                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED



              REMONE J. HOUCHENS
                                                                             MEMORANDUM OPINION * BY
              v.     Record No. 0686-12-2                                      JUDGE LARRY G. ELDER
                                                                                   APRIL 2, 2013
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF LOUISA COUNTY
                                                Timothy K. Sanner, Judge

                               (Steven Shareff, on brief), for appellant. Appellant submitting on
                               brief.

                               (Kenneth T. Cuccinelli, II, Attorney General; Rosemary V. Bourne,
                               Assistant Attorney General, on brief), for appellee.


                     Remone J. Houchens (appellant) appeals his convictions for aggravated malicious

              wounding, robbery, and burglary. He argues (1) the admission of the victim’s call to 911 violated

              his rights under the Confrontation Clause of the Sixth and Fourteenth Amendments to the United

              States Constitution; and (2) the trial court erred in denying his motion for a new trial based on

              after-discovered evidence. We hold that (1) the 911 call was made in response to an ongoing

              emergency and was therefore non-testimonial; and (2) the after-discovered evidence would not have

              produced a different outcome had it been introduced at trial. Accordingly, we affirm appellant’s

              convictions.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                 I.

                                         BACKGROUND

       We consider the evidence in the light most favorable to the Commonwealth, the

prevailing party below. See Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433

(2007). So viewed, the evidence establishes that on May 22, 2010, Lois Rosson, an

eighty-seven-year-old widow living alone, was attacked in her residence at approximately

2:40 a.m. The assailant broke into Rosson’s residence, dragged her out of bed, and struck her in

the head. Rosson attempted to defend herself with her firearm, but the assailant knocked it out of

her hand. Rosson was unable to recover the firearm. The assailant left after Rosson screamed

and told him that she was going to wake up her husband. As the assailant fled, he broke through

the glass front door of Rosson’s residence. Rosson immediately called 911 and reported the

incident. As a result of her injuries, Rosson suffered permanent vision loss in her left eye.

       Over appellant’s objection, the trial court ruled that Rosson’s statements to the 911

dispatcher were non-testimonial in nature and admitted the redacted audio recording of the 911

call into evidence. 1 At the conclusion of the evidence, the jury found appellant guilty of the

instant crimes. Appellant subsequently filed a motion to set aside the verdict based on newly

discovered evidence and attached an affidavit implicating a third individual in the crimes. The

trial court denied the motion. This appeal followed.




       1
         The trial court noted a “significant delay” in the recording after which “Rosson
appeared to be substantially more under control,” and therefore excluded the later portions of the
recording. The trial court further ordered the Commonwealth to redact any mention of an
attempted rape. The record does not contain the exact audio recording played to the jury, but
includes a transcript of the 911 call. The trial court referred to this transcript when considering
appellant’s motion to suppress. Because the record clearly indicates which portions of the
transcript correspond to the audio recording played to the jury, and appellant does not suggest
otherwise, we refer to both the transcript and the recording interchangeably.

                                                -2-
                                                 II.

                                            ANALYSIS

                                                 A.

                                  CONFRONTATION CLAUSE

       Appellant argues the Confrontation Clause of the Sixth Amendment precluded admission

of the 911 recording. Relying on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004), and its progeny, appellant claims that Rosson’s statements to the 911

dispatcher were testimonial in nature and, therefore, inadmissible absent the opportunity to

cross-examine Rosson. Appellant contends the original emergency ended when the assailant fled

Rosson’s residence and, therefore, the 911 call focused on a criminal investigation of a

completed event. We disagree.

       “[W]e review de novo whether a particular category of proffered evidence is ‘testimonial

hearsay.’” Caison v. Commonwealth, 52 Va. App. 423, 434, 663 S.E.2d 553, 559 (2009)

(quoting Jasper v. Commonwealth, 49 Va. App. 749, 755, 644 S.E.2d 406, 409 (2007)).

       The Confrontation Clause of the Sixth Amendment requires that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. This provision bars “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365,

158 L. Ed. 2d at 194. “[T]he question whether admission of a hearsay statement against a

criminal defendant violates the Confrontation Clause turns on whether the statement is

‘testimonial’ in nature.” Caison, 52 Va. App. at 435, 663 S.E.2d at 559 (citation omitted).

               Statements are nontestimonial when made in the course of police
               interrogation under circumstances objectively indicating that the
               primary purpose of the interrogation is to enable police assistance
               to meet an ongoing emergency. They are testimonial when the
                                                -3-
               circumstances objectively indicate that there is no such ongoing
               emergency, and that the primary purpose of the interrogation is to
               establish or prove past events potentially relevant to later criminal
               prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237

(2006) (emphasis added).

       Because the determination of “whether an emergency exists and is ongoing is a highly

context-dependent inquiry,” Michigan v. Bryant, __ U.S. __, __, 131 S. Ct. 1143, 1158, 179

L. Ed. 2d 93, 110 (2011), “we objectively evaluate the circumstances in which the encounter

occurred and the statements and actions of the parties,” id. at ___, 131 S. Ct. at 1156, 179

L. Ed. 2d at 108. Factors pertinent to this determination include:

               “(1) Was the declarant speaking about current events as they were
               actually happening, requiring police assistance rather than
               describing past events?

               (2) Would a reasonable listener conclude that the declarant was
               facing an ongoing emergency that called for [immediate] help?

               (3) Was the nature of what was asked and answered during the
               course of a 911 call such that, viewed objectively, the elicited
               statements were necessary to be able to resolve the present
               emergency rather than simply to learn . . . what had happened in
               the past?

               (4) What was the level of formality of the interview? For example,
               was the caller frantic, in an environment that was neither tranquil
               nor safe?”

Wilder v. Commonwealth, 55 Va. App. 579, 590-91, 687 S.E.2d 542, 547 (2010) (quoting

United States v. Cadieux, 500 F.3d 37, 41 (1st Cir. 2007)); see Davis, 547 U.S. at 826-27, 126

S. Ct. at 2276-77, 165 L. Ed. 2d at 239-40. Subsequent to Crawford and Davis, the United States

Supreme Court has identified additional factors to aid the lower courts in determining whether an

ongoing emergency exists: (1) the “circumstances in which an encounter occurs—e.g., at or near

the scene of the crime versus at a police station,” Bryant, __ U.S. at __, 131 S. Ct. at 1156, 179

L. Ed. 2d at 108; (2) whether the “threat” to the victim, first responders, or the general public has
                                                -4-
been “neutralized,” id. at __, 131 S. Ct. at 1158, 179 L. Ed. 2d at 111; (3) the “type of weapon

employed,” id.; and (4) the “medical condition of the victim,” insofar as “it sheds light on the

ability of the victim to have any purpose at all in responding to police questions” or “provides

important context for first responders to judge the existence and magnitude of a continuing threat

to the victim, themselves, and the public,” id. at __, 131 S. Ct. at 1159, 179 L. Ed. 2d at 111.

       Applying these principles to the case at hand, we conclude Rosson’s statements to the

911 dispatcher were non-testimonial in nature. The circumstances, viewed objectively, make

clear that Rosson faced an ongoing emergency that was manifested by two sources: Rosson’s

serious injury to her face and the present and proximate danger that appellant, a potentially

armed assailant, would return to the scene. See Caison, 52 Va. App. at 436, 663 S.E.2d at 559.

       Rosson called 911 immediately after appellant fled her residence. Rather than answer the

dispatcher’s questions, Rosson, who was bleeding from her head injury, repeatedly requested

police assistance because she was “scared to death.” Although the dispatcher asked Rosson

questions regarding the identity of the assailant, the context of the exchange reveals that the

dispatcher was “trying to ‘elicit[] statements . . . necessary to be able to resolve the present

emergency.’” United States v. Arnold, 486 F.3d 177, 189 (6th Cir. 2007) (quoting Davis, 547

U.S. at 827, 126 S. Ct. at 2276, 165 L Ed. 2d at 240). Indeed, Rosson informed the dispatcher

that the assailant was still at large and possibly armed after he knocked Rosson’s firearm out of

her hand. See United States v. Proctor, 505 F.3d 366, 371-72 (5th Cir. 2007) (holding that the

declarant’s statements to a 911 operator were not testimonial because his information regarding

the defendant’s criminal history, drug use, and possession of a firearm were “necessary for the

police to respond appropriately to the emergency, as it allowed the police to determine whether

they would be encountering a violent felon” (citation omitted)).




                                                 -5-
       We find no merit to appellant’s contention that the ongoing emergency ended once the

assailant fled Rosson’s residence. Rosson, who lived alone, was concerned that her assailant

would return and relayed this fear to the dispatcher. She had thwarted her assailant by

fabricating the presence of a husband and had no way to know whether her assailant would

return. Rosson’s severe head injury and frantic responses to the dispatcher support a finding that

she was “in an environment that was neither tranquil nor safe.” Cadieux, 500 F.3d at 41.

       We further reject appellant’s claim that Rosson was describing a past event. Rosson

called 911 immediately after her assailant fled her residence. The emergency had not ended

because the situation also involved a dangerous assailant who had struck an elderly woman

without provocation, was potentially armed, and fled into the surrounding neighborhood with no

guarantee that he would not return and cause further harm to Rosson. Given Rosson’s frantic

responses, her statement “was plainly a call for help against a bona fide physical threat.” Davis,

547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240; see Arnold, 486 F.3d at 189

(concluding that the “exigency of the moment” had not ended even though the victim left the

house where the assailant remained, went around the corner, and called 911). Although the 911

call lasted for several minutes, the trial court identified “a significant delay” in the recording in

which “Rosson appeared to be substantially more under control,” and therefore ordered the

exclusion of those portions of the 911 call where Rosson gave testimonial statements to the

dispatcher. See Davis, 547 U.S. at 829, 126 S. Ct. at 2277, 165 L. Ed. 2d at 241 (cautioning trial

courts to “redact or exclude the portions of any statement that have become testimonial”).

       We conclude that because Rosson’s statements to the 911 dispatcher were in response to

an ongoing emergency, they were not testimonial in nature and their admission did not violate

appellant’s right to confront the witnesses against him. Accordingly, the trial court did not err in

admitting the redacted 911 statements.

                                                 -6-
                                                   B.

                                AFTER-DISCOVERED EVIDENCE

        In his motion to set aside the verdict based on newly discovered evidence, appellant attached

an affidavit from Quadre Greene that alleged Damian Kiser implicated himself in the instant crimes.

Greene maintained that in his presence, Kiser discussed with appellant breaking into Rosson’s

residence to steal personal property. Greene further alleged that Kiser later admitted he and

appellant broke into a woman’s house and appellant cut his hand on the glass. Kiser admitted to

Greene that Rosson woke up and Kiser “panicked and didn’t know what to do so he attacked her

and beat her up.” Finally, Kiser claimed that appellant took Rosson’s firearm and they both left.

The trial court denied the motion and held that Greene’s testimony would not produce an opposite

result were he called to testify at trial. The trial court characterized the evidence against appellant

as “overwhelming” and “well beyond what was necessary to convict.”

        Appellant argues Greene’s affidavit established that a co-assailant assaulted Rosson and

that appellant had no intent to rob Rosson when he entered the premises. Appellant contends if a

trier of fact credited Greene’s testimony as true, it would be compelled to find that appellant did

not intend to rob Rosson when he entered her residence and that the assault on Rosson was

unforeseen and committed solely by Kiser without any concert of action on appellant’s part.

        A motion for a new trial based on after-discovered evidence “is a matter submitted to the

sound discretion of the circuit court and will be granted only under unusual circumstances after

particular care and caution has been given to the evidence presented.” Orndorff v.

Commonwealth (Orndorff I), 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006). “‘The real object to

be attained in granting a new trial is to prevent an erroneous judgment from becoming final.’”

Indep. Cab Assoc. v. LaTouche, 197 Va. 367, 377, 89 S.E.2d 320, 327 (1955) (quoting Burks

Pleading and Practice § 324, at 601-03 (4th ed. 1952)).

                                                  -7-
       A party seeking a new trial must show the evidence at issue:

               (1) appears to have been discovered subsequent to the trial;
               (2) could not have been secured for use at the trial in the exercise
               of reasonable diligence by the movant; (3) is not merely
               cumulative, corroborative or collateral; and (4) is material, and
               such as should produce opposite results on the merits at another
               trial.

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983). The moving party

“must establish each of these mandatory criteria.” Commonwealth v. Tweed, 264 Va. 524, 528,

570 S.E.2d 797, 800 (2002).

       “Before setting aside [a] verdict, the trial court must have evidence before it to show in a

clear and convincing manner ‘as to leave no room for doubt’ that the after-discovered evidence,

if true[,] would produce a different result at another trial.” Carter v. Commonwealth, 10

Va. App. 507, 513, 393 S.E.2d 639, 642 (1990) (quoting Powell v. Commonwealth, 133 Va. 741,

756, 112 S.E. 657, 661 (1922)). Furthermore,

               [w]hen . . . the evidence supporting the new trial motion is
               contradicted by evidence in opposition to the motion, the circuit
               court is not permitted to presume that the moving party’s evidence
               is true but is required to weigh all the evidence presented in
               determining whether the moving party has satisfied the materiality
               standard articulated in Odum. Thus, when a circuit court is
               presented with conflicting evidence in considering a motion for a
               new trial, the court’s role resembles that of a fact finder in
               determining whether the evidence is such that it should produce an
               opposite result on the merits at a new trial.

Orndorff I, 271 Va. at 504-05, 628 S.E.2d at 354 (emphases added) (citations omitted); see

Hopkins v. Commonwealth, 20 Va. App. 242, 250-52, 456 S.E.2d 147, 150-52 (1995) (en banc)

(approving the trial court’s denial of a new trial motion based on its weighing of conflicting

testimony in order to determine whether the new evidence “was . . . such as should produce an

opposite result on the merits at a new trial”). In short, if the new evidence is such that it could, if

believed, produce an opposite result on the merits at a new trial, the trial court must also

                                                 -8-
determine whether it should produce such a result, i.e., whether it is credible. If the trial court

finds, per Orndorff I, that the new evidence is not credible, this credibility determination

controls, and the trial court must deny the motion for a new trial.

       Finally, when the circuit court has applied the proper standard, “the appellate court may

not substitute its own judgment of the record, but must defer to the circuit court which had the

opportunity to assess the credibility of the witnesses and was in the best position to determine the

weight to be accorded the evidence.” Orndorff v. Commonwealth (Orndorff II), 279 Va. 597,

605, 691 S.E.2d 177, 181 (2010) (appeal after remand of Orndorff I).

       Under these principles, we hold the trial court acted within its discretion in weighing all

the evidence and concluding that the information in Greene’s post-trial affidavit would not

produce a different result in a new trial. To begin, Greene’s affidavit does not negate the

evidence adduced at trial that implicated only appellant in the crimes. The police retrieved a .22

caliber revolver from Kwan Grooms, who testified that he received it from appellant. 2 Rosson’s

son identified the firearm as belonging to his mother. The firearm, which contained bloodstains

on the trigger, hammer, and cylinder release, was submitted for DNA analysis along with a rug

from Rosson’s residence, her nightgown, and pieces of bloodstained glass that littered the

ground. Appellant could not be eliminated as a contributor to the blood on each of these items.

Kiser, however, was eliminated as a contributor. Dr. Sandra Johnson, who treated Rosson at the

hospital, testified that the cause of the injuries to her eye was consistent with a strong punch to

the head. Special Agent Carlton Johnson, Jr. interviewed appellant six days after the attack and




       2
          In his interview with the police, appellant maintained at first that he saw no firearm
when he entered Rosson’s residence, but he later admitted that he took a firearm and hid it
outside. Appellant then recanted a portion of this second statement, admitting that he pocketed
the firearm and gave it Grooms.

                                                 -9-
noted appellant’s “busted” knuckle. Finally, Rosson’s 911 call, made immediately after the

attack, mentioned only one person as having perpetrated the break-in and assault.

       Lastly, although the trial court did not explicitly assess Greene’s credibility, it clearly

understood that it was required to act as the fact-finder when evaluating the new evidence. The

trial court questioned the strength of the affidavit because had Greene been called to the stand to

testify, he would immediately have been impeached by other statements he made to the police

denying any knowledge of the crimes. See Hopkins, 20 Va. App. at 251, 456 S.E.2d at 151

(acknowledging that the after-discovered evidence was “self-contradictory, perjured at least in

part, and plainly unworthy of belief” and could therefore not legitimately call into question the

“uncontradicted, corroborated and reaffirmed eyewitness testimony” that established the

defendant’s guilt at trial). Because the “overwhelming” physical evidence implicates only

appellant and the trial court implicitly found Greene an untrustworthy witness, the record

supports the conclusion that Greene’s affidavit was not “such as should produce an opposite

result on the merits at another trial.” Odum, 225 Va. at 130, 301 S.E.2d at 149.

                                                 III.

                                          CONCLUSION

       For these reasons, we hold that the trial court did not err in admitting into evidence the

911 call and denying appellant’s motion for a new trial. Accordingly, we affirm appellant’s

convictions.

                                                                                            Affirmed.




                                                - 10 -
