                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, McCullough and Huff
PUBLISHED


            Argued at Alexandria, Virginia


            ERNESTO WILFREDO SOLANO GODOY
                                                                                       OPINION BY
            v.     Record No. 0369-12-4                                             JUDGE GLEN A. HUFF
                                                                                       MAY 28, 2013
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                             R. Terrence Ney, Judge

                           Harold N. Ward, Jr. (The Ward Law Office, P.C., on briefs), for
                           appellant.

                           Susan Baumgartner, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Ernesto Wilfredo Solano Godoy (“appellant”) appeals his convictions of burglary, in

            violation of Code § 18.2-90; rape, in violation of Code § 18.2-61; two counts of object sexual

            penetration, in violation of Code § 18.2-67.2; and sodomy, in violation of Code § 18.2-67.1.

            Following a jury trial in the Circuit Court of Fairfax County (“trial court”), appellant was

            sentenced to a cumulative total of 150 years in prison, with 10 years suspended on the rape

            conviction. The trial court ordered that the sentences for the burglary, object sexual penetration,

            and sodomy convictions run concurrently with the sentence for the rape conviction, thus giving

            appellant an active sentence of thirty-five years in prison.

                   On appeal, appellant contends that the trial court erred in admitting into evidence

            Commonwealth’s Exhibit 47, which depicted his telephone records from the night of the offense.

            Specifically, appellant argues the exhibit did not fall within the business records exception to the

            hearsay rule. For the following reasons, we affirm the trial court’s judgment.
                                            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.

        At trial, the Commonwealth presented evidence that appellant used various tools to pry open

the balcony door of K.A.A.’s apartment and entered her bedroom in the early morning of June 4,

2011. K.A.A. awoke to see a masked individual picking up her infant child from her bed and

placing the infant in his crib nearby. When K.A.A. asked who was there, appellant approached her

and brandished a large knife, which he dragged across the length of her body while indicating that

she remain quiet. Appellant then raped and sodomized K.A.A. repeatedly, at one point threatening

to return the following day and kill her.

        Following the attack, appellant demonstrated to K.A.A. that he had not harmed her three

children who were sleeping in a different room. He left shortly thereafter, and K.A.A. called a

friend then contacted 911. K.A.A. subsequently was examined by a trained sexual assault nurse,

who observed abrasions and redness consistent with forcible rape. In inspecting K.A.A.’s

apartment, police found fingerprints and a shoe impression on the balcony railing. They also found

a bottle of bleach apparently used for the purpose of removing evidence of the prints, as well as

fingerprints on a number of tools located on the balcony. The knife appellant used was discovered

on the floor of K.A.A.’s bedroom. Police apprehended appellant after showing a sketch of the

perpetrator to K.A.A.’s colleagues at work, one of whom recognized appellant as a former

employee.




                                                 -2-
       Appellant presented evidence in his defense that he and K.A.A. had been conducting an

affair and that she had invited him to her apartment on the night of the offense. According to

appellant, K.A.A. became angry with him throughout the course of the evening because he was

attempting to break off the relationship, causing him to retreat to the balcony at one point. While

appellant was on the balcony, his cellular telephone began to ring with a unique ringtone that

signified his wife was calling. Appellant claimed that K.A.A. grabbed the telephone, locked the

balcony door with appellant still outside, and proceeded to taunt appellant, indicating that she would

answer the call and report their affair to his wife. Appellant then attempted to pry open the balcony

door using tools that he found outside. K.A.A., however, chose not to answer the phone and

eventually let appellant back inside the apartment.

       Appellant admitted that he had sexual intercourse with K.A.A. and that he touched her

sexually in the various ways alleged in the Commonwealth’s case-in-chief, but stated that all of the

acts were consensual. He stated that he already knew how to get to K.A.A.’s apartment because he

had visited on a previous occasion to discuss purchasing an auto part from her boyfriend.

       At trial, the Commonwealth called Ronald Witt (“Witt”), a custodian of records for

T-Mobile telephone company, as a witness. Witt testified that his primary responsibility as a

records custodian was to “produce records pursuant to requests from the courts who subpoenas

[sic] court ordered search warrants.” In responding to how the records were generated in relation

to the placement and receipt of telephone calls, Witt stated that “the records are self-generating

automatically through the computer system as the calls are received or made.” The

Commonwealth then asked, “[s]o, it’s not a physical human person inputting data to generate

these records?” Witt responded that there was not. Witt also testified that T-Mobile’s telephone

records were kept within the normal course of business and that the records were relied upon by

employees in order to perform work-related functions.

                                                 -3-
       The Commonwealth then sought to introduce into evidence Exhibit 47, which consisted

of appellant’s telephone records from the night of the offense. Witt confirmed that he had

examined the proffered document and that it accurately depicted T-Mobile’s records. Appellant

objected, stating, “I’m not sure all of the elements of the business record have been met yet. But

in any event, the relevance of any such records[,] if these are business records[,] to this case,

have not yet been established.”

       The Commonwealth then recalled a detective to the stand who verified that the telephone

records in question were the records of appellant’s cellular telephone. Having established such,

the Commonwealth again sought to have the records admitted into evidence. Appellant objected

again, stating, “I still believe that they have not satisfied all the elements for business record. I

will not repeat what they are because I don’t want to help the Commonwealth with it’s [sic] case.

But I think there’s at least one element missing.” The trial court overruled appellant’s objection

and admitted the telephone records into evidence. This appeal followed.

                                           II. ANALYSIS

       On appeal, appellant contends that the trial court erred in admitting into evidence

Commonwealth’s Exhibit 47, which depicted his cellular telephone records from the night of the

offense. Specifically, appellant argues the exhibit did not fall under the business records

exception to the hearsay rule, and thus its unlawful admission unfairly discredited his version of

the events that occurred. 1




       1
          The Commonwealth asserts that appellant did not preserve his objection in the trial
court as required by Rule 5A:18, thus barring the issue on appeal. See Rule 5A:18 (stating “[n]o
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice”). We find, however, that appellant
adequately alerted the trial court to his objection on hearsay grounds. Thus, we address the
merits of the appeal.
                                                   -4-
       In response, the Commonwealth asserts that the exhibit was admissible as a computer-

generated document and thus fell outside of the ambit of the hearsay rule. Alternately, the

Commonwealth contends that if the exhibit was subject to a hearsay analysis, it fell within the

business records exception. Lastly, the Commonwealth asserts that even if the exhibit was

improperly admitted into evidence, any error resulting from its admission was harmless beyond a

reasonable doubt.

       “‘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.’” Jones v.

Commonwealth, 50 Va. App. 437, 446, 650 S.E.2d 859, 863 (2007) (quoting Blain v.

Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988)). “‘Evidence is admissible if

it tends to prove a matter that is properly at issue in the case and if its probative value outweighs

policy considerations.’” Id. (quoting Blain, 7 Va. App. at 17, 371 S.E.2d at 842).

       “‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of

court, the statement being 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.’” Tatum v.

Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135 (1994) (quoting Stevenson v.

Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977)). “‘[H]earsay evidence is

inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and [] the

party attempting to introduce a hearsay statement has the burden of showing the statement falls

within one of the exceptions.’” McDowell v. Commonwealth, 48 Va. App. 104, 109, 628 S.E.2d

542, 544 (2006) (alterations in original) (quoting Robinson v. Commonwealth, 258 Va. 3, 6, 516

S.E.2d 475, 477 (1999)), aff’d, 273 Va. 431, 641 S.E.2d 507 (2007).

       “‘Under the modern Shopbook Rule [business records exception], adopted in Virginia,

verified regular entries may be admitted into evidence without requiring proof from the regular

                                                -5-
observers or record keepers,’ generally limiting admission of such evidence to ‘facts or events

within the personal knowledge of the recorder.’” Kettler & Scott v. Earth Technology Cos., 248

Va. 450, 457, 449 S.E.2d 782, 785 (1994) (quoting “Automatic” Sprinkler Corp. v. Coley &

Petersen, Inc., 219 Va. 781, 792, 250 S.E.2d 765, 773 (1979)). “‘The trustworthiness or

reliability of the records is guaranteed by the regularity of their preparation and the fact that the

records are relied upon in the transaction of business by the person or entities for which they are

kept.’” Id. at 457, 449 S.E.2d at 786 (quoting “Automatic” Sprinkler Corp., 219 Va. at 793, 250

S.E.2d at 773). “‘Admission of such evidence is conditioned, therefore, on proof that the

document comes from the proper custodian and that it is a record kept in the ordinary course of

business made contemporaneously with the event by persons having the duty to keep a true

record.’” Id. (quoting “Automatic” Sprinkler Corp., 219 Va. at 793, 250 S.E.2d at 773).

       There is no “person” or declarant, however, where the evidence “is based on computer

generated information and not simply the repetition of prior recorded human input or

observation.” 2 Tatum, 17 Va. App. at 588, 440 S.E.2d at 135. Applying this principle, we held


       2
          We note that, while the recently approved Virginia Rules of Evidence are not applicable
to this case, Rule 2:803 characterizes the business records exception to the hearsay rule as
follows:

               A memorandum, report, record, or data compilation, in any form,
               of acts, events, calculations or conditions, made at or near the time
               by, or from information transmitted by, a person with knowledge
               in the course of a regularly conducted business activity, and if it
               was the regular practice of that business activity to make and keep
               the memorandum, report, record, or data compilation, all as shown
               by the testimony of the custodian or other qualified witness, unless
               the source of information or the method or circumstances of
               preparation indicate lack of trustworthiness.

Virginia Rule of Evidence 2:803(6) (enacted by 2012 Acts chs. 688, 708) (emphasis added).
Moreover, Rule 2:801 “limits hearsay to statements made by a ‘person,’ thus obviating any claim
that machines make ‘statements’ for purposes of the hearsay rule.” Charles E. Friend & Kent
Sinclair, The Law of Evidence in Virginia § 15-8, at 944 (7th ed. 2012).

                                                 -6-
in Penny v. Commonwealth, 6 Va. App. 494, 499, 370 S.E.2d 314, 317 (1988), that the report

from a “call trap” placed on a telephone was inadmissible in the absence of evidence of the

device’s reliability. In Penny, this Court reasoned that

               [t]here exists no out-of-court declarant who could be subject to
               cross-examination. The scientific advances of modern technology
               have enabled the [caller ID] device to make and record the
               occurrence of electronic events. No human entered into the [caller
               ID] device the conclusion that the phone in Penny’s residence had
               completed a contact with the phone in [the victim]’s residence.
               Therefore, the [caller ID’s] reliability does not depend on an
               out-of-court declarant’s veracity or perceptive abilities, and no
               cross-examination could occur which would enhance the
               truth-finding process.

Id. at 498, 370 S.E.2d at 317.

       Likewise, in the present case, there was no out-of-court asserter upon whom the veracity

of the telephone records relied. Witt testified that T-Mobile’s telephone records were

automatically self-generating and that they were created contemporaneously with the placement

or receipt of a telephone call. Thus, it is evident that the records were not created for the purpose

of litigation. Although Witt served as a custodian of the records, he played no role in recording

or altering what was displayed on the computer results. Rather, Witt indicated that no human

was involved in the formation of the records. Accordingly, the admissibility of the telephone

records was not governed by hearsay principles, and so we need not consider whether the

Commonwealth established all of the elements for the business records exception to apply. 3 See

       3
          The Supreme Court, in Kettler & Scott, stated that “[i]n determining the admissibility of
computer records, when the argument has been advanced that they are inadmissible hearsay, we
have employed the traditional business records exception to the hearsay rule.” 248 Va. at 457,
449 S.E.2d at 785 (citing Frye v. Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 279
(1986)). In Kettler & Scott, the objection was based on computer records that were at least
partially generated by employees. Here, however, the telephone records were solely computer-
generated and had no human input. In such cases, we have previously determined that the
business records exception is inapplicable. See Chau v. Commonwealth, No. 2613-09-4
(Va. Ct. App. Feb. 1, 2011) (stating, in an unpublished decision, that we look to whether the
computer device is reliable for the purposes of determining the admissibility of the computer-
generated information).
                                               -7-
Bynum v. Commonwealth, 57 Va. App. 487, 491, 704 S.E.2d 131, 133 (2011) (applying Tatum

and Penny and noting “[t]his Court has previously recognized that where ‘there is no out-of-court

asserter,’ there can be no hearsay” (citation omitted)); see also Charles E. Friend & Kent

Sinclair, The Law of Evidence in Virginia § 15-8, at 944 (7th ed. 2012) (“When a witness seeks

to testify as to the witness’s observations of a computer display or the readout of other electronic

devices, the hearsay objection is often raised. . . . In general, however, the courts have treated

such matters as being outside of the ambit of the hearsay rule.”).

       Reliability is the test for determining the admissibility of relevant records that are

generated without human input. See Tatum, 17 Va. App. at 588-89, 440 S.E.2d at 135-36.

Therefore, having determined the business records exception is inapplicable to the present case,

we consider more broadly whether the telephone records were reliable. Witt confirmed that his

primary responsibility as a custodian of records was to produce telephone records in response to

subpoena requests. He also stated that the records were kept in the normal course of T-Mobile’s

business and that the records were relied upon for the performance of work-related functions.

Witt testified that the records had been produced by T-Mobile, and they were an accurate

telephone record for the number associated with appellant’s cellular telephone. Based on the

foregoing, the telephone records were sufficiently reliable to warrant their admission into

evidence, where they ultimately served to discredit appellant’s version of the events on the night

of the offense. Therefore, we hold that the trial court did not abuse its discretion in admitting the

telephone records into evidence, and accordingly we affirm the trial court’s judgment.

                                                                                           Affirmed.




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