight rather than
its admissibility.” Id. at 122-23.
“Generally, ‘[a]ll relevant evidence is admissible’ unless provided otherwise by other
rules.” Jones v. Commonwealth, 71 Va. App. 70, 88 (2019) (quoting Va. R. Evid. 2:402).
“[R]elevance typically presents a low barrier to admissibility.” United States v. Leftenant, 341
F.3d 338, 346 (4th Cir. 2003). Evidence is relevant if it has “any tendency to make the existence
of any fact in issue more probable or less probable than it would be without the evidence.”
Va. R. Evid. 2:401. “The scope of relevant evidence in Virginia is quite broad, as ‘[e]very fact,
however remote or insignificant, that tends to establish the probability or improbability of a fact
in issue is relevant.’” Commonwealth v. Proffitt, 292 Va. 626, 634 (2016) (quoting Virginia
Elec. & Power Co. v. Dungee, 258 Va. 235, 260 (1999)). Indeed, “[e]vidence is relevant if it has
any logical tendency, however slight, to establish a fact at issue in the case.” Cousins v.
Commonwealth, 56 Va. App. 257, 271 (2010) (emphasis added) (quoting Ragland v.
Commonwealth, 16 Va. App. 913, 918 (1993)).
Owens does not dispute that the shooter’s identity is a fact-in-issue. Goldie testified that
the shooter was a light-skinned Black male wearing a hooded blue jacket. To establish that the
photograph at issue was relevant to this testimony, the Commonwealth proffered to the trial court
-7- that it was a photograph of Owens depicting “a lighter-skinned Black male wearing a blue jacket
with a hood.” Owens argues on appeal that this proffered foundation was insufficient to
establish the photograph’s relevance because the Commonwealth failed to establish when the
photograph was taken and that it was taken on or near the date of the shooting.2 This Court
concludes that these gaps in the evidence go to the weight of the photographic evidence, not to
its admissibility. See Church, 71 Va. App. at 122-23. Had there been evidence that Owens
never wore clothing describable as a hooded blue jacket, such evidence would be relevant
because it would tend to decrease the probability that Owens was the shooter in the hooded blue
jacket. Similarly, the photograph of Owens wearing a hooded blue jacket is relevant because
proof that Owens at some point wore a hooded blue jacket increases the probability—however
slightly—that Owens was the shooter in the hooded blue jacket. See Walker v. Commonwealth,
258 Va. 54, 68 (1999) (“Every fact, however remote or insignificant, that tends to establish the
probability or improbability of a fact in issue, is factually relevant and admissible.” (citing
Epperly v. Commonwealth, 224 Va. 214, 230 (1982))).3
2 Owens also argues on appeal that (i) the Commonwealth’s proffered foundation was insufficient to establish the photograph’s relevance because the Commonwealth failed to establish when the photograph was posted on social media and when the investigating officer retrieved the photograph from social media; (ii) Goldie’s description of the shooter’s clothing was extremely vague; and (iii) Goldie did not identify Owens’ outfit in the photograph as the same outfit he saw on the day of the shooting. However, Owens did not raise these arguments in the trial court. Therefore, this Court will not consider these arguments on appeal. See Rule 5A:18. 3 In support of its conclusion that the photograph of Owens is not relevant, the concurrence attempts to distinguish the facts in Walker and Epperly from the instant case. However, there is no basis for limiting the holdings in those cases to their facts. Even if the fact that Owens wore a hooded blue jacket is more remote, less significant, and has less tendency to prove a fact-in-issue than the evidence at issue in Walker and Epperly, this does not render the photograph of Owens irrelevant. Some relevant evidence may be so remote or so insignificant that its slight probative value is outweighed by its prejudicial effect, but Owens did not object to the photograph on these grounds. -8- The concurrence acknowledges that the standard for relevant evidence is low, but
contends that the photograph at issue is not relevant because it has no “tendency to demonstrate
that Owens was the shooter.”4 The concurrence arrives at this result by (i) recharacterizing the
photograph as showing Owens in a “dark-colored camouflage coat[] with [a] hood[]” and
(ii) arguing that this description “at best, marginally matches Goldie’s very generic description of
a ‘blue jacket with a hood.’” But Owens’ relevance objection in the trial court did not include
any alleged discrepancy between the hooded blue jacket described by Goldie and the garment
depicted in the photograph. Nor did Owens argue to the trial court that a garment described as a
“blue jacket with a hood” was so generic that it was irrelevant that Owens was photographed
wearing a garment that matched that description. Owens’ sole objection at trial was that the
photograph was not relevant because its creation date was unknown.
Although uncertainty about the timing of the photograph decreases the photograph’s
slight effect on the probability that Owens was the shooter in the hooded blue jacket, such
uncertainty does not render the photograph irrelevant to this fact-in-issue. Because the
photograph of Owens is relevant and Owens did not object that its admission was more
prejudicial than probative, the trial court did not abuse its discretion in admitting the photograph.
III. CONCLUSION
For the foregoing reasons, this Court affirms Owens’ convictions for malicious wounding
and use of a firearm in the commission of a felony.
Affirmed.
4 Although the concurrence would hold that the photograph is not relevant, the concurrence contends that any error in admitting the photograph was harmless. At oral argument, the Commonwealth conceded that if the admission of the photograph was error, it was not harmless error. -9- Lorish, J., concurring in the judgment.
I join the majority in affirming the conviction below, but I write separately with respect
to the assignment of error challenging the trial court’s decision to admit the undated photograph
of Owens into evidence. Relevant evidence is “evidence having any tendency to make the
existence of any fact in issue more probable or less probable than it would be without the
evidence.” Va. R. Evid. 2:401. This standard is low, as the phrase “any tendency” necessarily
suggests, and as our caselaw confirms.
Sergeant Comer testified at trial that he found the photograph in question on Owens’s
public Facebook page. He further testified that he recognized the person on the right as Owens
and he also identified the person on the left (a man not otherwise mentioned at trial). In the
photograph, this other man is “flipping off” the camera with both hands. Both Owens and the
other man are wearing matching dark-colored camouflage coats with hoods.
- 10 - The majority opinion concludes the photograph was relevant because the victim, Goldie,
testified that the shooter wore “a blue jacket with a hood.” Goldie did not testify that he
recognized the jacket in the photograph as the one the shooter was wearing, or that this was the
image he saw on Facebook (almost a year later) that led him to identify Owens as the shooter in
the first place. Nor did the Commonwealth make these arguments.
Even under the lowest relevancy bar, I have difficulty concluding that the evidence
presented here—that Owens, at some point in his life, wore a piece of clothing that, at best,
marginally matches Goldie’s very generic description of a “blue jacket with a hood”—has any
tendency to demonstrate that Owens was the shooter.5 Rather than stretch the notion of
relevance so thin that it disappears entirely, I would find that any error in admitting the evidence
was harmless.6
Where no constitutional issue is raised, the court “determine[s] whether there has been a
fair trial on the merits and whether substantial justice has been reached” by deciding “whether
the alleged error substantially influenced the jury.” Commonwealth v. Kilpatrick, ___ Va. ___,
5 At trial, Owens argued that the photograph should not be admitted because it lacked a date and also because there was insufficient evidence it was “relevant to any material fact in this case” and did not “make it more or less likely that Darone Owens committed any of these four offenses.” The majority cites two cases for the proposition that “[e]very fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is factually relevant and admissible.” Both are easily distinguished. In Walker v. Commonwealth, 258 Va. 54, 68 (1999), the language quoted by the majority relates to the admission of a cartridge that came from the same firearm as seven cartridge cases recovered at the scene of a murder, where the cartridge was found only three to four months after the murder. Similarly unpersuasive is Epperly v. Commonwealth, 224 Va. 214, 230 (1982), which affirmed that evidence of the victim’s “good character and peaceable nature” was relevant to demonstrate the unlikelihood that the victim “would take her own life, flee, or fall victim to accidental death because of some dangerous habit or practice.” 6 The Commonwealth “conceded” at argument that an error in admitting the photograph would not be harmless. But because we are not bound by a party’s concession of law, see Butcher v. Commonwealth, 298 Va. 393 (2020), this remark only reflects the very limited evidence the Commonwealth introduced to prove that Owens was the shooter here—indeed the only other evidence was Goldie’s eyewitness identification. - 11 - ___ (Aug. 4, 2022) (alteration in original) (quoting Haas v. Commonwealth, 299 Va. 465, 467
(2021)). “If it did not, the error is harmless.” Id. at ___. We must consider “the potential effect
of the excluded evidence in light of all the evidence that was presented to the jury.” Id. at ___.
Here, the jury was presented with the victim’s live testimony identifying Owens in the
courtroom as the shooter. The victim also previously identified Owens in a photo lineup. It is
worth noting that “there is almost nothing more convincing than a live human being who takes
the stand, points a finger at the defendant, and says ‘That’s the one!’” Watkins v. Sowders, 449
U.S. 341, 352 (1981) (Brennan, J., dissenting) (quoting E. Loftus, Eyewitness Testimony 19
(1979)). And it is “[b]ecause eyewitness identification is so persuasive to jurors” that
“eyewitness ‘[m]isidentification is widely recognized as the single greatest cause of wrongful
convictions in this country.’” Watson v. Commonwealth, 298 Va. 197, 209 (2019) (quoting State
v. Henderson, 27 A.3d 872, 885 (N.J. 2011) (alteration in original)). Indeed, I have previously
detailed the due process concerns inherent to suggestive witness identifications. See, e.g.,
Walker v. Commonwealth, 74 Va. App. 475, 508-30 (2022) (Lorish, J., concurring in part and
dissenting in part). But on appeal, Owens has not raised any challenge to Goldie’s identification
of him as the shooter. Given the singular persuasiveness of eyewitness testimony, I must
conclude the error in admitting the photograph was harmless under our precedent.7
7 See, e.g., Satcher v. Commonwealth, 244 Va. 220, 256 (1992) (“While other evidence support[ed] all the convictions in this case, [a victim’s] in-court identification of [the defendant] was sufficient alone to establish him as her assailant.”); Henry v. Commonwealth, 211 Va. 48, 52 (1970) (“If the jury accepted [the in-court identifications], which it did in fact accept, the jury was warranted in finding Henry guilty.”). - 12 -