                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, Malveaux and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              HAROLD BENJAMIN, A/K/A
               DARRELL BERNARD STEWART, A/K/A
               BENJAMIN HAROLD
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0920-16-2                                   JUDGE MARLA GRAFF DECKER
                                                                                DECEMBER 19, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                            Clarence N. Jenkins, Jr., Judge

                               Lauren Whitley, Deputy Public Defender, for appellant.

                               David M. Uberman, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Harold Benjamin appeals a ruling of the circuit court revoking his suspended sentences for

              grand larceny, attempted grand larceny, and statutory burglary when he was charged with numerous

              new theft-related crimes. On appeal, he alleges that the circuit court erred by admitting testimonial

              hearsay in his revocation hearing in violation of his due process right of confrontation. We hold that

              to the extent that the appellant preserved his due process challenge to certain categories of evidence

              for appeal, no reversible error occurred. Accordingly, we affirm the revocation of the suspension of

              his sentences.

                                                       I. BACKGROUND

                     In 2005 and 2008, the appellant was convicted of three offenses: grand larceny,

              attempted grand larceny, and statutory burglary. He was sentenced to serve a total of twenty


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
years in prison, with sixteen years suspended on various conditions including good behavior. In

2015, the circuit court issued an order requiring the appellant to show cause why his suspended

sentences should not be revoked as a result of numerous new charges and convictions for

trespassing and larceny.1

       On February 18, 2016, the appellant appeared for a trial on the new charges and a

revocation hearing on his previously suspended sentences. The prosecutor made a motion to

dispose of two felony petit larceny charges by nolle prosequi, explaining that a key witness was

not present. The circuit court granted the motion over the appellant’s objection.

       The court then heard evidence on the remaining charges, which related to a series of

thefts from August 2014 to February 2015 in various state buildings in the Capitol area of

downtown Richmond. Some of the buildings at issue housed parts of Virginia Commonwealth

University (VCU), including its School of Medicine, as well as the Virginia Department of

Transportation (VDOT). With the exception of the two petit larceny charges that were dismissed

by nolle prosequi, the circuit court acquitted the appellant of the new offenses. It did so in part

based on its finding that photographs that the Commonwealth produced from the surveillance

videos relating to the offenses were of extremely poor quality. It also rejected the testimony of a

witness who reported purchasing electronics items from the appellant that were later determined

to have been stolen. The court continued the revocation portion of the proceeding.

       At the revocation hearing on May 20, 2016, the court adopted the trial evidence.2 The

Commonwealth also introduced two convictions for trespassing on VCU property on August 21


       1
           The circuit court permitted an amendment of the order to add two convictions.
       2
         At the trial on February 18, 2016, the court noted that it and counsel were “in
agreement” to “adopt the evidence” from the trial for purposes of the revocation hearing. The
court also indicated that the parties would be permitted to introduce additional evidence at the
revocation proceeding. At the revocation proceeding, the Commonwealth expressly asked the
court “to adopt the trial evidence.”
                                                -2-
and November 24, 2014, both of which were rendered prior to the 2015 revocation show cause

order. Additionally, it presented evidence on the two felony petit larceny charges previously

dismissed by nolle prosequi. The evidence included the testimony of the victims of the petit

larcenies, Lidia Peck and Cherisha Rowlette, two colleagues at VDOT. Their cellular telephones

were stolen from their nearby cubicles while they were away from their desks at lunchtime.

       Special Agent J.L. Cosby of the Virginia Capitol Police testified about obtaining

telephone records related to the thefts and examining surveillance video from the VDOT

building where the thefts occurred. Through Cosby’s testimony, the prosecutor admitted five

photographs of what appeared to be the same individual in various locations inside and outside

the VDOT building between 11:44 and 11:58 a.m. on the day of the cell phone thefts. Cosby

testified that four of the photos appeared to depict the same man, who was wearing a

long-sleeved white top, dark pants, and dark shoes, and was carrying a black backpack. The fifth

photo depicted “a secured little room” where the victims worked and showed just the top of the

bald head of a person of the same race as the man in the other photographs.

       Sergeant Anthony Gulotta, also of the Virginia Capitol Police, testified about his work

with Special Agent Cosby on the investigation. Gulotta said that he talked with the appellant’s

brother and examined other surveillance video in the course of identifying the appellant as a

suspect. Gulotta further explained that he obtained a photograph purporting to be a Harold

Benjamin from the public website Facebook. The photo, which was admitted into evidence,

showed the appellant in a white sweater and dark pants.

       During the Commonwealth’s case-in-chief, the appellant made numerous objections

based on due process, the right of confrontation, and the rule against hearsay. The circuit court

overruled the objections and found that the appellant violated his probation. In doing so, it noted

that it “vividly remember[ed] the allegations” from the trial, stating that although the photos

                                                -3-
presented at that time were not clear enough to show facial features, the person in those previous

photographs bore “very strong similarities” to the better quality photographs offered into

evidence in the revocation proceeding. It also referred to the Facebook photograph of the

appellant and observed that the sweater and shoes the appellant was wearing in that photograph

were very similar to those worn by the individual in the surveillance photographs of the VDOT

building on the day of the thefts. Additionally, the court explicitly referenced evidence of phone

calls made from one of the stolen phones to the appellant’s brother and sister-in-law in the hours

after the thefts. Further, it noted that all the incidents “took place . . . along the VCU [and

VDOT] corridor.” Finally, the court observed that the appellant’s new trespass convictions also

occurred on VCU property.

       In sentencing the appellant, the court revoked the sixteen years remaining on his

sentences and resuspended twelve years, giving him an additional active sentence of four years.

                                           II. ANALYSIS

       The appellant argues that the circuit court’s admission of testimonial hearsay evidence at

the revocation hearing violated his due process right of confrontation. He also suggests that the

court “consistently ruled all hearsay was admissible and never engaged in the . . . tests” required

by controlling case law. He further contends that the record is insufficient to permit this Court to

conduct its own good cause analysis. He challenges two categories of evidence on brief:

(1) data gleaned from telephone records and (2) information that Sergeant Gulotta obtained from

the appellant’s brother.

                 A. Standard of Review and Due Process Right of Confrontation

       An appellate court reviews evidence admitted in a revocation hearing “in the light most

favorable to the Commonwealth, as the prevailing party, including all reasonable and legitimate

inferences that may properly be drawn from it.” Henderson v. Commonwealth, 285 Va. 318,

                                                 -4-
329, 736 S.E.2d 901, 907 (2013). A finding that a defendant has violated the conditions of his

probation or suspended sentence is reviewed for an abuse of discretion. See, e.g., Whitehead v.

Commonwealth, 278 Va. 105, 116, 677 S.E.2d 265, 271 (2009). A determination regarding the

relevance and admissibility of evidence in a revocation proceeding is ordinarily also reviewed

under such a standard. Henderson, 285 Va. at 329, 736 S.E.2d at 907. However, whether a

defendant’s due process rights have been violated by the admission of evidence is a question of

law that is reviewed de novo. Id.

       The defendant in a revocation proceeding “is not entitled to the ‘full panoply’ of

constitutional rights to which he was entitled at trial” because the proceeding “occur[s] after a

criminal prosecution has ended in a conviction.” Id. at 325, 736 S.E.2d at 905 (quoting

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). The rules of evidence are not “‘strictly

applied,’” and “[h]earsay is frequently admitted in revocation proceedings.” Id. at 326, 736

S.E.2d at 905 (quoting United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012)); see id.

(recognizing the routine admission of “letters, affidavits, and other material”). Only if the

hearsay is testimonial in nature is its admission subject to challenge in a revocation proceeding.

See id. Additionally, the basis for this challenge in a state revocation hearing is not the

Confrontation Clause of the Sixth Amendment to the United States Constitution but, rather, a

more limited right of confrontation under the Due Process Clause of the Fourteenth Amendment.

See id. at 325-26, 736 S.E.2d at 905; Saunders v. Commonwealth, 62 Va. App. 793, 807-08, 753

S.E.2d 602, 609 (2014).

       Case law interpreting this due process right provides that testimonial hearsay is

admissible in a revocation proceeding when the judge “specifically finds good cause for not

allowing confrontation.” Henderson, 285 Va. at 326, 736 S.E.2d at 905 (quoting Morrissey, 408

U.S. at 489). The Supreme Court of Virginia has expressly held that when a circuit court

                                                -5-
“dispens[es] with the due process right of confrontation, [it] should state for the record the

specific grounds upon which [it] has relied for ‘not allowing confrontation’ in order to facilitate

effective appellate review of that decision.” Id. at 326-27, 736 S.E.2d at 906 (quoting Morrissey,

408 U.S. at 489); see Cox v. Commonwealth, 65 Va. App. 506, 513, 520, 779 S.E.2d 199, 202,

205-06 (2015). However, the Court has also observed that a defendant may waive the right to

have the circuit court make explicit “good cause” findings by failing to ask it to do so.

Henderson, 285 Va. at 327, 736 S.E.2d at 906.

       The Supreme Court has further held that if a good cause finding was not specifically

requested, “one may infer that the circuit court made such a finding . . . simply from the fact that

[a defendant’s] objections on hearsay and confrontation grounds were overruled.” Id. at 326,

736 S.E.2d at 905. When the circuit court does not make express findings, the appellate court

will conduct “an independent review of the record to ascertain whether . . . sufficient credible

evidence [was] before that court to support a finding of ‘good cause.’” Id. at 327, 736 S.E.2d at

906 (quoting Morrissey, 408 U.S. at 489); see Cox, 65 Va. App. at 519-20, 779 S.E.2d at 205. If

the record does not establish good cause, reversal and remand are required unless the erroneous

admission of the testimonial hearsay evidence was harmless. See Cox, 65 Va. App. at 520-21,

779 S.E.2d at 205-06.

       Here, in objecting on due process grounds, the appellant did not mention the good cause

requirement or ask the court to make findings with respect to that requirement. Consequently, to

the extent that the appellant’s claims are preserved, this Court examines the record to ascertain

whether it supports findings of good cause to admit the various categories of evidence without

confrontation.




                                                -6-
                               B. Admissibility of Telephone Records

       The appellant challenges the admissibility of telephone records and some of the data

obtained from them. We hold that he has failed to establish reversible error with regard to these

records.

       Rowlette testified that she checked her nTelos account online the evening after her phone

disappeared and saw that a call had been made to a telephone number that she did not recognize.

The appellant objected to her testimony on “foundation” and “hearsay grounds.” The prosecutor

responded that a different standard applied in a revocation hearing than at trial. The court agreed

and overruled the objection.

       Special Agent Cosby related that he investigated the thefts of the phones belonging to

Peck and Rowlette. The day after the thefts occurred, Rowlette sent him a printout of her online

phone records showing a single call placed from her phone to a number she did not recognize.

Cosby testified that using “an open source tool” available to the Capitol Police, he learned that

the number dialed belonged to “a Ms. [Burwell].” The appellant objected expressly on hearsay

grounds, stating that even in a show cause proceeding, the Commonwealth was required to

establish “a threshold account of reliability.” The court rejected the hearsay objection, stating

that it would “give [the prosecutor] some leeway” to establish reliability. The prosecutor then

elicited testimony that Cosby used a search warrant to obtain written records from nTelos for

Rowlette’s phone. Special Agent Cosby examined the nTelos records for the date of the theft

and found the number that Rowlette had earlier provided as the number she did not recognize.

The records indicated that this number had been called from Rowlette’s phone twice in the hours

after the theft. The appellant then renewed his objection and inquired whether the records would

be introduced into evidence. When the prosecutor confirmed that he planned to introduce them,




                                                -7-
the appellant “add[ed] . . . confrontation clause and due process” objections. The court again

overruled the objections and admitted the nTelos records into evidence.

       The prosecutor also elicited additional testimony from Cosby about a subpoena issued to

Verizon for records for the “land line” telephone number dialed from Rowlette’s phone. Cosby

testified that Verizon provided information indicating that the subscriber of the telephone

number was “Customer name Annette . . . Benjamin, listing name Annette [Burwell].” The

Commonwealth then made a motion to admit the document. The appellant objected “on hearsay,

confrontation clause and due process” grounds. The circuit court admitted the exhibit.

       This record supports the conclusion that the appellant waived his right to challenge the

admission of some of this evidence on due process grounds and that the admission of other

portions of the evidence, if error, was harmless. The appellant objected only on unrelated

grounds or objected too late, after testimony about the evidence had already been admitted,

rendering any erroneous admission of the cumulative evidence harmless.

       Under settled principles, a mere hearsay objection does not alert the court to an objection

on constitutional confrontation grounds, regardless of whether that right arises under the

Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth

Amendment. See Riner v. Commonwealth, 268 Va. 296, 325 n.11, 601 S.E.2d 555, 571 n.11

(2004) (Sixth Amendment Confrontation Clause).

       Here, the appellant failed to preserve for appeal a due process objection to the testimony

of Rowlette. When Rowlette testified that she checked her nTelos phone records online and

learned that someone had made an outgoing call from her phone after the theft to a number that

she did not recognize, the appellant objected only on foundation and hearsay grounds. Thus, he

waived his right to contest the admission of this testimony on due process grounds. See id.




                                               -8-
       The appellant similarly failed to preserve for appeal a due process objection to the related

testimony given by Special Agent Cosby. The appellant objected only on hearsay grounds to

Cosby’s testimony that he used a police “tool” to check the telephone number that the online

records indicated was called from Rowlette’s phone and that the number “came back to a

Ms. [Burwell].” Again, because the appellant objected only on hearsay grounds, he waived any

objection on due process grounds. See id.

       The appellant also did not adequately preserve for appeal any objection to Special Agent

Cosby’s testimony regarding the information in the records that he obtained from nTelos by

subpoena. Cosby testified without objection that the documents showed two phone calls from

Rowlette’s number in the hours after the theft. Only after Cosby had given this testimony did the

appellant object, stating, “I’m just going to renew my objection at this point,” referring,

presumably, to his prior hearsay objections. Once again, such an objection was insufficient to

present a due process challenge. See id. The appellant then stated, “I don’t know if the Court[is]

planning on introducing these records --.” (Emphasis added). When the prosecutor confirmed

that he was planning to introduce them, the appellant “add[ed]” confrontation clause and due

process grounds, clearly limiting his due process objection to the admission of the records. He

did not indicate that he was objecting on confrontation or due process grounds to the testimony

that Special Agent Cosby had already given. Consequently, the nTelos documents were

cumulative of Cosby’s testimony, and any error in admitting them was harmless. See, e.g.,

Dearing v. Commonwealth, 260 Va. 671, 673-74, 536 S.E.2d 903, 904 (2000).

       Finally, the appellant did not adequately preserve for appeal any objection to Special

Agent Cosby’s testimony regarding the information in the Verizon records. Once again, the

appellant objected only when the prosecutor asked the court to admit the Verizon document into




                                                -9-
evidence. The appellant did not register an objection to Cosby’s related testimony.3

Accordingly, the Verizon document was merely cumulative of Cosby’s testimony, and any error

in admitting it was harmless. See id.

       In short, the appellant has failed to establish any reversible error with regard to the

admission of evidence of the nTelos and Verizon telephone records.

             C. Admissibility of Ronald Benjamin’s Statements to Sergeant Gulotta

       The remaining evidence involves the appellant’s challenge to the admissibility of

testimony about Sergeant Gulotta’s conversation with the appellant’s brother, Ronald Benjamin.

The evidence that the appellant challenges consists of Ronald’s “identification of Harold

Benjamin”; Ronald’s confirmation “that the outgoing phone call from the stolen phone was made

to his phone number”; and Ronald’s statements identifying Annette Benjamin as his wife and the

appellant as his brother.

       At trial, Sergeant Gulotta explained his involvement in investigating the series of Capitol

area larcenies in 2014 and 2015. Gulotta testified that in December 2014, he investigated a theft

that occurred that month from a different building than the one in which Rowlette and Peck

worked. In the course of that investigation, he reviewed the building’s sign-in sheets and

surveillance video for the relevant time period. He identified “someone of interest,” whom he

described as a male of a particular race, “approximately[] 6 feet tall, heavy build.” Based on the


       3
          Moreover, even if the appellant’s due process objections encompassed not only the
nTelos and Verizon records but also Cosby’s testimony about their contents, the appellant did
not move to strike Cosby’s testimony. See M.G. v. Albemarle Cty. Dep’t of Soc. Servs., 41
Va. App. 170, 189 n.10, 583 S.E.2d 761, 770 n.10 (2003) (noting that when a litigant objects but
does not “move to strike . . . testimony already given,” that testimony is “part of the record for
purposes of appeal” (citing Kent Sinclair, Joseph C. Kearfoot, Paul F. Sheridan & Edward J.
Imwinkelried, Virginia Evidentiary Foundations § 2.4[A], at 20 (1998); 1 John W. Cooley,
Callaghan’s Appellate Advocacy Manual: Lawyer’s Edition § 3.09, at 29 (1993))). Accordingly,
that testimony is part of the record for purposes of appeal, further supporting the conclusion that
admission of the phone records was harmless.

                                               - 10 -
names on the sign-in sheets, Gulotta concluded that the man signed in as “Ronald Benjamin.”

Using a “police database,” Gulotta “look[ed] up Ronald Benjamin.” When the prosecutor asked

him if he “[found] out who that individual was or anything about him,” Gulotta responded

affirmatively. The appellant objected based on foundation, hearsay, confrontation, and due

process grounds. The court overruled the appellant’s objection. The prosecutor inquired

whether Gulotta found out where Ronald Benjamin worked, and he responded, “At the time, no.”

       Gulotta then testified, without objection, that he “was told” that a man named Harold

Benjamin, the name of the appellant, worked for a particular company in Sandston. Based on

that information, Sergeant Gulotta visited the business within a month of the December 2014

theft he was investigating. There, he met with employee Ronald Benjamin. Gulotta was not

asked precisely how he came to meet with Ronald rather than Harold Benjamin. Gulotta further

testified that although he originally considered Ronald Benjamin a suspect because his name

appeared in the sign-in log, he immediately concluded upon meeting Ronald Benjamin that

Ronald “[a]bsolutely [did] not” match the person Gulotta saw in the surveillance videos who had

signed in using that name.

       When the prosecutor inquired whether Gulotta asked Ronald Benjamin if he knew Harold

Benjamin or if Ronald told him “about another person,” the appellant objected on hearsay,

confrontation, and due process grounds. The prosecutor and the judge agreed that the

information was hearsay, but the prosecutor again noted that the hearing was “a show cause

proceeding,” and the court overruled the objection. Gulotta then stated that Ronald Benjamin

“gave [him] the name of Harold Benjamin.”

       Gulotta testified that he subsequently located and printed a Facebook photograph

purporting to be a Harold Benjamin. Gulotta further indicated that he located the same man




                                             - 11 -
“[t]hrough the video cameras . . . that were at VDOT, various places.” He also confirmed that

the appellant was the person in the Facebook photo.

        When the prosecutor asked Gulotta if he spoke to Ronald Benjamin “about this telephone

number” and “who his wife was,” the appellant made his most detailed confrontation clause

objection, arguing that “[i]n addition to hearsay, due process . . . require[s] . . . confrontation . . .

in show cause proceedings and . . . an officer asking a suspect information about [the appellant

as] part of the criminal investigation would impl[icate] the confrontation clause.” The prosecutor

responded that the appellant’s “counsel [could] test the reliability on [c]ross-examination when

it’s being offered from a police officer.” The judge overruled the objection. The prosecutor then

elicited testimony from Sergeant Gulotta that Ronald Benjamin confirmed that “Annette

Benjamin [was] his wife,” that an unspecified “phone number was . . . his phone number,” and

that Harold Benjamin “was his brother.”

                                        1. Testimonial Hearsay

        As stated supra in Part II.A., due process principles provide that a defendant in a

revocation proceeding may successfully object to the admission of hearsay that is testimonial

unless “sufficient credible evidence . . . support[s] a finding of ‘good cause for not allowing

confrontation’” of the declarant. Henderson, 285 Va. at 326-27, 736 S.E.2d at 905-06 (quoting

Morrissey, 408 U.S. at 489); see Cox, 65 Va. App. at 519-20, 779 S.E.2d at 205. A hearsay

statement is testimonial when it results from an “interrogation” the “primary purpose” of which

“is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v.

Washington, 547 U.S. 813, 822 (2006); see id. (categorizing hearsay statements made “to enable

police assistance to meet an ongoing emergency” as non-testimonial). Here, the record

establishes that Sergeant Gulotta spoke with Ronald Benjamin while investigating a series of

Capitol area larcenies. Accordingly, Ronald Benjamin’s challenged statements to Gulotta

                                                  - 12 -
qualify as testimonial hearsay. As such, they were inadmissible unless the record establishes

good cause for not requiring that the appellant be allowed to confront Ronald Benjamin about

them. See Henderson, 285 Va. at 327, 736 S.E.2d at 906.

           2. Good Cause for Admitting Testimonial Hearsay Without Confrontation

       The Supreme Court of Virginia recognizes two tests for evaluating whether good cause

exists to admit testimonial hearsay without confrontation in a revocation proceeding, the

reliability test and the balancing test. See id. at 327-28, 736 S.E.2d at 906. Either test may be

used by the court in its discretion. Id. at 328, 736 S.E.2d at 907. The reliability test permits the

admission of testimonial hearsay in revocation proceedings if it possesses “substantial guarantees

of trustworthiness.” Id. at 327, 736 S.E.2d at 906. The Supreme Court recognizes a variety of

categories of substantially trustworthy information. Id. Those categories include “detailed

police reports (as opposed to mere summaries of such reports by probation officers),”

“corroboration of accusers’ hearsay by third parties or physical evidence,” and a defendant’s

“failure to offer contradictory evidence.” Id. Evidence that “alone” would not be sufficiently

trustworthy includes “bare out-of-court statements reflecting an adversarial relationship with the

accused or statements contained within multiple layers of hearsay.” Id. The balancing test

“requires the court to weigh the interests of the defendant in cross-examining his accusers against

the interests of the prosecution in denying confrontation.” Id. at 327-28, 736 S.E.2d at 906.

                             3. Application of Good Cause Principles

       The appellant challenges Ronald Benjamin’s “identification of Harold Benjamin”;

Ronald’s confirmation “that the outgoing phone call from the stolen phone was made to his

phone number”; and Ronald’s statements identifying Annette Benjamin as his wife and the

appellant as his brother. We hold that the appellant misunderstands the nature of the first two

statements and that good cause existed for not requiring that the appellant be allowed to confront

                                                - 13 -
Ronald Benjamin about the final challenged category of statements, regarding family

relationships.

       The appellant first characterizes Sergeant Gulotta’s meeting with Ronald Benjamin as

“identif[ying] Mr. Harold Benjamin to Sergeant Gulotta.” However, a careful reading of the

record, viewed in the light most favorable to the Commonwealth, reflects that Gulotta knew the

name Harold Benjamin before he ever met Ronald Benjamin and that his first encounter with

Ronald Benjamin was accidental. See id. at 329, 736 S.E.2d at 907. Gulotta testified that he

obtained the name Ronald Benjamin from watching video surveillance recordings and reviewing

the sign-in sheets from one of the buildings in which a December 2014 theft had occurred. He

further explained that he went to the business in Sandston because he “was told” that a Harold

Benjamin worked there.4 Once he arrived at the lumber company, he met Ronald Benjamin.

Therefore, the record makes clear that Sergeant Gulotta already knew of Harold Benjamin’s

existence before he met Ronald Benjamin. Ronald Benjamin did not “identif[y]” Harold

Benjamin to Sergeant Gulotta, and the record contains no factual basis for this challenge.

       The appellant argues second that Sergeant Gulotta testified that Ronald Benjamin told

him “that the outgoing phone call from [Rowlette’s] stolen phone was made to [Ronald

Benjamin’s] phone number.” Once again, however, Gulotta’s testimony about the phone number

does not establish such a link. The transcript reflects that Gulotta confirmed that he spoke to

Ronald Benjamin “about this telephone number” and that “the phone number was . . . his phone

number.” Nevertheless, the record also shows that Gulotta never testified how he learned of the


       4
         Gulotta did not explain who told him that a Harold Benjamin worked at the lumber
company or why he sought to make contact with Harold Benjamin at that time. However, other
evidence established that while Gulotta and Cosby were investigating the series of larcenies, the
Capitol Police received a call about a “suspicious person” at a building where a large number of
larcenies had occurred. The police locked down the building, detained a suspect who matched
surveillance video from several prior thefts, and identified the suspect as Harold Benjamin.

                                               - 14 -
phone number about which he asked Ronald Benjamin or what specific telephone number they

discussed. Consequently, Gulotta’s testimony about Ronald Benjamin’s statements regarding

“this telephone number” did not prove that the outgoing number called from Rowlette’s stolen

phone after the theft was to any specific telephone to which Ronald Benjamin had access.

       Accordingly, based on the record, the only statements of Ronald Benjamin to be

evaluated for good cause to excuse due process confrontation are his statements identifying

Annette Benjamin as his wife and the appellant as his brother.

       Several of the factors comprising the “substantial guarantees of trustworthiness” test

support the conclusion that these identifications, although testimonial hearsay, “meet[] . . . the

reliability . . . test as a matter of law.” See Henderson, 285 Va. at 327, 329, 736 S.E.2d at

906-07. One factor cites “detailed police reports (as opposed to mere summaries of such reports

by probation officers).” Id. at 327, 736 S.E.2d at 906. Here, Sergeant Gulotta testified under

oath, providing a far stronger basis for accepting the trustworthiness of the results of his

investigation than would be provided by the mere submission of a police report through a

probation officer. The hearsay, therefore, was limited to a single layer.

       The appellant argues that even this single layer of hearsay was too much and that he was

entitled to test Ronald Benjamin’s statements because Ronald had been identified through a

police database and had a reason to lie to Gulotta to absolve himself of criminal liability. This

characterization fails to view the evidence, including the court’s implicit credibility findings, in

the light most favorable to the Commonwealth. See id. at 329, 736 S.E.2d at 907. Gulotta

indicated that he “look[ed] up” Ronald Benjamin in a police database, and he confirmed that he

“[found] out” who Ronald Benjamin was, but Gulotta did not convey that he found out anything




                                                - 15 -
about Ronald Benjamin by means of the police database.5 He testified, by contrast, that when he

went to what he thought was the workplace of the appellant, Harold Benjamin, he encountered

not Harold but Ronald Benjamin.

       Next, although Ronald Benjamin might have had an incentive to lie about whether he was

the thief, Sergeant Gulotta did not take his word that the person in the surveillance videos who

had signed his name to the log as Ronald Benjamin was not him. Gulotta met Ronald within

several weeks of a December 2014 theft he was investigating, and Gulotta determined

immediately upon seeing Ronald, using his own senses, that Ronald “[a]bsolutely [did] not”

“match” the person whom Gulotta had seen in the surveillance videos. Cf. id. at 327, 736 S.E.2d

at 906 (naming as a factor in the “substantial guarantees of trustworthiness” test the

“corroboration of accusers’ hearsay by third parties or physical evidence”).

       Additionally, Gulotta obtained a photograph of the appellant from Facebook, compared

the photograph to the video surveillance from the VDOT building and “various places,” and

determined that the person in the videos was the appellant. Further, the surveillance video still

photos from the VDOT building on the date of the thefts and the Facebook photo were admitted

into evidence. This permitted the circuit court to independently determine whether the appellant

was the person in the photos, and it is clear from the record that the court did so.

       Finally, the appellant, who likely knew whether the challenged statements were true—

i.e., whether Ronald Benjamin was his brother and whether Annette Burwell Benjamin was his

brother’s wife—“fail[ed] to offer contradictory evidence,” which the circuit court was entitled to

consider under another factor of the “substantial guarantees of trustworthiness” test. See id.




       5
         Additionally, the appellant did not avail himself of the opportunity to inquire about this
possible connection on cross-examination of Gulotta.

                                                - 16 -
       Thus, the only hearsay statements Gulotta obtained from Ronald Benjamin that

incriminated the appellant were Ronald Benjamin’s identifications of Annette Burwell Benjamin

as his wife and the appellant as his brother, and the record contained good cause to admit these

statements in the revocation proceeding without permitting the appellant to cross-examine

Ronald.6

                                        III. CONCLUSION

       We hold that, as to the testimony relating to the contents of the telephone records, the

appellant waived any objection and, accordingly, that any error in admitting the records

themselves was harmless. Regarding the challenged testimonial hearsay statements made by the

appellant’s brother, Ronald Benjamin, to Sergeant Gulotta, the record supports a finding either

that the statements, if erroneously admitted, were harmless or that good cause permitted their

admission over the appellant’s due process confrontation objection. Consequently, the

challenged rulings of the circuit court did not constitute reversible error, and we affirm the

court’s decision to revoke his sixteen-year suspended sentences and resuspend twelve years of

those sentences.

                                                                                          Affirmed.




       6
        In light of this result, we do not address whether, assuming any error, such error was
harmless.
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