COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Beales and Decker Argued at Salem, Virginia PUBLISHED

MITCHELL LARNELL BENNETT

OPINION BY

v. Record No. 1200-17-3 JUDGE MARLA GRAFF DECKER NOVEMBER 20, 2018 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF AMHERST COUNTY F. Patrick Yeatts, Judge Gregory W. Smith for appellant.

Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Mitchell Larnell Bennett appeals his conviction for drug distribution, a third or subsequent offense, in violation of Code § 18.2-248. He contends that the admission of video and audio recordings reflecting the drug sale violated his constitutional right of confrontation. He also challenges the sufficiency of the evidence to prove that he was the seller of the illegal drugs. We hold that admission of the recordings did not violate his constitutional right to confront the witnesses against him. We further conclude that the evidence proves the charged offense. Consequently, we affirm the conviction.

I. BACKGROUND1

The challenged conviction arises out of a controlled purchase of illegal drugs made by an informant on April 28, 2016. The informant died prior to the appellant’s trial. Subsequent to the Under the applicable standard of review, we view the evidence in the light most favorable to the Commonwealth as the party who prevailed below. See, e.g., Riner v. Commonwealth, 268 Va. 296, 303, 327, 601 S.E.2d 555, 573, 558 (2004). informant’s death, the appellant made a motion to exclude video and audio recordings depicting the controlled purchase, as well as photographs made from the video. The court heard evidence and argument on the motion and denied it.^[2] After taking additional evidence, the court found the appellant guilty.

A. Testimony Regarding the Controlled Purchase

Investigators Brandon Hurt, Jason Staton, and James Begley of the Amherst County Sheriff’s Office oversaw the controlled purchase. The investigators used a “live” audio feed, which they monitored as the sale occurred. They also made separate audio and video recordings of the transaction, which they were able to review only afterward. All three investigators knew the appellant personally and identified his voice on the audio feed and audio recording. Investigators Hurt and Staton also identified the appellant in the video and photographs made from the video. Additionally, Investigator Begley had known the informant for several years and was “[v]ery familiar” with his “prior work” with law enforcement.

Immediately before the transaction, Investigators Hurt and Staton searched the informant, his cigarette pack, and his motorcycle, and found no contraband. The investigators then equipped him with an audio and video recording device, which was “essentially . . . a cell phone.” They listened as the informant made a telephone call in which he spoke to the appellant.

Investigator Hurt confirmed that during the phone conversation between the appellant and the informant, the informant made “reference” to “two funny sticks.” Hurt, a narcotics investigator familiar with “lingo” in “the drug trade,” explained that this term “referr[ed] to tobacco cigarettes dipped in PCP.” He testified further that the informant also mentioned “the whole 3.5,” which, in context, meant “an eight ball or three and a half grams of crack cocaine.”

The investigator indicated that based on the conversation, these were the items that he expected the informant to purchase from the appellant. When the phone call ended, Hurt gave the informant $270 with which to buy the drugs.

The informant then rode his motorcycle to a second location. The investigators followed him and confirmed visually that he did not “stop anywhere or do anything” on the way. From the new location, the informant engaged in a second telephone conversation, in which the appellant told the informant where to meet him. The officers followed the informant to the specified location, maintaining visual surveillance until he drove into an apartment complex.

Hurt activated the video recording device remotely. The investigators positioned themselves at the sole entrance and exit to the apartment complex and continued to monitor the live audio feed. Once they heard the informant’s motorcycle stop, they noted the informant’s and appellant’s voices on the audio feed, as well as other unidentified voices.

When Investigator Hurt heard the informant leaving the apartment complex, he remotely stopped the video recording. The investigators then followed the informant to another location, where they took possession of the recording device and two plastic bags containing suspected illegal drugs. The informant also returned $40 to Hurt because he obtained less cocaine than he had sought. After the informant handed over these items, Staton searched him and his motorcycle and found no other drugs or money.

B. Silent Video Recording of the Drug Transaction

The video recording depicting the in-person transaction was played for the trial court at the motion hearing.^[3] It depicts the inside of a residence. A working television is visible as it displays a person moving on the screen. The video further shows the informant encountering two different people inside the residence. Fleetingly at the beginning of the video, a woman is visible in the living room. Thereafter, only two men are visible throughout the remainder of the video—the informant and a second man, identified by two of the investigators as the appellant. The video and some of the photographs include the appellant’s face and show him holding at least one plastic sandwich bag and two slightly discolored cigarettes.

C. Audio Recording of the Telephone Calls and Drug Transaction

The audio recording, which encompasses two telephone calls between the appellant and the informant as well as the subsequent in-person transaction, was also played for the trial court at the motion hearing.

In the first conversation, the informant tells the appellant that he has “money now” and “want[s] two of them funny sticks” and “a whole three and a half.” The appellant responds, “O.k.,” to each of the two specific requests for drugs and concludes with, “I gotcha.” The two then discuss where to meet. The appellant instructs the informant to give him five to ten minutes, after which the appellant says he will tell the informant where to go. In a second conversation, the appellant says something unintelligible, and the informant responds, “Alright, I’ll be right there.” The informant then tells the investigators where he is going.

Following the sound of a motorcycle, the informant can be heard in the next portion of the audio greeting another person whose voice the investigators identified as the appellant’s. Additional voices or other noises can be heard in the background but not in a way that clearly indicates either any interaction with the informant or appellant, or the presence of people other than as heard through a television. Only portions of the recording of the approximately five-minute exchange are intelligible. Most of what is intelligible appears to be in the informant’s voice. The majority of the appellant’s comments are indecipherable or not particularly relevant without their full context. The informant’s motorcycle can then be heard again.

D. Admission of the Silent Video and Audio Recordings

The appellant argued to the trial court that the silent video recording and separate audio recording contained testimonial hearsay because they included hearsay “statements” and were prepared in anticipation of trial. He contended that his rights were violated by their admission because the informant was unavailable and, consequently, he could not dispute their contents, particularly “the blank spaces” in the video, without giving up his right not to testify. He did not otherwise distinguish any particular statements or portions of the video or audio that he contended were testimonial hearsay. The appellant acknowledged that the investigators could “testify to what they saw” and “the statements that they heard from the [appellant]” but argued that “everything else,” including “any statements made to [the investigators] by the [informant, were] hearsay.” He rejected the notion that the informant’s statements were not offered for their truth. In sum, he argued that the video and audio recordings should be excluded in their entirety. He did not object to testimony about what the officers heard over the live audio feed.

The prosecutor responded that the silent video recording did not contain testimonial hearsay. He argued that the appellant’s statements on the audio recording were admissible and that the informant’s statements were relevant to show “how [the appellant] react[ed] to what the informant [said]” rather than for their truth. The prosecutor further contended that the “entire arc” of conversations was offered to prove that a transaction occurred between the informant and the appellant and that “no evidence [indicated that] the informant interact[ed] with other people” who “might have given [him] the drugs instead of [the appellant].”

The judge ruled that the silent video recording was not testimonial and, thus, that its admission did not violate the Confrontation Clause. In doing so, he noted that the appellant’s argument regarding the blank spaces in the video “[went] to the weight not the admissibility.” With regard to the challenged audio, he ruled that the verbal exchanges between the two men also were not testimonial because neither party was “offering testimony about any events” and it was merely “a record of their interaction.”

E. Trial and Sufficiency Arguments

At the request of the parties, the court adopted the evidence presented at the motion hearing as part of the trial evidence. The Commonwealth introduced additional evidence regarding the transaction between the appellant and the informant, including evidence about the contents of the two plastic sandwich bags that the informant turned over to the police following the controlled buy. That evidence established that one of the bags contained cocaine and the other contained two discolored tobacco cigarettes laced with phencyclidine, also known as PCP.

The appellant made a motion to strike the evidence. The judge denied the motion and found the appellant guilty. He stated that the video and photographs of the drug transaction bolstered the officers’ testimony identifying the appellant in the telephone conversations and controlled purchase transaction by voice. The judge emphasized that the informant received “essentially” the same drugs in the same amounts that he had ordered over the telephone. The judge also noted that the video “clearly show[ed] the [appellant] with sandwich baggies” and “cigarettes with some sort of substance appearing to be on th[em].”

The court convicted the appellant of the April 28, 2016 offense and sentenced him to twenty years in prison, with ten years suspended.^[4]

II. ANALYSIS

The appellant argues that the admission of the video and audio recordings violated his right to confront the witnesses against him under the Sixth Amendment to the United States Constitution.^[5] He also contends that the evidence was insufficient to support his conviction.

A. Admission of the Silent Video and Audio Recordings under the Confrontation Clause

The appellant contends that the admission of both the silent video and audio recordings violated the Confrontation Clause. The assignment of error encompasses the photographs made from the video recording but does not challenge the investigators’ testimony about what they heard on the live audio feed.

“[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.” Adjei v. Commonwealth, 63 Va. App. 727, 737, 763 S.E.2d 225, 230 (2014) (alteration in original) (quoting Beck v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905 (1997)). Of course, an error of law, “by definition,” constitutes an abuse of discretion. Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). “Although we will not disturb on appeal decisions regarding the admissibility of evidence absent an abuse of the trial court’s discretion, we review de novo whether a particular category of proffered evidence [implicates the Confrontation Clause].” Caison v. Commonwealth, 52 Va. App. 423, 434, 663 S.E.2d 553, 559 (2008) (citation omitted). In conducting de novo review of a legal issue, the appellate court defers to any factual findings underpinning it, including the credibility of the witnesses, and may reverse them only if they are plainly wrong. See Lynch v. Commonwealth, 46 Va. App. 342, 348-50, 617 S.E.2d 399, 402-03 (2005), aff’d, 272 Va. 204, 630 S.E.2d 482 (2006).

The Confrontation Clause “mandates that ‘in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’” Wimbish v. Commonwealth, 51 Va. App. 474, 480, 658 S.E.2d 715, 718 (2008) (alteration in original) (quoting U.S. Const. amend. VI). In the seminal case of Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the United States Supreme Court interpreted the constitutional right of confrontation to apply only to testimonial hearsay. If evidence is testimonial hearsay, it “is inadmissible unless the [declarant] is unavailable and the defendant had a prior opportunity for cross-examination.” Adjei, 63 Va. App. at 744, 763 S.E.2d at 233. Consequently, in the context of our analysis here, in order for evidence to be inadmissible on Confrontation Clause grounds, it must be both (1) hearsay and (2) testimonial in nature.^[6] See id.

Hearsay is defined as “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); see Fed. R. Evid. 801(c). Hearsay statements are testimonial if they “are the ‘sort [that] cause the declarant to be a “witness” within the meaning of the Confrontation Clause.’” Aguilar v. Commonwealth, 280 Va. 322, 330, 699 S.E.2d 215, 219 (2010) (alteration in original) (quoting Davis v. Washington, 547 U.S. 813, 821 (2006)).

1. Admissibility of the Silent Video Recording and Accompanying Photographs

The appellant argues that the admission of the silent video and accompanying photographs was error because it deprived him of the opportunity to “cross examine the witness against him.” Although his argument focuses on whether the challenged evidence was testimonial, we hold that the issue turns on whether the contents of the silent video and photographs qualified as hearsay.

A “statement” within the meaning of the rule against hearsay includes not only “an oral or written assertion” but also “nonverbal conduct . . . intended as an assertion.” Va. R. Evid. ^[2]:801(a) (emphasis added); see Fed. R. Evid. 801(a). Regarding nonverbal conduct, “communicative behavior, such as shaking the head or pointing a finger, will satisfy this definition, whereas walking down the sidewalk and going into a store will not.” Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia §§ 15-1[a], 15-7, at 898, 942 (7th ed. 2012); see Stevenson v. Commonwealth, 218 Va. 462, 465-66, 237 S.E.2d 779, 781-82 (1977). Both verbal and nonverbal types of assertive conduct fall within the definition of hearsay because they depend for their “value upon the credibility of the out-of-court asserter.” See Stevenson, 218 Va. at 465, 237 S.E.2d at 781 (quoting McCormick’s Handbook of the Law of Evidence § 246, at 584 (Edward W. Cleary ed., 2d ed. 1972)).

Based on the principle that nonverbal conduct qualifies as a “statement” for hearsay purposes only if it is intended as an assertion, photographs generally do not constitute hearsay. See Bynum v. Commonwealth, 57 Va. App. 487, 491-93, 704 S.E.2d 131, 133-34 (2011). Photographs are admissible under either of two theories: “to illustrate a witness’ testimony” or “as an ‘independent silent witness’ of matters revealed by the photograph.” Bailey v. Commonwealth, 259 Va. 723, 738, 529 S.E.2d 570, 579 (2000) (quoting Ferguson v. Commonwealth, 212 Va. 745, 746, 187 S.E.2d 189, 190 (1972)). As the appellant acknowledges, videos are admissible under the same principles. See Wilson v. Commonwealth,

29 Va. App. 236, 238, 511 S.E.2d 426, 428 (1999). This test for admission is an either/or test. See Brooks v. Commonwealth, 15 Va. App. 407, 410, 424 S.E.2d 566, 569 (1992). The content of the video is admissible either to illustrate a witness’ testimony or to serve as an “independent silent witness” of matters depicted in the video. See Bailey, 259 Va. at 738, 529 S.E.2d at 579 (quoting Ferguson, 212 Va. at 746, 187 S.E.2d at 190).

A video is admissible as an independent silent witness because, unless the video contains conduct that “is intended [by the actor] as an assertion,” the contents of the video simply are not hearsay. See Va. R. Evid. ^[2]:801(a); Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977) (noting that whether the requisite intent exists is a question of fact); Lynch, 46 Va. App. at 348-50, 617 S.E.2d at 402-03 (explaining the deference afforded a trial court’s findings of fact underlying admissibility issues); see also Fed. R. Evid. 801(a); State v. Guttormson, 869 N.W.2d 737, 742-43 (N.D. 2015) (holding that a silent video is not a statement for hearsay purposes and, thus, that its admission does not violate the Confrontation Clause). Instead, as previously noted, non-constitutional evidentiary principles classify the video as non-hearsay that is sufficiently reliable to permit its admission. See Bynum, 57 Va. App. at 492, 704 S.E.2d at 13.7

Here, the video and photographs made from it were admitted as silent witnesses. The video does not reflect any actions that could be construed as an assertion. Consequently, the appellant’s Confrontation Clause argument fails, and the trial court did not err by admitting the silent video and photographs into evidence.