COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Chaney and White UNPUBLISHED
Argued at Lexington, Virginia
JAMEL DUQUON FLINT MEMORANDUM OPINION* BY v. Record No. 0656-24-3 JUDGE MARY BENNETT MALVEAUX JULY 29, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Robert M.D. Turk, Judge
John S. Koehler (The Law Office of James Steele, PLLC, on brief), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury convicted Jamel Duquon Flint (“appellant”) of first-degree murder, in violation of
Code § 18.2-32, two counts of aggravated malicious wounding, in violation of Code § 18.2-51.2(A),
and three counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1.
On appeal, appellant contends that the trial court erred by overruling his motion in limine and
allowing the admission of videos and a photograph retrieved from his cell phone. Finding no error
by the trial court, we affirm its judgment and remand for the limited purpose of correcting a
scrivener’s error.
I. BACKGROUND
“On appeal, ‘we review the evidence in the “light most favorable” to the Commonwealth,’
the prevailing party below.” Diaz v. Commonwealth, 80 Va. App. 286, 295 (2024) (quoting
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc)). This principle “requires us to
* This opinion is not designated for publication. See Code § 17.1-413(A). ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn
therefrom.’” Id. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)).
On the night of February 4, 2022, appellant and his friend, Jalen Pierce, traveled to Radford
from Roanoke. There, they met a group of young women at a convenience store and attempted to
enter fraternity parties at Radford University. Denied admission, they returned to the store, where
surveillance cameras recorded appellant wearing a puffy black coat. While in the store, appellant
saw a man he knew as “Shakee.” Appellant believed Shakee had been involved in a shooting
several months earlier in which appellant was wounded.
Appellant, Pierce, and some friends then drove to Melody Hookah Lounge in Blacksburg.
The women from the convenience store drove separately and joined the men. Surveillance footage
from cameras in the lounge depicted both appellant and Shakee there that evening. Appellant
testified that he saw Shakee in the lounge but did not see him with a firearm.
Appellant went outside to get his wallet from the car. Returning, he had to wait in line to
reenter the lounge. While in line outside, appellant saw Khari Brice, whom he recognized.
Suddenly, appellant fired a gun in Brice’s direction. He then fled with Pierce. The gunfire killed a
high school student who was at the lounge. Additionally, a college student and Brice were seriously
injured. A forensic detective later collected spent bullets from the front of the lounge and 13 bullet
casings from outside the lounge.
Detective Ryan Hite interviewed appellant on February 5, 2022. Appellant told Hite he had
been shot the previous November and spent a month in the hospital recovering. He also said he
knew who shot him, but he would not identify the shooter. Appellant admitted that he had travelled
to Radford and met women at the convenience store, and he identified himself and Pierce on the
convenience store surveillance footage. He stated that while he was in the store, he saw a man he
-2- knew from Roanoke and with whom he had a conflict. Initially, appellant denied travelling on to
Blacksburg, but he later admitted that he went to the lounge there and thought it was “weird” when
he saw people there whom he knew from Roanoke. Appellant admitted that he had left the lounge
and then returned, but denied that he was involved in the shooting. He told police that he fled when
the gunfire began.
The following day, in a second police interview, appellant stated that he felt it was “weird”
to see Shakee both in the Radford convenience store and the Blacksburg hookah lounge. Because
Shakee was someone he had a “beef with” in the Roanoke area, appellant thought he “was set up.”
He also stated that the people in front of him in the line outside the lounge were joking about him
having been shot. Hite testified that although appellant “never overtly said that he was the person
shooting” outside the lounge, appellant did state that “it’s all fun and games when the tables are
turned.” Appellant also commented, “I didn’t mean to take that man’s life.” Appellant told Hite it
had been two or three months since he had handled a firearm.
Before trial, appellant filed a motion in limine to prevent the Commonwealth from
introducing videos and photographs recovered from his cell phone. The videos showed appellant
with or near a firearm of the same type that the Commonwealth argued had been used in the
shooting, and a photograph showed appellant wearing “a black puffer coat and a beanie.” Appellant
contended that because he had identified himself in the surveillance footage during his police
interview, photographs of him wearing clothing that matched witness descriptions of the shooter’s
clothing lacked relevance. He further argued that the videos depicting him with firearms were more
prejudicial than probative. Appellant asserted that the challenged evidence was intended to depict
him as “some gun-toting thug” and should be excluded.
The Commonwealth argued that forensic examination of the casings and bullet fragments
recovered from the lounge had determined that they were consistent with having been fired by a
-3- 9-millimeter weapon, likely a Glock or a Smith and Wesson Luger. The firearms depicted with
appellant in the videos were Glock 9-millimeter weapons, the same type and caliber of firearm used
in the shooting, and the videos had been saved to appellant’s phone just 11 days before the shooting.
Images of appellant wearing the same type of clothing witnesses described the shooter wearing were
uploaded two months before the shooting. The Commonwealth asserted that even though appellant
had admitted that he was the person in the surveillance videos, the Commonwealth was not
prohibited from introducing other relevant evidence tending to prove that appellant was the gunman.
The trial court took the matter under advisement and later denied appellant’s motion, finding that
the probative value of the evidence outweighed any prejudicial effect.
At trial, witnesses described the shooter as dressed in all black and wearing a black face
covering. One witness saw the shooter wearing dark clothing, including a “puffer jacket.” The jury
viewed the video surveillance footage from the lounge. The Commonwealth also introduced the
videos recovered from appellant’s cell phone that depicted him handling two firearms, as well as a
photograph from the cell phone that depicted appellant wearing a black puffer jacket.
After the Commonwealth presented its case in chief, appellant moved to strike the evidence.
Challenging appellant’s identity as the shooter, counsel for appellant argued, “[w]e don’t believe
that they’ve proven a prima faci[e] case that my client committed these crimes.” The trial court
denied the motion.
Appellant testified on his own behalf. He acknowledged travelling to Radford and visiting
the convenience store. When shown still photographs excerpted from the store’s video surveillance
footage, he acknowledged that he was depicted in the photographs. Describing his subsequent visit
to the lounge, appellant said that after he left to get money from his car and then returned to the
lounge, he saw Brice, who turned and spoke with him. Appellant stated that he then saw Brice “try
to pull a gun out of his waistband.” Asked by defense counsel “what went through [his] head” at
-4- the sight of Brice with a firearm, appellant replied that he was “scared” because he had “just com[e]
from being shot” and did not “know what [Brice] planned on doing.” Appellant, however, was not
“about to wait and see.” Questioned further by his attorney, this exchange followed:
DEFENSE COUNSEL: When you saw [Brice] pull the firearm from his waistband, were you in fear for your life --
APPELLANT: Yeah.
DEFENSE COUNSEL: -- after you saw what he was doing?
APPELLANT: Mhmm.
DEFENSE COUNSEL: Do you remember approximately how many shots were fired?
APPELLANT: I believe like 7 to 8.
DEFENSE COUNSEL: Do you know if [Brice] got any shots off?
APPELLANT: I mean it happened so fast to be honest. I don’t know it could have been a possibility, I don’t know.
Appellant’s attorney also asked whether appellant had been “shooting at anyone other than [Brice]
that night,” to which appellant responded negatively. And when asked if the “shots that [he] fired
were in [Brice’s] direction,” appellant replied affirmatively. Following the shooting, appellant ran
to his car and he and Pierce fled the scene.
On cross-examination, appellant agreed that he thought that Brice and Shakee were
responsible for shooting him several months earlier. He acknowledged that he possessed a
9–millimeter Glock at the lounge and admitted lying to the police when he told them that he had not
handled a gun for two to three months prior to the shooting. Appellant further acknowledged that
he fired the weapon, responding, “I don’t believe so,” when asked whether he had “emptied [his]
gun” when he fired. He also agreed that he “kept shooting” after he saw Brice attempt to flee.
-5- The jury convicted appellant of first-degree murder, two counts of aggravated malicious
wounding, and three counts of use of a firearm in the commission of a felony. This appeal
followed.
II. ANALYSIS
Appellant argues that the trial court abused its discretion by admitting the cell phone
videos that depicted him displaying firearms and the cell phone photograph depicting him
wearing a knit cap, facemask, and “black puffer coat.” He contends that this evidence “depicted
[him] in a highly prejudicial light and [was] neither probative of any element of the offenses
charged nor offered to rebut any defense.”
“The admissibility of photographic and video evidence rests within the sound discretion
of the trial court.” Baez v. Commonwealth, ___ Va. ___, ___ (Dec. 19, 2024). Thus, when
reviewing a trial court’s decision to admit or exclude such evidence, “we apply an abuse of
discretion standard.” Bista v. Commonwealth, ___ Va. ___, ___ (Nov. 14, 2024). “Only when
reasonable jurists could not differ can we say an abuse of discretion has occurred.” Diaz, 80
Va. App. at 305 (quoting Lambert v. Commonwealth, 70 Va. App. 740, 749 (2019)).
We need not address appellant’s argument that the trial court erred by admitting the cell
phone videos and photograph at issue, because appellant has waived that argument. The
Commonwealth introduced the videos and photograph to help establish appellant’s identity as the
shooter at the hookah lounge. See Settle v. Commonwealth, 55 Va. App. 212, 225 (2009) (noting
that in any criminal prosecution, the Commonwealth must establish the defendant’s identity as the
perpetrator). Yet appellant himself introduced evidence demonstrating that he was in fact the
shooter. Testifying on his own behalf, appellant stated that he saw Brice try to pull a firearm
from his waistband and that this sight frightened him; appellant had recently been injured in a
shooting for which he held Brice and another man responsible, and he did not know what Brice’s
-6- intentions were. Appellant further stated that he was not “about to wait and see” what Brice
“planned on doing” or whether he “planned on using that gun.” He acknowledged that he had
been the shooter when he told defense counsel “7 to 8” shots were then fired but that he did not
know whether Brice fired any of those shots before he fled the scene.
“The law in this area is well established. When ‘an accused unsuccessfully objects to
evidence which he considers improper and then on his own behalf introduces evidence of the
same character, he thereby waives his objection, and [the appellate court] cannot reverse for the
alleged error.’” Stevens v. Commonwealth, 72 Va. App. 546, 557 (2020) (alteration in original)
(quoting Hubbard v. Commonwealth, 243 Va. 1, 9 (1992)). “[T]his concept provides that a party
‘cannot . . . avail[]’ himself of an objection to evidence if he ‘has, at some other time during the
trial,’ either ‘voluntarily elicited the same evidence’ or ‘permitted it to be brought out by [the
opposing party] without objection.’” Id. (second, third, and fourth alterations in original)
(quoting Burns v. Bd. of Supervisors, 227 Va. 354, 363 (1984)). “This legal maxim is sometimes
called the ‘same-evidence principle.’” Id. (quoting Isaac v. Commonwealth, 58 Va. App. 255,
260 (2011)). Here, appellant’s tacit acknowledgement that he fired at Brice, allegedly in self-
defense, provided exactly the same evidence that the Commonwealth presented by introducing
the videos and photograph at issue—i.e., evidence that appellant was in fact the shooter.
Because appellant introduced the same evidence as the Commonwealth on this point, he waived
his previous objections to the Commonwealth’s evidence. Accordingly, the trial court did not err
as alleged by appellant.1
1 The dissent takes issue with our application of the same-evidence principle in our holding that appellant waived his objection to admission of the images. Relying on a footnote in Stevens, the dissent contends that the principle “‘should be narrowly construed’ when it involves evidence that is merely of the same kind or character, such as a ‘type of evidence’ like hearsay or leading questions.” Infra at 13 (quoting Stevens, 72 Va. App. at 557 n.4). The dissent implies from this selective quotation that the principle should not have been applied here. But reading -7- But although the trial court committed no substantive error, we note an omission in the
court’s sentencing order that requires correction. At the sentencing hearing, the court sentenced
appellant to 20 years’ incarceration for each of the two aggravated malicious wounding offenses,
in cases CR22001125 and CR22001126. The court’s disposition notice indicated that 18 years
would be suspended in case CR22001125 and all 20 years would be suspended in case
CR22001126. And while the court’s sentencing order reflects both 20-year sentences, it recites
only the suspension in case CR22001125 and omits any reference to a suspension in case
the entirety of the relevant passage from Stevens, as we must, demonstrates that the dissent’s reliance on the footnote is inapposite:
This [same-evidence] principle applies to “exactly the same evidence” as well as three additional types of evidence. The first category is “evidence dealing ‘with the same subject.’” The second type is “evidence fairly considered to be ‘of the same character.’” The third kind encompasses “evidence ‘similar to that to which the objection applies.’”
Stevens, 72 Va. App. at 557 (citations omitted). It is thus self-evident that the footnote’s language advocating narrow construal of the principle relates only to the “second type” of evidence described by Stevens, i.e., “evidence fairly considered to be ‘of the same character.’” Id. (citation omitted); see also id. n.4 (“The same-evidence waiver principle ‘should be narrowly construed’ when it involves evidence that is merely of the same kind or character, such as a ‘type of evidence’ like hearsay or leading questions.” (quoting Kent Sinclair, The Law of Evidence in Virginia § 2-3[c], at 126 (8th ed. 2018))). Here, however, the evidence introduced by appellant that waived his previous objection to the images’ admission—his acknowledgement of his identity as the shooter—was evidence of the first type described by Stevens, i.e., “evidence ‘dealing with the same subject.’” Id. (citation omitted). Thus, the footnote language relied upon by the dissent (which we note is mere dicta grounded in non-binding treatise authority) is inapposite here. The dissent compounds its error by relying on Drinkard-Nuckols v. Andrews, 269 Va. 93, (2005), for the proposition that “[t]he waiver rule ‘focuses on the [objecting] party’s introduction of evidence on the same subject and was never intended to create a waiver permitting the consideration of inadmissible evidence on a different subject.’” Id. at 103 (second alteration in original) (quoting Pettus v. Gottfried, 269 Va. 69, 79 (2004)). Based on this language, the dissent maintains that appellant “did not waive any argument about the evidentiary value of the video” when he “testified about his state of mind and admitted that he was the shooter.” Infra at 13-14. But Drinkard-Nuckols, by its plain language, does not speak to the potential bases for admission or exclusion of certain pieces of evidence; rather, it speaks only to whether those pieces of evidence introduced at trial address the same subject, as they did here—the identity of the shooter. -8- CR22001126.2 We therefore remand for the trial court to correct the sentencing order to clarify
appellant’s sentence in case CR22001126. See Code § 8.01-428(B) (authorizing trial courts to
correct “[c]lerical mistakes in all judgments or other parts of the record and errors therein arising
from oversight or from an inadvertent omission”).
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment and remand for the limited
purpose of correcting a scrivener’s error.
Affirmed and remanded.
2 The sentencing order reflects a total sentence imposed of 103 years, which figure includes 20 years for each of the aggravated malicious wounding convictions. It then states that the trial court was suspending 38 years of appellant’s sentence, leaving 65 years to be served, and specifies how much time, if any, would be suspended for each offense. But although this portion of the order specifies that appellant would serve “2 years on CR22001125[],” with 18 years thus suspended, and would serve full sentences for his first-degree murder and use of a firearm offenses, it makes no mention of case CR22001126. The 20-year sentence in case CR22001126, if suspended in full as suggested by the court’s disposition notice, would supply the remaining suspended time to total the 38 years ordered by the court. -9- Chaney, J., dissenting.
I disagree with the majority’s holding that Flint waived his argument on appeal. I would
find that the admission of Exhibits 31A, 32, and 33—the video and associated screen capture
images—was error. Therefore, I respectfully dissent.
I. Background3
A. Flint fired several rounds in a confrontation outside of Melody Hookah Lounge in Radford.
In February 2022, Flint and Jalen Pierce traveled to Radford University, where they were
denied entry to a fraternity party. They then went to a convenience store, where Flint saw a man
he knew as “Shakee,” whom Flint believed was responsible for gunshot wounds he had suffered
in Roanoke months earlier. The convenience store’s surveillance camera showed Flint wearing a
puffy black coat.
Flint, Pierce, and two other men drove to Melody Hookah Lounge in Blacksburg. Flint
first entered the lounge but then left briefly to retrieve his wallet from the car. Flint returned to
the lounge, but had to wait outside in line to get back in. There he saw Khari Brice, whom he
recognized from and also believed was responsible for his shooting in Roanoke along with
“Shakee.” Flint had a handgun and opened fire in Brice’s direction. He fled the scene with
Pierce.
3 “We recite the facts ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Pereira v. Commonwealth, 83 Va. App. 431, 439 n.3 (2025) (quoting Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)). In doing so, we discard the proposed evidence of the accused and grant the Commonwealth any fair inferences from the evidence established at trial. Id. at 454. However, we do not grant the Commonwealth inferences that extend into the realm of the non sequitur. See Commonwealth v. Wilkerson, ___ Va. ___, ___ (Feb. 20, 2025) (“Reasonable inferences drawn by the factfinder ‘cannot be upended on appeal unless we deem them so attenuated that they push into the realm of non sequitur.’” (quoting Commonwealth v. Perkins, 295 Va. 323, 332 (2018))). - 10 - The gunfire killed Isiah Robinson, who was in line with Brice at the lounge celebrating
his acceptance into college. It also wounded Shamar Mansion—a stranger to those involved in
the altercation. Likewise, it wounded Brice. Flint was charged in connection with the shooting.
B. Flint’s interviews with Detective Hite
Following the shooting, Flint had two interviews with Detective Ryan Hite of the
Blacksburg Police Department. In those interviews, Flint told Hite that he had been the victim of
gun violence in Roanoke a few months earlier. Flint indicated that he knew who the perpetrators
were but would not name them.
Flint recounted to Detective Hite how he had traveled to Radford from Roanoke.
Detective Hite showed Flint a couple photographs from surveillance footage taken from the
Radford 7-Eleven, and Flint identified himself in one of those photographs. Flint told Hite that
he had recognized another individual in the 7-Eleven as someone from Roanoke “and knew him
to be someone that he had some conflict or had some beef with.”
Flint did not admit to Hite that he had been in Blacksburg the night of the shooting, but
later acknowledged that he was at Melody Lounge that night. “He would never overtly tell us
that he was shooting or he was involved in the shooting, he just said that that’s when the
shooting took place and that he fled the area when the shots started.”
In the second interview, Flint told Hite that he recognized a group at Melody Lounge as
being the folks responsible for his being shot in Roanoke. Flint commented that he felt like he
was being set up. Of the victims of the shooting, Flint told Hite, “I feel like everybody deserved
it. . . . [I]t’s not so funny when the tables are turned,” and finally, “I didn’t mean to take that
man’s life.”
- 11 - C. Flint moves pretrial to exclude videographic and photographic evidence.
Flint moved in limine to suppress (1) “several clips of Mr. Flint dressed in a black puffer
coat and a beanie while in possession of what appears to be a firearm and also photographs” and
(2) videographic “evidence of Jamel Flint flashing a firearm while freestyling rap lyrics in a
TikTok Video.” Exhibit 30 depicts Flint in a black “puffer” coat while wearing a facemask.
Exhibit 31A is a video of Flint with strobing lights, brandishing two firearms, and pretending to
shoot at the camera.
Flint argued that this evidence painted him as a “gun-toting thug.” The Commonwealth
responded that the photos were useful to prove Flint’s access to firearms, as well as his identity
because the photos taken from the cell phone would show Flint’s wearing similar clothing to that
of the suspected shooter in the 7-Eleven surveillance footage. The Commonwealth noted:
I mean many people post pictures of themselves with firearms, there’s nothing wrong with that. If the case did not involve a firearm, then perhaps that photo would somehow be prejudicial but . . . the photo could be irrelevant but that’s . . . that’s not the case here. Clearly firearms are a part of this case.
The Commonwealth agreed that it would mute the video played at trial. Flint again urged that
his portrayal near or displaying a firearm would be unduly prejudicial because he was charged
with murder, attempted murder, aggravated malicious wounding, and the use of a firearm. The
circuit court took Flint’s motion under advisement and allowed the admission of the photos and
video, saying in a written ruling “that the evidence is more probative than prejudicial.”
D. Flint is convicted at a jury trial.
A two-day jury trial began on September 11, 2023. Detective Hite testified about his
interviews with Flint. For the first time, Hite told the finder of fact that Flint told him that he had
not “handled or fired a firearm” for two or three months before the trial and “I don’t even play
- 12 - with weapons.” Forensic examiners testified about ammunition and ballistics that they retrieved
in front of Melody Lounge.
The Commonwealth admitted screen captures from the Radford 7-Eleven and the cell
phone photos depicting Flint in a black “puffer” jacket. It also introduced surveillance video
from Melody Lounge. Witnesses described the shooter as wearing all black, including a face
covering. One witness testified seeing the shooter wearing dark clothing, including a “puffer
jacket.”
Flint testified in his own defense. He said that he encountered Brice in line to get back
into Melody Lounge. Flint stated that Brice pulled a gun from his waistband and, fearing for his
life, Flint fired his weapon multiple times. Flint acknowledged that he thought Brice was
responsible for shooting him months earlier and that the gun he used at the lounge was a
9-millimeter Glock. Flint testified that he had been in fear for his life.
II. Flint did not waive his assignment of error.
The majority relies on Stevens v. Commonwealth, 72 Va. App. 546, 557 (2020), for the
proposition that Flint lost his ability to challenge the admission of the videos because he
“voluntarily elicited the same evidence.” Supra at 7. This reliance is misplaced. Stevens goes
on to say that the “same-evidence waiver principle ‘should be narrowly construed’ when it
involves evidence that is merely of the same kind or character, such as a ‘type of evidence’ like
hearsay or leading questions.” Stevens, 72 Va. App. at 557 n.4. There “is no exception to this
principle ‘when the defendant presents in his case in chief the same or similar evidence he
previously object[ed] to in order to explain it away or to offer a more favorable interpretation.”
Id. (quoting Isaac v. Commonwealth, 58 Va. App. 255, 262 (2011)).
Here, Flint testified about his state of mind and admitted that he was the shooter.
Whereas at the hearing on his motion in limine, Flint objected to the video’s introduction because
- 13 - of its irrelevance and prejudicial effect. “The waiver rule ‘focuses on the [objecting] party’s
introduction of evidence on the same subject and was never intended to create a waiver
permitting the consideration of inadmissible evidence on a different subject.’” Drinkard-Nuckols
v. Andrews, 269 Va. 93, 103 (2005) (alteration in original) (quoting Pettus v. Gottfried, 269
Va. 69, 79-80 (2004)). By testifying about his participation in the shooting, Flint did not waive
any argument about the evidentiary value of the video.
III. Admitting the video and associated screen captures as Commonwealth Exhibits 31A, 32, and 33 was an abuse of discretion.
A. Standard of Review
We “review a trial court’s decision to admit or exclude evidence using an abuse of
discretion standard.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021). The trial court
necessarily abuses its discretion when it makes an error of law. See Pereira v. Commonwealth,
83 Va. App. 431, 445 (2025). “Evidence relating to a point properly at issue in a case is relevant
and, therefore, admissible if it has ‘any logical tendency, however slight,’ to establish that point.”
Church v. Commonwealth, 71 Va. App. 107, 123 (2019) (quoting Ragland v. Commonwealth, 16
Va. App. 913, 918 (1993)). However, even evidence deemed relevant “must be excluded if its
probative value is ‘outweighed by other, negative factors.’” Byrd v. Commonwealth, 30
Va. App. 371, 376 (1999) (quoting Charles E. Friend, The Law of Evidence in Virginia § 11-3
(4th ed. 1993)). The issue is whether “the probative value of the evidence is substantially
outweighed” by “the danger of unfair prejudice.” Va. R. Evid. 2:403.
I assume that the trial court did not err by admitting the photograph marked as
Commonwealth’s Exhibit 30.4 Even so, the trial court did err by admitting the video and related
screen captures.
4 This Court “strive[s] to decide cases on the ‘best and narrowest grounds available.’” Carter v. Commonwealth, 79 Va. App. 329, 349 n.9 (2023) (quoting Alexandria Redev. & Hous. - 14 - B. The video Exhibit 31A and associated screen captures in Exhibits 32 and 33 were at most minimally probative, and that probative value was substantially outweighed by the danger of undue prejudice.
The Commonwealth chiefly argues that the video was admissible because it helped
establish Flint’s identity. The Commonwealth points to no authority stating this. Without
caselaw to back it up, the proposition seems to require an inferential leap that cannot be
sustained by logic.
The video and associated screen captures showed Flint brandishing two guns and
pretending to shoot the camera while a colored flame effect strobed around him. This is not
probative of Flint’s identity—Detective Hite testified that the brown gun was ruled out as the
murder weapon, and his testimony that the second gun was the same “kind” as the shooting
weapon was equivocal. Even if it is probative of Flint’s access to a firearm, that access was not
seriously at issue in this trial. Multiple witnesses in the Commonwealth’s case-in-chief
identified Flint as the shooter.
Assuming that the video is probative of identity, the Commonwealth itself admits that
substantial other evidence established it: “In this case, other evidence introduced by the
Commonwealth fully established that Flint was the shooter.” A’ee Br. 23 (collecting citations to
the record). The cumulative nature of the video as identity evidence diminishes its probative
value. Cf., e.g., United States v. Carreon, 242 Fed. App’x. 221, 226 (5th Cir. 2007) (“Where
intent is well-established by independent evidence, prior convictions offered to show intent are
Auth. v. Walker, 290 Va. 150, 156 (2015)); see also PDK Lab’ys, Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring) (“This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further.”). - 15 - considered essentially cumulative evidence and their probative value is diminished
accordingly.”).5
Meanwhile, the danger of unfair prejudice posed by this video is substantial. A video
with strobing lights in which Flint brandished two firearms and pretended to shoot them at the
viewer unnecessarily portrayed him as malicious and hostile, playing on racial stereotypes that
provoke a strong emotional reaction in the jury. See Fields v. Commonwealth, 73 Va. App. 652,
673 (2021) (“[T]he nature of the evidence must be such that it generates such a strong emotional
response that it is unlikely that the jury could make a rational evaluation of its proper evidentiary
weight.”).
The Commonwealth also argues that the videos are probative to show that Flint misled
Detective Hite when he said he had not “handled or fired” a firearm within two or three months
of the shooting and that he did not “play” with firearms. The Commonwealth did not make this
argument at the motion in limine hearing, and the record does not establish that the video was
useful to impeach Flint. The right-result-wrong-reason doctrine does not apply:
“[W]here a [lower] court’s decision is correct, but its reasoning is incorrect, and the record supports the correct reason, we uphold the judgment pursuant to the right result for the wrong reason doctrine.” However, [this] doctrine “does not apply unless the record on appeal fully supports the appellee’s argument on appeal,” and “it does not apply where the development of additional facts is necessary.”
Antle v. Commonwealth, 83 Va. App. 485, 516 n.16 (2025) (second alteration in original) (first
quoting City of Charlottesville v. Sclafani, 300 Va. 212, 222 (2021); and then quoting Spinner v.
Commonwealth, 297 Va. 384, 391 (2019)). At trial, the Commonwealth argued that Flint had
5 We find the holdings of our sister-state courts to provide useful examples for this discussion. See Fagan v. Commonwealth, 63 Va. App. 395, 398 (2014) (looking to “persuasive authority from our sister courts” for illustrations of parting with property “willingly” as opposed to by “force or threat”). - 16 - lied to Detective Hite when he said that he had not handled firearms. However, Flint would later
testify that, at the time, he thought he had been telling the truth. This conflict in testimony was
not resolved by the finder of fact. Because this issue involves findings of fact that were not
made at the trial court, we cannot apply the right-result-wrong-reason doctrine.
Finally, the Commonwealth argues that Fields v. Commonwealth is instructive. As far as
this video and photos go, it is not. In Fields, this Court upheld the admission of photographic
and social media evidence against a challenge to its prejudicial value. There, Fields was
convicted of first-degree murder, malicious wounding, aggravated malicious wounding, and
leaving the scene of an accident. Fields, 73 Va. App. at 660. Those charges arose from Fields
driving into a crowd of counter-protestors during the “Unite the Right” rally in Charlottesville.
Id. at 661. The objected-to evidence included (1) protest memes showing a car driving into a
crowd of protesters, (2) an image of Hitler establishing Fields’s connection with white
supremacy, and (3) pretrial jail cell calls in which Fields commented on the process and the
counter-protestors in Charlottesville. Id. 672-78.
This Court held that the disputed evidence went directly to Fields’s motive and intent—
which were at issue in the trial. The memes showed Fields’s contempt for protestors. The
picture of Hitler showed Fields’s connection with White Supremacist groups, which in turn
established Fields’s hostility towards his victims. And the jail cell calls again went to Fields’s
motive for the attack. Conversely, here, Exhibit 31A and the associated photographs did not go
to any matter at issue and produced a substantially prejudicial effect on the jury. Because their
probative value was substantially outweighed by their posing a substantial danger of prejudicial
effect, admitting Exhibits 31A, 32, and 33 was an abuse of discretion.
I cannot say with confidence that introducing this video did not affect the jury’s verdict
concerning Flint’s intent. See Wilkins v. Commonwealth, 64 Va. App. 711, 732 (2015)
- 17 - (Humphreys, J., dissenting). Because this error did not have “but slight effect” on the verdict,
the verdict should not stand. Bista v. Commonwealth, 76 Va. App. 184, 229 (2022) (quoting
Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018)). I respectfully dissent.
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