                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia


DORA ANN SWAIN
                                                 OPINION BY
v.         Record No. 0610-97-3        JUDGE SAM W. COLEMAN, III
                                              DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    Richard C. Pattisall, Judge
           Steven P. Milani (Michelle C. F. Derrico;
           Office of the Public Defender, on briefs),
           for appellant.

           John H. McLees, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.



     Dora Ann Swain was convicted in a jury trial of possession

of cocaine with the intent to distribute.   On appeal, she

contends (1) the trial court erred by admitting a police

officer's inadmissible hearsay testimony, and (2) erred by ruling

that it had no authority to suspend or modify the jury's sentence

unless it "shocked the conscience of the court or was wholly

beyond the evidence presented."   We find that the police

officer's challenged testimony was not inadmissible hearsay.

Therefore, we affirm the conviction.   On the sentencing issue,

the Attorney General concedes, and we agree, that the trial judge

applied an incorrect standard in denying the motion to suspend or

modify the sentence.   The trial judge stated that he could

suspend only a sentence that "shocked the conscience of the

court."   Because the trial judge had much broader discretion to
suspend the sentence, we vacate imposition of the sentence and

remand the case for reconsideration of the motion to suspend or

modify the sentence.

                            I.   BACKGROUND

     During execution of a search warrant at Swain's home, a

police officer stationed at the front door witnessed Swain arrive

by car.    The officer testified that as Swain exited the vehicle

and walked toward her house, Juanita Watson came from "around" a

parked van and joined Swain.
     The officer testified that as Watson approached Swain, Swain

said, "something similar to, what do you need or what do you

want."    Watson replied:   "A twenty."   The officer testified that

"a twenty" is street terminology for a small piece of crack

cocaine.   According to the officer, Swain "advised Ms. Watson to

wait a minute or wait just a minute, [or] something similar."

     Swain made a pretrial motion to suppress Watson's statement,

"a twenty," as inadmissible hearsay.      Swain contends the

Commonwealth offered Watson's statement for its implied assertion

that Swain was a drug dealer.     The trial court denied the motion

to suppress Watson's statement.

     At the sentencing hearing, counsel for Swain asked the trial

court to suspend part of the jury's recommended sentence.      In

denying the motion to suspend the sentence, the trial court

stated:
            Now, with regard to whether the jury's
            recommended sentence is followed or not, the
            standard of measurement there is . . . if


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          it's a sentence . . . that shocks the
          conscience of the Court, that is wholly
          beyond the evidence of the case, a
          miscarriage of justice then the Court has the
          power and authority to step in and should
          step in. On the other hand, if it's within
          the range of punishment, in this instance at
          the lower end and is justified by the
          evidence . . . then the Court has no
          authority to set that jury verdict aside just
          because the Court might have done differently
          or may have given a lesser sentence had the
          Court heard the case instead of the jury.


                           II.      ANALYSIS
                              A.    Hearsay

     In reviewing a trial court's ruling on a motion to suppress,

we view the evidence in the light most favorable to the

prevailing party.   See Alvarez v. Commonwealth, 24 Va. App. 768,

775, 485 S.E.2d 646, 649 (1997).       "`The admissibility of evidence

is within the broad discretion of the trial court, and a ruling

will not be disturbed on appeal in the absence of an abuse of

discretion.'"   Brown v. Commonwealth, 21 Va. App. 552, 555, 466

S.E.2d 116, 117 (1996) (quoting Crews v. Commonwealth, 18 Va.

App. 115, 118, 442 S.E.2d 407, 409 (1994)).       "Hearsay evidence is

testimony in court . . . of a statement made out of court [that

is] offered as an assertion to show the truth of matters asserted

therein, and thus resting for its value upon the credibility of

the out-of-court asserter."        Taylor v. Commonwealth, 28 Va. App.

1, 9, 502 S.E.2d 113, 117 (1998) (en banc) (citations omitted).

     Watson's statement that she wanted "a twenty," is hearsay

only if offered to prove the truth or falsity of the matter



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asserted therein.   See Brown v. Commonwealth, 25 Va. App. 171,

179, 487 S.E.2d 248, 252 (1997) (en banc).     Determining whether a

statement is offered to prove the truth or falsity of the matter

asserted requires an analysis of the purpose for which the

statement is offered into evidence.     See generally Lawrence H.

Tribe, Triangulating Hearsay, 87 Harv. L. Rev. 957, 958-59 (1974)

(presenting a method for analyzing the hearsay rule).

     We determine, therefore, the purpose for which the

Commonwealth offered the statement.     The literal truth of the

assertion -- that Watson wanted cocaine -- was irrelevant and was

not the purpose for which the Commonwealth offered the statement.

Additionally, Watson's belief that Swain was a drug dealer was

not the reason the Commonwealth offered her statement into

evidence.   Instead, the Commonwealth offered Watson's statement,

"a twenty," to explain and give meaning to Swain's statements.

Watson's statement gives meaning to Swain's declarations "what do

you want," and "just a minute."    In context, Watson's response "a

twenty," explained that Swain's first inquiry was an offer to

sell drugs, and the statement, "just a minute" meant, "I will

provide you with drugs in a minute," both of which were

admissible as party admissions to prove Swain's intent.     See

Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675,

678-79 (1993).

      We have recognized that words offered solely to give

context to party admissions are not hearsay and are admissible.




                                  -4-
"Words which constitute a question or accusation that result in a

party admission are not barred by the hearsay evidence rule.     It

is only when the prompting statements have the quality of

evidence (offered for the truth of the matter asserted) that they

become inadmissible hearsay."   Atkins v. Commonwealth, 13 Va.

App. 365, 368, 412 S.E.2d 194, 196 (1991) (citation omitted).

     A statement offered to provide context to an admission is

not hearsay because it is not offered to prove the truth of the

matter asserted therein.   The evidentiary value of Watson's

statement, "a twenty," depends solely on the literal words spoken

and not on what was actually on Watson's mind.   In other words,

Watson's statement does not "rest[] for its value upon the

credibility of the out-of-court asserter."   Taylor, 28 Va. App.

at 9, 502 S.E.2d at 117.   See e.g., State v. Miller, 921 P.2d

1151, 1159 (Ariz. 1996) (finding that declarant's statement, made

during the course of an interrogation, was not hearsay because it

was admitted for its effect on the defendant rather than its

substantive content); Williams v. State, 669 N.E.2d 956, 958
(Ind. 1996) (admitting informant's statements in course of

conversation as non-hearsay because the responses that they

prompted "constituted the evidentiary weight of the

conversation"); Worden v. State, 603 So.2d 581, 583 (Fla. App.

1992) (stating that detectives' questions and statements were not

offered for their truth, but rather to place defendant's answers

in context).




                                -5-
       Because the Commonwealth did not offer Watson's statement,

"a twenty," for the truth or falsity of the statement, it was not

hearsay, and the trial judge did not err in admitting it.




                               -6-
                           B.    Sentencing

     A trial court's ruling on a motion to suspend a jury's

sentence rests within the sound discretion of the trial court and

should not be overturned absent an abuse of that discretion.         See

 Lane v. Commonwealth, 223 Va. 713, 719, 292 S.E.2d 358, 362

(1982).

     The trial judge ruled that he lacked authority to modify a

jury's recommended sentence unless the sentence "shocked the

[court's] conscience" or was "wholly beyond the evidence of the

case."
     The Commonwealth concedes the trial court misstated its

authority to modify a jury's recommended sentence.      The jury's

sentence is a "first-step decision" in determining the fair and

appropriate punishment for a crime.       See Duncan v. Commonwealth,

2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986) (citing Vines v.

Muncy, 553 F.2d 342, 349 (4th Cir. 1977)).      The jury's sentence

is subject to the judge's review after considering at the

sentencing hearing various mitigating, extenuating, or even

aggravating circumstances.      See id.   By granting the trial court

authority to review the jury's sentence, "the legislature

intended to leave the consideration of mitigating circumstances

to the court.   It is the court that has the responsibility of

pronouncing the sentence after the maximum punishment is fixed by

the jury."   Id.   "Failure to consider whether a jury sentence

should be mitigated because of a belief that the jury sentence is



                                  -7-
inviolable is an abuse of discretion."    Bruce v. Commonwealth,

9 Va. App. 298, 302-03, 387 S.E.2d 279, 281 (1990).

     For the foregoing reasons, we uphold the trial court's

evidentiary ruling but we vacate execution of the sentence and

remand the case for a judge of the court to consider Swain's

motion to modify or suspend the jury's sentence.

                                     Sentence vacated and remanded.




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