                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker,* Judges Humphreys and Russell
              Argued at Arlington, Virginia
UNPUBLISHED




              JAMES HUBERT PORTER
                                                                           MEMORANDUM OPINION** BY
              v.      Record No. 0427-18-4                             CHIEF JUDGE MARLA GRAFF DECKER
                                                                                JANUARY 15, 2019
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF WARREN COUNTY
                                                 Ronald L. Napier, Judge1

                                D. Eric Wiseley (Struckmann, White & Wiseley, PC, on briefs), for
                                appellant.

                                Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                                Herring, Attorney General, on brief), for appellee.


                      James Hubert Porter appeals the revocation of his suspended sentence. He argues that the

              circuit court erred by admitting certain verbal and written evidence. After reviewing the record, we

              conclude that the out-of-court verbal statement was non-testimonial. In addition, any error in

              admitting the written statement was harmless. For the reasons that follow, we affirm the decision of

              the circuit court.

                                                        I. BACKGROUND

                      The appellant’s original sentence resulted from a 1997 conviction for rape. He was released

              on probation on July 18, 2017. The following October, while on probation, the Department of



                      *
                          On January 1, 2019, Judge Decker succeeded Judge Huff as chief judge.
                      **
                           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                       While the final order in this case was signed by Judge Napier, the Honorable Clifford L.
              Athey, Jr., presided over the proceedings addressed in this opinion.
Corrections rented a motel room for the appellant because he was homeless. A term of the “sex

offender motel contract” required that he “abide by a curfew of 11:00 pm and have no visitors,

alcohol, or drugs in the room.”

        Jacie Poe, the appellant’s probation officer, alleged that he violated the terms of his

probation by having another person stay in his room overnight. At the resulting revocation hearing,

Poe was the sole witness. She testified that a woman accompanied the appellant to his first

probation meeting with Poe. Poe explained that during the meeting she told the appellant that he

needed to “re-register” with the local police department. When he said that he did not know where

the police department was located, Poe volunteered to talk to “his friend.” The appellant replied

that “she was not from here.” Poe told him that she would give both of them directions. Poe

approached the woman, introduced herself, and “asked her where she was from.” When the

woman, Emily Morin, responded that she was from Fredericksburg, Poe asked her where she was

staying. Morin said that she had been “staying with” the appellant. The woman also told Poe that

she was homeless and did not have an address or a phone number.

        The appellant objected to Poe’s testimony about Morin’s statement that she was staying with

the appellant on the grounds of “confrontation and hearsay.” The Commonwealth responded that

hearsay was admissible in a probation violation proceeding. The parties dispute the court’s ruling

on this objection, as discussed infra.

        The Commonwealth entered into evidence a typed statement on Department of Corrections

letterhead. The statement was dated October 24, 2017, and provided: “I, Emily Morin, have been

staying at the Blue Ridge Motel . . . with [the appellant] since Sunday October 22, 2017.” The

document bore signatures in the names of Emily Morin and the probation officer. The appellant

objected to the admissibility of the writing “on [c]onstitutional and hearsay grounds.” Again, the




                                                  -2-
Commonwealth responded that hearsay was admissible. The circuit court admitted the written

statement into evidence.

        The circuit court found that the appellant violated “the terms and conditions of [his]

probation.” The sentencing guidelines recommended a sentence of two to three years, in part due to

the appellant’s previous three or more probation violations. However, the court revoked six months

of the previously suspended sentence and re-suspended any remaining sentences.

                                            II. ANALYSIS

        The appellant argues that the circuit court erred by admitting the evidence at his revocation

hearing indicating that Morin had stayed with him overnight in his motel room.

                              A. Evidence Before This Court on Appeal

        The parties disagree on whether the circuit court admitted Poe’s testimony about Morin’s

verbal statement as substantive evidence of the truth of the matter asserted. The appellant suggests

that the court listened to Poe’s testimony about the circumstances surrounding Morin’s statement,

including what Morin told Poe, for the limited purpose of deciding whether to admit the written

statement. The Commonwealth counters that the testimony was admitted as substantive evidence

that the appellant violated a condition of his probation.

        When Poe testified about her meeting with the appellant, the Commonwealth asked her to

read aloud the assertion in the “Major Violation Report” that “[t]he female had been staying with”

the appellant. The appellant objected to the statement as hearsay. The circuit court ruled that Poe

could testify to what she wrote in the probation report. The appellant again objected that the

statement was hearsay because it was information told to Poe by an out-of-court asserter. The court

sustained the objection but allowed Poe to testify to “the conclusion she reached” based on her

conversation with the woman.




                                                  -3-
       The appellant objected again based on the rule against hearsay and his right to confront

witnesses. The appellant explained that the Commonwealth’s case against him was based solely on

a statement made by a witness who was not present at the hearing. The circuit court observed that

the Commonwealth had not yet entered the written statement into evidence. The court also

reiterated that it had “sustained the objection at this point.” (Emphasis added).

       The Commonwealth then questioned Poe about her meeting with the appellant.

                       Q . . . . You went out and talked to this woman in the lobby
               after you discussed this, her appearance with Mr. Porter.

                      A I discussed her appearance with Mr. Porter with
               Mr. Porter present.

                       Q Okay. And Mr. Porter told you what about her?

                       A That she was a friend that he had met on the street.

                      Q Okay. And what else did he tell you about her, if
               anything?

                       A He didn’t know where she was living.

                      Q Okay. All right. So based on your conversation with
               Mr. Porter what did you do then?

                        A One of the things I instructed Mr. Porter to do was to go
               back down to the Front Royal Police Department to re-register. He
               said he did not know where it was located. So I told him that I would
               talk to his friend who came with him and he said that she was not
               from here. I said okay, well I will give you guys both directions.
               When I went out there I introduced myself to her and asked her
               where she was from and she said she was from Fredericksburg.

               [The appellant]: Objection.

               [Prosecutor]: This is not going to the truth of the matter as yet,
               Judge.

               THE COURT: Yeah. Right. That is not . . .

               [The prosecutor]: Go ahead.

               A That she was . . .
                                                 -4-
                [The appellant]: Objection to the truth of the matter, Your Honor.

                THE COURT: That one is overruled.

                THE WITNESS: That she was from Fredericksburg and I asked
                where she had been staying and she said that she had been staying
                with Mr. Porter.

                [The appellant]: Continuing objection.

                Q And did you have her write out any kind of a statement or
                anything?

                A I did.

        The appellant objected to the written statement. With the appellant’s objection continuing,

Poe again summarized their conversation: “She was homeless. She had [come] from

Fredericksburg with a friend and that friend had left her and that is how she ended up in the motel

room with [the appellant].” The circuit court ruled, “I am going to admit it into evidence,” noting

that in “a probation revocation proceeding . . . hearsay is admissible.”

        The transcript, viewed in its entirety, reflects that the circuit court reserved judgment on the

admission of Poe’s testimony regarding where Morin was staying until it heard all the

circumstances surrounding the statements. See, e.g., Henderson v. Commonwealth, 285 Va. 318,

328-29 (2013) (noting that when considering the admission of hearsay testimony, the court may

“admit[] the evidence conditionally, subject to strik[e] . . . if it fails to meet the appropriate test”).

After the arguments by counsel and the witness’ explanation of the context and manner in which the

information came to her attention, the circuit court admitted the evidence regarding Poe’s




                                                    -5-
conversation with Morin and Morin’s written statement collectively.2 It is not dispositive that the

court did not explicitly say that it was admitting both the verbal and written statements. Supporting

this interpretation of the record is the circuit court’s commentary, which did not differentiate

between Morin’s verbal statement to Poe and her written one. Consequently, we review the

admission of the verbal statement as well as the written statement.

                                        B. Verbal Statement3

        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, 285 Va. at 329. Generally, the

proponent of evidence bears the burden of demonstrating its admissibility. Holloman v.

Commonwealth, 65 Va. App. 147, 168 (2015). A determination regarding the relevance and

admissibility of evidence in a revocation proceeding is ordinarily reviewed for an abuse of

discretion. Henderson, 285 Va. at 329. However, in reviewing the admission of an out-of-court

statement in a revocation proceeding for a constitutional due process challenge, we “accept[] the

historical facts” and “apply a de novo review” to determine whether the record supports admitting

the challenged evidence as a matter of law. Id.; see also Caison v. Commonwealth, 52 Va. App.

423, 434 (2008) (“Although we will not disturb on appeal decisions regarding the admissibility of

evidence absent an abuse of the trial court’s discretion, we review de novo whether a particular


        2
          To the extent that the appellant argues that the circuit court admitted the testimony
about the verbal statement for a limited purpose not including whether he allowed Morin to stay
overnight in his motel room, it was the appellant’s burden to obtain a clear ruling to that effect
from the circuit court. See Schwartz v. Commonwealth, 41 Va. App. 61, 71 (2003) (recognizing
that when a party fails to obtain a ruling on a matter presented to a trial court, there is “no ruling
[for the appellate court] to review on appeal”). Contrary to the appellant’s contention, the record
does not reflect that the testimony was admitted for a limited purpose.
        3
         We assume, without deciding, that the appellant’s brief encompasses a challenge to the
admission of the verbal statement. See generally Rule 5A:20 (listing the requirements for an
appellant’s opening brief).
                                             -6-
category of proffered evidence is ‘testimonial hearsay.’” (citation omitted) (quoting Jasper v.

Commonwealth, 49 Va. App. 749, 755 (2007))).

       Although hearsay evidence is generally admissible in a revocation hearing, the Due Process

Clause of the Fourteenth Amendment guarantees a defendant in a revocation hearing some ability to

cross-examine adverse witnesses. See Henderson, 285 Va. at 326 (noting that “[h]earsay is

frequently admitted in revocation proceedings”); Turner v. Commonwealth, 278 Va. 739, 742

(2009) (holding that only “demonstrably reliable” hearsay is admissible in a probation revocation

hearing (quoting United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982))). In the context

of the instant proceeding and the challenged statement here, the admission of hearsay is subject to a

confrontation challenge only if it is testimonial in nature.4 See Henderson, 285 Va. at 326.

       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).

       In determining whether a statement is testimonial, “we objectively evaluate the

circumstances in which the encounter occur[ed] and the statements and actions of the parties.”

Holloman, 65 Va. App. at 170 (alteration in original) (quoting Michigan v. Bryant, 562 U.S. 344,

359 (2011)). In doing so, the Court “look[s] to all of the relevant circumstances.” Id. (alteration in

original) (quoting Bryant, 562 U.S. at 369). Therefore, we review the entire context in which Morin

made the verbal statement to Probation Officer Poe.

       Poe testified about the circumstances in which Morin told her that she was staying with the

appellant. The record establishes that the two spoke during the appellant’s first appointment with


       4
         Even if it is testimonial hearsay, it is admissible during a revocation proceeding when
“the hearing body specifically finds good cause for not allowing confrontation.” Johnson v.
Commonwealth, __ Va. __, __ (Oct. 18, 2018) (quoting Black v. Romano, 471 U.S. 606, 612
(1985)). However, when hearsay is not testimonial in the first place, the court does not need to
conduct a good cause analysis.
                                                  -7-
Poe. The probation officer explained that she told the appellant that he needed to “re-register” with

the Front Royal Police Department. When the appellant said that he did not know where the police

department was located, Poe said that she “would talk to his friend.” The appellant replied that “she

was not from here.” Poe told him that she would give both of them directions. Poe approached

Morin, introduced herself, and “asked her where she was from.” When Morin responded

Fredericksburg, Poe asked her where she was staying. Morin responded that she had been “staying

with” the appellant.

        The appellant argues that the evidence demonstrated that Poe obtained Morin’s statement

during an investigation of possible probation violations. He suggests that the nature of Poe’s

employment as a probation officer, her supervisory role over him, and his history of “technical”

violations necessarily signify that Poe was “looking for reasons to violate.” This argument,

however, neglects to frame the evidence in the light most favorable to the Commonwealth. See

Henderson, 285 Va. at 329.

        Viewing the evidence in the light most favorable to the Commonwealth, Poe elicited

Morin’s verbal statement in the course of trying to ascertain Morin’s familiarity with the area in

order to give her directions, not in the course of investigating a possible probation violation by the

appellant. Poe testified that she sought to give “both” the appellant and Morin directions to the local

police department. She was attempting to provide directions to someone who did not live in the

area. In order to do so, Poe was trying to gauge Morin’s familiarity with the area. This was all in an

effort to get the appellant to the local police department so that he could register as he was required

to do. Consequently, the evidence of Morin’s verbal statement to Poe is non-testimonial hearsay




                                                  -8-
and met the threshold for admissibility.5 The circuit court did not err by allowing into evidence

Poe’s testimony about Morin’s part of the conversation that revealed that she was actually staying

with the appellant.

                                         C. Written Statement

       Based on the record, we need not decide the more complex question of whether the trial

court erred in admitting Morin’s written statement because any presumed error committed as a

result of its admission is clearly harmless. See Commonwealth v. White, 293 Va. 411, 419-20

(2017). “[T]he General Assembly ‘deliberately engrafted’ the harmless-error doctrine into the

statutory law of the Commonwealth.” Id. at 420 (quoting Irvine v. Carr, 163 Va. 662, 669 (1934));

see Code § 8.01-678. Consequently, “it is ‘the duty of a reviewing court to consider the trial record

as a whole and to ignore errors that are harmless.’”6 White, 293 Va. at 420 (quoting United States

v. Hasting, 461 U.S. 499, 509 (1983)).

       A constitutional error, such as one involving a violation of due process, is harmless only if

the appellate court is “able to declare a belief that it was harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 24 (1967); see Clay v. Commonwealth, 262 Va. 253, 259

(2001). Harmless error review is not “simply a sufficiency of the evidence analysis.” Williams v.

Commonwealth, 32 Va. App. 395, 400 (2000) (en banc) (quoting Hooker v. Commonwealth, 14



       5
         As non-testimonial hearsay, we do not reach the issue of whether good cause supported
the admission of the verbal statement. See generally Kirby v. Commonwealth, 50 Va. App. 691,
698 n.2 (2007) (holding that an appellate court must “decide cases ‘on the best and narrowest
ground’” (quoting Miles v. Commonwealth, 274 Va. 1, 2 (2007) (Kinser, J., concurring))).
       6
         The due process right to confront a witness during a revocation hearing is not one of the
bedrock constitutional rights exempt from harmless error review. See United States v. Verduzco,
330 F.3d 1182, 1184 (9th Cir. 2003) (“A due process violation at a revocation proceeding is
subject to harmless error analysis.” (quoting United States v. Daniel, 209 F.3d 1091, 1094 (9th
Cir.), amended by 216 F.3d 1201 (9th Cir. 2000))). See generally Chapman v. California, 386
U.S. 18, 23 (1967) (“[T]here are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error.”).
                                                -9-
Va. App. 454, 458 (1992)). Therefore, an error does not affect the conviction only if the record

makes “clear beyond a reasonable doubt that a rational [factfinder] would have found the defendant

guilty absent the error.” White, 293 Va. at 422 (quoting Neder v. United States, 527 U.S. 1, 18

(1999)).

        Factors relevant to whether an error was harmless include “the importance” of the

erroneously admitted evidence “in the prosecution’s case, whether [the evidence] was cumulative,

the presence or absence of evidence corroborating or contradicting the [disputed evidence] on

material points, the extent of cross-examination otherwise permitted, and, of course, the overall

strength of the prosecution’s case.” Dearing v. Commonwealth, 260 Va. 671, 673 (2000) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

        Here, the written statement was merely cumulative of Poe’s testimony, clearly credited by

the circuit court, that Morin told her that she had stayed with the appellant. See, e.g., Dalton v.

Commonwealth, 64 Va. App. 512, 520 (2015) (holding that the content of challenged evidence was

cumulative of other evidence admitted at trial). Accordingly, we hold that any error committed in

admitting the written statement was harmless beyond a reasonable doubt.

                                         III. CONCLUSION

        Viewing the record in the light most favorable to the Commonwealth, the verbal statement

was non-testimonial hearsay. Consequently, the circuit court did not err by admitting the verbal




                                                 - 10 -
statement of Morin into evidence.7 In addition, the admission of the written statement, if error, was

harmless. Accordingly, we affirm the judgment of the circuit court.

                                                                                            Affirmed.




       7
         In light of our conclusion regarding the admissibility of the verbal statement, we do not
reach the appellant’s third assignment of error that the circuit court “erred in relying solely on
inadmissible hearsay evidence to support a violation of probation.” He cites Rushing v.
Commonwealth, 284 Va. 270, 278-79 (2012), in support of the proposition that this Court should
reverse and dismiss the case. We note, however, that Code § 19.2-324.1 abrogated the holding
in Rushing.
                                               - 11 -
Russell, J., concurring, in part, and dissenting, in part.

        Although I agree with much of the majority opinion and join it in almost all respects, I

disagree on one fundamental issue—whether Morin’s verbal statement was testimonial. For the

reasons stated below I conclude that, like her subsequent written statement, Morin’s verbal

statement was testimonial, and thus, disagree with my colleagues’ conclusion that her verbal

statement was non-testimonial. Accordingly, I respectfully dissent.8

        The majority correctly states the test for determining whether Morin’s verbal statement

was testimonial. Supra at 7. Her statement was testimonial if the “primary purpose” of Poe’s

questions to Morin was “to establish or prove past events potentially relevant to later” proceedings.

Davis v. Washington, 547 U.S. 813, 822 (2006). In making this determination, we conduct an

objective review of the circumstances leading to the statement, the statement itself, and the actions

of the parties. Holloman v. Commonwealth, 65 Va. App. 147, 170 (2015).

        Here, the circumstances were that Poe, appellant’s probation officer, was meeting with

appellant for the first time since he had returned to Front Royal for supervision by her office.9

Although probation officers undoubtedly care about the rehabilitation and general well-being of

their charges, the overriding purpose of such a meeting is for the probation officer to ascertain

whether the probationer is complying with the conditions of probation. Thus, we review the

interactions at issue here with that understanding.



        8
          Despite my general agreement with my colleagues on the other issues raised by the
parties, my conclusion regarding Morin’s verbal statement requires me to disagree with them
regarding the appropriate disposition of the case. As explained more fully below, I conclude that
the case should be remanded for further proceedings.
        9
         After his release from incarceration, appellant initially was admitted to a residential
program located in Henrico County. Once he completed that program, he had no place to stay.
Pursuant to the relevant regulations, he was returned to Warren County, the location of his
underlying conviction, where he was to be supervised by the District 11 Probation and Parole
Office.
                                               - 12 -
        Poe testified that, prior to having any interaction with Morin, she had been told that Morin

was not from the area. Poe testified that, knowing this, she decided to give directions to the police

station to both appellant and Morin. However, by her own account, Poe did not provide directions

when she approached Morin. Rather, after confirming that Morin was not from the area, Poe asked

her where she was staying, a topic that has little, if any, direct bearing on where the local police

station is located. However, given that Morin was from out of town and had accompanied appellant

to the meeting with his probation officer, it certainly had the potential to bear upon whether

appellant had violated one of the terms of his probation by allowing Morin to stay with him.

        Correctly noting that we must view “the evidence in the light most favorable to the

Commonwealth,” the majority concludes that Poe must have asked where Morin was staying in

order “to ascertain Morin’s familiarity with the area in order to give her directions[.]” Supra at 8. It

reaches this conclusion despite the record containing no evidence that Poe ever provided anyone

directions of any kind. Additionally, Poe never made any statement suggesting that she asked

where Morin was staying to determine her familiarity with local landmarks that might have been

part of the never given directions. In short, the majority reaches its conclusion by drawing an

inference—that Poe must have asked where Morin was staying to aid in giving directions.

        Although, as the prevailing party below, the Commonwealth is entitled to all reasonable

inferences that flow from the evidence, the inference must actually flow from the evidence. See

Bennett v. Commonwealth, 69 Va. App. 475, 491 (2018) (noting that the prevailing party is

entitled to “reasonable inferences fairly deducible” from the evidence (emphasis added)). Absent

some actual attempt by Poe to provide directions or any indication that she inquired about where

Morin was staying to assist in giving directions, the inference drawn by the majority requires

speculation not supported by the underlying circumstances and, in my view, is a bridge too far.

Given the function of a probation officer, the purpose of the meeting as discussed above, and Poe

                                                 - 13 -
knowing that Morin was not from the area, concluding that the question was asked because its

answer might reveal a probation violation requires no such speculation. Accordingly, I respectfully

disagree with my colleagues that the inference they have drawn from this record is reasonable, and

therefore, I conclude that the statement was testimonial.

       This conclusion, however, does not render the statement inadmissible. From this record, a

reasonable factfinder could conclude that the appellant was present when Morin made the statement

and adopted the statement as his own, rendering it admissible as an admission of appellant. See

Lynch v. Commonwealth, 272 Va. 204, 208-09 (2006) (discussing adoptive admissions); Va. R.

Evid. 2:803(0)(B).10 Alternatively, even if Morin’s statement is not an adoptive admission of

appellant, it may have been admissible in a probation revocation proceeding if the trial court found

good cause under the circumstances for dispensing with the limited right to confrontation applicable

in such proceedings. See, e.g., Johnson v. Commonwealth, ___ Va. ___, ___ (Oct. 18, 2018);

Henderson v. Commonwealth, 285 Va. 318, 326 (2013).

       Although both avenues of admissibility are possible from this record, I believe the record

is insufficiently developed to allow us to conclude that the trial court made the necessary

findings to support either path to admission of Morin’s verbal statement. Accordingly, we



       10
          Although not all hearsay exceptions satisfy issues related to confrontation, see Crawford
v. Washington, 541 U.S. 36, 60 (2004) (rejecting the view that the Sixth Amendment right to
confrontation is satisfied if the statement falls within a well-recognized hearsay exception), an
admission of a party, whether actual or adoptive, does. As we previously have noted, “[a]n
adoptive admission avoids the confrontation problem because the words of the hearsay become
the words of the defendant.” Strohecker v. Commonwealth, 23 Va. App. 242, 254 (1996)
(quoting 29A Am. Jur. 2d Evidence § 802 (1994)). Strohecker involved the Sixth Amendment’s
confrontation clause as opposed to the confrontation right found in the Fourteenth Amendment’s
due process clause. Because the Fourteenth Amendment protection is a “more limited right of
confrontation” than that provided by the Sixth Amendment, Henderson v. Commonwealth, 285
Va. 318, 325 (2013), if the Sixth Amendment’s guarantee is not implicated by an adoptive
admission, logic dictates that the lesser Fourteenth Amendment right to confrontation is also not
implicated by an adoptive admission.

                                                - 14 -
cannot affirm on the possibility that the trial court would have made the necessary findings to

support admission of Morin’s verbal statement. See Blackman v. Commonwealth, 45 Va. App.

633, 642 (2005) (noting that “an appellee may argue for the first time on appeal any legal ground

in support of a judgment so long as it does not require new factual determinations” (emphasis

added)). Accordingly, I would remand the matter to the trial court for further proceedings.




                                              - 15 -
