MEMORANDUM OPINION* BY v. Record No. 1041-23-4 JUDGE RICHARD Y. ATLEE, JR. JUNE 10, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge

Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.

Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, the trial court convicted Steven Edward Thodos of two counts of attempted capital murder of a law enforcement officer, aggravated malicious wounding, three counts of use of a firearm in the commission of a felony, and grand larceny of a vehicle.1 Thodos raises multiple issues on appeal. He argues that the trial court erred by admitting certain exhibits

into evidence and by refusing to give his proffered jury instruction. He further argues that the evidence was insufficient to support his various convictions. For the following reasons, we disagree and affirm the trial court.

* This opinion is not designated for publication. See Code § 17.1-413(A).

There was also a felon in possession of a firearm charge, which the trial court severed from the other charges, that is not at issue in this appeal.

I. BACKGROUND

“On appeal, we state the facts in the light most favorable to the Commonwealth,” the prevailing party below. Newsome v. Commonwealth, 81 Va. App. 43, 48 (2024).

A. The Events at Walmart

In January 2021, Muhammed Amin was working as an asset protection associate at Walmart in Loudoun County when he observed Thodos in the health and beauty accessories aisle. Amin had seen Thodos two or three days earlier with “the same merchandise in his cart.” Amin started following Thodos through the store, and he also asked his coworker in the asset protection office to point security cameras at Thodos. Amin observed Thodos go to the self-checkout, where he watched Thodos scan and pay for some items, while placing other items in the bag without scanning or paying for them.

Amin approached Thodos and introduced himself as a loss prevention associate. He asked

Thodos to come to the loss prevention office because he had seen that Thodos did not scan some items. Thodos went with Amin, and Amin directed him to sit on a stool. There were four other people in the loss prevention office, Amin’s colleagues, Jade Pusloskie and Gurine Costa, and two customers. Once in the office, Amin separated out the items that Thodos had paid for and those he had not. Pusloskie called the police for Amin.

Within 10 to 15 minutes, Deputy Camron Gentry from the Loudoun County Sheriff’s Office arrived. Deputy Gentry obtained Thodos’s information and relayed it to dispatch. He then asked

Thodos to stand up, and Thodos complained trying to sit down, and saying “there’s no reason to be standing.” Though the interaction started off calmly, it “slowly got more tense.” Deputy Gentry tried to pat Thodos down, but Thodos resisted, using physical force to get away from Gentry.

Deputy Gentry decided to wait for backup because he wanted to prevent a “physical altercation” on his own with Thodos.

Soon after, Deputy Charles Ewing arrived. The two deputies tried to put handcuffs on

Thodos, who was “fighting back” and “actively resisting.” During the struggle, Amin asked the other people in the office to move towards the door and get out of the way. They were doing so when they heard gunshots. Amin opened the door and fled to the parking lot. Before Pusloskie ran out, she saw Thodos “shoot[] at the floor” before raising the gun up, and she “watched as Gentry was shot, maybe one or two times” before she ran out of the room. As she left, she could hear shots fired “continuously,” and she estimated she heard “five or ten” shots in addition to the ones before she left the room.^[2]

Both Deputy Gentry and Deputy Ewing fell backward, with Gentry falling to the floor and Ewing falling to one knee. After catching his balance, Ewing reached for his gun and turned to face

Thodos, who was standing approximately five feet away, aiming his weapon at the deputies and firing. Deputy Ewing fired two shots at Thodos in rapid succession, then stood up and took a third shot as he followed Thodos to the door.

Amin, who was in the parking lot, saw Thodos running towards the garden center and around the back of the building. Amin then went back to the loss prevention office, where he saw

Deputy Gentry in serious pain, covered in blood, on the floor.

Deputy Ewing initially pursued Thodos, but he turned back when he realized that Deputy

Gentry was not behind him. He returned to the loss prevention office and found Gentry “sitting down with his back against the wall, almost kind of curled up holding himself.” Ewing laid Gentry down flat and begin to assess his injuries. He placed a tourniquet on Gentry’s right leg above a

“small hole with a massive amount of blood coming out of it.” After placing the first tourniquet, he checked the rest of Gentry’s body for injuries. Ewing saw blood pooling around Gentry’s waist and leg, and he decided to place a second tourniquet on Gentry’s other leg. Eventually, Gentry was transported to the hospital.

B. The Escape Attempt

Approximately a quarter of a mile from Walmart, Ronald Simoneau was at his job at Carter

Machinery. He had been in the building for about 20 minutes when he heard a “racket” outside the building. When he looked out to see what was going on, he saw his truck, a maroon F-150 Lariat

SuperCab with two blue barrels in the back, “going down the driveway.” He tried to chase the truck, but he was unable to catch it.

Fairfax Police Officer Brandon Edwards was on patrol when he received notice to look out

for a stolen maroon F-150 that could be coming into Fairfax County in the area of “Route 28 at the 50 interchange.” Officer Edwards spotted the truck, and he started following it. When he pulled in behind the truck and radioed in his location, “the vehicle took off.” He was able to observe Thodos, whom he later identified in court. When the officer tried to initiate a traffic stop, Thodos

“accelerated at a high rate of speed” and “immediately exited” from Route 28. Edwards pursued

Thodos, who drove at “a high rate of speed well in excess of 100 miles an hour,” as he ran through

traffic signals and medians, and eventually lost control and crashed into a tree. Thodos exited the vehicle and fled on foot.

C. The Fanny Pack, Holster, and Cartridges

In Fairfax, Detective Julia Elliott documented the scene where Thodos crashed the truck.

She took photos, made diagrams, and collected evidence. After that, she went to a second location

nearby. There, she collected a red fanny pack, a holster, and cartridges. Inside the fanny pack, Elliott located a wallet containing a Tennessee photo identification card with Thodos’s picture.

At trial, Elliott testified that she was the first detective on scene, though not the first officer, and she described her evidence collection process. She testified that she collected the fanny pack, holster, and cartridges, secured them in a locker in the crime scene section, and ultimately turned them over to the Loudoun County Sheriff’s Office. The Commonwealth moved to admit the three exhibits, and defense counsel asked to voir dire Elliott. During questioning, Elliott acknowledged that some of the items had been placed “into evidence bags by a patrol officer prior to [her] arrival.”

She did not know who that officer was.

Thodos objected to the admission of all three items, arguing, among other things, that the Commonwealth had not established a chain of custody. He argued that Detective Elliott was not the first on the scene, she did not know how many officers were there before her, and she did not know who had touched or bagged some of the evidence. He argued that the initial collection was a vital link in the chain of custody. The Commonwealth argued that the chain of custody does not have to be complete, only reasonably reliable such that the items are what they are purported to be. It pointed out that Detective Elliott had not stated which items were placed in bags by other officers.

The trial court overruled the objections and admitted the items into evidence.

D. The Buccal Swab and Certificate of Analysis

Detective Michael Grimsley of the Loudoun County Sheriff’s Office obtained a warrant to collect a DNA sample from and photos of Thodos. He executed the warrant at Fairfax Hospital.

Grimsley testified that he put on gloves, opened the sealed buccal swab kit, and used the enclosed

Q-tips to collect a saliva sample from Thodos. After using the kit to get the samples, he testified

that he placed the Q-tips in a box, sealed the box, put the box inside an envelope, and sealed the envelope. He testified that he kept it in his control and possession until he arrived back at the sheriff’s office, where he turned it over to Master Deputy Matt Devaney of the Loudoun County

Sheriff’s Office Crime Scene Unit.

Master Deputy Devaney testified that he was present with Detective Grimsley at the hospital when the sample was taken from Thodos. Devaney, however, claimed that he placed the saliva samples into the bag and sealed them. He testified that he maintained the sealed package in his sole care and custody until he placed it in the property unit.

The Commonwealth sought to admit the buccal swab, and Thodos objected. Thodos noted that both Devaney and Grimsley claimed to have put the swabs in the envelope and sealed it. He

also pointed out that there was no evidence about what happened to it after it was put into the property unit. The trial court sustained the objection, finding that there was still a gap in the chain of custody.

The Commonwealth then questioned Devaney further. He testified that he sealed the item.

He stated that he knew he sealed the item because he “put an evidence sticker on it, [and] seal tape.”

He also explained the process of placing it in the property unit, which involved creating and attaching an evidence label to the bag. From there, the item is put into the evidence section, which is “a secure section.”

The Commonwealth then presented testimony from James Lockhart, a

property/quartermaster technician with the Loudoun County Sheriff’s Office, that took custody of the buccal sample from the secure evidence locker and transported it to the lab where it was received by Amanda Matthews, the evidence receiving technician. Kim Dodd, a forensic scientist with the Department of Forensic Science (“DFS”), testified that she obtained the sealed buccal swab and conducted the analysis. When she was finished, she re-sealed the item and signed the seal.

Lockhart testified that he also retrieved the sealed sample from the lab.

The Commonwealth then asked the court to admit the exhibit into evidence. Thodos sought to voir dire Dodd, who provided more detail on how the buccal swab was stored and handled while at DFS, including that Gabriella Kelly, a laboratory specialist, had moved the sealed sample from the main evidence receiving area to the section-wide vault, from which Dodd retrieved the sample to test it.

Thodos again objected to the admission of the buccal swab, arguing that there were still two breaks in the chain of custody due to the lack of testimony from Matthews and Kelly. The trial court overruled the objection. It found “that the evidence that’s been adduced is with reasonable

certainty that the item is what was collected originally, and it hasn’t been altered, substituted, or contaminated.”

Dodd then testified that her analysis of the buccal swab and the firearm determined that

Thodos could not be eliminated as the contributor of the DNA profile developed from the firearm.

She explained that she created a certificate of analysis, which the Commonwealth asked the court to

admit into evidence. Thodos objected, asking the court to redact Thodos’s name from the certificate. The trial court overruled the objection.

E. The Surveillance Videos

At trial, Amin testified about the incident in Walmart. He also described the store’s camera system, explaining it had more than 200 cameras, two of which are in the loss prevention office.

Amin testified that the cameras were working on the day of the shooting. He explained that the cameras record onto a DVR, which is in the loss prevention office. After a certain amount of time, the data is transferred to headquarters, where it is uploaded to a “cloud system,” and it is deleted from the local system. The surveillance system is password protected, and the videos cannot be altered, changed, or deleted. He clarified that he had a password that allows access to the camera system to view videos, but his password did not allow him to upload or alter anything.

Amin testified that he reviewed the footage on the day of the shooting and again a week before the trial, and he confirmed that the video was the same. He denied that the video was altered or changed in any way. The trial court admitted the video over Thodos’s objection to lack of foundation.

Courtney Sullivan, an asset protection assistant manager at Walmart, also testified about the camera system. She testified that the system was working on the day of the shooting and that access

to the DVR, on which the video recorded, required a username and password provided by the Walmart “home office.” She also testified that the recordings could not be deleted or altered on the system in the store. On the day of the shooting, she provided her password to Kristin Kennard, a digital forensic analyst for the Loudoun County Sheriff’s Office, and she showed her how to use the system.

Kennard then testified that she reviewed the footage from the time frame provided her, and she burned it onto two DVDs, which she then checked into the police property unit. The trial court admitted into evidence, without objection from Thodos, a disc that contained all the video clips from the Walmart surveillance system.

F. The Jury Instructions

When the parties submitted their proposed jury instructions to the trial court, Thodos requested Jury Instruction D, which read:

You may, but are not required, to infer based on all the facts and circumstances that Steven Thodos discharging a firearm at either Camron Gentry or Charles Ewing was done with the intent to scare the individuals and allow Steven Thodos to escape. Such an intent would tend to negate an intent to kill.

The Commonwealth objected, arguing that the jury instruction was not supported by more than a scintilla of evidence. It also noted that the Martin v. Commonwealth, 13 Va. App. 524 (1992) (en banc), case, on which Thodos relied, only required a lesser-included offense instruction. It argued that the proposed instruction was not a proper instruction and that it created a defense where there was no evidence for it.

The trial court refused the instruction. It found that the instruction was not “even a holding in the case” that was cited. The trial court was “not really convinced that it’s a statement of law more than it’s just a rationale for the ruling given in [the] case, as well as [it thought] there’s language in [the case] that is argumentative.”

After it was instructed, the jury found Thodos guilty of two counts of attempted capital murder of a law enforcement officer, aggravated malicious wounding, three counts of use of a firearm in the commission of a felony, and grand larceny of a motor vehicle. Thodos now appeals.

II. ANALYSIS

A. Admissibility of Evidence

“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.” Cheripka v. Commonwealth, 78 Va. App. 480, 494 (2023) (quoting Warnick v. Commonwealth, 72 Va. App.

251, 263 (2020)). “Under that standard, a ‘trial judge’s ruling will not be reversed simply

because an appellate court disagrees.’” Id. (quoting Hicks v. Commonwealth, 71 Va. App. 255, 275 (2019)). “Rather, a reviewing court can conclude that ‘an abuse of discretion has occurred’ only in cases in which ‘reasonable jurists could not differ’ about the correct result.” Id. at 495

(quoting Commonwealth v. Swann, 290 Va. 194, 197 (2015)). This standard also includes a

review to make sure the decision was “not influenced by any mistake of law.” Jones v. Commonwealth, 71 Va. App. 70, 86 (2019) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212-13 (2013)). Thodos challenges various evidentiary rulings made by the trial court. We address each argument in turn.

1. Walmart Security Camera Videos

Thodos argues that the trial court erred by admitting into evidence the Walmart security camera videos because the Commonwealth did not establish a proper foundation.

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the thing in question is what its proponent claims.” Va. R. Evid. ^[2]:901. “[A]uthentication does not set a high barrier to admissibility, and is generally satisfied by any form of proof that supports a finding that it is what it purports to be.”

Atkins v. Commonwealth, 68 Va. App. 1, 9 (2017) (alteration in original) (quoting Charles E. Friend

& Kent Sinclair, The Law of Evidence in Virginia § 17-1, at 1164 (7th ed. 2012)). “The measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance of the evidence.” Id. (quoting Bloom v. Commonwealth, 262 Va. 814, 821 (2001)).

“Photographs and videos are ‘generally admitted into evidence for two purposes: to illustrate a witness’ testimony, and as an ‘independent silent witness’ of matters revealed by the photograph

[or video].” Baez v. Commonwealth, ___Va. ___, ___ (Dec. 19, 2024) (alteration in original)

(quoting Bailey v. Commonwealth, 259 Va. 723, 738 (2000)). “This test for admission is an either/or test.” Bennett v. Commonwealth, 69 Va. App. 475, 487 (2018).

“A photograph [or video] which is verified by the testimony of a witness as fairly representing what that witness has observed is admissible in evidence and . . . it need not be proved

by the [individual] who made it.” Baez, ___ Va. at ___ (alterations in original) (quoting Tirado v. Commonwealth, 296 Va. 15, 26-27 (2018)). “As a silent witness, or a witness that ‘speaks for itself,’ video or photograph evidence is admissible when ‘[g]iven an adequate foundation assuring

the accuracy of the process producing it.’” Id. (alteration in original) (quoting Ferguson v. Commonwealth, 212 Va. 745, 746 (1972)).

Although Amin was not the creator of the videos, his testimony about the system established

“an adequate foundation assuring the accuracy of the process producing it.” Id. (quoting Ferguson, 212 Va. at 746). He testified that Walmart had a security camera system, it was working that day, and the videos recorded to a DVR, which was password protected. He testified that he was unable to alter, delete, or burn the videos, even with the password that he had. Further, Amin testified that

- 10 - he watched the security system videos in Walmart after the incident and at trial, and he asserted that the videos were the same and had not been materially changed or altered. This testimony is similar to other cases in which this Court concluded that video evidence was admissible. See, e.g., Vazquez v. Commonwealth, No. 0356-22-3 (Va. Ct. App. Feb. 14, 2023) (special agent testified that

extraction program did not alter videos on phone, video was taken the same day as the seizure, and video was unaltered); Penn v. Commonwealth, No. 0529-21-3 (Va. Ct. App. Mar. 8, 2022)

(testimony that video is tamper proof and sections cannot be added or deleted from the video).3

The asset protection manager also testified that the videos could not be edited or deleted.

See Ricks v. Commonwealth, 39 Va. App. 330, 336 n.3 (2002) (“[W]e consider the entire record on appeal, not just the evidence before the court at the time of the ruling.”). She also testified that she

gave her credentials to the detectives, walked the forensic investigator through how to use the system, and she helped them burn the footage on to a DVD. Viewing this evidence, we find that the Commonwealth laid a sufficient foundation for admission of the Walmart surveillance videos under the silent witness theory.

2. Buccal Swab and Certificate of Analysis

Thodos argues that the trial court erred by admitting into evidence his buccal swab and the corresponding certificate of analysis. He argues that the Commonwealth did not establish a sufficient chain of custody because two officers testified that they sealed and maintained custody over the DNA swab.

“Where evidence is seized and analyzed, ‘[t]he purpose of the chain of custody rule is to

establish that the evidence obtained by the police was the same evidence tested.’” Hargrove v. Commonwealth, 53 Va. App. 545, 553 (2009) (alteration in original) (quoting Brown v.