A majority of the Court of Appeals affirmed defendant’s conviction for participating in a criminal street gang over his objections to the admissibility of evidence of prior criminal acts by two other individuals shown to be gang members by a police detective’s testimony and a stipulation.
Clark was convicted of carjacking and use of firearm in a felony. Lollis was convicted of robbery and participation in a criminal street gang. Defendant did not know either of them. A police detective testified he had observed Clark wearing colored beads associated with a particular gang. Lollis was stipulated to be a member of this same gang. Over defendant’s objection, the commonwealth at trial introduced evidence of Clark’s and Lollis’ prior criminal convictions as well as a stipulation relating to Lollis to show the required two or more predicate acts. Defendant was convicted under Va. Code § 18.2-46.2 of participating in a criminal street gang.
On appeal, defendant argues the trial court erred in admitting the prior convictions evidence on grounds of relevance and insufficient proof of a relationship with Lollis. We disagree and affirm. Trial court admissibility determinations are reviewable for abuse of discretion and the standard for establishing relevancy is relatively low. Any tendency to establish a fact at issue is sufficient under our decisions such as Holsapple v. Commonwealth, 39 Va. App. 522 (2003) (en banc). The detective’s testimony sufficiently established the relevance of the Clark conviction order. Neither the Code nor our decision in Corado v. Commonwealth, 47 Va. App. 315 (2005), require that the defendant actually know the other members of the alleged gang. Evidence need not conclusively prove a fact to be admissible. We do not consider defendant’s arguments about hearsay and constitutional rights that were not properly preserved.
Newton v. Commonwealth (Petty) No. 0721-10-1, June 28, 2011, Hampton Cir. Ct. (Taylor) Terry N. Grinnalds for appellant; Alice T. Armstrong AAG. VLW 011-7-217(UP), 8 pp.