Text Messages — Authenticating Testimony from Provider — Admissibility as Computer-Generated Evidence, Business Records, Adoptive Admissions — Reading Aloud, Interpreting Contractions — Making a Record of “Dramatic” Reading

Chewning v. Commonwealth of Virginia, 2014 Va. App. LEXIS 82 (Va. Ct. App. Mar. 11, 2014):

Eddie Wayne Chewning (the appellant) was tried by a jury and convicted of first-degree murder and use of a firearm in the commission of a felony, in violation of Code §§ 18.2-32 and 18.2-53.1. These convictions were based on his participation as an accessory before the fact to his girlfriend's murder of her mother. The appellant contends that the trial court erred by: (1) admitting records of cellular telephone texting1; (2) permitting the Commonwealth to read aloud numerous text messages between the appellant and his girlfriend; and (3) finding that the evidence was sufficient to prove that the appellant was an accessory before the fact to his girlfriend's crimes. We hold that the trial court did not err with regard to any of these actions.  [*2] Accordingly, we affirm the convictions.

1   "Text messages are written communications from one cell phone to another cell phone." 1 Jay E. Grenig & William C. Gleisner, III, eDiscovery & Digital Evidence § 14:8, at 220 (Supp. 2012-13).

I. BACKGROUND

On July 5, 2011, seventeen-year-old Ashleigh Dye (Ashleigh) shot and killed her mother, Brenda Dye, in the family's home. At the time of the shooting, the eighteen-year-old appellant had been dating Ashleigh for about four months and was working for Ashleigh's father, Ronald Dye, Sr. (Dye), a brick mason, on a brick restoration job in Alexandria.

On the day of the shooting, the appellant rode to Alexandria as usual with Dye and Dye's son David. At the end of the work day, the appellant rode home with the Dyes but departed quickly. Dye and David went into the residence and found Brenda Dye dead on the bathroom floor. Near her body was a shotgun that belonged to Ashleigh. When sheriff's detectives interviewed Ashleigh, she confessed to shooting her mother and then ransacking the bedrooms to "cover up" the murder before leaving for work.

Detectives also interviewed the appellant. He initially denied knowing anything about the murder. During a second  [*3] interview, however, the appellant admitted to detectives that Ashleigh had been talking to him about wanting to kill her mother. The detectives obtained a search warrant for the appellant's cell phone records, including his text messages. Based on the content of those text messages, police obtained warrants charging the appellant as an accessory before the fact to the crimes.

In the hour-long interview that followed the appellant's arrest, Detective Michelle Gibbons had "a packet" of the text messages that had been sent between Ashleigh and the appellant on July 5, 2011. The appellant admitted exchanging text messages with Ashleigh on that date. Gibbons confronted the appellant with the specific language of some of the text messages in which he encouraged Ashleigh to kill her mother and referred to their apparent plan. The appellant equivocated about his involvement, claiming first that he told Ashleigh in a telephone call around lunchtime not to kill her mother, but later admitting that "nobody could get through to [Ashleigh] but [him]" and that he could have stopped her. The testimony of Gibbons and the video recording of the interview show that when Gibbons asked the appellant "if  [*4] he had any questions [regarding] the text messages [between him and Ashleigh that were contained in the packet] or if he wanted to explain anything, [the appellant] advised [her] that it was all true."

Ashleigh pleaded guilty to murdering her mother, but the appellant denied his guilt as an accessory before the fact. At his trial, the Commonwealth offered evidence of Ashleigh's romantic relationship with the appellant; letters she wrote to him, including a reference to her plan to "KBM" or "kill bitch mom"; and ultimately, evidence that Ashleigh shot and killed her mother in the family residence on July 5, 2011.

The Commonwealth established the cell phone numbers of the appellant and Ashleigh and sought to admit phone records showing the content of the text message exchanges between them before and after the murder on July 5, 2011. To provide a foundation for the admission of these cell phone and text messaging records, the Commonwealth offered the testimony of Andrea Mattia, an employee of Verizon Wireless. The Commonwealth also offered testimony from Detective Gibbons that she used the records identified by Mattia when she interviewed the appellant about the murder and that he admitted  [*5] the contents were "all true." The appellant objected to admission of the records on hearsay grounds. After hearing argument from the parties, the trial court admitted the records for the truth of their content.

The appellant also objected to the Commonwealth's decision to have the prosecutor and Detective Gibbons read aloud to the jury a portion of the text messages contained in the cell phone records exhibit, arguing that reading them would be prejudicial. Additionally, he noted that the text messages appeared to contain some misspellings, contractions, and abbreviations and argued that it would be error to allow Gibbons or the prosecutor to interpret those items. The trial court overruled the objection, stating no evidence suggested that allowing the exhibit to be read aloud would "lend[] some super credence or some potential prejudice" to the exhibit and that the appellant could address in closing argument the interpretation of any contractions or abbreviations that he contended were inaccurate.

Detective Gibbons read the portion of the text messages sent from Ashleigh's phone to the appellant's phone, while the prosecutor read the text messages sent from the appellant's phone to  [*6] Ashleigh's phone. The messages covered the time from before the murder through the period after the appellant returned from work, retrieved his truck from the Dye residence, and drove to meet Ashleigh at her place of employment.

Ashleigh testified at trial that she killed her mother, in part, because the appellant told her to do so. According to Ashleigh, they discussed various ways she could commit the murder. Ashleigh confirmed that she and the appellant texted each other on the day of the murder about their plan. She testified that the appellant's encouragement and advice "enabled" her to kill her mother and that without the appellant's "advice, instigation, or help," she would not have gone through with the plan. Ashleigh said that although she had mentioned wanting to kill her mother to other boyfriends, the appellant was the only one who actually told her to go through with it.

The jury found the appellant guilty of the charged offenses as an accessory before the fact. He was sentenced to thirty-five years with ten years suspended for the murder and three years for the firearm offense. This appeal followed.

II. ANALYSIS

The appellant challenges the admissibility of the text messages  [*7] he exchanged with Ashleigh, the reading aloud of a portion of that text message exchange, and the sufficiency of the evidence to prove he was an accessory before the fact to Ashleigh's crimes. We affirm his convictions for the reasons that follow.

A. ADMISSIBILITY OF CELL PHONE RECORDS

The standard of review on appeal is well settled. "[T]he determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion." Beck v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905 (1997). "'Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.'" Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)).

"The measure of the burden of proof with respect to factual questions underlying the admissibility of [such] evidence is proof by a preponderance of the evidence." Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975). Once this threshold for proving admissibility has been met, the evidence should be admitted, and any gaps in the evidence are relevant to the trier  [*8] of fact's assessment of its weight rather than its admissibility. See Kettler & Scott v. Earth Tech. Cos., 248 Va. 450, 459, 449 S.E.2d 782, 786 (1994).

The admissibility of the Verizon Wireless records and text messages was thoroughly addressed at trial. The appellant objected to the admission of the records on hearsay grounds. The Commonwealth contended that two hearsay exceptions supported admission of the documents. The prosecutor asserted that the records themselves were kept in the ordinary course of business and were admissible under the business records hearsay exception. As to the text message content within the records, the Commonwealth argued that the appellant's texts were admissible under the hearsay exception for admissions of a party opponent. The prosecutor further suggested that Ashleigh's texts were not hearsay because they were offered merely to show their effect on the listener rather than to prove the truth of their content. Alternatively, the Commonwealth argued that Ashleigh's statements were adoptive admissions of the appellant because he told Detective Gibbons that the text messages in the packet were all true. The appellant countered that the Commonwealth failed  [*9] to prove first-level admissibility under the business records exception as well as second-level admissibility under the party or adoptive admissions exceptions.

The trial court ruled that the underlying records were admissible under the business records exception, finding that Mattia was a custodian of records and that the records were "kept regularly and ha[d] all of the earmarks of trustworthiness." Regarding the admissibility of the text message content, the trial court found that the appellant, when confronted with the text messaging records, "acknowledged the existence of [the exchanges]" and said "it's all true." The court ruled, as a result, that the appellant had made an adoptive admission of the contents of the records. The court "suggest[ed]" that the records were "not . . . hearsay at all" to the extent they were offered to prove "the fact that these exchanges did exist, not that the content of these messages were true." However, the court ultimately ruled that the text messages were admissible without limitation under the business records exception, "not only [for] the timing and placement of the calls and the number of calls, but also for the content of the texts."

The appellant  [*10] raises the same hearsay issues on appeal. We hold as a matter of law that the Verizon Wireless records themselves qualified for admission as computer-generated records not requiring hearsay analysis or, alternatively, as hearsay admissible under the business records exception. Further, to the extent that the text message content transcribed verbatim within the Verizon Wireless records contained hearsay, that content was admissible under the exceptions for party and adoptive admissions. Consequently, we hold that the trial court did not abuse its discretion in admitting either the records or the text messaging content.

1. Admissibility of the Verizon Wireless Records

Hearsay is "'testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.'" Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (emphases added) (quoting Charles T. McCormick, McCormick's Handbook of the Law of Evidence § 246, at 584 (Edward W. Cleary ed., 2d ed. 1972)); see also Rule 2:801 (defining a "statement" for  [*11] hearsay purposes as one made by "a person").2 "Where a human being has input information into computer data banks as records[,] . . . there is an 'out-of-court asserter' . . . ." Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 15-8, at 945 (7th ed. 2012); see Frye v. Commonwealth, 231 Va. 370, 386-87, 345 S.E.2d 267, 279-80 (1986) (analyzing records from the Division of Motor Vehicles and National Crime Information Center computer databases, which contained human data input, as hearsay admissible under the business records exception); Godoy v. Commonwealth, 62 Va. App. 113, 121 n.3, 742 S.E.2d 407, 412 n.3 (2013) (distinguishing facts involving "telephone records [that] were solely computer-generated and had no human input" from "computer records that were at least partially generated by employees" posting data by hand). If evidence is hearsay, "[it] is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule." Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476 (1999) (citation omitted).

2   Virginia's Rules of Evidence did not take effect until after the trial of this matter and expressly do not apply. See 2012 Va. Acts chs.  [*12] 688, 708; Bailey v. Commonwealth, 62 Va. App. 499, 506 n.2, 749 S.E.2d 544, 547 n.2 (2013). However, the rules were "adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules." Rule 2:102. As a result, "[c]ommon law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence." Id.

However, when a document contains only "computer generated information" and not "the repetition of prior recorded human input or observation," there is no "out-of-court asserter." Tatum v. Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135 (1994). Therefore, where records are generated entirely by a computer, traditional hearsay principles do not apply because "'[t]here exists no out-of-court declarant who could be subject to cross-examination. The scientific advances of modern technology have enabled [such] device[s] to make and record the occurrence of electronic events.'" Godoy, 62 Va. App. at 121, 742 S.E.2d at 411 (first alteration in original) (quoting Penny v. Commonwealth, 6 Va. App. 494, 498, 370 S.E.2d 314, 317 (1988)).  [*13] Based on these differences, records of a business that are wholly computer generated "'are more appropriately analyzed as a scientific test'" for purposes of determining admissibility. Tatum, 17 Va. App. at 588, 440 S.E.2d at 135 (quoting Penny, 6 Va. App. at 498, 370 S.E.2d at 316).

Computer-generated documents, like all writings, must be authenticated to be admissible. See, e.g., Proctor v. Commonwealth, 14 Va. App. 937, 938-39, 419 S.E.2d 867, 868 (1992).

   [T]he requirement of authentication . . . is the providing of an evidentiary basis sufficient for the trier of fact to conclude that the writing came from the source claimed. . . .3

. . . . The amount of evidence sufficient to establish authenticity will vary according to the type of writing, and the circumstances attending its admission, but generally proof of any circumstances which will support a finding that the writing is genuine will suffice.

Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982) (footnote added). Regarding computer-generated records, we have previously admitted such records based on evidence that the records were computer generated and the electronic device that produced the records was reliable[*14] See Godoy, 62 Va. App. at 121-22, 742 S.E.2d at 411-12; cf. Midkiff v. Commonwealth, 280 Va. 216, 218-20, 694 S.E.2d 576, 577-78 (2010) (upholding the admission of a "bit for bit copy" of a digital image from a computer hard drive over a best evidence objection where an expert in computer forensic science testified that "[e]ach [such] copy . . . is considered forensically to be an original," thereby establishing the reliability of the digital copy). See generally Friend & Sinclair, supra, § 17-1, at 1167 (suggesting that "[a]uthentication of electronic files may require a foundation explaining the manner in which the digital information is kept[] and how it was retrieved or printed to create the exhibit tendered to the court"); Boyd-Graves Conf., Va. Bar Ass'n, A Guide to Evidence in Virginia § 901 cmt., at 126 (Va. Law Found. 2012 ed.) (opining that "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result is sufficient to satisfy [the authentication] requirement" of Rule 2:901).

3   The appellant's assignment of error refers to "authenticat[ion]" under "the hearsay exception for business records." Although issues  [*15] of authentication and hearsay sometimes overlap in our appellate case law, authentication is technically not a component of hearsay analysis. Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982). Compare Rules 2:801 to :804 (hearsay rule and exceptions), with Rules 2:901 to :903 (authentication and self-authentication rules). But see Code § 19.2-70.3 (indicating that the written records of a provider of "electronic communication service" disclosed pursuant to this section may be admitted into evidence under the "business records exception to the hearsay rule" when "authenticated" by an "affidavit from the custodian" as set out in the statute). A proper foundation for the admission of any documentary evidence includes authentication. Walters, 223 Va. at 451, 290 S.E.2d at 842. However, as discussed supra in the text, not all documents contain hearsay.

In this case, the prosecutor proceeded under a theory that the Verizon Wireless records were hearsay and offered them into evidence under the business records exception. We conclude, however, that the evidence establishes as a matter of law that the Verizon Wireless records were admissible as computer-generated, non-hearsay  [*16] documents. Cf. Blackman v. Commonwealth, 45 Va. App. 633, 642, 613 S.E.2d 460, 465 (2005) (recognizing that an appellate court may affirm a ruling on a ground not relied upon by the trial court if additional findings of fact are not required), cited with approval in Perry v. Commonwealth, 280 Va. 572, 579-80, 701 S.E.2d 431, 436 (2010). The trial court, in admitting the records, clearly found that the testimony of Andrea Mattia, the company's records custodian, was credible. See Witt, 215 Va. at 674, 212 S.E.2d at 297. Mattia testified about the source and reliability of the records, as required to authenticate them for admission as computer-generated records. See Godoy, 62 Va. App. at 121-22, 742 S.E.2d at 411-12.

As to the source of the records, Mattia testified that if a customer's account package includes text messaging, the company "keeps track of [the person's] text messages . . . in the normal course of business." She testified further that "[a]ll of the information [in the text messaging records comprising Commonwealth's Exhibit 28] is what was captured for what was being sent and what was being retrieved for [the appellant's phone] number." (Emphasis added). The information  [*17] "captured" included the sending and receiving phone numbers, "[each] message the sender texted," and the date and time each text message was sent. Mattia explained that all data is "captured on the server" and that this data, if not requested to be preserved, is ultimately destroyed "because the servers are not able to hold all of that forever" and "[i]t's just laid over[,] [o]ther stuff comes on top of it." Finally, Mattia confirmed that the company's legal department was "able to retrieve those text messages belonging to [the appellant's phone number] and reduce th[em] to writing." This testimony establishes that it was Verizon Wireless's computers that "captured" all the data contained in the exhibit, from the phone numbers sending and receiving the text messages and the times the messages were sent to the verbatim content of the messages themselves. Consequently, neither Verizon Wireless nor any of its employees was a declarant for purpose of the records, which were wholly computer generated.

Mattia's testimony also establishes that the records were reliable, and the trial court expressly found them "trustworth[y]." As recognized in Godoy, a court may consider a broad array of factors  [*18] in determining reliability for purposes of admitting wholly computer-generated records. 62 Va. App. at 122, 742 S.E.2d at 412. Factors sufficient to establish the reliability of computer-generated records include "regular business use and reliance." Paul R. Rice, Electronic Evidence 472-73 (2d ed. 2008); see Godoy, 62 Va. App. at 122, 742 S.E.2d at 412; see also Tatum, 17 Va. App. at 588-90, 440 S.E.2d at 135-36 (holding the reliability of a caller ID device was established by the testimony of the device's owner that it had functioned properly in the past). Thus, in analyzing the admissibility of computer-generated records, reliability principles applicable under the business records hearsay exception, although not controlling, are instructive, and we consider the appellant's objections in light of these principles.

The appellant contends that the trial court erred in holding that the text message records were reliable because Mattia did not compile the records herself and could not explain certain codes contained in the document. He further argues that because, absent a court order requiring their preservation, the records would have been "written over by other data in about three  [*19] to five days," Mattia failed to establish that the records of the text message content "were prepared in the ordinary course of business" and "meant for billing." Contrary to these arguments, we hold that the evidence supports a finding that Verizon Wireless's records were reliable and, thus, admissible as computer-generated records.

Mattia testified that the records of the text message content were prepared by the company, in the ordinary course of business for purposes of billing, for all customers whose accounts included text messaging services. She explained that although the Verizon Wireless legal team pulled the records in response to the court order requiring their preservation, she was a custodian of records for the company. Her responsibilities included obtaining a copy of those records from the legal team in order to testify about them in court. She confirmed that she checked the records to be sure they covered the phone number and time period for which the records had been requested. The trial court expressly accepted Mattia's testimony that she was a custodian of the records and that they were "kept routinely and for the purposes of the business . . . for some period of  [*20] time." The court found it insignificant, for purposes of admitting the records, that "[Mattia] was uncertain about the meaning of some non-entries." It ultimately concluded that the evidence was sufficient "to show that [the records] . . . ha[d] all of the earmarks of trustworthiness." This testimony met the evidentiary threshold required to admit computer-generated records. See Godoy, 62 Va. App. at 122, 742 S.E.2d at 412 (upholding admission based on the testimony of T-Mobile's records custodian that the records were kept and relied upon in the normal course of business and were accurate); see also State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006) (holding "printouts or transcripts of . . . text messages" were "properly authenticated" by testimony from two Nextel employees about "how Nextel sent and received text messages and how the[] particular text messages were stored and retrieved"); cf. Lee v. Commonwealth, 28 Va. App. 571, 576, 507 S.E.2d 629, 632 (1998) (holding that the testimony of a company's fraud investigator that he "had knowledge of how [the company's] records were compiled and maintained[] and . . . had access to those records as an integral part of his  [*21] responsibilities . . . for his employer" was sufficient to support admissibility under the business records exception); Rule 2:803(6) (requiring "testimony of the custodian or other qualified witness" to verify origin under the business records exception (emphasis added)).

Additionally, the fact that Mattia equivocated on cross-examination regarding how the records were used did not render them inadmissible based on reliability concerns. Mattia testified that the records were routinely relied upon for business purposes. The Commonwealth was not required to prove a specific business purpose. See Godoy, 62 Va. App. at 122, 742 S.E.2d at 412 (noting that the records were relied upon in the performance of unspecified "work-related functions"); Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989) (recognizing that the credibility of a witness who makes inconsistent statements is for the trier of fact to determine). Further, Mattia's inability to explain two line items of data containing a jumble of letters and numbers where text message content was expected to appear did not render the records inadmissible under the broad reliability principles of Godoy. Cf. Kettler & Scott, 248 Va. at 459, 449 S.E.2d at 786  [*22] (in applying the business records hearsay exception, holding that the manual performance by employees of data sorting previously done by a computer, thereby reducing reliability, went to the weight to be given the evidence rather than to its admissibility).

Finally, the fact that the evidence established that the records of the text message content would have been kept only three to five days absent a preservation order did not render them unreliable. The record supports a finding that the company used text messaging data for business purposes before the records were routinely automatically "laid over" with new records. As long as the reliability of the records is established, as it was here, the proponent need not additionally prove that the records would have been retained indefinitely or for some finite period longer than three to five days. Cf. State v. Blake, 974 N.E.2d 730, 739-41 (Ohio Ct. App. 2012) (affirming the admission of text messages under the state business records hearsay exception based on testimony that the company retained those records in the ordinary course of business for about seven days).

Thus, the evidence was sufficient to authenticate the Verizon Wireless  [*23] records as computer-generated records, and the only hearsay analysis required involves the content of certain text messages themselves.

Assuming, however, that the evidence did not establish that the Verizon Wireless records were admissible as computer-generated records, the appellant's challenge still fails because, absent such proof, their admission under the business records exception, as considered by the trial court, was also proper. Cf. Code § 19.2-70.3(F) (indicating, inter alia, that the records of a "provider of electronic communication service," not including "the contents of electronic communications," are admissible in evidence under the business records exception upon presentation of "an affidavit from the custodian of those . . . records . . . certifying that they are true and complete and that they are prepared in the regular course of business"). The business records exception permits "'the admission into evidence of verified regular entries without requiring proof from the original observers or record keepers.'" McDowell v. Commonwealth, 273 Va. 431, 434, 641 S.E.2d 507, 509 (2007) (quoting Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100, 106 (1975)); see Kettler & Scott, 248 Va. at 457-58, 449 S.E.2d at 785-86  [*24] (holding that courts apply this exception to determine the admissibility of computer records containing employee data entry).

   Business records are admitted as an exception to the hearsay rule because they have a guarantee of trustworthiness and reliability. The business must keep the records in the normal course of its business and make them contemporaneously with the event that generates them. The people who prepare them [or] for whom they are prepared must rely upon the records in the transaction of the business.

Lee, 28 Va. App. at 576, 507 S.E.2d at 632.

The same evidence that established reliability under the test for computer-generated records also supports the trial court's finding of reliability under the business records exception to the rule against hearsay. Settled principles make clear that a witness need not be the sole official custodian of business records in order to provide foundational testimony about them for purposes of the hearsay exception as long as that witness "ha[s] knowledge of how [the company's] records [are] compiled and maintained[] and . . . ha[s] access to those records as an integral part of his responsibilities . . . for his employer." Id.; see also Rule 2:803(6)  [*25] ("testimony of the custodian or other qualified witness" (emphasis added)).

As previously noted, Mattia testified that the records of the text messages were prepared by the company, in the ordinary course of business, for all customers whose accounts included text messaging services. She also stated she was a custodian of the records and that her duties included reviewing and testifying about them. The admissibility of the records was not impacted simply because Mattia, on cross-examination, expressed some uncertainty regarding precisely how the company used the records in the course of its business. See Swanson, 8 Va. App. at 378-79, 382 S.E.2d at 259. Further, the records were not rendered inadmissible by the fact that Mattia was unable to explain two jumbled line items within the document of over 250 text messages. See Kettler & Scott, 248 Va. at 459, 449 S.E.2d at 786. Finally, admissibility under the business records exception does not require that the records would have been retained for longer than three to five days. See Blake, 974 N.E.2d at 739-41. Consequently, Mattia's testimony met the evidentiary threshold required to admit the Verizon Wireless records under the business  [*26] records exception.

Based on the evidence in this case, we conclude that a reasonable jurist could hold that the Verizon Wireless records were admissible and, therefore, the trial court did not abuse its discretion in admitting the records.

 

2. Admissibility of Text Message Content

The appellant also contends that the Verizon Wireless records were inadmissible because his and Ashleigh's statements contained in the records were hearsay and lacked indicia of trustworthiness. Contrary to the appellant's argument, the vast majority of the text messages were simply not hearsay in the appellant's trial for being an accessory before the fact; consequently, they were admissible once the underlying records were held admissible. Further, assuming that a small number of the text messages in the Verizon Wireless records were hearsay, they were admissible against the appellant under an established exception to the rule against hearsay, as either admissions by a party opponent or adoptive admissions.4

4   The prosecutor argued that some of the text messages were admissible as non-hearsay for purposes other than proving the truth of their content. He averred, in the alternative, that any hearsay in the texts  [*27] was admissible under the exceptions to the hearsay rule. The trial court expressly admitted all the texts for their truth. Consequently, as to the few texts that we assume were hearsay when admitted for their truth, we analyze them under hearsay principles.

a. Admissibility of Certain of the Appellant's Text Messages

"It is well established . . . that an out-of-court statement by a criminal defendant, if relevant, is admissible as a party admission, under an exception to the rule against hearsay." Bloom v. Commonwealth, 262 Va. 814, 820, 554 S.E.2d 84, 87 (2001), aff'g 34 Va. App. 364, 542 S.E.2d 18 (2001); see also State v. Espiritu, 176 P.3d 885, 890-91 (Haw. 2008) (holding "actual text messages" from the defendant were admissible under the party admissions exception). The appellant contends on brief that "[w]ithout an express acknowledgement of [each of] the statements by their alleged maker, they could not be offered as statements of a party opponent." We disagree.

This Court has previously held that Internet conversations conducted through instant messaging are in some respects "analogous to telephone conversations." Bloom, 34 Va. App. at 369-70, 542 S.E.2d at 20. Well-established  [*28] principles provide that "[c]onversations overheard on a telephone are admissible if direct or circumstantial evidence establishes the identity of the parties to the conversation. [Similarly,] [m]essages received over the [I]nternet are admissible against the sender if the evidence establishes the identity of the sender." Id. (citation omitted); cf. Bloom, 262 Va. at 822 n.2, 554 S.E.2d at 88 n.2 (affirming but refraining from adopting this Court's holding that conversations over the Internet are analogous to telephone conversations because Internet communications do not provide an "opportunity for voice recognition"). These same principles apply to text messages sent from a cellular telephone. Although the type of evidence used to prove the identity of a telephone caller may be different from that used to prove the identity of one who sends a text or Internet message, the governing legal standard is the same--proof by a preponderance of direct or circumstantial evidence, see id. at 820-21, 554 S.E.2d at 87.

Under the applicable preponderance of the evidence standard, the record supports a finding that the appellant made the statements contained in the texts sent from his phone on July  [*29] 5, 2011. The appellant admitted to Detective Gibbons that the phone from which the texts were sent was his phone. The appellant also admitted exchanging text messages with Ashleigh on July 5. When Detective Gibbons showed him the packet of text message records, after having discussed specific content within, and asked if there was anything in the packet that he "want[ed] to explain," the appellant ultimately admitted, "You have it right there in front of you," "It's just all true," and "I guess every single thing in there is true." This evidence met the foundational requirement of proving that the appellant was the person who sent the text messages from his phone to Ashleigh's phone on July 5, 2011. Thus, the appellant's texts were admissible under the party admissions exception to the rule against hearsay.

b. Admissibility of Certain of Ashleigh's Text Messages

Assuming that some of Ashleigh's text messages were admitted for their truth and, thus, also constituted hearsay, those messages were admissible as adoptive admissions. Just as the statements of a party opponent are admissible as an exception to the hearsay rule, statements made by others and adopted by that party as his own  [*30] are also admissible as a hearsay exception. Lynch v. Commonwealth, 272 Va. 204, 208-09, 630 S.E.2d 482, 484-85 (2006), aff'g 46 Va. App. 342, 617 S.E.2d 399 (2005). The appellant contends that "[w]ithout an express acknowledgement of [each of] the statements by their alleged maker, they could not be offered as . . . an adoptive admission." Once again, we hold that the applicable legal principles applied to the facts in evidence, viewed in the light most favorable to the Commonwealth, support a contrary conclusion.

A party may manifest his adoption of the admissions of another either impliedly, through his silence or conduct, or expressly, through "'oral or written statements of the party.'" Lynch, 46 Va. App. at 350-51, 617 S.E.2d at 403 (quoting Charles E. Friend, The Law of Evidence in Virginia § 18-49(c) (6th ed. 2003)). Consequently, the trial court was required to determine only "whether, in light of the [overt] verbal or non-verbal response, 'there [were] sufficient foundational facts from which the jury could infer that [the appellant] heard, understood, and acquiesced in the statement[s].'" Id. at 352, 617 S.E.2d at 404 (quoting United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001))  [*31] (internal quotation marks omitted).

In the same way that the appellant admitted ownership of his texts in the packet of records, he also adopted Ashleigh's texts, telling Detective Gibbons, "It's just all true." This evidence supports the trial court's explicit finding that the appellant adopted Ashleigh's text messages as his own, making them admissible to prove the truth of the matters asserted in those texts.

Thus, we hold that the trial court did not err in admitting the Verizon Wireless records. Additionally, to the extent that some of the text message content within those records was hearsay, those hearsay statements were admissible under the exception for either admissions by a party opponent or adoptive admissions.

B. READING ALOUD THE EXCHANGE OF CERTAIN TEXTS

The appellant contends that the trial court erred in permitting the prosecutor to read aloud texts attributed to the appellant while Detective Gibbons read aloud texts attributed to Ashleigh. The appellant claims that allowing certain text messages to be presented in this way amounted to "a dramatic reading" creating "an absolute risk . . . [of] plac[ing] undue weight on the texts which could confuse or enflame the jury."  [*32] He also suggests that allowing the readers to interpret certain abbreviations and contractions within the text messages added to the risk of prejudice.

Under settled principles, the trial court "is allowed very considerable latitude with respect to the substance and form of the parties' presentation of the case." Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987). We applied this principle in Pryor v. Commonwealth, 48 Va. App. 1, 628 S.E.2d 47 (2006), when we rejected a defendant's claim that was similar to the one raised here. In Pryor, the Commonwealth sought to have read aloud to the jury the preliminary hearing testimony of a key witness who was unavailable at the time of trial. Id. at 8, 628 S.E.2d at 50. The defendant contended that the reading constituted "an impermissible 'reenactment.'" Id. at 10 n.6, 628 S.E.2d at 51 n.6. In rejecting the defendant's argument, we relied on the principle that the "'manner of the introduction of evidence' involves a core aspect of the trial court's discretion" and that the court's ruling on such a matter will not be reversed on appeal absent an abuse of this discretion resulting in prejudice to the defendant's case. Id.  [*33] (quoting Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 606 (1990)) (internal quotation marks omitted). The same principles apply here.

In this case, the exhibit containing the text messages had already been admitted into evidence when the issue arose about reading certain portions aloud. Each text message record contained, in addition to the text content, extensive extraneous information, much of which was neither understandable to the jury nor relevant to the case. The exhibit was ninety pages long. Each page contained only three or four texts. In light of these facts, and applying the correct legal standard, we hold that the trial court did not abuse its discretion in concluding that allowing the prosecutor to read some of the appellant's texts and the detective to read some of Ashleigh's texts was a useful tool in the pursuit of truth rather than an overemphasis creating additional prejudice to the appellant beyond the permissible prejudice that flowed from the evidence itself. See Muhammad v. Commonwealth, 269 Va. 451, 487, 518-19, 619 S.E.2d 16, 36, 55 (2005) (upholding a ruling admitting a video showing a re-creation of shootings that occurred from the trunk of a car);  [*34] Mackall v. Commonwealth, 236 Va. 240, 253-54, 372 S.E.2d 759, 768 (1988) (upholding a ruling allowing the medical examiner to "insert[] . . . a knitting needle into a styrofoam . . . head" in conjunction with testimony about the trajectory of a bullet).

Additionally, other than the appellant's claim that permitting the texts to be read aloud would amount to "a dramatic reading," the record is silent as to the manner in which the prosecutor and detective actually read the text messages. See Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (holding that an appellant bears the burden of submitting a record that enables the court to determine whether there has been an abuse of trial court discretion). On this record, we are unable to discern any prejudice beyond that resulting from the content of the statements themselves, already determined to be admissible for their truth in Part II(A). Thus, we hold that the trial court did not err in permitting the reading.

Further, we conclude that allowing the prosecutor and detective some leeway to interpret various everyday abbreviations and misspellings in the texts they read aloud was not an abuse of the trial court's discretion.  [*35] See Law v. Commonwealth, 39 Va. App. 154, 159-60, 571 S.E.2d 893, 896 (2002). In many instances following the appellant's objection on this ground, which came early in the course of the reading, the readers spelled aloud the words that were abbreviated or misspelled so that the jurors could draw their own inferences. Additionally, in overruling the objection, the trial court made clear that the appellant was free to argue to the jury that the reader had misinterpreted one or more abbreviations or misspellings. The appellant, however, did not challenge any of these interpretations in his closing argument, nor on appeal does he point to any particular errors as unduly prejudicial. Once again, therefore, we find no prejudice beyond that resulting from the content of the statements themselves, and we hold that the trial court did not abuse its discretion by permitting the limited interpretation of abbreviations and misspellings provided by the readers.

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