Simpson v. Commonwealth
| Decision Date | 21 November 2017 |
| Docket Number | Record No. 0311-16-2 |
| Court | Virginia Court of Appeals |
| Parties | THOMAS BARTHOLOMEW SIMPSON v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Rebecca M. Favret (Spencer, Meyer, Koch & Cornick, PLC; Bowen, Shah & Clements, PLLC, on briefs), for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Thomas Bartholomew Simpson ("appellant") was convicted by a jury of armed statutory burglary, in violation of Code § 18.2-91, entering the home of a person protected by a protective order, in violation of Code § 16.1-253.2, and assault and battery, in violation of Code § 18.2-57.1 On appeal, he argues that the trial court erred when it admitted certain evidence—specifically, portions of a recorded 911 call containing a child's statement audible in the background and screenshot images of text messages. For the reasons that follow, we affirm the judgment of the trial court.
"In accordance with familiar principles of appellate review, the facts [are] stated in the light most favorable to the Commonwealth, the prevailing party at trial." Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016) (citation omitted).
Appellant and Erica Simpson ("Simpson") married and had two children, J. and Z. In March 2014, after several years of marriage, the couple separated. After appellant moved out of the family home, he began sending threatening text messages to Simpson. Simpson took screenshots of many of the messages and uploaded them to her computer, and on April 2, 2015, she obtained a protective order against appellant.
Three weeks later, during the early hours of April 23, Simpson and her boyfriend, Javelle Rowe, were asleep in Simpson's home. They were in the master bedroom with the door locked. J. and Z., who were three and four years old, respectively, were asleep in their bedrooms across the hall. Before going to bed, Simpson had checked to see that the house was secured and the doors were locked. She had left a small table light burning to provide some illumination for the hallway between the bedrooms.
At approximately 1:30 a.m., Simpson and Rowe awoke to the sound of shattering glass. A few seconds later, they heard footsteps coming down the hall. Simpson ran into the suite bathroom while Rowe went to the bedroom door. Simpson heard a "banging sound" coming from the bedroom door, "[t]he sound it makes when someone hits it or kicks it." Rowe positioned himself against the door to prevent anyone from entering.
Simpson left the bathroom and returned to the bedroom to get her phone. She yelled that she was going to call the police and began dialing 911. Simpson could see Rowe trying to keep the door closed, but the intruder had managed to get a hand and arm inside the door. Theintruder was swinging a pipe, and Rowe felt himself being struck on the wrist and head with "a hard metal type of object, . . . just coming down on me very forceful."
About that time, Simpson heard appellant speak to Rowe. Asked at trial how certain she was that the voice she heard was appellant's, Simpson replied that she was very certain. Simpson also testified that she heard appellant say "it's okay, [J.]," when "[J.] said [']daddy['] in the hallway." Asked whether J. said anything in return, or whether any of her children said anything, Simpson replied that "[t]hey said [']daddy.[']" Rowe testified at trial that he heard a male voice, but did not recognize the speaker and was not sufficiently familiar with appellant to identify his voice. He heard the male "in conversation" with J. and Z., and noted that the children were
The intruder stopped hitting Rowe at about the time Rowe heard J. and Z. speaking with someone. A few moments later, Rowe opened the bedroom door and Simpson was able to go out and check on her children. In the kitchen, Simpson discovered broken window panes in the exterior door and fragments of glass scattered across the floor.
At approximately 2:00 a.m., appellant knocked on the door of a cousin who lived near Simpson's home. He told her that his mother's car was "acting up, like it was going to break down," and asked if he could sleep on her couch. She agreed to let him do so. Shortly before 2:30 a.m., First Sergeant Woodard from the Spotsylvania County Sheriff's Office arrived near the cousin's townhouse. Woodard located a car suspected to be involved in the incident at Simpson's home, a red Toyota Corolla, and inspected the area around it. Woodard found a shard of glass beside the vehicle. He also touched the Corolla's hood, and although other vehicles in the area were cold to the touch, the Corolla was warm. The car was towed to the sheriff's office and released a few hours later to its registered owner, appellant's mother. A detective testified attrial that in releasing the vehicle, he was able to drive it out of the sheriff's compound without difficulty.
Over appellant's objection, a portion of the recording of Simpson's 911 call was entered into evidence at trial. During the call, Simpson tells the 911 operator that appellant broke into her house and she thinks he is still inside. The operator tells Simpson to try and get her children, but Simpson says, A few seconds later, Simpson tells the operator, "I can hear my kids." After a few more seconds, a voice in the background says "daddy." Appellant filed motions in limine to exclude the recording of Simpson's 911 call and prohibit the introduction of Simpson's screenshots.
Appellant's first motion in limine sought the exclusion of the entirety of the recorded 911 call. With respect to the statement "daddy," audible in the background of the recording, appellant argued at the motion hearing that the statement constituted hearsay on the question of the intruder's identity. Appellant further argued that the statement would prove inherently prejudicial and tend to mislead the trier of fact, because there was no reliable way to ascertain what "daddy" meant.
The trial court granted the motion in part and denied it in part. It found that the first portion of the recording was admissible as Simpson's present sense impression of events during the break-in. The court reserved judgment on the precise point at which the recording would be truncated for admission, but noted that if the child's statement was within the admissible portion, In a subsequent opinion letter, the court ruled thatapproximately the first three minutes and seven seconds of the recording would be admissible, but did not specifically address whether the child's statement was hearsay.
Appellant's second motion in limine sought to exclude Simpson's screenshots. Appellant argued that the messages reflected in the screenshots were too vague and remote in time to be relevant and would prove more prejudicial than probative. He further contended that there was insufficient evidence that appellant was the author of the messages, and suggested that screenshots are easily manipulated. At a hearing on the motion, the trial court concluded that it lacked sufficient information to make admissibility determinations at that time. It reserved judgment on the matter, stating it would have to hear the testimony at trial and consider each screenshot as it was offered by the Commonwealth.
During trial, appellant objected to the admission of various sets of screenshots based on foundation, remoteness in time, and prejudice. The first set, which included text messages from April 2014, was ruled inadmissible because the messages predated the home invasion by approximately a year and were found too remote in time to be relevant.
A second set of screenshots, from September 2014, was ruled admissible. Simpson identified references in the messages to "our children," the fact that both children were male, the names of appellant's sister and her boyfriend, and the name of appellant's cousin. Based onSimpson's testimony, the court concluded the messages were tied to specific dates and contained specific threats relevant to the case before it and that even though they were sent several months before the incident, Simpson adequately identified the messages as coming from appellant.
Appellant objected to three additional sets of screenshots, all from November 2014. Two sets were ruled inadmissible, the first because the messages were too inflammatory and contained threats that went beyond issues of motive or intent, and the second because their content lacked sufficient specificity to connect them to the incident at issue. The third set was admitted after the trial court determined that the messages contained specific threats to Simpson based on the parties' legal conflicts.
Appellant objected to a final set of screenshots from February 2015....
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