                                          COURT OF APPEALS OF VIRGINIA
PUBLISHED

            Present: Chief Judge Huff, Judges Petty and McCullough
            Argued by teleconference


            DARIUS ONEIL DALTON
                                                                                  OPINION BY
            v.     Record No. 2385-13-3                                    CHIEF JUDGE GLEN A. HUFF
                                                                                MARCH 31, 2015
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF RADFORD
                                         Josiah T. Showalter, Jr., Judge

                           Terry N. Grimes (Terry N. Grimes, Esq., P.C., on briefs), for
                           appellant.

                           Christopher P. Schandevel, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Following a jury trial in the Circuit Court of the City of Radford (“trial court”), Darius

            Oneil Dalton (“appellant”) was convicted of distribution of cocaine, in violation of Code

            § 18.2-248(C), and sentenced to five years’ incarceration. On appeal, appellant presents the

            following assignments of error:

                   1. The trial court abused its discretion by admitting certain text messages
                      as each contained inadmissible hearsay and was admitted without
                      proper foundation and authentication.

                   2. The trial court abused its discretion by permitting Paul Warren to
                      testify as to the contents of a text message, not produced in discovery,
                      and without accounting for its absence in violation of the best evidence
                      rule.

                   3. The trial court erred by failing to grant [appellant’s] motion to strike
                      and set aside the verdict as the evidence was insufficient to support a
                      finding beyond a reasonable doubt that [appellant] distributed cocaine.

             For the following reasons, this Court affirms the rulings of the trial court.
                                         I. BACKGROUND

       On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       On October 24, 2011, Radford City police officers executed a search warrant at a house

where Paul Warren (“Warren”) was living with three roommates. The search commenced after

Warren accepted a package of marijuana sent through the mail. After the search, Detectives Eric

Martin (“Martin”) and Jimmy Smith (“Smith”) asked Warren whether he would be willing to work

as a “confidential informant” in exchange for “consideration” of his charges.1 Warren agreed to do

so and provided the officers with the name of a man he knew only as “Streetz.”

       Warren testified that “[Streetz] used to live behind [his] house” while Warren was a student

at Radford. Warren testified that he met Streetz “face-to-face” “about 100 times.” Additionally,

Warren testified that he had communicated with Streetz via phone calls and text messages

“hundreds” of times. At appellant’s trial, Warren identified appellant as the man he knew as

“Streetz.”

       Warren additionally testified that, as a confidential informant and pursuant to the direction

of the officers, he texted appellant to ask if he could “get a G,”2 to which appellant responded,

“[y]eah.” Appellant objected to this testimony, arguing that “[w]e need the text” because Warren’s

testimony was “not the best evidence.” The trial court overruled this objection. On


       1
        No specific promises were made to Warren, only this his cooperation would result in
“consideration” of his charges.
       2
           A “G” is a reference to one gram of cocaine.
                                                -2-
cross-examination, Warren testified that he could not produce these text messages because he no

longer had that phone.

        Appellant agreed to sell Warren one gram of cocaine for $55. Consequently, Martin and

Smith searched Warren and his vehicle to ensure he had no existing cocaine about his person, gave

Warren $55 in cash to make the purchase from appellant, and equipped Warren with audio

equipment to record the buy. Warren then drove to Apartment L at 1205 Clement Street, which he

identified as Streetz’s apartment and testified that he had been to it roughly “[f]ifty” times. Martin

and Smith followed appellant in an unmarked police vehicle while listening to the live audio feed.

        After Warren arrived, appellant’s roommate, Jaleesa Coverdale (“Coverdale”), opened the

door and let Warren inside. Warren walked into the kitchen where appellant was weighing out one

gram of cocaine. As appellant was doing so, Warren told appellant that he had just “aced” an exam

in his “ECON 106” class. Appellant responded by informing Warren that he took the same class

when he was at Radford and asked whether the same professor was still teaching it.3 Additionally,

the two men discussed a NASCAR race that was taking place that weekend in Martinsville, VA,

appellant’s plans to go home for the weekend, and the possibility of future drug transactions.

Finally, as he was leaving the apartment, Warren said goodbye to Coverdale and “Streetz.”

        After the controlled buy, Warren gave Martin and Smith a clear plastic bag containing 0.924

gram of a white, powdery substance later determined to be cocaine. The officers searched Warren

and his vehicle again to ensure that he did not have any other drugs or money.

        Appellant testified on his own behalf at trial. Specifically, he admitted that he lived with

Coverdale in Apartment L at 1205 Clement Street in October 2011, that he had attended Radford

University where he took ECON 106, and that he had met Warren. Appellant denied selling


        3
      At trial, appellant’s transcript was entered into evidence to confirm that he had taken
ECON 106 at Radford in the Fall of 2009.
                                                 -3-
cocaine to Warren, denied that his voice could be heard on the audio tape, denied that Warren was

ever inside of his apartment, and denied using the nickname “Streetz.” Additionally, appellant was

unable to state whether he was home on the day of the controlled buy – October 25, 2011 – and

suggested that he and Coverdale might have been at a friend’s house, out to eat, or at one of “many

different places.” He further suggested that his taking ECON 106 at Radford and knowing about

the race in Martinsville were coincidences.

       During the Commonwealth’s case-in-chief, appellant objected to the admission into

evidence of two screenshots4 of text messages that Warren received on his cell phone. The text

messages were from someone purporting to be “streets” in the first screenshot and “streetz” in the

second. The messages informed Warren that “streetz” had lost his old phone, had gotten a new

number, and was requesting that Warren provide “streetz” with “mikez” and “kellemz” phone

numbers. Warren replied to these messages with a phone number.

       Warren testified that the messages, which were sent two months after the controlled drug

buy, were sent by appellant. Appellant objected to the admission of these screenshots into evidence

on hearsay grounds, arguing that the Commonwealth had not laid an adequate foundation because

the messages had not been tied to appellant and were not relevant because they were “beyond the

scope of the indictment.” The trial court overruled these objections.

       At the conclusion of all the evidence, appellant moved to strike the evidence as insufficient

to support a conviction. In denying this motion, the trial court noted that this case turned on

credibility determinations. After the jury convicted appellant, he filed a motion to set aside the

verdict, arguing that he “should not have been convicted based upon the [un]corroborated testimony

of . . . Warren” and that the trial court erred by admitting the two screenshots into evidence because


       4
          A screenshot, sometimes called a screen capture, is an image of a cell phone’s screen
that is saved as a graphic file in the phone’s photographs.
                                                 -4-
they were not produced before trial, were not properly authenticated, contained hearsay, and were

offered without any context. In denying this motion, the trial court cited the jury’s responsibility to

judge the credibility of the witnesses and the weight of the evidence. This appeal followed.

                                            II. ANALYSIS

                                 A. Authentication of Text Messages

          On appeal, appellant first contends that the trial court erred by allowing into evidence two

screenshots of text messages sent to Warren’s phone. Specifically, appellant argues the text

messages in the screenshots constituted hearsay because they could not be authenticated as being

sent to Warren by appellant. Assuming without deciding that the trial court abused its discretion

by admitting the text messages,5 this Court nevertheless affirms the trial court’s judgment as

harmless error.

          “‘No trial is perfect, and error will at times creep in.’” Lavinder v. Commonwealth, 12

Va. App. 1003, 1009, 407 S.E.2d 910, 913 (1991) (quoting Parsons v. Commonwealth, 154 Va.

832, 852, 152 S.E. 547, 554 (1930)). “‘Every man is entitled to a fair trial and to nothing more,

and so . . . out of the imperative demands of common sense, has grown the doctrine of harmless

error.’” Id. (quoting Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928))

(omission in original). As “[t]he effect of an error on a verdict varies widely ‘depending upon

the circumstances of the case,’ . . . [e]ach case must . . . be analyzed individually to determine if

an error has affected the verdict.” Id. (quoting Commonwealth v. Story, 383 A.2d 155, 164 (Pa.

1978)).




          5
         Although this Court is not bound by a party’s concession of law, Crawford v.
Commonwealth, 55 Va. App. 457, 481-82, 686 S.E.2d 557, 569 (2009), the Attorney General in
the present case conceded that the text messages did not have an adequate foundation and were,
therefore, erroneously admitted.
                                              -5-
       Code § 8.01-678, Virginia’s harmless error statute, provides that

               When it plainly appears from the record and the evidence given at
               the trial that the parties have had a fair trial on the merits and
               substantial justice has been reached, no judgment shall be arrested
               or reversed . . . (2) For any other defect, imperfection, or omission
               in the record, or for any error committed on the trial.

Code § 8.01-678 has been applied in both criminal and civil cases. See, e.g., Greenway v.

Commonwealth, 254 Va. 147, 154, 487 S.E.2d 224, 228 (1997). “In a criminal case, it is implicit

that, in order to determine whether there has been ‘a fair trial on the merits’ and whether

‘substantial justice has been reached,’ a reviewing court must decide whether the alleged error

substantially influenced the jury.” Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728,

731 (2001) (quoting Code § 8.01-678).

       Accordingly, in Virginia the test for non-constitutional harmless error under Code

§ 8.01-678 in a criminal case, as adopted by the Supreme Court in Clay, is as follows:

               “If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but slight effect, the verdict and
               the judgment should stand . . . . But if one cannot say, with fair
               assurance, after pondering all that happened without stripping the
               erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude that
               substantial rights were not affected . . . . If so, or if one is left in
               grave doubt, the conviction cannot stand.”

262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65

(1946)).

       In the present case, the admission of the screenshots into evidence was harmless error.

The evidence established that Warren had met a man he knew as “Streetz” face-to-face

approximately a hundred times before October 25, 2011. Then, during the controlled buy,

Warren can be heard saying, “Alright, Streetz,” as he is leaving the apartment – an apartment

where appellant admitted to living at the relevant time. Additionally, at trial, Warren testified

                                                 -6-
that appellant was the man he knew as Streetz and that appellant had sold him one gram of

cocaine for $55 on October 25, 2011. Far from being powerfully incriminating evidence, these

screenshots were of marginal significance. At best, the screenshots provided some corroboration

for Warren’s testimony that he had been communicating with someone he called “Streetz.”

Notwithstanding, the text messages were cumulative of otherwise overwhelming evidence

admitted at trial. See Dearing v. Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (stating that one of the factors to

consider in a constitutional harmless error analysis is whether the evidence was cumulative)); see

also Schwartz v. Schwartz, 46 Va. App. 145, 159, 616 S.E.2d 59, 66 (2005) (One measure of

harmlessness is “if other evidence of guilt is so ‘overwhelming’ and the error so insignificant by

comparison . . . we can conclude that the error ‘failed to have any substantial influence on the

verdict.’” (quoting United States v. Lane, 474 U.S. 438, 450 (1986))).

        Given the circumstances of this case, it “‘plainly appears from the record and the

evidence given at the trial that the parties . . . had a fair trial on the merits and substantial justice

has been reached.’” Lavinder, 12 Va. App. at 1005-06, 407 S.E.2d at 911 (quoting Code

§ 8.01-678). As such, this Court is confident “‘that the error did not influence the jury, or had

but slight effect . . . .’” Clay, 262 Va. at 260, 546 S.E.2d at 731 (quoting Kotteakos, 328 U.S. at

764).

                                        B. Best Evidence Rule

        Next, appellant contends that the trial court erred by allowing Warren to testify regarding

the contents of a text message he sent to appellant. Specifically, appellant argues that the text

message constituted a writing, and, therefore, an original of the text itself must be introduced

before Warren’s testimony regarding the contents will be allowed under the best evidence rule.



                                                   -7-
       “Generally, the admissibility of evidence is within the discretion of the trial court,” and

an appellate court will not reject the trial court’s decision absent an abuse of discretion. Midkiff

v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). A “trial judge’s ruling will

not be reversed simply because an appellate court disagrees.” Thomas v. Commonwealth, 44

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

S.E.2d 870 (2005). Instead, a reviewing court can only conclude that an abuse of discretion has

occurred in cases where “reasonable jurists could not differ” about the correct result. Id.

       The “best evidence rule,” which made its appearance in the English law in the early part

of the eighteenth century, was not originally a “rule,” but rather “a general observation to the

effect that when one sets out to prove something, one ought to prove it by the most reliable

evidence available.” Charles E. Friend, Kent Sinclair, The Law of Evidence in Virginia

§ 18-1 (7th ed. 2012). Comments to this effect appear in the earliest Virginia cases: “[t]he best

evidence which the nature of the case admits of, ought to be produced, and if it may be produced,

inferior testimony is inadmissible.” Lee v. Tapscott, 2 Va. 276, 280-81 (1796).

       Today, however, this rule is much narrower. Indeed, it is well-established in modern

practice that “the best evidence rule in Virginia applies only to writings . . . .” Brown v.

Commonwealth, 54 Va. App. 107, 116, 676 S.E.2d 326, 330 (2009). “As a legal term of art, ‘the

best evidence rule requires that where the contents of a writing are desired to be proved, the

writing itself must be produced or its absence sufficiently accounted for before other evidence of

its contents can be admitted.’” Id. at 115, 676 S.E.2d at 330 (quoting Bradshaw v.

Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 885 (1993)). The definition and scope

of the best evidence rule have been succinctly summarized in Rule 2:1002, which provides that

“[t]o prove the content of a writing, the original writing is required, except as otherwise provided

in these rules, Rules of the Supreme Court of Virginia, or in a Virginia statute.”
                                                -8-
       In the present case, appellant argues that Warren’s testimony regarding the contents of

the text message should have been inadmissible under the best evidence rule unless an original of

the text itself was first admitted. “No Virginia appellate court,” however, has “determined

whether a text message [constitutes] a ‘writing’ for the purposes of the best evidence rule.” See

Cobb v. Commonwealth, No. 1526-12-1, 2013 Va. App. LEXIS 301, at *14 (Va. Ct. App. Oct.

22, 2013) (assuming without deciding that a text message qualifies as a writing).

       “For purposes of [the best evidence rule],” Rule 2:1001(1) broadly defines “writings” as

“letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing,

photostating, photographing, magnetic impulse, mechanical or electronic recording, or other

form of data compilation or preservation.” This Court has noted that “[t]he potentially limitless

application of computer technology to evidentiary questions will continually require legal

adaptation.” Penny v. Commonwealth, 6 Va. App. 494, 499, 370 S.E.2d 314, 317 (1988). Even

the text of Rule 2:1001(1) acknowledges advancements in computer technology by providing

that a “writing” may be produced not only by handwriting, but also by electronic recording.

       Considering these circumstances, it is readily apparent that text messages fall within

Rule 2:1001(1)’s broad definition as they consist of letters, words, and numbers set down by

electronic recording.6 Notably, other state and federal courts, applying similar rules of evidence,

have also determined that text messages constitute writings for the purposes of the best evidence

rule. See United States v. Harry, 927 F. Supp. 2d 1185, 1227 (D. N.M. 2013) (applying the best

evidence rule to text messages); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 577 (D. Md.

2007); State v. Espiritu, 176 P.3d 885, 893 (Haw. 2008) (noting that the best evidence rule is



       6
        “Electronic” is defined as “of or relating to electronics . . . utilizing devices constructed
or working by the methods or principles of electronics.” Webster’s Third New International
Dictionary 733 (3d ed. 2002).
                                                -9-
“particularly suited” to electronic evidence and admitting testimony about text messages under

the best evidence rule when original messages and cell phone were unavailable and there was no

evidence of proponent’s bad faith); Laughner v. State, 769 N.E.2d 1147, 1159 (Ind. Ct. App.

2002) (holding that text messages sent between computers through an internet chat room were

subject to the original writing rule and a printout of the messages was an original for purposes of

that rule), cert. denied, 538 U.S. 1013 (2003), abrogated on other grounds by Fajardo v. State,

859 N.E.2d 1201 (Ind. 2007). Accordingly, this Court holds that text messages constitute

writings for the purposes of the best evidence rule.7

       This does not end our inquiry, however. Under the best evidence rule, “‘where the

contents of a writing are desired to be proved, the writing itself must be produced or its absence

sufficiently accounted for before other evidence of its contents can be admitted.’” Brown, 54

Va. App. at 115, 676 S.E.2d at 330 (emphasis added) (quoting Bradshaw, 16 Va. App. at 379,

429 S.E.2d at 885). Indeed, Rule 2:1004 provides a list of exceptions where an

               original is not required, and other evidence of the contents of a writing is
               admissible . . . :

               (a) Originals lost or destroyed. All originals are lost or have been
                   destroyed, unless the proponent lost or destroyed them in bad
                   faith; or

               (b) Original not obtainable. No original can be obtained by any
                   available judicial process or procedure, unless the proponent
                   acted in bad faith to render the original unavailable; or

               (c) Original in possession of opponent. At a time when an original
                   was under the control of the party against whom offered, that
                   party was put on notice, by the pleadings or otherwise, that the
                   contents would be a subject of proof at the hearing, and that
                   party does not produce the original at the hearing; or



       7
         It is not necessary under the facts of the present case to determine what would have
constituted an “original” of the text messages to satisfy the best evidence rule.
                                               - 10 -
               (d) Collateral matters. The writing is not closely related to a
                   controlling issue.

(Emphasis in original). “The test of unavailability is proof with reasonable certainty,” Bradshaw,

16 Va. App. at 380, 429 S.E.2d at 885, and this question – a preliminary issue regarding the

admissibility of evidence – is “addressed to the sound discretion of the trial court,” Rule

2:104(a).

       In the present case, Warren testified that he could not produce the text messages because

he did “not have that phone any longer,” and therefore did not have the messages either. As

such, Rule 2:1004(a) and (b) are applicable to the present context as the text messages were both

lost and unattainable. Indeed the exceptions of Rule 2:1004 are particularly suited to electronic

evidence given the myriad of ways that electronic records may be deleted, lost, or purged as a

result of routine electronic records management. Additionally, there is no evidence which

suggests that the absence of the text messages in the present case was a result of bad faith.

Accordingly, this Court cannot say that the trial court abused its discretion by allowing Warren’s

testimony regarding the content of the text messages because there was sufficient accounting for

the absence of the text messages.

                                    C. Sufficiency of the Evidence

       Lastly, appellant contends that the evidence was insufficient to support his conviction for

distribution of cocaine. Specifically, he argues that because of the lack of physical evidence and

Warren’s inherently incredible testimony, appellant’s conviction should be reversed.

       Our standard for reviewing the sufficiency of the evidence is firmly established:

               [W]hen the sufficiency of the evidence is challenged on appeal, the
               evidence and all reasonable inferences fairly drawn therefrom must
               be viewed in the light most favorable to the Commonwealth. The
               trial court’s judgment should be affirmed unless it appears that it is
               plainly wrong or without evidence to support it.

                                                - 11 -
Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775, 779 (1989) (citations omitted).

Additionally, under this familiar standard of review, “[a]n appellate court does not ‘ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”

Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (emphasis in

original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant

question is whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Id.

       “Determining the credibility of witnesses . . . is within the exclusive province of the jury,

which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Lea

v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993). Therefore, this Court

will not disturb the fact finder’s determination of the credibility of witness testimony unless, “as

a matter of law, the testimony is inherently incredible.” Walker v. Commonwealth, 258 Va. 54,

70-71, 515 S.E.2d 565, 575 (1999). Indeed, “[t]he living record contains many guideposts to the

truth which are not in the printed record,” and an appellate court, not having the benefit of these

guideposts, “should give great weight to the conclusions of those who have seen and heard

them.” Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955).

       In the present case, Warren, after testifying that he had seen appellant face-to-face

approximately a hundred times, identified appellant in court as the man he knows as “Streetz.”

Subsequently, Warren testified that at the direction of Martin and Smith, he went to appellant’s

apartment where appellant sold Warren approximately one gram of cocaine for $55. This

testimony is corroborated by the audio recording and by the fact that Warren was searched by the

officers before and after the controlled buy. Moreover, in the audio recording, Warren can be

heard saying goodbye to “Streetz.” This evidence is sufficient to support appellant’s conviction

for distribution of cocaine.
                                               - 12 -
       Nevertheless, appellant points to the numerous instances in which Warren’s testimony

was impeached and argues that this testimony was therefore not sufficient to support appellant’s

conviction. As the Supreme Court has explained, however,

               [w]hen the law says that it is for the trier of fact to judge the
               credibility of a witness, the issue is not a matter of degree. So long
               as a witness deposes as to facts, which, if true, are sufficient to
               maintain their verdict, then the fact that the witness’ credit is
               impeached by contrary statements affects only the witness’
               credibility . . . [and] the weight and sufficiency of the testimony. If
               the trier of the facts sees fit to base the verdict upon that testimony,
               there can be no relief in the appellate court.

Simpson v. Commonwealth, 199 Va. 549, 557-58, 100 S.E.2d 701, 707 (1957); see also Burke v.

Scott, 192 Va. 16, 23-24, 63 S.E.2d 740, 744 (1951). In this case, the jury saw fit to convict

appellant based on Warren’s testimony, and this Court will not reverse this conviction because it

is not plainly wrong or without evidence to support it.

                                        III. CONCLUSION

       For the foregoing reasons, this Court affirms the rulings of the trial court.

                                                                                          Affirmed.




                                                - 13 -
