                                                COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Russell and AtLee
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              ROBERT LEROY MOORE, IV
                                                                               MEMORANDUM OPINION* BY
              v.        Record No. 0706-15-4                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                     JULY 19, 2016
              COMMONWEALTH OF VIRGINIA


                                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                   Randy I. Bellows, Judge

                                  Alison G. Powers, Assistant Public Defender, for appellant.

                                  Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                                  Attorney General, on brief), for appellee.


                        Robert Leroy Moore, IV, appellant, was convicted of pandering in violation of

              Code § 18.2-357 and attempted pandering in violation of Code §§ 18.2-357 and 18.2-26.1 On

              appeal, he argues that at sentencing the trial court erred in considering a recorded telephone

              conversation between appellant and Karla Severiche that appellant made from jail.2 Specifically,

              he contends that the recording was irrelevant to the determination of an appropriate sentence for

              appellant.3 For the reasons that follow, we affirm the judgment of the circuit court.


                        *
                            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                        1
                            Appellant entered Alford pleas pursuant to North Carolina v. Alford, 400 U.S. 25
              (1970).
                        2
                       Appellant is in a romantic relationship with Ms. Severiche. Appellant is the father of
              four of Ms. Severiche’s children.
                        3
                        On appeal, appellant raises for the first time the argument that it was error for the circuit
              court to consider the jailhouse conversation recording because the trial court never “formally
              admitted” the recording into evidence. Appellant concedes that the only contemporaneous
              objection raised to the consideration of the recording was the objection that it was irrelevant.
                                         BACKGROUND

       After the trial court accepted appellant’s Alford pleas to charges of pandering and

attempted pandering, the Commonwealth summarized the evidence. In May of 2014, appellant

met A.R. at the store where he worked. A.R., then twenty-two years old, had been declared

mentally incapacitated by a circuit court and her parents had been appointed as guardians. She

was adopted from Russia and suffers from post-traumatic stress disorder and other ailments

originating in childhood. She also has a very low I.Q.

       Appellant’s relationship with A.R. began as flirtatious and ultimately developed into a

sexual one. Appellant told A.R. he needed money and that she could help him. As a result, from

May 8 through May 20, 2014, appellant took A.R. to a hotel where she would engage in acts of

prostitution with others. Appellant received the proceeds from these transactions.

       In time, A.R.’s parents became suspicious and discovered A.R.’s picture in an

advertisement for escort services. They contacted their local police department, and the officers

responded to A.R.’s advertisement in an undercover capacity. While undercover, Detective Fox




Even if we were to assume that, despite the fact that the parties argued extensively about the
circuit court’s consideration of it and the weight it should be given, the circuit court was required
to acknowledge and formalize the admission of the recording as an exhibit by the use of “magic
words,” the issue is not before us because it was not raised below. Rule 5A:18. Appellant
acknowledged at oral argument that raising this issue below would have amounted to “inviting
the court to admit it.” Thus, appellant concedes that a contemporaneous objection would have
allowed the circuit court to correct the alleged error, which is the purpose of requiring a
contemporaneous objection. See Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8,
10 (1989) (explaining the purpose of the rule is to ensure that any perceived error by the trial
court is “promptly brought to the attention of the trial court with sufficient specificity that the
alleged error can be dealt with and timely addressed and corrected when necessary. . .”). Finally,
we note that appellant conceded at oral argument that, if the recording were relevant, there would
be no other problem with its admission into evidence and ultimate consideration by the trial
court. Given our holding regarding the relevance of the recording, this conclusively establishes
that any alleged error regarding the alleged failure to admit the recording formally into evidence
is harmless.

                                                -2-
learned that A.R. had been prostituting for appellant, who told her what prices to charge, drove

her to all her appointments, and kept all of the money she earned.

       Appellant was arrested and initially denied that he was involved with any prostitution.

He then claimed he and A.R. were boyfriend and girlfriend. A subsequent search of his cell

phone and text communications revealed that he communicated nightly with A.R. through text

messages regarding the need to make money and what to charge for specific sexual acts.

       The trial court accepted appellant’s pleas, found appellant guilty, and continued the

matter for sentencing. Before sentencing, the parties independently sent the judge materials that

each wished the court to consider at sentencing.4 Included in the Commonwealth’s submission

was a CD recording of a telephone conversation between appellant (in jail) and Ms. Severiche

about a letter he was writing to the trial judge in her name.5 The letter was an attempt to support

appellant’s claim that the victim did not have any type of disability or disadvantage.

       Counsel for appellant thereafter sent a letter to the judge asking that the court refrain

from listening to the recording. “Counsel contends that this filing is not relevant as the letter

referenced in the filing was not submitted on behalf of Mr. Moore in counsel’s sentencing

packet.” At sentencing, the judge indicated that he had listened to the recording before he read

counsel’s letter, but that he felt it was relevant and would have listened to it despite counsel’s

request.

       During sentencing, appellant’s counsel stated that Ms. Severiche sent a letter of support

to appellant and that they were rewriting the letter together, “incorporating both of their ideas.”

Counsel further argued that “I still maintain that it is not relevant, but since the Court has listened


       4
         Opposing counsel received a copy of the other party’s submission to the judge at the
time the submission was sent to the judge.
       5
        Appellant concedes that the recording is of a conversation he had with Ms. Severiche.
He argues that he was merely offering editing assistance as opposed to authoring the letter.
                                              -3-
to that, I did want to compare - - I did want to explain what she explained to me since she’s not

able to be here today.” The court then made it clear that it never received a letter from

Ms. Severiche.

       In pronouncing sentence, the circuit court gave a detailed explanation of the multitude of

factors it considered in arriving at the appropriate punishment. One of the factors identified by

the circuit court was the jailhouse recording, which the circuit court felt demonstrated appellant’s

“effort to mislead this Court by having someone submit a letter to the Court pretending it is from

[someone else] when it is actually written in whole or in part by the Defendant.” The circuit

court imposed a sentence of five years incarceration with three years suspended.

                                             ANALYSIS

       A trial court’s decision to admit or exclude evidence is reviewed using an abuse of

discretion standard. Tisdale v. Commonwealth, 65 Va. App. 478, 481, 778 S.E.2d 554, 555

(2015). “[O]n appeal, ‘[we] will not disturb [the court’s] decision . . . absent a finding of abuse

of that discretion.’” Mason v. Commonwealth, 64 Va. App. 599, 605, 770 S.E.2d 224, 227

(2015) (quoting Dean v. Commonwealth, 61 Va. App. 209, 213, 734 S.E.2d 673, 675 (2012)).

       Evidence is admissible at trial if it is both relevant and material. Evans-Smith v.

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987). “‘[E]vidence is relevant if it

tends to establish the proposition for which it is offered.’ Evidence is material if it relates to a

matter properly at issue.” Id. (quoting Charles E. Friend, The Law of Evidence in Virginia § 134

(2d ed. 1983)). Given the standard of review, “a great deal must necessarily be left to the

discretion of the court of trial, in determining whether evidence is relevant to the issue or not.”

John Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007) (internal quotation

marks omitted).




                                                 -4-
       The latitude given to trial courts regarding the admission of evidence during trial is even

greater at sentencing after guilt already has been determined. Because a “sentencing hearing

before a judge is not a criminal trial,” a sentencing judge “exercise[s] wide discretion in the

sources and types of evidence used to assist him in determining the kind and extent of

punishment to be imposed within limits fixed by law.” Smith v. Commonwealth, 52 Va. App.

26, 30-31, 660 S.E.2d 691, 693 (2008) (quoting McClain v. Commonwealth, 189 Va. 847,

859-60, 55 S.E.2d 49, 55 (1949)). “[The sentencing] judge may appropriately conduct an inquiry

broad in scope, largely unlimited either as to the kind of information he may consider, or the

source from which it may come.” Brown v. City of Danville, 44 Va. App. 586, 607, 606 S.E.2d

523, 536 (2004) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)).

                       “[O]nce the guilt of the accused has been properly
               established, the sentencing judge, in determining the kind and
               extent of punishment to be imposed, is not restricted to evidence
               derived from the examination and cross-examination of witnesses
               in open court but may, consistently with the Due Process Clause of
               the Fourteenth Amendment, consider responsible unsworn or
               ‘out-of-court’ information relative to the circumstances of the
               crime and to the convicted person’s life and characteristics.”

Harris v. Commonwealth, 26 Va. App. 794, 807-08, 497 S.E.2d 165, 171 (1998) (emphasis

added) (quoting Williams v. Oklahoma, 358 U.S. 576, 584 (1959)).

       Thus, there is no dispute that it was appropriate for the circuit court to consider letters

submitted on appellant’s behalf. Although such letters provide little information about the facts

of the crime, they provide background about appellant and the context from which his criminal

acts arose. Appellant submitted letters from his mother and two aunts and certainly maintains

that the information contained in those letters is relevant to sentencing.

       Given that the contents of such letters are relevant, a defendant’s willingness to subvert

the process by surreptitiously writing or editing such letters is equally relevant. As the circuit



                                                -5-
court expressly found, such efforts can constitute an “effort to mislead th[e] Court”6 and

reasonably call into question a defendant’s remorse, recognition of the serious nature of his

offenses, and the weight to be given to the letters that were submitted on his behalf.

       That appellant ultimately chose not to submit the letter that was the subject of the

jailhouse recording does not change the analysis in any meaningful way. The mere attempt and

willingness to take steps to surreptitiously influence the process, even if not successfully carried

out regarding this particular letter, give rise to the negative inferences detailed above. As such,

we cannot say that the circuit court abused its discretion in considering the jailhouse recording in

determining the appropriate sentence for appellant.

                                          CONCLUSION

       For the foregoing reasons, we find that the trial court did not err in listening to and

considering the contents of the jailhouse recording. Accordingly, the judgment of the trial court

is affirmed.

                                                                                           Affirmed.




       6
         Appellant argues that the circuit court’s conclusion that his actions described in the
jailhouse recording were nefarious was unwarranted and that more benign conclusions can be
drawn regarding his editing activities. Based on the record, we cannot say that the conclusion
drawn by the circuit court is without evidence to support it.
                                                -6-
