COURT OF APPEALS OF VIRGINIA
Record No. 1417-24-2
RAYSHAWN SCOTT v. COMMONWEALTH OF VIRGINIA
Present: Judges Beales, O’Brien and Ortiz Argued at Richmond, Virginia Opinion Issued June 2, 2026
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Joseph M. Teefey, Jr., Judge
Sante J. Piracci (Sante J. Piracci P.C., on brief), for appellant.
William K. Hamilton, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.
PUBLISHED OPINION BY JUDGE DANIEL E. ORTIZ
INTRODUCTION
A Brady2 violation offends the constitutional guarantee of due process, but it speaks to
the fairness of the proceeding rather than the defendant’s guilt or innocence. Accordingly, the
appropriate remedy is one tailored to cure prejudice flowing from the violation—and absent a
showing of irreparable harm or a pattern of endemic prosecutorial misconduct, dismissal is not
appropriate.
A jury found Rayshawn Scott (“Scott”) guilty of seven charges related to a shooting.
Upon learning that the Commonwealth failed to produce Brady material, Scott filed a post-
1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 Brady v. Maryland, 373 U.S. 83 (1963). conviction motion asking the court to either dismiss his case with prejudice or grant him a new
trial with a special prosecutor. At retrial, a jury once again found Scott guilty of all charges. On
appeal, Scott challenges the trial court’s decision to grant a retrial rather than dismissal. He also
argues that the trial court erred in finding that no conflict existed with the City of Petersburg
Commonwealth’s Attorney’s Office. Finally, he contends that the trial court erred when it
denied his motion to strike. Because retrial cured any lingering prejudice from the Brady
violation, we affirm the trial court’s decision denying the motion to dismiss. As Scott failed to
present evidence of material conflict, the trial court did not err denying Scott’s motion to
disqualify the Petersburg Commonwealth’s Attorney’s Office. Finally, the Commonwealth
presented sufficient evidence of identity to survive a motion to strike. Accordingly, we affirm
the judgment of the trial court.
BACKGROUND3
On November 24, 2021, William Parham Jr. and Alphonse Whitfield were shot at
Parham’s home in the City of Petersburg. Parham died the next day from multiple gunshot
wounds to his torso.
A. The Shooting4
On November 24, 2021, Shaquille Scott (“Shaquille”) drove his cousin, Rayshawn Scott
(“Scott”) to Parham’s house. Initially, Scott remained outside while Shaquille went in to “hang
out.” Once inside, Shaquille saw Parham, Paulette Day, and four other people whom he did not
3 On appeal, this Court “review[s] the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024) (quoting Commonwealth v. Perkins, 295 Va. 323, 323 (2018)). That principle requires us to “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 to be drawn therefrom.” Newsome v. Commonwealth, 81 Va. App. 43, 51 (2024) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562 (2009)). 4 The facts as recited come from the second trial’s record. -2- know. After Day knocked over Parham’s food, Shaquille left with Day and drove her and Scott
to buy more food. When they returned to Parham’s house, Scott and Day went inside. Shaquille
stayed in his car to FaceTime his girlfriend. Thirty or forty minutes later, Shaquille heard
multiple gunshots and saw people fleeing Parham’s house. Scott ran back to Shaquille’s car, and
they left. Shaquille testified that he did not see Scott with a gun, and he did not ask his cousin
any questions, stating “where I am from, you don’t ask questions.”
Day testified that she was in Parham’s kitchen before the shooting when she heard a man
come down the steps and say “[a]ll y’all walk around with guns. Y’all don’t fight no more.”
She did not see the shooter, but she heard shots and saw Parham and Whitfield injured on the
floor. Day left the house and did not call the police. She testified that she was “high” during the
shooting and, at first, said she did not remember if anyone had a gun. When asked by the
prosecutor if she recalled telling the police that she saw Scott with a gun she said “yes,” she saw
the defendant, “Ray Ray,” with a gun.
The night of the shooting, Dashandra Brown, a friend of Scott’s ex-girlfriend Myeshia
Harrison,5 received a Facebook message from Scott asking if she could call him “right quick.”
Brown called, and Scott told her that she needed “to reach out to [her] friend [Harrison] to let her
know she need[ed] to report her gun stolen because he just did something crazy.” Brown called
Harrison and “relayed the message to her.” Then, she called Scott back to confirm that it was
done.
During their investigation, the police recovered six spent .380 cartridge cases outside of
Parham’s home, three expended .380 bullets inside, and later recovered a fourth .380 bullet from
5 At trial, Harrison testified that she purchased a .380 Smith & Wesson handgun while in a relationship with Scott. Later, the two broke up. A fight ensued, and Scott “trashed” Harrison’s house. A few days later, Harrison realized that her handgun was missing. While she did not see Scott take the gun, she noticed it went missing after he left her house. -3- Parham’s right leg. Forensic analysis revealed that the six cartridge cases had been expelled
from the same gun. Testing also revealed that the four bullets were expelled from the same
firearm.
A month after the shooting, the police interviewed Scott. During the interview, Scott
claimed he was not at Parham’s house at the time of the shooting. Police arrested Scott shortly
after the interview.
B. Procedural History
On March 10, 2023, a jury found Scott guilty of second-degree murder (Code § 18.2-32),
use of a firearm in the commission of murder or attempted murder (Code § 18.2-53.1),
aggravated malicious wounding (Code § 18.2-51.2), use of a firearm in the commission of an
aggravated malicious wounding or attempted aggravated malicious wounding (Code
§ 18.2-53.1), maliciously shooting at an occupied building (Code § 18.2-279), unlawfully
wounding another while committing or attempting to commit a felony (Code § 18.2-53), and
willfully discharging a firearm in a public place resulting in bodily injury (Code § 18.2-280).
Before sentencing, Scott filed a “Motion for Dismissal with Prejudice, a New Trial or for
Other Relief Pursuant to a Brady Violation” and a “Motion for the Court to Disqualify the
Petersburg Commonwealth’s Attorney and Appoint a Special Prosecutor.” Scott argued that the
prosecutor, Senior Assistant Commonwealth’s Attorney Joseph Lee (“Lee”), had violated his
Brady and Giglio6 obligations by failing to disclose an agreement between the Commonwealth
and Shaquille. Scott asserted that Lee promised to reduce Shaquille’s then-pending felony
possession of drugs with the intent to distribute charge to a misdemeanor paraphernalia charge in
exchange for Shaquille’s testimony. Scott noted that the Commonwealth’s original witnesses
list, filed January 2023, did not include Shaquille. One day before trial, Lee sent defense counsel
6 Giglio v. United States, 405 U.S. 150 (1972). -4- an amended witness list adding Shaquille. As to his motion to disqualify, Scott argued that the
court should disqualify the entire Petersburg Commonwealth’s Attorney’s Office because it was
“not unreasonable to suppose” that Lee had been “ineffectively supervised” and the office had
not taken “affirmative steps to either disclose [the agreement] or to ameliorate the violation.”
In August 2023, the trial court held an evidentiary hearing on the motions. Scott
presented several witnesses. First, Elsa Seidel, Shaquille’s attorney, testified that on March 6,
2023, she was in court for a preliminary hearing on Shaquille’s pending charges when Lee, the
prosecutor in court that day, spoke with her about Shaquille testifying against Scott in exchange
for a reduced charge. Seidel brought the offer to Shaquille, who was reluctant to testify, but
ultimately agreed because “it was the right thing to do” and he was “hoping to get the benefit” of
a reduced charge. Shaquille confirmed that he testified, in part, for the reduced charge.
Next, Ashley Henderson, a Deputy Commonwealth’s Attorney in the City of Colonial
Heights, testified that at some point after March 10, 2023, her office was appointed as special
prosecutor to handle Shaquille’s case. Henderson’s office learned from Seidel that there was an
agreement in Shaquille’s case. On March 23, Henderson called Lee to ask about the agreement,
and Lee confirmed that “it was to reduce [the charge] to paraphernalia.” Henderson “was
shocked because that is what Ms. Seidel had also indicated the agreement was.” She “expressed
concern that [her office] had been appointed to a case . . . where a deal had already been worked
out, and therefore, [she] was bound by that agreement.”
When Henderson asked Lee why her office had been appointed to the case if Shaquille
had already testified, Lee said that Tiffany Buckner, the City of Petersburg Commonwealth’s
Attorney, made the decision. Henderson requested to speak to Buckner, and Lee asked “if there
was a problem.” Henderson expressed concern that “there was an agreement that [her office]
was bound to” and she “had not been notified about the agreement.” Lee said “that the
-5- agreement was not in writing,” and Henderson replied, “it doesn’t matter whether it’s in writing
or not. It’s an agreement.”
On April 21, 2023, Henderson and her office learned that defense counsel for Scott had
no knowledge of the agreement. Two days later, the City of Colonial Heights prosecutor moved
to withdraw as special prosecutor in Shaquille’s case. The motion raised concerns about
working on a case with seemingly no conflict and being “bound by an agreement that [their]
office did not negotiate” and one that had “not be[en] disclos[ed] to all parties.” Following the
City of Colonial Heights’s withdrawal from the case, Lee dropped all pending charges against
Shaquille on June 26, 2023.
Buckner testified on behalf of the Commonwealth. She stated that she spoke with Lee in
February 2023 about Shaquille’s case but did not believe there was a conflict because Lee
“didn’t expect to be able to use [Shaquille] at all” in Scott’s case. After Shaquille testified,
Buckner made the decision to request a special prosecutor. When the City of Colonial Heights
raised concerns about the appointment, Buckner instructed Lee to speak with the State Bar. She
also reviewed Shaquille’s files and found no evidence of a written agreement or offer.
During the hearing, the trial court asked Scott’s attorney how to remedy the alleged
Brady violation. Scott’s attorney replied, “I’d ask for a dismissal with prejudice, Judge. That’s
one of the remedies I have set out.” Recognizing that dismissal was an extreme request, defense
counsel also stated that he “d[idn’t] think it would be inappropriate to ask for a new trial.”
After taking the matter under advisement, the trial court denied Scott’s motion for
dismissal and motion for disqualification, but vacated Scott’s conviction and granted his motion
for a new trial. The court reasoned that Shaquille agreed to testify in exchange for the reduced
charge, and the Commonwealth’s failure to disclose that agreement was a Brady violation that
was materially prejudicial to Scott because Shaquille was the only witness to place the defendant
-6- at the scene of the crime.7 The court noted that “a jury could have discounted or disregarded
[Shaquille’s] testimony had it been aware of his agreement with the Commonwealth.” But the
court further found that the City of Petersburg’s Commonwealth’s Attorney “did nothing
purposefully wrong or that would constitute an ethical violation.”
Buckner prosecuted the second trial, and Lee did not participate. After the
Commonwealth rested, Scott moved to strike, arguing that the evidence was insufficient to prove
the identity of the shooter because there were other people present at Parham’s home, and
nobody observed the shooting. The trial court granted the motion in part, reducing the
aggravated malicious wounding charge and accompanying firearm charge to malicious wounding
and use of a firearm in the commission of malicious wounding, but denied the motion as to the
other charges. The jury found Scott guilty, and the trial court sentenced him to 76 years’
incarceration with 50 years suspended. Scott appealed.
ANALYSIS
I. The trial court did not abuse its discretion by denying Scott’s motion to dismiss and instead ordering a new trial.
“The remedial relief to be granted by the trial court following a discovery violation or
upon the late disclosure of evidence is within the trial court’s discretion and will not be disturbed
on appeal unless plainly wrong.” Moreno v. Commonwealth, 10 Va. App. 408, 420 (1990). “In
evaluating whether a trial court abused its discretion, . . . ‘we do not substitute our judgment for
that of the trial court. Rather, we consider only whether the record fairly supports the trial
court’s action.’” Carter v. Commonwealth, 293 Va. 537, 543 (2017) (alteration in original)
(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).
7 Paulette Day did not testify at the first trial. The Commonwealth called her as a witness during the retrial. -7- On appeal, Scott argues that the trial court abused its discretion by refusing to dismiss the
charges with prejudice. Scott contends that dismissal is appropriate when prosecutors
intentionally deprive a defendant of a fair trial. While we find Lee’s failure to disclose
impeachment evidence deeply troubling, we disagree.8 Dismissal is appropriate only when the
Brady violation causes irreparable prejudice to the defendant, or the record supports a finding of
egregious and pervasive prosecutorial misconduct. See, e.g., United States v. Dyess, 478 F.3d.
224, 236 (4th Cir. 2007) (affirming trial court’s denial of defendant’s motion to dismiss after a
prosecutor induced a witness to commit perjury because retrial would cure prejudice); United
States v. Bohl, 25 F.3d 904, 914 (10th Cir. 1994) (remanding with order to dismiss indictment
after the government destroyed potentially exculpatory evidence in the face of defense’s repeated
requests for pretrial access to the evidence). As neither scenario is present here, the trial court
acted within its discretion by refusing dismissal.
Because Brady violations involve “the constitutional disclosure obligations of the
prosecution — not the guilt or innocence of the defendant . . . the proper remedy for a proven
violation includes a continuance, a mistrial, or some lesser remedy.” Romero v. Commonwealth,
No. 0050-13-4, slip op. at 27 (Va. Ct. App. Mar. 25, 2014).9 In fact, no Virginia appellate court
8 We are aware of conflicting findings regarding the intentionality of Lee’s failure to disclose the agreement with Shaquille. The trial court found that nobody “did anything purposefully wrong in this case.” Scott did not challenge the trial court’s factual findings on appeal. However, we take judicial notice under Virginia Rule of Evidence 2:201(a), that while this case was pending before us, Lee faced bar disciplinary action for his conduct in Scott’s first trial. In March 2026, the Supreme Court affirmed the finding of a three-judge panel that Lee “knowingly failed to disclose [the] agreement” and that Lee violated the Virginia Rules of Professional Conduct, and it upheld a two-year suspension of his bar license. See Lee v. Va. State Bar ex rel. Third Dist., ___ Va. ___ (Mar. 19, 2026). Because the intentionality of a Brady violation, by itself, does not compel dismissal of charges, we need not grapple with these conflicting factual findings. 9 While not binding, unpublished cases may be cited as persuasive authority. Rule 5A:1(f); Smith v. Commonwealth, 78 Va. App. 371, 383 n.4 (2023). -8- has ever dismissed an indictment when the prosecutor failed to disclose Brady material. See,
e.g., Bly v. Commonwealth, 280 Va. 656, 664 (2010) (remanding “for a new trial” in light of
Brady violation); Workman v. Commonwealth, 272 Va. 633, 651 (2006) (ordering “a new trial
because of Brady violations”). Indeed, our federal counterparts have found that “dismissal is
appropriate only as a last resort, where no other remedy would cure prejudice against a
defendant.” United States v. Pasha, 797 F.3d 1122, 1139 (D.C. Cir. 2015). For example, if
“evidence that is central to the case” is lost or destroyed, it “may permanently deprive the
defendant of due process” and cause prejudice that a retrial cannot cure. Bohl, 25 F.3d at 914.
Courts have not entirely foreclosed the possibility “that a pattern of prosecutorial
misconduct could be so entrenched and pervasive that it would justify dismissal of indictments
without a finding of prejudice to defendants.” United State v. Derrick, 163 F.3d 799, 809
(4th Cir. 1998). But to warrant dismissal without demonstrating prejudice, the defendant “must
show that the challenged conduct violates commonly accepted norms of fundamental fairness
and is shocking to the universal sense of justice.” United States v. Guzman, 282 F.3d 56, 59
(1st Cir. 2002). Even if such a situation exists, dismissal of an indictment does not necessarily
follow if the conduct is “redressable through the utilization of less drastic disciplinary tools,”
Derrick, 163 F.3d at 809 (quoting United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993)),
“including publicly chastising the attorneys and recommending them for disciplinary
proceedings,” id. at 810.
Scott has not demonstrated how the new trial failed to resolve prejudice from the Brady
violation. The trial court held that the undisclosed agreement between Shaquille and Lee “was
material in that the only witness to place the defendant at the scene of the crime was Shaquille
Scott.” The trial court noted that Shaquille’s “credibility will be something that would have a
great effect on the impact of the jury’s determination of this case” because “[a] jury could have
-9- discounted or disregarded [Shaquille’s] testimony had it been aware of his agreement.” The new
trial cured this concern.
Here, the Brady material was not lost or destroyed so as to “permanently deprive the
defendant of due process.” Bohl, 25 F.3d at 914. Rather, Shaquille testified at the second trial,
and defense counsel cross examined him about his agreement with the Commonwealth and the
disposition of his previous drug charges. Consequently, the jury had the opportunity to evaluate
Shaquille’s testimony and discount or disregard it accordingly.10
At most, Scott argues that Lee’s prosecutorial misconduct was so egregious that punitive
action is required to deter similar conduct. Yet, a Brady remedy is not a tool used to punish the
prosecution; it is one that safeguards the threshold requirements of the Due Process Clause. See
Commonwealth v. Tuma, 285 Va. 629, 639 n.2 (2013) (“Brady is not a canon of prosecutorial
ethics.” (quoting Tuma v. Commonwealth, 60 Va. App. 273, 308 (2012) (Kelsey, J.,
dissenting))). The threat of professional sanctions is sufficient to protect due process interests in
all but the most severe cases. Because Scott has not demonstrated a pattern of “entrenched” and
“pervasive” prosecutorial misconduct, this is not one of those cases. Derrick, 163 F.3d at
809-10.
Even if the trial court had found that Lee acted in bad faith, “inadvertent nondisclosure
has the same impact on the fairness of the proceeding as deliberate concealment.” Tuma, 285
Va. at 639 n.2 (quoting Strickler v. Greene, 527 U.S. 263, 288 (1999)). See also Brady v.
10 At oral argument, Scott asserted that the timing of the retrial was prejudicial because Shaquille already had the benefit of his bargain (the dismissal of charges) so, the jury may be less inclined to weigh the impact of the deal on Shaquille’s testimony. Scott raises an interesting point; however, he did not present this theory below or address the issue on brief. Under settled principles, we “will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998); Rule 5A:18. See generally Doe v. Green, 304 Va. 536, 545 & n.8 (2025) (recognizing that “an appellant’s failure to raise a specific argument in her opening brief” and to cite supporting authorities waives that argument). - 10 - Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process . . . irrespective of the good faith or bad faith of
the prosecution.”). Thus, the nature of the suppression by the prosecution does not impact the
Brady remedy so long as the remedy cures any lingering prejudice. As noted above, the
prejudice here stemmed from the suppression of impeachment evidence. Retrial gave Scott the
opportunity to use the impeachment evidence to challenge Shaquille’s credibility. Therefore, the
trial court acted within its discretion when it declined to dismiss the charges and instead vacated
the conviction and ordered a new trial.
A Brady violation infringes on a defendant’s due process rights and sows doubt as to the
fundamental fairness of a criminal proceeding. Recognizing that a Brady remedy is not a
disciplinary sanction but rather one that safeguards the rights of the accused, the trial court
denied Scott’s motion to dismiss and instead ordered a new trial. Because the new trial cured
any lingering prejudice, we affirm.
II. The trial court did not abuse its discretion when it overruled Scott’s motion to appoint a special prosecutor.
“[T]o protect prosecutorial impartiality, a trial court has the power to disqualify a
Commonwealth’s attorney from proceeding with a particular criminal prosecution if the trial
court determines that the Commonwealth’s attorney has an interest pertinent to a defendant’s
case that may conflict with the Commonwealth’s attorney’s official duties.” Lux v.
Commonwealth, 24 Va. App. 561, 568 (1997). “The decision whether to disqualify a
Commonwealth’s attorney in a particular case is committed to the sound discretion of the trial
court.” Id. at 569. Nevertheless, “whether a defendant’s due process rights are violated . . . is a
question of law, to which we apply a de novo standard of review.” Henderson v.
Commonwealth, 285 Va. 318, 329 (2013).
- 11 - Scott contends that the trial court abused its discretion when it failed to disqualify the
Petersburg Commonwealth’s Attorney’s Office and appoint a special prosecutor, because after a
Brady violation, a prosecutor may be motivated to “do everything possible to redeem the prior
guilty finding by securing a guilty verdict on the same charges.” We disagree. A prosecutor’s
good faith desire to further justice by enforcing the law does not create a conflict of interest.
“The due process rights of a criminal defendant under both the Virginia and United States
Constitutions are violated when a Commonwealth’s Attorney who has a conflict of interest
relevant to the defendant’s case prosecutes the defendant.” Powell v. Commonwealth, 267 Va.
107, 138 (2004). “[T]he burden is on the party seeking disqualification of the prosecutor to
present evidence establishing the existence of disqualifying bias.” Id. A trial court should grant
a defendant’s motion to disqualify “where it can be reasonably inferred that the
Commonwealth’s attorney has either a personal interest in the outcome of the prosecution or an
interest arising from his or her former representation of the defendant that conflicts with the fair
minded exercise of his or her prosecutorial discretion.” Lux, 24 Va. App. at 569-70. The former
occurs when “the prosecutor has some direct personal interest arising from a financial interest,
kinship, or close friendship such that his objectivity and impartiality are called into question.”
Powell, 267 Va. at 138. The latter arises when a prosecutor had a previous attorney-client
relationship with the defendant and “he obtained privileged information that may be adverse to
the defendant’s interest.” Id.
Apart from these two types of direct conflict, there is a broader question of whether, “on
the facts of a particular case, the adversarial nature of the judicial process has resulted in such
enmity toward the defendant on the part of the prosecutor that it will overbear his professional
judgment in seeking fairly and impartially to see justice done.” Id. at 139. Due to the
confrontational nature of criminal proceedings, the defendant must present evidence “that the
- 12 - prosecutor is acting not within the dictates of the law, but has strayed outside those parameters in
furtherance of a personal animus against the defendant.” Id.
As a preliminary matter, both parties agree that Lee did not prosecute or participate in the
retrial. So, any argument that the trial court erred by denying the motion to disqualify Lee is
moot. Moreover, Scott failed to demonstrate that either type of direct conflict—personal interest
or past representation—applied to the City of Petersburg Commonwealth’s Attorney’s Office.
At best, Scott alleges that Lee, and thus the Commonwealth’s office, intentionally concealed
Brady material to secure a guilty verdict, and their desire to “redeem” their office and secure a
second guilty verdict creates a material conflict. This is wrong for two reasons.
First, Scott presented no evidence that Lee’s suppression of impeachment evidence
stemmed from “personal animus against the defendant.” There is no doubt that Lee breached his
Brady obligations and violated Disciplinary Rule 3.8(d) by withholding exculpatory evidence,
but this alone does not demonstrate animus. To hold otherwise, would turn every Brady
violation, intentional or inadvertent, into a conflict of interest. Second, even if Lee had the type
of “adversarial conflict” addressed in Powell, one attorney’s conflict does not necessarily
disqualify an entire prosecutor’s office. See Lux, 24 Va. App. at 573 (refusing to adopt a per se
rule disqualifying an entire Commonwealth’s office in cases where one prosecutor has a conflict
because he acted as a criminal defendant’s former counsel). Whether a prosecutor’s conflict
justifies the disqualification of the entire Commonwealth’s office “is a matter committed to the
exercise of discretion by the trial court” and should be evaluated on a “case-by-case approach.”
Id.
Here, there is no evidence that Lee’s alleged “adversarial conflict” rendered the entire
office unable to prosecute the case fairly and impartially. Lee was the only prosecutor alleged to
have withheld exculpatory evidence. Unrebutted testimony demonstrated that the deal between
- 13 - Shaquille and the Commonwealth was negotiated by Lee alone. Additionally, there was no
written memorialization of the agreement in the case files. Once the Commonwealth’s Attorney
learned of the potential Brady violation, she directed Lee to contact the State Bar. The record
supports the trial court’s finding that there was not “any sort of conflict that the Commonwealth
has with this case” such that it required a special prosecutor. Accordingly, we hold that the trial
court did not abuse its discretion by overruling Scott’s motion to disqualify.
III. The trial court was not plainly wrong in denying Scott’s motion to strike.
We review the trial court’s denial of a motion to strike under familiar principles. In a
jury trial, the court does “not err in denying [a] motion to strike the evidence [when] the
Commonwealth present[s] a prima facie case for consideration by the fact finder.” Vay v.
Commonwealth, 67 Va. App. 236, 249 (2017) (alterations in original) (quoting Hawkins v.
Commonwealth, 64 Va. App. 650, 657 (2015)). Accordingly, “[a] motion to strike challenges
whether the evidence is sufficient to submit the case to the jury.” Linnon v. Commonwealth, 287
Va. 92, 98 (2014). “What the elements of the offense are is a question of law that we review de
novo. Whether the evidence adduced is sufficient to prove each of those elements is a factual
finding, which will not be set aside on appeal unless it is plainly wrong.” Vay, 67 Va. App. at
249 (quoting Linnon, 287 Va. at 98). When reviewing the factual findings “we consider the
evidence in the light most favorable to the Commonwealth and give it the benefit of all
reasonable inferences fairly deducible therefrom.” Linnon, 287 Va. at 98.
“At trial, the Commonwealth bears the burden of proving the identity of the accused as
the perpetrator beyond a reasonable doubt.” Cuffee v. Commonwealth, 61 Va. App. 353, 364
(2013) (quoting Blevins v. Commonwealth, 40 Va. App. 412, 423 (2003)). But the
Commonwealth is not required to carry its burden by direct evidence. See Stamper v.
Commonwealth, 220 Va. 260, 272 (1979) (“Circumstantial evidence is as competent and is
- 14 - entitled to as much weight as direct evidence, provided it is sufficiently convincing.”). Rather,
circumstantial evidence is sufficient to prove the identity of a criminal agent when
“circumstances of time, place, motive, means, opportunity[,] and conduct concur in pointing out
the accused as the perpetrator of the crime.” Schlimme v. Commonwealth, 16 Va. App. 15, 18
(1993) (quoting Potts v. Commonwealth, 12 Va. App. 1093, 1097 (1991)).
Scott argues that the trial court erred when it denied his motion to strike because the
Commonwealth failed to present “direct evidence that [Scott] committed an unlawful shooting”
and the circumstantial evidence required the jury to speculate as to the shooter’s identity. This
argument misses the mark. Although no one witnessed Scott shoot Parham, the Commonwealth
presented sufficient evidence of the shooter’s identity to survive a motion to strike.
First, the Commonwealth demonstrated the circumstances of time and place. Both
Shaquille and Day testified that Scott was at Parham’s home the night of the shooting. Shaquille
testified that Scott went inside thirty to forty minutes before he heard gunshots, and Day
confirmed that Scott was inside when the shooting occurred. The Commonwealth also presented
evidence of means and opportunity. The victim was shot multiple times and a bullet from a .380
firearm was recovered from his leg. The police found bullet casings from a .380 firearm outside
of Parham’s house. Harrison stated that she believed Scott stole her .380 Smith & Wesson just
weeks before the shooting. Day testified that she saw Scott with a gun the night of the shooting.
And there is nothing in the record indicating that another person had a gun that night.
Furthermore, Scott’s conduct after the shooting points to his identity as the shooter. See
Langhorne v. Commonwealth, 13 Va. App. 97, 102 (1991) (“the fact of an accused’s flight,
escape from custody, resistance to arrest, concealment, . . . and related conduct, are admissible as
evidence of consciousness of guilt, and thus of guilt itself” (quoting United States v. Ballard, 423
F.2d 127, 133 (5th Cir. 1970))). Shaquille testified that after the gunshots went off, Scott fled
- 15 - Parham’s house and ran to Shaquille’s car. Later, when the police interviewed Scott, he denied
being present at Parham’s house the night of the shooting. See Rams v. Commonwealth, 70
Va. App. 12, 27 (2019) (“[I]n drawing inferences from the evidence, the fact finder may
conclude regarding even a non-testifying defendant that his false statements establish that he has
lied to conceal his guilt.” (emphasis added)). Additionally, the night of the shooting, Scott
through a third party, requested that Harrison, the owner of the .380 Smith & Wesson, report the
gun as stolen because he “did something crazy.”
Taken together, the Commonwealth established sufficient circumstantial evidence of
identity to survive a motion to strike. Thus, the trial court was not plainly wrong in denying
Scott’s motion to strike the evidence.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
- 16 -