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Ramos v. Commonwealth

Court of Appeals of Virginia

November 12, 2019



          John P. Joyce (Snook & Haughey, P.C., on brief), for appellant.

          Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judges Petty and Huff Argued at Richmond, Virginia


          GLEN A. HUFF, JUDGE

         Alex Michael Ramos ("appellant") appeals his conviction for malicious wounding in violation of Code § 18.2-51 for his participation in a fight at the disturbances arising out of the "Unite the Right" rally in Charlottesville. After a jury trial in the Circuit Court for the City of Charlottesville, the jury convicted appellant, and the trial court sentenced him to six years' imprisonment in accordance with the jury's recommended sentence.

         Appellant raises three assignments of error. First, he argues the trial court erred by not excusing, for cause, jurors who were aware that another defendant was convicted the prior day for a malicious wounding of the same victim in the same incident. Second, he argues the trial court erred by denying his motion to change venue. Third, he argues the trial court erred in denying his motion to strike because the evidence was insufficient to prove he acted with the requisite malice.

         This Court disagrees with appellant's assertions. First, this Court declines to create a per se rule requiring a trial court to strike those familiar with another defendant's conviction. Second, appellant waived his change of venue claim by failing to renew it after a jury was empaneled. Third, a single punch to the head is a significant enough attack from which the jury could infer malice when the blow was struck after the victim was already on the ground having been repeatedly struck by a mob of individuals.

         I. BACKGROUND

         "This Court considers 'the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below.'" Hawkins v. Commonwealth, 64 Va.App. 650, 652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the evidence is as follows:

         On August 12, 2017, several white-supremacist groups held the "Unite the Right" rally in Charlottesville. Deandre Harris, the victim of the malicious wounding, gathered with several friends in the area and joined a group of counter-protesters. After several hours of conflict- before the rally was scheduled to start-between rally participants and the counter-protestors, the police ordered everyone to disperse.

         As the participants and counter-protesters headed back toward the parking garages, Harris observed an acquaintance in a dispute over a flag. Believing his acquaintance was about to be stabbed with the flagpole, Harris intervened and struck the flagpole with a Maglite flashlight he had been given earlier in the morning. Harris was pepper sprayed. A general melee broke out. As Harris stumbled away, he was struck. The group of people fighting moved away from him. Harris staggered to his feet and ended up surrounded again. At least three individuals other than appellant struck Harris. One used poles; one used a large stick of wood like a 2" x 4"; and another used a shield. Several of them, and a few others, kicked him at the same time. Harris fell to the ground. Appellant joined the fray. He had a shirt wrapped around his fist and might have had an object in his hand concealed by the shirt. He wound up with his fist and struck Harris while Harris was still on the ground. Harris then got up and ran away with a bloody face, stumbling as he went.

         Appellant was indicted for malicious wounding in violation of Code § 18.2-51. Before trial, he moved for a change of venue. He argued the publicity and public outcry over the violent events of that day made it impossible for him to receive a fair trial before an impartial jury. The trial court declined to grant the motion before jury selection, taking the motion under advisement and inviting appellant to renew his motion during voir dire. Appellant never renewed the motion or further requested a ruling on the motion. After the jury had been sworn and the first witness had testified, the Commonwealth noted that the motion for a change of venue had not been finally ruled on, and the trial court then denied the motion.

         Jacob Goodwin, the individual with the shield who participated in attacking Harris, was tried on the two days immediately before appellant's trial. Goodwin was found guilty of malicious wounding and sentenced to ten years' imprisonment. See Goodwin v. Commonwealth, ___ Va.App. ___, ___ (Nov. 12, 2019). During voir dire in appellant's trial, it was discovered that some in the venire were aware, to varying extents, of Goodwin's conviction. One potential juror, R.A., saw a headline about Goodwin's conviction, but did not read the story. Another, M.W., knew Goodwin was convicted and sentenced to ten years' imprisonment, but did not know the charge on which he was convicted. The potential juror who knew the most, L.T., stated he knew the previous defendant was ...

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