                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and O’Brien
UNPUBLISHED


              Argued at Alexandria, Virginia


              KONDWANI GRADY
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0339-15-4                                   JUDGE MARLA GRAFF DECKER
                                                                                  OCTOBER 4, 2016
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                         Benjamin N. A. Kendrick, Judge Designate

                               Genevieve J. Miller, Assistant Public Defender, for appellant.

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


                     Kondwani Grady appeals his conviction in a bench trial for petit larceny, third or subsequent

              offense. The appellant contends that the trial court erred by admitting a deputy’s testimony about

              two telephone conversations he had with an individual who identified himself as Kondwani Grady.

              He argues that the Commonwealth did not establish a sufficient foundation for its admittance under

              any of the exceptions to the rule against hearsay. The appellant further suggests that the error was

              not harmless because without the testimony the remaining evidence was insufficient to support the

              conviction. We hold that the Commonwealth established by a preponderance of the evidence that

              the appellant was the person who spoke with the deputy and who admitted in one of the phone

              conversations that he stole the shoes and, consequently, the evidence was admissible as an

              admission by a party opponent. Accordingly, the trial court did not abuse its discretion by admitting

              the evidence, and we affirm the judgment.


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

                                           A. The Offense

        On or about April 22, 2014, Dwayne Burks, a loss prevention supervisor for a department

store in Loudoun County, was monitoring the store’s “camera system.” Burks saw the appellant

go to the shoe department and pick up a shoe box. He watched the appellant remove the security

tag from the shoes. The appellant then turned his back to the camera, did “something,” turned

back around, closed the box, put it down, and then left without paying for anything.1 During the

incident, the appellant put his coat around the shoe box.

        After the appellant left, Burks went to the shoe department to “check the shoebox and

make sure it was empty.” He went to the location where the appellant had left the shoe box. The

box contained only “[t]he hard tag that [the appellant had] popped off the shoes.” Burks

explained that a hard tag is a security device affixed to merchandise that triggers an alarm if it is

not removed before the item is carried through the door. The shoes were not found inside the

store after the appellant left.

        Burks contacted the Loudoun County Sheriff’s Office, and Deputy William Leonard

responded to the store. Burks could not identify the appellant, but provided Deputy Leonard

with his description. He also provided the license plate number and a detailed description of the

vehicle in which the appellant left. The truck was a white Ford with a company name on it and

the truck number on the driver’s side front panel as well as on the back.

        After Deputy Leonard contacted the company associated with the truck, an individual

telephoned the deputy and admitted that he took the shoes without paying for them. This person

identified himself as Kondwani Grady and provided his cellular telephone number. In a second


        1
       The video recording from the surveillance system that captured the appellant’s actions
was admitted into evidence and played for the court.

                                                 -2-
telephone call initiated by the deputy, after being told that there was a warrant for his arrest, the

man said he would turn himself in to the Prince William Police Department, and later the

appellant did so.

       The trial court found the appellant guilty of petit larceny, third or subsequent offense.2

He was sentenced to three years in prison with two years and six months suspended.

                                       B. Challenged Evidence

       Prior to trial, defense counsel filed a motion in limine asking the court to exclude

evidence of the phone calls between Deputy Leonard and an “individual purporting to be

Mr. Grady.” Relying on Snead v. Commonwealth, 4 Va. App. 493, 358 S.E.2d 750 (1987),

counsel argued that the conversations did not meet the admissibility standard required to prove

the caller’s identity as the appellant. Counsel contended that consequently the deputy’s

testimony about the phone conversations was inadmissible hearsay. The trial court deferred

ruling on the motion until after the deputy testified about the phone calls during the bench trial.

       At trial Deputy Leonard testified that during his investigation of the theft he ran the

license plate number of the truck used by the suspect and determined that it was registered to an

out-of-state trust company. He contacted the company and was told that the truck was assigned

to a company in Fairfax County. The deputy contacted that company, confirmed that the truck

was assigned to its fleet, and was told that the vehicle had been signed out to someone that

morning. Deputy Leonard testified that he gave a description of the suspect to a manager. That

person said he knew the individual and had given him a truck that day. The company employee

did not provide the identity of the driver and told the deputy that the company would contact its

legal department for further advice.

       2
        The appellant was also charged with destruction of personal property in violation of
Code § 18.2-137, but the trial court granted his motion to strike the evidence on that count of the
indictment and dismissed the charge.

                                                 -3-
       Deputy Leonard further testified that during the course of the investigation he received a

phone call. The caller identified himself as Kondwani Grady and provided a telephone number.

The deputy said that during the phone call he “asked [the caller] if there was anything that he

wanted to tell” the deputy and “the person on the phone admitted to taking the shoes without

paying.” The deputy continued, “I advised him that I would be taking [out] a warrant for his

arrest [and] that it would be a petit larceny charge.”

       Deputy Leonard determined that the appellant had two prior larcenies on his record and,

consequently, obtained a felony warrant. He then telephoned the suspect at the cell phone

number provided. The deputy testified that the voice of the person who answered the phone was

the same voice as the person on the first phone call in which the caller identified himself as

Kondwani Grady.3 According to Deputy Leonard, that person said that he would turn himself in

at the “Prince William County police station, which he did.” The deputy further testified that the

person also said that he would return the shoes “at a later date.”

       The appellant’s counsel argued to the trial court that the telephone conversations were

inadmissible hearsay and that the Commonwealth failed to lay a foundation establishing that the

person on the phone was the appellant. The court noted that in addition to the fact that the

individual identified himself as the appellant, the statements and subsequent actions of the

appellant corroborated his identity. It found that circumstantial evidence supported the

conclusion that the person on the phone was who he said he was, Kondwani Grady. The trial

court consequently ruled that the testimony about the phone conversations was admissible.




       3
           The deputy acknowledged that he did not know the appellant.
                                              -4-
                                          II. ANALYSIS

       The appellant argues that the trial court erred by admitting into evidence the testimony of

Deputy Leonard regarding two telephone conversations with an individual who represented

himself as Kondwani Grady. He contends that the Commonwealth failed to lay a proper

foundation to support admitting the evidence under the “admission by a party opponent”

exception to the rule against hearsay.

       The law in Virginia is clear that “[t]he admissibility of the evidence is within the broad

discretion of the trial court” and on appeal this Court reviews that decision under an abuse of

discretion standard. Davis v. Commonwealth, 65 Va. App. 485, 499, 778 S.E.2d 557, 564

(2015) (alteration in original) (quoting Wood v. Commonwealth, 57 Va. App. 286, 304, 701

S.E.2d 810, 818 (2010)). Review under this standard “means that the trial judge’s ‘ruling will

not be reversed simply because an appellate court’” may disagree. Tynes v. Commonwealth, 49

Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (quoting Thomas v. Commonwealth, 44 Va. App.

741, 753, 607 S.E.2d 738, 743, adopted on reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870

(2005)). This Court will hold that an abuse of discretion has occurred “[o]nly when reasonable

jurists could not differ.” Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 268

(2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)).

Additionally, on appeal, “[a]bsent clear evidence to the contrary,” a trial court is presumed to

have known the law and properly applied it. See Yarborough v. Commonwealth, 217 Va. 971,

978, 234 S.E.2d 286, 291 (1977).

       In the instant case, the appellant objected to the testimony as hearsay. If evidence is

hearsay, it “is inadmissible unless it falls within one of the recognized exceptions to the hearsay

rule.” Lawrence v. Commonwealth, 279 Va. 490, 497, 689 S.E.2d 748, 751 (2010); see Va. R.

Evid. 2:802. Once the appellant objected to the statement as hearsay, the Commonwealth, as the

                                                -5-
proponent of the evidence, bore the burden of establishing that it was admissible. See Neal v.

Commonwealth, 15 Va. App. 416, 420, 425 S.E.2d 521, 523 (1992). “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.” Bloom v. Commonwealth, 262 Va. 814, 821, 554

S.E.2d 84, 87 (2001) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296

(1975)).

       Hearsay is “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 Bailey v. Commonwealth, 62 Va. App. 499, 504, 749 S.E.2d 544, 546 (2013). The term

hearsay encompasses “testimony given by a witness who relates what others have told him or

what he has read.” Lawrence, 279 Va. at 497, 689 S.E.2d at 751; see also Bynum v.

Commonwealth, 57 Va. App. 487, 491, 704 S.E.2d 131, 133 (2011). There is no dispute that the

testimony at issue, about the admission of guilt made over the telephone, was hearsay.

       However, the determination that the testimony was hearsay does not end the inquiry.

There are many well-recognized exceptions to the rule against hearsay. The exception upon

which the Commonwealth relies here is the one for the admission of party opponents:

“extra-judicial admissions that tend to show guilt . . . are admissible as party admissions,” even if

they are hearsay. Paden v. Commonwealth, 259 Va. 595, 597, 529 S.E.2d 792, 793 (2000); see

Va. R. Evid. 2:803(0)(A). The appellant does not disagree that the challenged statements would

qualify under the admission by a party opponent exception to the rule against hearsay if the

Commonwealth had proven that he was the speaker on the phone call. Instead, the appellant

argues that the trial court erred by admitting the evidence of the conversation because the

Commonwealth did not prove that he was the person on the phone with the deputy.




                                                -6-
       When the testimony of a witness “relates to a conversation between him and another

particular individual, it is the general rule that in order to be admissible in evidence the identity

of the person with whom the witness claims to have been speaking must be satisfactorily

established.” Benson v. Commonwealth, 190 Va. 744, 751, 58 S.E.2d 312, 314 (1950). It is

axiomatic that “[t]he identity of the person making the out-of-court statement may be established

by either direct or circumstantial evidence.” Bloom, 262 Va. at 820-21, 554 S.E.2d at 87. It is

also clear that a statement of the speaker’s identity, “standing alone, is not generally regarded as

sufficient proof of such identity unless it is corroborated by other circumstances.” Snead, 4

Va. App. at 496, 358 S.E.2d at 752 (emphasis added) (quoting Benson, 190 Va. at 751, 58 S.E.2d

at 315). “[C]ircumstances preceding or following the conversation may serve to sufficiently

identify the caller.” Armes v. Commonwealth, 3 Va. App. 189, 193, 349 S.E.2d 150, 152-53

(1986) (quoting State v. Williamson, 502 P.2d 777, 780 (Kan. 1972)). The “completeness of the

identification” goes to weight rather than admissibility, with the responsibility of determining the

threshold question of admissibility resting with the trial court. Id. at 193, 349 S.E.2d at 153

(quoting Williamson, 502 P.2d at 780).

       Here, as the trial court correctly found, facts well beyond the simple statement of identity

adequately proved that the appellant was the caller. The Commonwealth presented significant

circumstantial evidence that the caller was Kondwani Grady.

       Deputy Leonard tracked the getaway truck identified by Burks to a company that

acknowledged that it had an employee who matched the description of the appellant. Although

the company would not provide the individual’s name, it confirmed that individual had been

assigned a vehicle that day. The deputy then received a phone call from a person who identified

himself as the appellant, with the unique first name “Kondwani.” The caller, without being told

anything about the crime Deputy Leonard was investigating, confessed to the specific theft of a

                                                 -7-
pair of shoes. In a second phone call, this time placed by the deputy, when told that a warrant for

his arrest had been obtained, the same person said that he would turn himself in to the police at

the Prince William police station. The caller in each phone call had the same voice. The

appellant did in fact turn himself in to the police in Prince William, not Loudoun where the crime

occurred.

       Additionally, the appellant’s physical characteristics matched the person on the

department store surveillance video. Burks testified that the appellant was the person who he

watched in the shoe department on the day of the theft. He stated that the appellant manipulated

a shoe box, removed tags from the shoes, hid the box with his coat during the incident, and

dropped the box before walking away. After the appellant left, Burks checked the box, which

contained the hard tag security mechanism but no shoes. This evidence, that the appellant acted

in a manner consistent with stealing the shoes, corroborated the caller’s verbal identification and

admission of guilt.

       The record supports the trial court’s conclusion that a preponderance of the evidence

proved that the appellant was the speaker on the phone. Compare Armes, 3 Va. App. at 194, 349

S.E.2d at 153 (holding that the circumstantial evidence established the caller’s identity as the

defendant), with Snead, 4 Va. App. at 498, 358 S.E.2d at 754 (holding that the evidence was

insufficient to corroborate the caller’s identity). The timing of events, details provided by the

individual on the phone, and the actions of the appellant support the conclusion that the

individual on the phone was the appellant.

       The two cases relied upon by the appellant, Benson, 190 Va. at 750-53, 58 S.E.2d at

314-15, and Snead, 4 Va. App. at 496-98, 358 S.E.2d at 752-54, do not compel a different result.

In each case, the appellate court held that the evidence did not satisfactorily corroborate the




                                                -8-
defendant’s identity as the speaker in the phone conversation with the witness. Benson, 190 Va.

at 752-53, 58 S.E.2d at 315; Snead, 4 Va. App. at 498, 358 S.E.2d at 754.

       In Benson, the only circumstances tending to show the identity of the speaker who

admitted to bribery derived from the conversation with C.V. Allen, a former police officer. 190

Va. at 752-53, 58 S.E.2d at 315. Allen called a number purporting to be the defendant’s business

that was provided to him by a forgotten source. Id. He placed the call after hearing of a list with

his name on it of police officers receiving bribes from the defendant:

               [Allen] testified that he asked to speak to Benson, . . . and the party
               answering said he was Benson. Allen thereupon inquired whether
               his name was on the list and the party said “yes” and, in reply to
               the question from Allen as to why it was on the list, the party said
               “You are supposed to know why”; that Allen was supposed to get
               $10 a month from the payoff man down at headquarters.

Id. at 750-51, 58 S.E.2d at 314. In concluding that the circumstances did not establish the

speaker’s identity, the Supreme Court found significant the lack of reliable identification of the

phone number called. The Court also emphasized the fact that some of the information relevant

to the pending police investigation was public knowledge at the time of the phone conversation.

Id. at 752, 58 S.E.2d at 315. Unlike the witness in Benson, the deputy in the appellant’s case

explained in detail the sequence of events leading to his phone conversations with the person

claiming to be the appellant. Further, the appellant’s actions before and after the phone

conversations, the specific content of those conversations, and the timeline of relevant events all

corroborated the caller’s statement that he was Kondwani Grady.4

       In reversing the conviction for operating an illegal gambling enterprise in Snead, this

Court noted that there was no evidence that the defendant lived at the gambling house on the date

       4
          The appellant suggests that because the caller also said he would return the shoes, the
fact that he did not do so is significant. The record, however, is simply silent as to whether the
shoes were returned. In any event, that point goes to weight of the testimony rather than its
admissibility in light of the significant circumstantial evidence supporting proof of identity.

                                                -9-
that the phone call to the house occurred. 4 Va. App. at 496-98, 358 S.E.2d at 752-54. The

analysis also emphasized the lack of any other evidence that the defendant participated in the

gambling enterprise. Id. at 497-98, 358 S.E.2d at 753. In the instant case, in contrast to Snead,

there was ample evidence other than the verbal identification corroborating the speaker’s

identity.

        For these reasons, we hold that the trial court acted within its discretion by admitting

Deputy Leonard’s testimony about the appellant’s admission of guilt.

                                          III. CONCLUSION

        We hold that the challenged evidence was satisfactorily authenticated and admissible under

the admission of a party opponent exception to the rule against hearsay. Consequently, the court

properly acted within its discretion, and we affirm the judgment of the trial court.5 We remand the

case solely for correction of a clerical error in the sentencing order which incorrectly states that the

conviction was for violating Code § 18.2-95 (grand larceny) rather than Code § 18.2-96 (petit

larceny third or subsequent offense). Code § 8.01-428(B); see, e.g., Howell v. Commonwealth, 274

Va. 737, 742, 652 S.E.2d 107, 109 (2007).

                                                                               Affirmed and remanded.




        5
        In light of this holding, we do not address the assignment of error suggesting that if
admission of the testimony was error, it was not harmless.
                                              - 10 -
