THE COURT OF APPEALS OF VIRGINIA.
COMMONWEALTH OF VIRGINIA, Appellant: ROSEMARY VIRGINIA
BOURNE, (ESQ.), MARK RANKIN HERRING, (ESQ.).
JAYVON LARTAY BASS, Appellee: JOAN JACQUELINE BURROUGHS,
All the Justices
C. MIMS, JUSTICE.
appeal, we consider whether the Court of Appeals misapplied
the ends of justice exception to Rule 5A:18 and erroneously
reversed the defendant's conviction due to a variance
between the indictments and the evidence presented at trial.
We also consider whether the Court of Appeals erred when it
declined to address the defendant's challenge to the
sufficiency of the Commonwealth's evidence after
reversing the defendant's conviction.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Richmond police obtained warrants charging Jayvon Lartay Bass
with the robberies of Videll Smith and Freddie Brown ("
Brown" ), and the attempted robbery of Irving
Smith. These crimes arose out of a home
invasion occurring on September 2, 2013.
General District Court of the City of Richmond certified
these charges to a grand jury. The grand jury subsequently
returned indictments charging Bass with the robberies of
Irving Smith and Brown, and the attempted robbery of Videll
Smith, thereby transposing the first names of the victims
from the warrants. The grand jury also returned three
indictments charging Bass with using a firearm in the
commission of these felonies.
Bass was tried for these offenses by a jury. During the
arraignment, the court informed Bass that he was charged with
the robberies of Irving Smith and Brown, and the attempted
robbery of Videll Smith, as well as with three counts of
using a firearm in the commission of these felonies.
Testimony at Trial
testified that he was at his residence in Richmond on
September 2, 2013. Videll's roommates, " Pops"
and Irving, as well as two friends, Brown and William Ross
(" Ross" ), were also at the
residence. At some point, the circuit breaker
tripped, interrupting the air conditioning, and Videll went
outside to reset the breaker. Outside, he encountered Bass,
whom he had met the previous day during a game of cards at
the residence. Bass asked to speak with Pops, and Videll let
then went back to his bedroom. Shortly after, he heard a
" commotion" and came out into the common area. He
immediately saw a masked man holding Brown at gunpoint while
Bass moved throughout the rooms. The gunman directed Videll
and Brown to stand together against a wall, and demanded
their wallets. Brown handed over his wallet, and then Bass
accompanied Videll to his bedroom to retrieve his wallet.
Bass took Videll's wallet, which contained $85 and his
identification cards, and left the residence. After Bass
left, the gunman told Videll to go outside and look for Pops,
who had escaped as the home invasion began, which provided an
opportunity for Videll to call the police.
testified he was at the residence " socializing"
with Pops and William Ross. He observed Bass enter the house
while talking on his cell phone and ask to speak with Pops.
Shortly thereafter, a masked gunman entered the house and
began demanding money. Brown attempted to escape, but
slipped, at which point Videll and Irving came out of their
bedrooms. While the gunman was distracted by Brown, Pops and
Ross managed to get out through the back door. The gunman
ordered the three remaining men to sit at the table while
Bass went through the rooms. Then, the gunman demanded money
from the three men, and Brown gave the gunman approximately
$45, while Bass went with Videll to get his wallet from his
bedroom. The gunman sent Videll outside, then Bass left, and
the gunman left soon after.
Smith testified that he was awakened by the sound of chairs
being turned over and the back door opening. He came out of
his bedroom and saw Brown, a masked gunman, and Bass in the
common area of the residence. The gunman directed him to
empty his pockets, but he did not have anything. The gunman
told him to sit down, then Bass left through the front door,
and the gunman followed soon after.
Derrick Longoria testified that he responded to the scene.
After interviewing the witnesses, he compiled a photo lineup
that he showed to Videll the following day. Videll identified
Bass in the lineup as the individual who had taken his
wallet. When Detective Longoria interviewed Bass, he denied
ever being at the residence.
close of the Commonwealth's case, Bass moved to strike
" all the charges" on the ground that " there
has been no evidence presented that [Bass] had known who the
masked person was . . . [or that he had acted] in concert
with this masked man." Bass also identified a single
discrepancy in the witnesses' testimony, noting that
Irving had testified the gunman's face was completely
covered while the other witnesses testified the gunman's
face was only partially covered. The court denied the motion