COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Huff,* Ortiz and Raphael Argued at Norfolk, Virginia
DONTE DEMILLE HAMPTON MEMORANDUM OPINION** BY v. Record No. 1842-23-1 JUDGE DANIEL E. ORTIZ MARCH 11, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Bonnie L. Jones, Judge
Paul C. Galanides for appellant.
Brooke I. Hettig, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury convicted Donte Hampton of malicious wounding, attempted malicious wounding,
two counts of use of a firearm in the commission of a felony, shooting inside an occupied
dwelling, and conspiracy to shoot inside an occupied dwelling. Hampton asserts that the trial
court erred by refusing his proposed jury instruction on the lesser-included offense of assault and
battery; by granting the Commonwealth’s proposed jury instructions on the duty to retreat and
flight from the crime scene; by finding the evidence sufficient to support his malicious wounding
conviction; and by refusing to admit a certificate of analysis at trial. Finding no error in the trial
court, we affirm.
* Judge Huff participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2024. ** This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND2
Kwama Kenyatta (“Kwama”) lived in a two-bedroom apartment in the City of Hampton
with his roommate, Kiana Royal. Kwama and Royal’s relationship was strictly platonic. One
morning at around 2:00 a.m., Hampton carried Royal into the apartment after a night of drinking.
Royal was “passed out,” and “burping,” with “her eyes rolling back,” and she appeared to be
intoxicated. Hampton handed Royal to Kwama, who carried her to her bedroom and laid her
down.
Hampton went outside to move his vehicle but returned a few minutes later and “walked
straight into [Royal’s] room.” Because Kwama did not know Hampton, he “took pause for a
second” and then knocked on Royal’s bedroom door to check on her. Hampton opened the door
and said he was staying there. Shortly after Hampton closed the door, Kwama heard what
sounded like “intercourse noises and moaning coming from [Royal’s] bedroom.”
Kwama found the situation “startling” because Royal was unconscious when he laid her
on the bed moments before. Kwama was “a little bit scared” and “not sure” what to do, so he
“knocked on the door again and . . . asked [Hampton] . . . [‘]what the fuck are you doing?[’]”
The conversation that followed was “very unsettling.” Hampton ordered Kwama back to his
room, yelled that he was going to “air this bitch out,” and claimed that he could “get niggas to
come fuck [Kwama] up.” Hampton offered to go outside with Kwama “right now” if he wanted,
to which Kwama responded, “[I]f you go outside, I’m going to lock that door in your goddam
face and you can sit outside and yell.” Hampton replied that he would “kick that bitch in.”
Kwama then told Hampton “you gotta get . . . out of here.” But instead of leaving, Hampton
2 “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.” Meade v. Commonwealth, 74 Va. App. 796, 802 (2022) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). “[W]e regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence.” Id. -2- “slammed the door in [Kwama’s] face and went right back to doing what he was doing.”
Kwama explained that to “air this whole bitch out” means “[g]etting shot. Poking me full of
holes.” He interpreted Hampton’s statement as a death threat.
After Hampton slammed the door, Kwama yelled at Royal to “wake up.” Royal
eventually came to the bedroom door “stumbling,” as she could not “stay on her feet.” Royal
told Kwama to go back to his room and said, “It’s okay.” Leaning over Royal, Kwama said to
Hampton, “Look, bro, you can come back tomorrow. You don’t have to be here right now. Wait
till she’s better. She’ll wake up in the morning.” Hampton responded: “Nah, bro. Stop fucking
disrespecting me . . . I’ll kill you . . . I’ll air this bitch out.” Royal and Hampton then shut the
bedroom door.
Kwama called his twin brother, Kwame, explained what was happening, and asked him
to come over, so Kwame armed himself and arrived about an hour later. The brothers decided to
talk to Hampton again to find out whether he was going to have somebody come kill Kwama.
During their conversation, Hampton said he “wanted to be sure that [Kwama and Kwame] knew
that he was not a bitch and that [they] were some pussies . . . and he wasn’t scared about shit
about [them], . . . and he wanted to reiterate to [Kwame] that he could have this bitch aired out if
he wanted to,” and that “he’s done [it] before.” Hampton ended the conversation by again
warning Kwama not to disrespect him.
Hampton went back to Royal’s room and Kwama was “not sure at that point whether or
not somebody was going to come and hurt [him].” Therefore, Kwama called the police and
arranged to meet them at the apartment complex’s leasing office. Kwama asked the police to
remove Hampton from the apartment “at least for threatening to kill [him].” Unfortunately, the
conversation with the police did not “lead to anything productive.”
-3- Around midday, Kwama left the apartment for church while Kwame remained at the
apartment. Due to the situation, Kwama planned to move out the next day. After church,
Kwama returned to the apartment “because [Kwame] . . . wasn’t answering the phone, and it
scared” Kwama. Kwama also invited two neighbors over to the apartment to hang out. When
Kwama explained “the situation” to his friends, they became fearful.
Eventually, Royal warned Kwama’s friends by text that they “need[ed] to leave right
now. It’s about to get turned up in here.” Kwama’s friends left, but Kwama and Kwame
remained in the apartment. Kwama attempted to communicate with Royal to ask what was going
on. Through the door, Kwama heard Hampton and Royal on the phone talking with someone
and giving them an address. Kwama was “confused” and “scared” because he “didn’t know if
they were talking to the police or friends or whoever.” Five to ten minutes later, Kwama
received a phone call from his friend, who warned him that “[t]here w[ere] people outside
[Kwama’s] apartment with guns in their hands.” Kwama then “saw two men outside with
firearms in their hands, smiling, pacing back and forth in front of [his] doorway.”
After Kwama and Kwame learned about the men outside, they armed themselves with
guns. Hampton exited Royal’s bedroom and said, “Y’all about to die today.” Kwama began
telling Hampton “I’m sorry . . . You ain’t got to do this. Please, don’t.” But Hampton
responded: “Nah, you dead. You’re dead. You about to die right now.” Hampton then walked
to the door and let the two, armed men into the apartment. Hampton told the two men to “come
in and kill [Kwama and Kwame].”
At trial, Royal testified that the men entered the apartment “aggressive[ly]” and that she
saw one of them with a gun. Royal left the apartment as the men quickly entered. As Royal left,
she heard what “sounded like a thousand” gunshots. Indeed, Hampton had retrieved a gun from
one of the two men, and all three fired at Kwama and Kwame, who ran to Kwama’s bedroom
-4- and “tried barricading the door.” Kwame locked the door, and Kwama used his arms to hold the
door, all the while begging for their lives. While Kwama was “crying [his] . . . eyes out,” the
armed men were laughing.
Hampton directed his two friends: “When you kick that motherfucking door down, light
those niggas up.” The men began “ramming” the door. As Kwama blocked the door with his
body, the door started to crack. A bullet came through the door and tore through his arm.
Another bullet grazed Kwama’s head. As the door cracked apart, Hampton and the other two
gunmen “just kept shooting and shooting, and . . . pushing each other through the hallway, and
. . . trying to kill” Kwama and Kwame. Both Kwama and Kwame testified that they saw
Hampton holding a gun and shooting at them along with the other men. Kwama did not know
what to do, so he fired at the gunmen through the cracked door, which was by now “riddled with
bullets,” killing one of Hampton’s friends and wounding the other. Hampton was not hit.
When the shooting stopped, Kwama saw through the broken door that Hampton was “in
the hallway on his friend’s body, shaking it, asking him to get up.” He was also “digging
through his friend’s pockets.” When the gunman did not get up, Hampton retrieved a gun from
off the floor and left. Through the window, Kwame saw Hampton approach the other gunman,
who had fallen into the grass outside of the apartment. Hampton bent down and then made a
gesture toward the curb before he took off running again. A police officer subsequently
recovered a pistol from the storm sewer near where Hampton made the throwing gesture.
At the conclusion of the Commonwealth’s case-in-chief, Hampton moved to strike the
charges, citing inconsistencies and a lack of credibility in Kwama’s and Kwame’s testimonies.
Hampton also argued that there was no credible evidence that he held a weapon until he picked
up a firearm from the friend who was fatally shot in the hallway or that he ever fired a weapon in
-5- the apartment. Hampton asserted that Kwama was the main “instigator” and insisted he did
nothing to provoke the shooting. The trial court denied the motion to strike.
Before trial, the Commonwealth notified Hampton of its intent to admit a DNA certificate
of analysis generated by the Department of Forensic Science (“DFS”), under Code § 19.2-187.1.
Hampton objected to the admission of the certificate without the person who performed the
analysis being present to testify at trial. Because the analyst no longer worked for DFS at the
time of trial, the Commonwealth was unable to subpoena him and did not therefore admit the
certificate. Following the motion to strike, the Commonwealth raised a preemptory objection to
Hampton’s stated intention to introduce the certificate in his case-in-chief. The prosecutor
explained that Hampton had not given the Commonwealth notice of his intent to introduce the
certificate, nor had he subpoenaed the analyst who prepared the certificate of analysis for trial.
Hampton responded that since the Commonwealth had given notice of its intent to
introduce the certificate but had not done so, he was entitled to admit the evidence under “the
spirit of the law.” In other words, notwithstanding his objection to the admission of the
certificate without the presence of the analyst at trial, Hampton argued that the Commonwealth
had actual notice of his intent to rely upon it and thus sought to introduce it in his case-in-chief
without calling a witness. Citing the absence of a witness to introduce the evidence, the trial
court sustained the Commonwealth’s objection and prohibited Hampton from introducing the
certificate of analysis.
Hampton called only one witness, Detective Snelgrow, in his case-in-chief. He then
unsuccessfully renewed his motion to strike.
Before closing arguments, Hampton sought an instruction on misdemeanor assault and
battery as a lesser-included offense to malicious wounding. The trial court denied that
instruction. Hampton also argued that the Commonwealth’s proposed instruction advising that
-6- Kwama had no duty to retreat was error because the evidence indicated that he was the
aggressor, and he maintained that a flight from the scene instruction was improper because he
had no duty to remain in a situation where he might be shot. Finding that Kwama “at no time
had a duty to retreat from [his] premises,” the trial court granted the instruction on the duty to
retreat, and finding that Hampton’s escape from the scene was a circumstance the jury could
consider, the trial granted the flight instruction.
Following closing arguments, the jury convicted Hampton of malicious wounding,
attempted malicious wounding, two counts of use of a firearm in the commission of a felony,
shooting into an occupied building, and conspiracy to shoot in an occupied building. Hampton
was sentenced to 38 years’ imprisonment with 28 years suspended and subsequently noted this
appeal.
ANALYSIS
I. Jury Instructions
“A trial court ‘has broad discretion over whether to give or deny proposed jury
instructions.’” Taylor v. Commonwealth, 77 Va. App. 149, 166 (2023) (quoting Huguely v.
Commonwealth, 63 Va. App. 92, 129 (2014)). “A reviewing court’s responsibility in reviewing jury
instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues
which the evidence fairly raises.’” Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019)
(quoting Darnell v. Commonwealth, 6 Va. App. 485, 488 (1988)). “[W]hile a defendant is entitled
to have the jury instructed on his theory of the case, such an instruction must be supported by
‘[m]ore than a scintilla of evidence.’” Mayberry v. Commonwealth, 66 Va. App. 93, 101 (2016)
(second alteration in original) (quoting Eaton v. Commonwealth, 240 Va. 236, 255 (1990)). “The
weight of the credible evidence that will amount to more than a mere scintilla . . . is a matter to be
resolved on a case-by-case basis.” Id. (alteration in original) (quoting Woolridge v. Commonwealth,
-7- 29 Va. App. 339, 348 (1999)). “Upon review, the evidence must be viewed in the light most
favorable to the proponent of the instruction.” Id.
Hampton argues that the trial court erred by failing to instruct the jury on the lesser-included
offense of assault and battery and by granting the Commonwealth’s proposed instructions on the
duty to retreat and flight from the crime scene. We find no error in the trial court’s rulings on the
proffered instructions.
A. Assault and Battery Instruction
“[W]hen [a] proposed jury instruction touches upon a lesser-included offense and there is
any credible evidence in the record to support the instruction, ‘failure to give the instruction is
reversible error.’” Williams v. Commonwealth, 64 Va. App. 240, 247 (2015) (quoting Brandau v.
Commonwealth, 16 Va. App. 408, 412 (1993)). “Conversely, ‘[i]f the evidence is sufficient to
support “a conviction of the crime charged, and there is no independent evidence warranting a
conviction [of the lesser-included offense], an instruction on the lesser-included offense need not be
given.”’” Id. (alterations in original) (quoting Commonwealth v. Vaughn, 263 Va. 31, 36 (2002)).
In other words, a trial court is not always required to grant a proposed instruction on a
lesser-included offense. Commonwealth v. Leal, 265 Va. 142, 146 (2003). The giving of such an
instruction is only required where the lesser-included offense is supported by “affirmative evidence”
in the record and not merely on the jury’s ability to reject uncontroverted evidence. Id. at 147
(emphasis added) (quoting Vaughn, 263 Va. at 37). “[A]lthough the jury’s ability to reject evidence
will support an acquittal, the ability to reject evidence does not supply the affirmative evidence
necessary to support a jury instruction.” Vaughn, 263 Va. at 37.
To prove malicious wounding under Code § 18.2-51, the Commonwealth must establish
beyond a reasonable doubt that the defendant “wound[ed] or injure[d] a victim ‘with the intent to
maim, disfigure, disable, or kill’ him.” Williams, 64 Va. App. at 248 (quoting Code § 18.2-51).
-8- The defendant must “intend to permanently, not merely temporarily, harm another person.”
Burkeen v. Commonwealth, 286 Va. 255, 259 (2013) (quoting Johnson v. Commonwealth, 53
Va. App. 79, 101 (2008)). “If the defendant acts with malice, he is guilty of malicious wounding, a
Class 3 felony.” Williams, 64 Va. App. at 248. And “[m]alice may be inferred from the ‘deliberate
use of a deadly weapon unless, from all the evidence, [there is] reasonable doubt as to whether
malice existed.’” Fletcher v. Commonwealth, 72 Va. App. 493, 507 (2020) (second alteration in
original) (quoting Strickler v. Commonwealth, 241 Va. 482, 495 (1991)). Assault and battery is a
lesser-included offense of malicious wounding. Witherow v. Commonwealth, 65 Va. App. 557, 570
(2015). “While a conviction for assault and battery cannot stand without evidence showing ‘an
intention to do bodily harm . . . an intent to maim, disfigure or kill,’” and malice, are “unnecessary
to the offense.” Id. (quoting Boone v. Commonwealth, 14 Va. App. 130, 133 (1992)).
Here, Hampton argues that he was entitled to a lesser-included assault and battery
instruction. Thus, the question is whether there is “independent,” “affirmative evidence” in the
record to show that, when Hampton fired a deadly weapon, he acted merely with an “intention to do
bodily harm,” rather than “an intent to maim, disfigure, or kill.”
Hampton argues that the purported threats he made upon Kwama and Kwame’s lives were
“ambiguous” and that although “Kwama believed he was shot, . . . there was no [discreet] evidence
demonstrating how he received his arm injury or the grazing wound to his head.” Hampton
concludes that the jury could have found Kwama’s injuries “resulted from physical contact [with the
door] and not a gunshot.” We disagree.
The evidence proved that during several “unsettling” conversations over the course of the
morning and into the afternoon, Hampton repeatedly demanded respect, assailed Kwama with
profane and insulting language, and threatened to “air this bitch out,” before inviting his friends to
the apartment and instructing them to “come in and kill” Kwama and Kwame. In fact, before letting
-9- his friends in, Hampton told the two brothers that they were going “to die right now.” As Kwama
and Kwame ran to Kwama’s bedroom, Hampton instructed his two friends to take care of it and
yelled for them to kick the door down and “light those niggas up.” Both Kwama and Kwame
testified that as they hid behind the bedroom door, the shooters attempted to break it down and then
riddled it with a barrage of bullets. Kwama testified that one of those bullets came through the door
and tore through his arm, and Kwame observed a bullet graze Kwama’s head. Any reasonable fact
finder could conclude from this testimony that Hampton’s actions were malicious, that he intended
to maim, disfigure, disable, or kill Kwama, and that Kwama was injured by flying bullets.
While there is ample evidence to support a finding of malice, contrary to Hampton’s
assertion, there is no “independent,” “affirmative evidence” in the record to show that Hampton
acted without that intent. Williams, 64 Va. App. at 247 (quoting Vaughn, 263 Va. at 36); Leal, 265
Va. at 147 (quoting Vaughn, 263 Va. at 37). For the trial court to have abused its discretion in
denying the lesser-included assault and battery instruction, the evidence must have supported an
inference either that Hampton acted without the requisite intent for malicious wounding or that
Kwama was injured by something other than gunfire. But the evidence simply does not support an
inference that Kwama’s injuries to the arm and head resulted from his physical contact with the
bedroom door, rather than from the gunfire, as Hampton argues. And there is no independent
evidence suggesting that, when Hampton fired his weapon, he did so with anything less than an
intent to maim, disfigure, or kill Kwama, such as an intent to scare. Cf. Witherow, 65 Va. App. at
570 (finding that an assault and battery instruction was warranted when defendant testified at trial
that he intended to “scare” the victim by firing a gun). Thus, because no affirmative evidence in the
record supported granting an assault and battery instruction, the trial court did not err by refusing it.
- 10 - B. Castle Doctrine3
Hampton asserts that the trial court erred by instructing the jury that Kwama “had no duty to
retreat.” However, while the record indicates that the trial court granted the Commonwealth’s
instruction on the Castle doctrine, the court neglected to read the granted instruction to the jury. The
record therefore fails to support Hampton’s assertion that the trial court abused its discretion by
instructing the jury that Kwama had no duty to retreat. Although the Commonwealth alluded to the
purported Castle doctrine instruction during its closing argument by claiming that Kwama “was not
required to remove himself from the threat of danger . . . in his own home,” Hampton did not object
to that argument, nor does it appear that he noticed the trial court’s failure to read the instruction to
the jury. Moreover, the jury instruction was not included in the record, which prohibits our ability
to assess it for legal accuracy. Accordingly, because we do not find the alleged error in the record,
we will not consider the merits of Hampton’s legal argument on appeal. See Teleguz v.
Commonwealth, 273 Va. 458, 471 (2007); Rule 5A:20(c).
C. Flight from the Scene of the Crime
“[A] defendant’s ‘acts to escape, or evade detection or prosecution for criminal conduct may
be evidence at a criminal trial[] and a jury may be instructed that it could consider such acts.’”
Graves v. Commonwealth, 65 Va. App. 702, 709 (2016) (second alteration in original) (quoting
Turman v. Commonwealth, 276 Va. 558, 564 (2008)). Flight evidence can be considered by the
jury “along with other pertinent facts and circumstances” tending to establish guilt, Hope v.
Commonwealth, 10 Va. App. 381, 386 (1990) (en banc), and the jury can give flight evidence
“whatever weight it deems proper under the circumstances,” Graves, 65 Va. App. at 709. The
3 The “‘Defense of the Castle’ doctrine provides that ‘a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant . . . even to the taking of life.’” Hines v. Commonwealth, 292 Va. 674, 680 (2016) (alteration in original) (quoting Fortune v. Commonwealth, 133 Va. 669, 687 (1922)). - 11 - “‘flight’ is the action of the alleged offender after the commission of the crime, not the crime itself.”
Id. So, a flight instruction that properly states the law is “appropriate when the evidence supports it,
depending on the case and its relation to the charged offense.” Id.
Here, the trial court instructed the jury as follows:
If a person leaves the place where a crime was committed to avoid prosecution, detection, apprehension or arrest, this creates no presumption that the person is guilty of having committed the crime. However, it is a circumstance which you may consider along with the other evidence.
This instruction was proper because the evidence supported a reasonable inference that Hampton
fled the apartment after the shooting specifically to avoid apprehension or arrest. After a night of
intense acrimony between the parties, Hampton summoned his friends to the apartment specifically
to kill Kwama and Kwame. After the shooting stopped, Hampton collected a weapon from the
ground, and then Kwame saw Hampton approach his other friend, who was lying in the grass
outside, and bend down before making a throwing motion toward the curb and running away.
Police recovered a pistol from the storm sewer nearby, creating an inference that Hampton
attempted to conceal evidence. Hampton did not stay on scene, he did not seek assistance for his
friends, and he did not wait for the police. Instead, he left Kwama and Kwame, the only two
witnesses to the shooting, at the apartment and departed. In other words, the evidence supports a
conclusion that he fled the scene to avoid prosecution, detection, apprehension, or arrest.
Because there was more than a scintilla of evidence to support the Commonwealth’s
proposed instruction on flight, the trial court did not err in overruling Hampton’s objection to the
instruction.
II. Sufficiency of the Evidence
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
- 12 - judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong
or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting
Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does not
establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition it
might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). Instead, the
only relevant question for this Court on review “is, after reviewing the evidence in the light most
favorable to the prosecution, whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v. Commonwealth, 280 Va.
672, 676 (2010)). “This familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Raspberry v. Commonwealth, 71 Va. App. 19, 29 (2019)
(quoting Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017)). “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.’” McGowan v.
Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149,
161 (2018)).
Hampton claims that the evidence failed to support his conviction for malicious wounding
because the Commonwealth failed to prove that he used or possessed a weapon during the exchange
of gunfire. The record refutes that assertion. Indeed, both Kwama and Kwame testified
unequivocally at trial that Hampton held a firearm and shot at them along with the other two
gunmen, and in the absence of any evidence to the contrary, the jury was entitled to rely on that
testimony. “The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
- 13 - Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v. Commonwealth,
67 Va. App. 519, 529-30 (2017)). Moreover, “[t]he conclusions of the fact finder on issues of
witness credibility may be disturbed on appeal only when we find that the witness’[s] testimony was
‘inherently incredible, or so contrary to human experience as to render it unworthy of belief.’”
Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000) (quoting Fisher v. Commonwealth, 228 Va.
296, 299 (1984)). Given that their respective eye-witness accounts were supported by a substantial
amount of corroborating evidence at trial, there was nothing inherently incredible about Kwama and
Kwame’s version of events.
Additionally, the jury was instructed that Hampton could be found guilty either as a
principal in the first, or as a principal in the second degree. “A principal in the first degree is the
actual perpetrator of the crime.” Thomas v. Commonwealth, 279 Va. 131, 156 (2010) (quoting
Muhammad v. Commonwealth, 269 Va. 451, 482 (2005)). A “principal in the second degree . . . is
one who is present, actually or constructively, assisting the perpetrator in the commission of the
crime.” Id. (quoting Muhammad, 269 Va. at 482). “To hold the accused accountable as a principal
in the second degree, the Commonwealth must prove the accused was ‘present, aiding and abetting,
by helping some way in the commission of the crime.’” Washington v. Commonwealth, 43
Va. App. 291, 306 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269 (1986)). “It
must be shown that the accused shared the criminal intent of the principal or ‘committed some overt
act in furtherance of the offense.’” Id. (quoting Sutton v. Commonwealth, 228 Va. 654, 666 (1985)).
Kwama and Kwame both testified that Hampton threatened to kill Kwama multiple times in
the hours before the shooting, and Kwama heard Hampton and Royal giving someone an address
only five or ten minutes before the two, armed men appeared outside his front door. Hampton
allowed the gunmen entry and told Kwama and Kwame they were going to die now. He then
instructed the two men to kill Kwama and Kwame and after Kwama and Kwame barricaded
- 14 - themselves in Kwama’s bedroom, Hampton shouted to his friends, “kick that motherfucking door
down[ and] light those niggas up.” “When the alleged accomplice is actually present and performs
overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to
have the crime proceed and has demonstrated that he shares the criminal intent of the perpetrator.”
Carr v. Commonwealth, 69 Va. App. 106, 114 (2018) (quoting Rollston v. Commonwealth, 11
Va. App. 535, 539 (1991)). That Hampton was physically present at the shooting, actively
encouraging the two gunmen to shoot and kill Kwama and Kwame, and, in fact, orchestrated the
entire event, supports the Commonwealth’s theory that Hampton participated—at a minimum—as a
principal in the second degree to the malicious wounding.
It follows that because the evidence proved that Hampton was responsible either as a
principal in the first, or as a principal in the second degree to malicious wounding, the trial court did
not err in denying Hampton’s motion to strike that indictment.
III. Certificate of Analysis
Determining the “‘admissibility of evidence is within the discretion of the trial court,’ and an
appellate court will not reject such decision absent an ‘abuse of discretion.’” Williams v.
Commonwealth, 71 Va. App. 462, 487 (2020) (quoting Tirado v. Commonwealth, 296 Va. 15, 26
(2018)). “The abuse of discretion standard draws a line—or rather, demarcates a region—between
the unsupportable and the merely mistaken, between the legal error . . . that a reviewing court may
always correct, and the simple disagreement that, on this standard, it may not.” Jefferson v.
Commonwealth, 298 Va. 1, 10-11 (2019) (alteration in original) (quoting Reyes v. Commonwealth,
297 Va. 133, 139 (2019)). “[T]he abuse of discretion standard requires a reviewing court to show
enough deference to a primary decisionmaker’s judgment that the [reviewing] court does not
reverse merely because it would have come to a different result in the first instance.”
- 15 - Commonwealth v. Thomas, 73 Va. App. 121, 127 (2021) (alterations in original) (quoting Lawlor v.
Commonwealth, 285 Va. 187, 212 (2013)).
Code § 19.2-270.5 sets forth the notice requirement for admitting a DNA analysis in a
criminal proceeding:
At least 21 days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence.
In the instant case, Hampton sought, on the third day of the jury trial, to introduce the
certificate of analysis under Code § 19.2-270.5. The Commonwealth objected because Hampton
had not filed a notice of intent to introduce it and there was no witness through whom it could be
introduced. The Commonwealth explained that the analyst who performed the analysis was no
longer employed with DFS and his whereabouts were unknown. The Commonwealth had also
previously informed Hampton of its inability to subpoena the analyst for trial. Thus, it was clearly
within the trial court’s sound discretion to exclude the DNA certificate of analysis, especially since
Hampton failed to comply with the statute, could not secure the presence of the analyst at trial to
testify, and because to rule it admissible would have necessitated a continuance three days into the
jury trial.
Nevertheless, Hampton argues that the Commonwealth was on notice of his intent to admit
the certificate because it had provided notice of its intent to admit the certificate before trial.
Hampton argues that “Code § 19.2-270.5 authorizes the introduction of the report when the
opposing party is on notice and there is no objection lodged in response.” He explains that
- 16 - “[h]aving received notice of the Commonwealth’s intent to introduce the certificate,” he found no
reason to “file a mirror notice under . . . Code § 19.2-270.5.”
However, the Commonwealth never filed a notice of intent to introduce the certificate of
analysis under Code § 19.2-270.5. Instead, the Commonwealth filed a notice of intent to offer the
DNA certificate of analysis into evidence under Code § 19.2-187.1, which would have permitted the
Commonwealth, absent objection by the defendant, to “offer a certificate of analysis into evidence
in lieu of testimony.” See Code § 19.2-187.1. Hampton objected to the admission of the certificate
of analysis without a witness under § 19.2-187.1. Thus, Hampton failed to notify the
Commonwealth before trial of his intention to admit DNA evidence at trial under § 19.2-270.5, and
we reject his assertion that § 19.2-270.5 allows him to rely on the Commonwealth’s notice of intent
to admit a certificate of analysis under a separate statutory provision.
In sum, Hampton’s failure to comply with the requirements of Code § 19.2-270.5 required
the trial court to exercise its discretion and either exclude the certificate of analysis, or admit it but
grant a continuance after the jury was seated and received three days of testimony. The trial court
did not abuse its discretion by choosing to exclude the certificate of analysis.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
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