Dalton v. Commonwealth

• Citation: 769 S.E.2d 698,64 Va.App. 512
• Decision Date: 31 March 2015
• Docket Number: Record No. 2385–13–3.
• Parties: Darius Oneil DALTON v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

64 Va.App. 512

769 S.E.2d 698

Darius Oneil DALTON

v.COMMONWEALTH of Virginia.

Record No. 2385–13–3.

Court of Appeals of Virginia.

March 31, 2015.

Terry N. Grimes (Terry N. Grimes, Esq., P.C., Roanoke, on briefs), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge HUFF, Judges PETTY and McCULLOUGH.

Opinion

GLEN A. HUFF, Chief Judge.

Following a jury trial in the Circuit Court of the City of Radford (“trial court”), Darius Oneil Dalton (“appellant”) was convicted of distribution of cocaine, in violation of Code § 18.2–248(C), and sentenced to five years' incarceration. On appeal, appellant presents the following assignments of error:

1. The trial court abused its discretion by admitting certain text messages as each contained inadmissible hearsay and was admitted without proper foundation and authentication.

2. The trial court abused its discretion by permitting Paul Warren to testify as to the contents of a text message, not produced in discovery, and without accounting for its absence in violation of the best evidence rule.

3. The trial court erred by failing to grant [appellant's] motion to strike and set aside the verdict as the evidence was insufficient to support a finding beyond a reasonable doubt that [appellant] distributed cocaine.

For the following reasons, this Court affirms the rulings of the trial court.

I. BACKGROUND

On appeal, “ ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ). So viewed, the evidence is as follows.

On October 24, 2011, Radford City police officers executed a search warrant at a house where Paul Warren (“Warren”) was living with three roommates. The search commenced after Warren accepted a package of marijuana sent through the mail. After the search, Detectives Eric Martin (“Martin”) and Jimmy Smith (“Smith”) asked Warren whether he would be willing to work as a “confidential informant” in exchange for “consideration” of his charges.¹ Warren agreed to do so and provided the officers with the name of a man he knew only as “Streetz.”

Warren testified that “[Streetz] used to live behind [his] house” while Warren was a student at Radford. Warren testified that he met Streetz “face-to-face” “about 100 times.” Additionally, Warren testified that he had communicated with Streetz via phone calls and text messages “hundreds” of times. At appellant's trial, Warren identified appellant as the man he knew as “Streetz.”

Warren additionally testified that, as a confidential informant and pursuant to the direction of the officers, he texted appellant to ask if he could “get a G,”² to which appellant responded, “[y]eah.” Appellant objected to this testimony, arguing that “[w]e need the text” because Warren's testimony was “not the best evidence.” The trial court overruled this objection. On cross-examination, Warren testified that he could not produce these text messages because he no longer had that phone.

Appellant agreed to sell Warren one gram of cocaine for $55. Consequently, Martin and Smith searched Warren and his vehicle to ensure he had no existing cocaine about his person, gave Warren $55 in cash to make the purchase from appellant, and equipped Warren with audio equipment to record the buy. Warren then drove to Apartment L at 1205 Clement Street, which he identified as Streetz's apartment and testified that he had been to it roughly “[f]ifty” times. Martin and Smith followed appellant in an unmarked police vehicle while listening to the live audio feed.

After Warren arrived, appellant's roommate, Jaleesa Coverdale (“Coverdale”), opened the door and let Warren inside. Warren walked into the kitchen where appellant was weighing out one gram of cocaine. As appellant was doing so, Warren told appellant that he had just “aced” an exam in his “ECON 106” class. Appellant responded by informing Warren that he took the same class when he was at Radford and asked whether the same professor was still teaching it.³ Additionally, the two men discussed a NASCAR race that was taking place that weekend in Martinsville, VA, appellant's plans to go home for the weekend, and the possibility of future drug transactions. Finally, as he was leaving the apartment, Warren said goodbye to Coverdale and “Streetz.”

After the controlled buy, Warren gave Martin and Smith a clear plastic bag containing 0.924 gram of a white, powdery substance later determined to be cocaine. The officers searched Warren and his vehicle again to ensure that he did not have any other drugs or money.

Appellant testified on his own behalf at trial. Specifically, he admitted that he lived with Coverdale in Apartment L at 1205 Clement Street in October 2011, that he had attended Radford University where he took ECON 106, and that he had met Warren. Appellant denied selling cocaine to Warren, denied that his voice could be heard on the audio tape, denied that Warren was ever inside of his apartment, and denied using the nickname “Streetz.” Additionally, appellant was unable to state whether he was home on the day of the controlled buy—October 25, 2011—and suggested that he and Coverdale might have been at a friend's house, out to eat, or at one of “many different places.” He further suggested that his taking ECON 106 at Radford and knowing about the race in Martinsville were coincidences.

During the Commonwealth's case-in-chief, appellant objected to the admission into evidence of two screenshots⁴ of text messages that Warren received on his cell phone. The text messages were from someone purporting to be “streets” in the first screenshot and “streetz” in the second. The messages informed Warren that “streetz” had lost his old phone, had gotten a new number, and was requesting that Warren provide “streetz” with “mikez” and “kellemz” phone numbers. Warren replied to these messages with a phone number.

Warren testified that the messages, which were sent two months after the controlled drug buy, were sent by appellant. Appellant objected to the admission of these screenshots into evidence on hearsay grounds, arguing that the Commonwealth had not laid an adequate foundation because the messages had not been tied to appellant and were not relevant because they were “beyond the scope of the indictment.” The trial court overruled these objections.

At the conclusion of all the evidence, appellant moved to strike the evidence as insufficient to support a conviction. In denying this motion, the trial court noted that this case turned on credibility determinations. After the jury convicted appellant, he filed a motion to set aside the verdict, arguing that he “should not have been convicted based upon the [un]corroborated testimony of ... Warren” and that the trial court erred by admitting the two screenshots into evidence because they were not produced before trial, were not properly authenticated, contained hearsay, and were offered without any context. In denying this motion, the trial court cited the jury's responsibility to judge the credibility of the witnesses and the weight of the evidence. This appeal followed.

II. ANALYSIS

A. Authentication of Text Messages

On appeal, appellant first contends that the trial court erred by allowing into evidence two screenshots of text messages sent to Warren's phone. Specifically, appellant argues the text messages in the screenshots constituted hearsay because they could not be authenticated as being sent to Warren by appellant. Assuming without deciding that the trial court abused its discretion by admitting the text messages, ⁵ this Court nevertheless affirms the trial court's judgment as harmless error.

“ ‘No trial is perfect, and error will at times creep in.’ ” Lavinder v. Commonwealth, 12 Va.App. 1003, 1009, 407 S.E.2d 910, 913 (1991) (quoting Parsons v. Commonwealth, 154 Va. 832, 852, 152 S.E. 547, 554 (1930) ). “ ‘Every man is entitled to a fair trial and to nothing more, and so ... out of the imperative demands of common sense, has grown the doctrine of harmless error.’ ” Id. (quoting Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928) ) (omission in original). As “[t]he effect of an error on a verdict varies widely ‘depending upon the circumstances of the case,’ ... [e]ach case must ... be analyzed individually to determine if an error has affected the verdict.” Id. (quoting Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 164 (1978) ).

Code § 8.01–678, Virginia's harmless error statute, provides that

When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed ... (2) For any other defect, imperfection, or omission in the record, or for any error committed on the trial.

Code § 8.01–678 has been applied in both criminal and civil cases. See, e.g., Greenway v. Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). “In a criminal case, it is implicit that, in order to determine whether there has been ‘a fair trial on the merits' and whether ‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error substantially influenced the jury.” Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (quoting Code § 8.01–678 ).

Accordingly, in Virginia the test for non-constitutional harmless error under Code § 8.01–678 in a criminal case, as adopted by the Supreme Court in Clay, is as follows:

“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened

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