Robert Shu-Fan Kao v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 5, 2024
• Docket: 0310234
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, AtLee and Chaney UNPUBLISHED

Argued at Fredericksburg, Virginia

ROBERT SHU-FAN KAO MEMORANDUM OPINION* BY v. Record No. 0310-23-4 JUDGE RICHARD Y. ATLEE, JR. MARCH 5, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Richard E. Gardiner, Judge

(George L. Freeman, IV; The Law Offices of George L. Freeman, IV – PLLC, on brief), for appellant. Appellant submitting on brief.

Kimberly A. Hackbarth, Assistant Attorney General (Jason S. Miyares, Attorney General; Michael L. Eaton, Assistant Attorney General, on brief), for appellee.

Following a jury trial, Robert Kao was convicted of a felony violation of a protective order

in violation of Code § 18.2-60.4(B).1 He contends that the trial court erred by admitting evidence of

his prior bad acts. He also asserts that the trial court erred by admitting a gas can and its contents

because the Commonwealth failed to establish a sufficient chain of custody. Finding no error in the

trial court’s rulings, we affirm.

I. BACKGROUND

On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Code § 18.2-60.4 elevates a misdemeanor violation of a protective order to a felony when a “person [is] . . . knowingly armed with a . . . deadly weapon.” Code § 18.2-60.4(B). 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.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)).

Kao worked for Verisign at its Fairfax County headquarters from 2011 to 2012.

Following his resignation in 2012, Kao was “[v]ery disgruntled” and continued to communicate

with Verisign employees for “years.” In 2016, he brought a loaded gun to Verisign, frightening

employees. There were additional incidents, and Kao was identified as a “priority security

concern.” On May 21, 2020, Verisign obtained a two-year protective order prohibiting Kao from

contacting its employees and requiring him to “stay at least [one] mile away” from headquarters.

Despite the protective order, Kao returned to headquarters on June 30, 2020, with a can of

gasoline and a lighter. In February 2021, he again brought a lighter with him and “doused

himself with gasoline” “directly in front of” the headquarters’ garage entrance.

On November 20, 2021, Kao approached the Verisign headquarters yet again, giving rise

to the instant conviction. On that date, Verisign’s security personnel notified the police after

they saw Kao park across the street, exit his car, and pour gasoline on himself. After seeing the

police approach, Kao ran across the street toward Verisign with a lighter. Two officers, Officer

Rocco and Sergeant Duffy, intercepted Kao in the middle of the street. At that point, Kao was

approximately 15 to 20 feet from Verisign. As Duffy approached Kao, he smelled an

“overwhelming odor of gasoline.” Kao’s “hair was dripping wet and his clothes appeared

saturated.” Duffy saw Kao produce a flame from a lighter and ignite his sock. Rocco, who had

arrived at the scene first, also smelled the gas fumes and saw Kao “actively trying to light . . . the

wet clothing that was on his body.” The officers pinned Kao face down on the pavement and

handcuffed him; when they helped him to the curb, Kao’s clothing left a wet imprint on the road.

Kao was charged with violating the protective order, attempted arson, and threatening to burn.

-2- Immediately before trial, the Commonwealth notified the trial court that it intended to

introduce evidence of Kao’s prior bad acts. The Commonwealth noted that Kao had an “M.O. of

dousing himself in gasoline on or near the property.” It also argued that Kao’s prior bad acts

were relevant to show his intent on November 20, 2021, and to demonstrate that his actions on

that date were “threatening” to Verisign. The Commonwealth stressed that Kao’s prior bad acts

were “most relevant” to the threat to burn charge and constituted evidence of malice and Kao’s

“intent to do harm to Verisign.” It emphasized that the prior acts were relevant to whether

Verisign personnel reasonably perceived Kao’s actions as a threat. Absent that context, the

Commonwealth asserted that Kao’s actions “could be . . . construed as self-harm.”

Kao objected on the grounds that the proposed evidence was irrelevant and highly

prejudicial. He stressed that there was no evidence that he threatened anyone at Verisign

because he approached the building on a Saturday when it was unoccupied. When the trial court

asked how the evidence would be unfairly prejudicial if it provided a limiting instruction to the

jury, Kao suggested that jurors did not always comply with instructions.

Citing Parnell v. Commonwealth, 15 Va. App. 342 (1992), the trial court ruled that Kao’s

prior bad acts were admissible because they provided context to whether his actions on the date

of the offense were a threat. When the Commonwealth presented evidence of Kao’s prior bad

acts during trial, the trial court cautioned the jury three times about the limited purpose of that

evidence. It instructed the jury that Kao’s prior actions were “offered solely for the purpose of

putting the November 20th matters into context” and Kao’s “guilt or innocence on the [current]

charge . . . is not based upon any of the incidents which took place prior to the 20th of November

2021.”

During the trial, the Commonwealth also sought to introduce the gas can that police

found next to Kao’s car on November 20, 2021. Kao objected, arguing that the Commonwealth

-3- had not laid a proper foundation because it had not established a chain of custody. Initially, the

trial court agreed. The Commonwealth asked the witness more questions to establish that he

observed the gas can, took the gas can into custody, and the gas can in the courtroom was the

same gas can the witness observed by Kao’s car. Then Commonwealth then sought to introduce

the gas can. Kao conducted a voir dire establishing that the witness did not seal the gas can in

the box and the witness had not seen the gas can for 11 months. Kao objected arguing that the

Commonwealth still had not properly established chain of custody. The trial court overruled the

objection.

At the conclusion of the Commonwealth’s evidence, Kao made a motion to strike the

charges against him. The trial court denied the motion relating to the violation of a protective

order charge. But it struck the attempted arson and threat to burn charges.

Kao testified on his own behalf. He admitted that he went to Verisign on November 20,

2021, to set himself on fire, or “self-immolate.” Kao stated that he did so “[t]o protest civil

rights violations in the company.” He conceded that he approached Verisign despite the issuance

of a protective order only a few days earlier that prohibited him being within one mile of the

company. Kao agreed that he parked a rental car across the street from Verisign, doused himself

with gasoline, and approached Verisign with a lighter in his hand. He expressly admitted that he

knew that his actions violated the protective order. The jury convicted Kao of violating a

protective order with a deadly weapon. This appeal follows.

II. ANALYSIS

A. Prior Bad Acts

“The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Conley v.

Commonwealth, 74 Va. App. 658, 670 (2022) (quoting Jones v. Commonwealth, 38 Va. App.

-4- 231, 236 (2002)). Although the trial court has discretion, it is not “free to simply act in any way

it may deem desirable under the circumstances.” Lucas v. Riverhill Poultry, Inc., 300 Va. 78, 92

(2021). Instead, a trial “court ‘has a range of choice, and . . . its decision will not be disturbed as

long as it stays within that range and is not influenced by any mistake of law.’” Id. at 93

(quoting Landrum v. Chippenham and Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)).

“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.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (alteration in original)

(quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)). “Only when reasonable jurists

could not differ can we say an abuse of discretion has occurred.” Turner v. Commonwealth, 65

Va. App. 312, 327 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).

Generally, “evidence which shows or tends to show that the accused is guilty of other

crimes and offenses at other times, even though they are of the same nature as the one charged in

the indictment, is not admissible to show the accused’s commission of the particular crime

charged.” Kenner, 299 Va. at 424 (quoting Ortiz v. Commonwealth, 276 Va. 705, 714 (2008)).

“However, the general rule excluding evidence of other crimes ‘must sometimes yield to

society’s interest in the truth-finding process, and numerous exceptions allow evidence of prior

misconduct whenever the legitimate probative value outweighs the incidental prejudice to the

accused.’” Conley, 74 Va. App. at 670 (quoting Gonzales v. Commonwealth, 45 Va. App. 375,

381 (2005) (en banc)).

Virginia Rule of Evidence 2:404(b) states in pertinent part that “if the legitimate

probative value of such proof outweighs its incidental prejudice,” evidence of other crimes or

bad acts “is admissible if it tends to prove any relevant fact pertaining to the offense charged,

such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge,

-5- identity, absence of mistake, accident, or if they are part of a common scheme or plan.”

“Evidence of other crimes is admissible if it tends to prove any fact in issue, even though it also

tends to show the defendant guilty of another crime.” Conley, 74 Va. App. at 671-72 (quoting

Spencer v. Commonwealth, 240 Va. 78, 89 (1990)). In Virginia, we have adopted “an

‘inclusionary approach’ to the uncharged misconduct doctrine by admitting such evidence ‘if

relevant, for any purpose other than to show a mere propensity or disposition on the part of the

defendant to commit the crime.’” Castillo v. Commonwealth, 70 Va. App. 394, 415 (2019)

(quoting Thomas v. Commonwealth, 44 Va. App. 741, 757 n.8, adopted upon reh’g en banc, 45

Va. App. 811 (2005)).

Here, Kao’s prior actions were relevant to both the attempted arson charge and the threat

to burn charges. To prove arson, the Commonwealth had to establish that Kao possessed the

specific intent to set fire to the Verisign building. See generally Parsons v. Commonwealth, 32

Va. App. 576, 582 (2000) (“An attempt is composed of . . . the intent to commit the crime, and a

direct, ineffectual act done towards its commission.”). To prove threat to burn, the

Commonwealth had to prove that Kao’s conduct constituted a threat to burn Verisign property.

See Code § 18.2-83. In the context of Code § 18.2-83, “a threat is ‘an avowed present

determination or intent to injure presently or in the future.’” Summerlin v. Commonwealth, 37

Va. App. 288, 297 (2002) (quoting Parnell v. Commonwealth, 15 Va. App. 342, 345 (1992)).

The communication of such threat “taken in its particular context, must reasonably cause the

receiver to believe that the speaker will act according to his expression of intent.” Id. (quoting

Perkins v. Commonwealth, 12 Va. App. 7, 16 (1991)). We have held that a threat is “an overt

expression, by words or conduct, of a present intention to commit an immediate act of violence

or force against the victim.” Bivins v. Commonwealth, 19 Va. App. 750, 752 (1995) (addressing

“threat” in the context of robbery).

-6- Kao’s prior actions were relevant to the attempted arson charge because it tended to

prove whether he intended to set the Verisign headquarters on fire, as opposed to only himself.

It was also relevant to the threat to burn charge because it was relevant to the context and

whether his conduct was a “threat” to Verisign and its employees.

Moreover, the probative value of Kao’s prior bad acts was greater than the incidental

prejudice to him. See Castillo, 70 Va. App. at 417 (“Admission of evidence of other crimes

committed by a defendant . . . is subject to the further requirement that the legitimate probative

value of the evidence must exceed the incidental prejudice to the defendant.” (alteration in

original) (quoting Rose v. Commonwealth, 270 Va. 3, 11 (2005))). “[T]he responsibility for

balancing the competing considerations of probative value and prejudice rests in the sound

discretion of the trial court.” Id. (alteration in original) (quoting Ortiz, 276 Va. at 715). Here,

Kao’s prior bad acts involving Verisign were extremely probative in ascertaining whether he

intended to threaten or burn the Verisign building or personnel. Furthermore, the trial court gave

several cautionary instructions “that we presume [were] followed by the jury.” Lambert v.

Commonwealth, 70 Va. App. 740, 752 (2019). Accordingly, the trial court did not commit

reversible error by admitting evidence of Kao’s prior bad acts.2

2 Even assuming that the trial court erred by admitting evidence of Kao’s prior bad acts, the error was harmless because the trial court struck the attempted arson and threat to burn charges, leaving the jury to consider only whether Kao violated the protective order. Kao expressly admitted that he violated the protective order when he approached Verisign on November 20, 2021, with a lighter in hand after he doused himself with gasoline. Kao does not dispute that the gasoline and lighter constituted a deadly weapon for the purpose of Code § 18.2-60.4. “Non-constitutional error is harmless if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by comparison that we can conclude the error ‘failed to have “any substantial” influence on the verdict.’” Dandridge v. Commonwealth, 72 Va. App. 669, 685 (2021) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018)). -7- B. Chain of Custody

To establish a chain of custody, the Commonwealth’s evidence must “‘afford[]

reasonable assurance that the exhibits at trial are the same and in the same condition as they were

when first obtained.’ Whether the foundation is sufficient to properly establish the chain of

custody is a question within the sound discretion of the trial court.” Hargrove v. Commonwealth,

53 Va. App. 545, 553 (2009) (quoting Anderson v. Commonwealth, 274 Va. 469, 479 (2007)).

“Where there is mere speculation that contamination or tampering could have occurred, it is not

an abuse of discretion to admit the evidence and let what doubt there may be go to the weight to

be given the evidence.” Brown v. Commonwealth, 21 Va. App. 552, 556 (1996) (quoting Reedy

v. Commonwealth, 9 Va. App. 386, 391 (1990)).

Kao contends that the trial court erred by admitting the gas can purportedly recovered

next to his car because the Commonwealth failed to establish the chain of custody between the

time Sergeant Duffy collected it and the time of its admission at trial. He emphasizes that

Sergeant Duffy conceded that he did not package the gas can and that he had last seen it 11

months earlier. In addition to the gas can, Kao also argues that “the odor of the gas” was also

admitted, despite the absence of evidence establishing with reasonable certainty that it emanated

from the same substance seized by Sergeant Duffy.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Procedural-default

principles require that the argument asserted on appeal be the same as the contemporaneous

argument at trial.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “[N]either an appellant

nor an appellate court should ‘put a different twist on a question that is at odds with the question

-8- presented to the trial court.’” Id. at 744 (quoting Commonwealth v. Shifflett, 257 Va. 34, 44

(1999)).

At trial, Kao’s sole chain of custody objection was that Sergeant Duffy could not identify

the gas can presented at trial as the same one he collected next to Kao’s vehicle. Kao stressed

that Sergeant Duffy stated that he transported the gas can to the “crime scene section” but did not

address who and how it was handled after it was deposited there. He never raised a chain of

custody objection to the “odor” of the gas. Thus, Kao has failed to preserve this specific aspect

of his chain of custody argument. Rule 5A:18. “Although Rule 5A:18 contains exceptions for

good cause or to meet the ends of justice, [Kao] does not argue these exceptions and we will not

invoke them sua sponte.” Williams v. Commonwealth, 57 Va. App. 341, 347 (2010).

Although Kao’s chain of custody argument regarding the gas can is preserved, we find no

abuse of discretion in its admission. After the trial court sustained Kao’s initial chain of custody

objection, the Commonwealth questioned Sergeant Duffy further, and Sergeant Duffy identified

the gas can as the same gas can he collected next to Kao’s car. Such testimony was sufficient to

“afford reasonable assurance” that it was the same gas can that Sergeant Duffy collected next to

Kao’s vehicle and that it was in the same condition at trial as when Sergeant Duffy collected it.

Pope v. Commonwealth, 60 Va. App. 486, 511 (2012) (quoting Pope v. Commonwealth, 234 Va.

114, 121 (1987)). Thus, the trial court did not abuse its discretion in admitting the gas can.

III. CONCLUSION

For the reasons stated, the trial court did not commit reversible error by admitting

evidence of Kao’s prior bad acts or by admitting the gas can recovered next to his car.

Accordingly, the trial court’s judgment is affirmed.

Affirmed.

-9-