Jones v. Commonwealth

• Decision Date: 10 March 2020
• Docket Number: Record No. 1929-18-3
• Parties: Antonio JONES v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 597

838 S.E.2d 563

Antonio JONES

v.COMMONWEALTH of Virginia

Record No. 1929-18-3

Court of Appeals of Virginia, Lexington.

MARCH 10, 2020

Sheila Moheb-Khosrovi (Moheb Legal Defense, PLLC, on brief), for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and O’Brien

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Antonio Jones appeals his conviction for aggravated sexual battery of a child at least thirteen years old but younger than eighteen, in violation of Code § 18.2-67.3. He argues that the trial court erred by admitting into evidence the victim’s recorded statements about the conduct constituting the offense made during a conversation with him. The appellant also contends that the trial court erred by admitting parts of his recorded statements because they were "misleading and confusing." For the following reasons, we affirm the conviction.

I. BACKGROUND¹

The appellant’s stepdaughter, S.N., accused the appellant of sexually abusing her in 2015 when she was sixteen years old. After S.N. spoke with her mother about the appellant’s conduct, she and her mother confronted him about the abuse. S.N.’s mother recorded that conversation on her mobile phone.

Before trial, the appellant moved in limine to exclude the entire recorded conversation, arguing that "the tone of [his] voice and his vocabulary" would be "highly prejudicial" and not probative. He also objected on hearsay grounds to the admissibility of the victim’s statements on the recording. Regarding the victim’s recorded statements, the Commonwealth argued that they were not offered for their truth but instead to "provide[ ] the context for [the appellant’s] response" to her accusation during the conversation. After reviewing the recording, the trial court ruled that portions of it were admissible. It admitted the parts of the recording containing the accusation by the victim and the appellant’s statements in response.²

At trial, S.N. testified that the appellant entered her bedroom in the early morning before anyone else in the house was awake and "jumped on" her. He kissed S.N. on her "neck and ... face" and asked her to come into the living room. According to S.N., once in the living room, the appellant continued to molest her and kissed her "neck and [her] breasts." The appellant also rubbed S.N.’s vagina through her clothing.

The Commonwealth introduced into evidence, over the appellant’s objection, a redacted version of the recorded conversation between S.N., her mother, and the appellant. This recording, in its unredacted form, had been the subject of the motion in limine . The court overruled the appellant’s hearsay objection and admitted the edited recording.

The jury found the appellant guilty of aggravated sexual battery.³ The trial court imposed the jury’s sentence of a term of four years in prison.

II. ANALYSIS

The appellant contends that the trial court erred by allowing into evidence portions of the recording of a conversation between the victim, her mother, and him regarding the instant offense. The challenge consists of two distinct assignments of error. One relates to the victim’s statements, and the other relates to the appellant’s own statements.

A. The Victim’s Redacted Statements

The appellant argues that the trial court erred in admitting S.N.’s recorded statements because they were inadmissible hearsay.

"[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." Johnson v. Commonwealth, 70 Va. App. 45, 49, 824 S.E.2d 14 (2019) (quoting Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901 (2013) ). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664 (2015) ). A reviewing appellate 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. (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634 (2009) ). "[B]y definition," however, a trial court "abuses its discretion when it makes an error of law." Coffman v. Commonwealth, 67 Va. App. 163, 166, 795 S.E.2d 178 (2017) (quoting Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132 (2014) ).

Here, the recording was the subject of a motion in limine and an in camera review by the trial court. Ultimately, the court ruled that portions of the recording were admissible. It admitted into evidence a redacted recording of the relevant parts of the conversation among the victim, her mother, and the appellant.

At one point during the edited recording, S.N.’s mother asked S.N. to tell the appellant "what he did" to S.N.⁴ S.N. said:

You was like kissing on me and stuff but it wasn’t like when you at least told me to come to the living room and I came to the living room and then you started like kissing on me and like pulled down my shirt and stuff and like messed with my privates ....

In response, on the recording, the appellant explained his version of events. The appellant initially said that he did not remember "that stuff" and claimed that he just wrestled with S.N. and gave her a "wedgie." Then he explained that he thought that he did not remember the offense because he had "prayed to the Lord to wipe this stuff out of [his] head." He acknowledged that his conduct went "too far," and he apologized repeatedly. The appellant asserted that he was "not a pervert" or a "pedo[ph]ile."

Key to our analysis is first whether the victim’s statements are hearsay at all. If so, only then does the reviewing court determine whether they fall under an exception to the rule against hearsay.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Va. R. Evid. 2:801(c). "If a statement is offered for any purpose other than to prove the truth or falsity of the contents of the statement, such as to explain the declarant’s conduct or that of the person to whom it was made, it is not objectionable as hearsay." Hamm v. Commonwealth, 16 Va. App. 150, 156, 428 S.E.2d 517 (1993). Accordingly, "[d]etermining whether a statement is offered to prove the truth or falsity of the matter asserted requires an analysis of the purpose for which the statement is offered into evidence." Swain v. Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116 (1998). "In short, if a statement is not offered for its truth, it is ... not hearsay ...." Bennett v. Commonwealth, 69 Va. App. 475, 489, 820 S.E.2d 390 (2018). In contrast, if evidence is hearsay, it "is inadmissible unless it falls within one of the recognized exceptions" to the rule against hearsay. Melick v. Commonwealth, 69 Va. App. 122, 133, 816 S.E.2d 599 (2018) (quoting McDowell v. Commonwealth, 48 Va. App. 104, 109, 628 S.E.2d 542 (2006) ); see also Va. R. Evid. 2:802.

The relevant statements by the victim were made in the context of accusing the appellant of sexual abuse. "[A]n out-of-court statement by a criminal defendant, if relevant, is admissible as a party admission, under an exception to the rule against hearsay." Atkins v. Commonwealth, 68 Va. App. 1, 8, 800 S.E.2d 827 (2017) (alteration in original) (quoting Bloom v. Commonwealth, 262 Va. 814, 820, 554 S.E.2d 84 (2001) ). Additionally, however, the law makes clear that "[w]ords which constitute a question or accusation that result in a party admission are not barred by the hearsay evidence rule" at all. Swain, 28 Va. App. at 560, 507 S.E.2d 116 (quoting Atkins v. Commonwealth, 13 Va. App. 365, 368, 412 S.E.2d 194 (1991) ). "A statement offered to provide context to an admission is not hearsay because it is not offered to prove the truth of the matter asserted therein." Id.

The appellant’s statements in the recording were admitted as party admissions, a clear exception to the rule against hearsay.⁵ See Va. R. Evid. 2:803(0). The victim’s statements to him which are at issue here were admissible in order to provide context to those admissions. See Swain, 28 Va. App. at 560, 507 S.E.2d 116. S.N.’s statements were not admitted in order to prove the truth of the matter asserted, namely that the appellant kissed S.N. and "messed with [her] privates." Consequently, those statements were not hearsay. Therefore, the trial court did not abuse its discretion in admitting the victim’s statements in the redacted recording.⁶

B. Certain Statements by the Appellant

The appellant contends that the trial court erred in admitting portions of his statements on the redacted recording into evidence because they were "misleading and confusing." He argues that the omissions of portions of the recording caused his apologies, which remained in the edited recording, to lose their context. In addition, the appellant suggests that the edits to the redacted version of the recording removed the proper context for his statements that he was tired, that he thought they were "playing[,] [b]ut that went too far," and that he was "not trying to hurt" S.N.

The appellant objected to the admission of his recorded statements prior to trial on the basis that the "tone of [his] voice and vocabulary" were "highly prejudicial" and "without probative value." He also argued that portions of the recording would place impermissible emphasis on certain parts of the victim’s testimony at trial. The appellant did not, however, object on the grounds that the edited version of the recording would mislead or confuse the jury.⁷ In fact, defense counsel acknowledged that the appellant’s "voice is recognizable and demonstratively his [voice] would be admissible."⁸ The appellant...