Turman v. Commonwealth, Record No. 0838-06-4 (Va. App. 9/25/2007)
| Decision Date | 25 September 2007 |
| Docket Number | Record No. 0838-06-4. |
| Court | Virginia Court of Appeals |
| Parties | MYRON J. TURMANY v. COMMONWEALTH OF VIRGINIA |
Appeal from the Circuit Court of Fairfax County Jonathan C. Thacher, Judge
S. Jane Chittom, Appellate Defender (Office of the Appellate Defender, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Frank, Humphreys and Senior Judge Coleman
Myron J. Turman, appellant, was convicted in a jury trial of rape in violation of Code § 18.2-61 and misdemeanor sexual battery in violation of Code § 18.2-67.4. On appeal appellant challenges (1) the admissibility of the complaining witness' testimony regarding the content of an instant message she received, and (2) the trial court's granting of a jury instruction on flight from the scene. Finding no error, we affirm the two convictions.
Under settled principles, we review the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
Appellant and the complaining witness, S.J., had been best of friends for approximately five years. During that time, S.J. was involved romantically with another man. After S.J. broke the relationship off with her boyfriend, she would often turn to appellant for advice and guidance. On one occasion after the break-up, appellant and S.J. engaged in consensual sexual intercourse.
On October 5, 2002, S.J. attended a nightclub in Washington, D.C. While there, she received a cell phone call from appellant, who wanted to know when S.J. would be arriving home at her apartment in Fairfax County. When S.J. arrived at 3:00 a.m., appellant was waiting for her in the parking lot. Uninvited, he followed her inside. Feeling uncomfortable in her eveningwear, S.J. went into the bathroom to change into her pajamas.
While appellant used the bathroom, S.J. laid on her bed. Appellant returned to the bedroom and asked if he could lie down with S.J. S.J. responded that she did not want appellant to do so. When he did, S.J. moved into the living room. Appellant followed, and eventually S.J. asked him to leave, stating that she felt "uncomfortable." S.J. again asked appellant to leave, and rather than doing so, appellant grabbed S.J. in a "bear hug" and carried her into the bedroom. Against S.J.'s protests, appellant proceeded to have vaginal and anal sex with her. S.J. recalled that she was "trying to figure out what in the world was going on, why was this gentleman acting like this." As she was kicking and scratching him, S.J. tried unsuccessfully to grasp the telephone to call police. Upon breaking free, S.J. ran into the living room, screaming at appellant to leave. Once there, she was able to grab a cordless telephone. She said, "I'm going to call the cops if you don't leave. . . ." Appellant responded that he was leaving and asked her not to call the police. He then lunged at S.J., knocking the phone out of her hand. S.J. ran back into the bedroom and called the police from there. She then heard appellant leave the apartment.
Police stopped appellant within fifteen minutes. Officer John Keenan of the Fairfax Police Department heard appellant tell another officer that he had just come from Prince William County.
A few months after the incident, S.J. received an instant message from "Myron109." S.J. testified that the message stated, "I just wanted to apologize." When she asked him why he did it, "Myron109" responded that he was on ecstasy, that he was very sorry for what he had done, and very sorry for humiliating her. Appellant had contacted S.J. in the past using the screen name "Myron109."
Testifying on his own behalf, appellant admitted having a sexual relationship with S.J. on October 5, 2002, but stated that the encounter was consensual. He also testified that his AOL instant messaging screen name is "Myron109" but that he did not send that particular message to S.J. Appellant said that two friends and his estranged wife also have access to his AOL account.
The trial court ruled that the content of the message from "Myron109" was "case specific" to the incident and admitted it into evidence. Also over appellant's objection, the trial court granted the Commonwealth's proposed jury instruction on flight from the scene of a crime.
This appeal follows.
Appellant contends that S.J.'s testimony regarding the content of the instant message is inadmissible because the Commonwealth was unable to sufficiently identify the sender, the content of the message is hearsay, and its admission violates the best evidence rule. The Commonwealth responds that the message is sufficiently connected to appellant, the statement is admissible as an exception to the hearsay rule, and S.J. sufficiently explained why a printout of the original instant message was unavailable.
`"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."' Twine v. Commonwealth, 48 Va. App. 224, 230-31, 629 S.E.2d 714, 718 (2006) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
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. The identity of the person making the out-of-court statement may be established by either direct or circumstantial evidence. "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." Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975). The trial court determines these facts, and a jury determines the weight of the evidence and the credibility of the witnesses.
Bloom v. Commonwealth, 262 Va. 814, 820-21, 554 S.E.2d 84, 87 (2001) (other citations omitted).
Appellant first contends that the instant message was not proved to have originated with appellant. We disagree.
Appellant admitted his screen name was "Myron109." Appellant testified that others had access to his AOL "account," yet he never indicated anyone else had access to his personal screen name. Further, appellant's admission to his use of ecstasy is consistent with his unexpected and unusual behavior on the night of the assault. Although no expert testified as to the effects of ecstasy, appellant recognized in the instant message that his personality was altered because of the drug. We note also that S.J. testified that she did not understand "why this gentleman was acting like this" and that she was "in disbelief that I'm going through this with this individual." Moreover, S.J., who considered appellant a best friend of five years, testified that at the time she thought "[t]his is the person that I would least expect to act like this." Thus, appellant's statement that he was "on ecstasy when he did it" sufficiently identifies him as having knowledge of the rape and as the sender of the message. We believe that the Commonwealth has shown, by a preponderance of the evidence, that appellant was the individual who sent S.J. the instant message.
Appellant next contends that the statement was hearsay, being an out-of-court statement admitted for the truth of the matter. The Commonwealth responds that the statement is a party admission, an exception to the hearsay rule.
"A party relying upon an exception to the hearsay rule for the admissibility of evidence bears the burden of persuading the court that the evidence falls within the exception." Lynch v. Commonwealth, 272 Va. 204, 207-08, 630 S.E.2d 482, 484 (2006).
The Commonwealth proved that appellant was the sender of the message. Land v. Commonwealth, 211 Va. 223, 229, 176 S.E.2d 586, 590-91 (1970) (citations omitted). In his message, appellant not only apologized for "what he had done," but he acknowledged S.J.'s humiliation and blamed ecstasy for his uncharacteristic behavior. Appellant's admission to using ecstasy acknowledges an additional crime. See Jordan v. Commonwealth, 273 Va. 639, 642, 643 S.E.2d 166, 168 (2007) (); Code § 18.2-250 (). Clearly, the statement was a party admission that tended to show appellant's guilt. See Bloom, 262 Va. at 820, 554 S.E.2d at 87.
Finally, appellant argues that S.J.'s testimony as to the content of the instant message is not the best evidence as to its existence. Appellant contends that because an instant message is a "writing" as contemplated by the best evidence rule, the Commonwealth has not sufficiently explained why a printout of the message is unavailable.1
The best evidence rule provides that "where the contents of a writing are desired to be proved, the writing itself must be produced, or its absence sufficiently accounted for before other evidence of its contents can be admitted." Randolph v. Commonwealth, 145 Va. 883, 889, 134 S.E. 544, 546 (1926). Only when sufficient evidence discloses that the primary evidence is not available may secondary evidence be admitted. See generally Bradshaw v. Commonwealth, 16 Va. App. 374, 380, 429 S.E.2d 881, 885 (1993) ...
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