                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Alston and Senior Judge Haley
UNPUBLISHED


              Argued at Richmond, Virginia


              TERRELL DEWAYNE GARNETT
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1573-15-2                                    JUDGE JAMES W. HALEY, JR.
                                                                                 DECEMBER 20, 2016
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                                  James S. Yoffy, Judge

                                Amy E. Hensley (Owen & Owens PLC, on brief), for appellant.

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


                      Terrell Dewayne Garnett appeals an order convicting him of possession with intent to

              distribute one-half ounce to five pounds of marijuana. Appellant argues that the circuit court erred

              by (1) admitting text messages into evidence over his objection for lack of foundation; (2) admitting

              text messages into evidence over his objection for best evidence; (3) admitting text messages into

              evidence over his objection for hearsay; (4) denying his motion to strike because the evidence was

              insufficient to prove beyond a reasonable doubt that he possessed marijuana with the intent to

              distribute it; and (5) admitting the out-of-court statements of his sister into evidence in violation of

              the hearsay rule. We agree with appellant that the circuit court erred in admitting the text messages

              because the Commonwealth did not provide an adequate foundation for their admission.

              Accordingly, we reverse the decision of the circuit court and remand for further proceedings

              consistent with this opinion.



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

Terlecki v. Commonwealth, 65 Va. App. 13, 16, 772 S.E.2d 777, 779 (2015) (quoting Williams

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

       On April 9, 2015, appellant was the driver of a vehicle that stopped at a police

checkpoint. Officer Emily K. Madeline approached the vehicle and smelled a strong odor of

marijuana. She asked appellant to step out of the vehicle.1 He consented to a personal search.

Madeline found $528 in appellant’s pocket. Madeline searched the car. She found a baggie

containing 2.8 grams of marijuana in the center console and a backpack containing thirty-three

plastic bags filled with a total of 212.4 grams of marijuana in the trunk. Madeline also found a

cellular phone, but at trial, she could not recall whether she found it in the center console or on

appellant’s person. Appellant told Madeline that the vehicle belonged to his sister from whom

he borrowed it earlier that day.

       Madeline obtained a search warrant for the phone. Detective Cary Nelson used a forensic

extraction device to obtain and copy the text messages on the phone. After reviewing the text

messages, Detective James Kewish opined that several of the text messages, including those sent

on April 9, 2015, were related to the sale and distribution of drugs.

       When the Commonwealth moved to introduce the text messages at trial, appellant

objected based on the grounds of lack of foundation, best evidence, and hearsay. The circuit

court overruled the objections and admitted the text messages into evidence.

       At the conclusion of the Commonwealth’s evidence, appellant made a motion to strike,

which the circuit court denied. Appellant did not present any evidence. The circuit court found


       1
           Appellant was the only person in the vehicle.
                                                -2-
appellant guilty of possession of marijuana and possession with intent to distribute more than

one-half ounce, but not more than five pounds, of marijuana. Appellant timely appealed the

conviction of possession with intent to distribute.

                                            ANALYSIS

       Appellant argues that the trial court erred in admitting the text messages because the

Commonwealth did not lay the proper foundation to prove that he owned the cell phone or wrote

and received the text messages.

       “‘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.” Dalton

v. Commonwealth, 64 Va. App. 512, 519, 769 S.E.2d 698, 703 (2015) (quoting Midkiff v.

Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010)). “[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. (quoting 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)).

       This Court has previously held that text messages constitute writings for purposes of the

best evidence rule. Id. at 523, 769 S.E.2d at 703-04. “It is elementary that before a writing can

be admitted into evidence a proper foundation must be laid to show it is relevant and material

. . . . The writing becomes evidence only when it is authenticated.” Lassiter v. Commonwealth,

16 Va. App. 605, 611, 431 S.E.2d 900, 904 (1993); see also Walters v. Littleton, 223 Va. 446,

451, 290 S.E.2d 839, 842 (1982) (“All writings are subject to the requirement of authentication,

which is the providing of an evidentiary basis sufficient for the trier of fact to conclude that the

writing came from the source claimed.”). “The requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that

the thing in question is what its proponent claims.” Va. R. Evid. 2:901.

                                                 -3-
       During the trial, the circuit court and the Commonwealth engaged in the following

discussion regarding the cell phone:

               THE COURT: My natural question is why didn’t, why don’t we
               have evidence of whose phone it is? I mean it’s not that hard to
               find out whose phone it is.

               [COMMONWEALTH]: Well, is it?

               THE COURT: I mean you can get a cell phone number. You
               trace it back to who the cell phone, who the person is.

               [COMMONWEALTH]: Well, right, and we don’t have the
               Verizon or whoever records before you today, Judge.

               THE COURT: Right.

               [COMMONWEALTH]: What we have is the phone itself, and
               that was in the car.

               THE COURT: My point is why, why couldn’t the Commonwealth
               find out whose phone it was?

               [COMMONWEALTH]: There was only one person driving the
               car, and it was the defendant. And he didn’t have any other phone.
               I mean that’s the evidence we have, Judge. It was my belief that
               the phone was taken off of the defendant, but I understand what the
               evidence before you is.

               THE COURT: My point is the Commonwealth could go to the
               network carrier with a search warrant, find out whose phone it was.

               [COMMONWEALTH]: And then we can’t get that evidence in
               without the network carrier people being here.

               THE COURT: Right.

               [COMMONWEALTH]: Yes. But, again, as I, if the phone came
               out of the defendant’s pocket, is it, is that necessary?

               THE COURT: But your evidence is you don’t know where it
               came from.

               [COMMONWEALTH]: That is what the evidence was today, yes.

       As noted by the circuit court, the Commonwealth can authenticate the text messages and

prove the ownership of the cell phone with either direct or circumstantial evidence. See Bloom

                                              -4-
v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001) (online instant messages were admissible

because the Commonwealth proved they were sent from defendant by linking personal

information known about defendant to the screen name used to send messages); Chewning v.

Commonwealth, Record No. 2204-12-4, 2014 Va. App. LEXIS 82 (Va. Ct. App. Mar. 11, 2014)

(authenticate text messages with testimony from a Verizon Wireless employee and the Verizon

records and the defendant admitted to police that he owned the cell phone from which the text

messages were sent); Cobb v. Commonwealth, Record No. 1526-12-1, 2013 Va. App. LEXIS

301 (Va. Ct. App. Oct. 22, 2013) (authenticate text messages with Verizon Wireless records).2

In Smith v. State, 136 So. 3d 424, 433 (Miss. 2014), the Supreme Court of Mississippi listed

multiple ways to authenticate electronic communications:

              the purported sender admits authorship, the purported sender is
              seen composing the communication, business records of an
              internet service provider or cell phone company show that the
              communication originated from the purported sender’s personal
              computer or cell phone under circumstances in which it is
              reasonable to believe that only the purported sender would have
              access to the computer or cell phone, the communication contains
              information that only the purported sender could be expected to
              know, the purported sender responds to an exchange in such a way
              as to indicate circumstantially that he was in fact the author of the
              communication, or other circumstances peculiar to the particular
              case may suffice to establish a prima facie showing of authenticity.

See also Butler v. State, 459 S.W.3d 595, 601 (Tex. Crim. App. 2015) (authenticate text

messages with “testimony of a witness with knowledge or through evidence showing distinctive

characteristics”), and People v. Watkins, 25 N.E.3d 1189, 1204 (Ill. App. Ct. 2015) (use

circumstantial evidence to authenticate text messages, including cell phone records, eyewitness

testimony that defendant owned phone and received text messages, identifying marks on the

phone).


       2
         The unpublished cases are cited for informative purposes only, and are not binding
authority. Rule 5A:1(f).
                                               -5-
       In this case, the Commonwealth relied on circumstantial evidence to prove that appellant

owned the cell phone and authored the text messages. The Commonwealth argued that appellant

was the only person in the car, so the cell phone had to belong to him. However, Madeline could

not recall where she found the cell phone, and proximity to the cell phone is insufficient to prove

that appellant owned the cell phone and authored the text messages. See State v. Francis, 455

S.W.3d 56, 72 (Mo. Ct. App. 2014) (possession of the cell phone at the time of arrest is

insufficient by itself to prove that the defendant owned the cell phone and authored the text

messages).

       Appellant argued that there was no evidence that the cell phone belonged to him or that

he used the phone to send or receive text messages. The Commonwealth did not offer the

records from the cell phone carrier to prove that the cell phone belonged to appellant. Appellant

did not make any statements to the police regarding the ownership of the cell phone. There was

no evidence from other people who may have sent or received text messages from appellant and

could recognize his text messages.

       The evidence is insufficient to establish a foundation for the admissibility of the text

messages. Therefore, the trial court abused its discretion in admitting the text messages.


       Finding error, the Court must determine whether the error was harmless. “No trial is

perfect, and error will at times creep in.” Dalton, 64 Va. App. at 519, 769 S.E.2d at 701 (quoting

Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913 (1991) (en banc)).

The standard for non-constitutional error is established in Code § 8.01-678, which provides, in

pertinent part:

                  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 . . . [f]or any . . . defect, imperfection, or omission in
                  the record, or for any error committed on the trial.
                                                   -6-
       The test for nonconstitutional harmless error 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.

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)).

       The error in this case was not harmless. The Commonwealth conceded at oral argument

that if the cell phone did not come into evidence, then there was not sufficient evidence to

convict appellant.3

       At trial, the Commonwealth relied on circumstantial evidence to prove that appellant

possessed marijuana with the intent to distribute it. “As with any case, the fact-finder is entitled

to make reasonable inferences from the evidence presented at trial to determine whether the

defendant possessed drugs with the intent to distribute them.” Burrell v. Commonwealth, 58

Va. App. 417, 434, 710 S.E.2d 509, 518 (2011). The text messages included several

conversations regarding the sale of marijuana. In addition to using the text messages to prove

possession with intent to distribute, the Commonwealth argued that the backpack in the trunk of

the vehicle had thirty-three bags of marijuana, which the expert opined was inconsistent with

personal use. However, the backpack contained no identifying information, and there was no

evidence that it belonged to appellant. Furthermore, the Commonwealth introduced evidence

that at the time of the arrest, appellant was the only person in the car, and Madeline detected a


       3
         “We have no obligation to accept concessions of error.” Copeland v. Commonwealth,
52 Va. App. 529, 531, 664 S.E.2d 528, 529 (2008) (citing United States v. Hairston, 522 F.3d
336, 340 (4th Cir. 2008) (recognizing “the government’s concession of error is not binding on
this court”)).
                                              -7-
strong odor of marijuana when she approached the car. Although appellant was the only person

in the car at the time of the arrest, there was no evidence that other people had not been in the car

earlier.

           We find that the circumstantial evidence in this case was not sufficient to convict

appellant of possessing marijuana with the intent to distribute it without the evidence contained

in the text messages. We cannot say that the trial court’s error in admitting the text messages

was harmless. Therefore, appellant’s conviction for possession with intent to distribute

marijuana is reversed, and the matter is remanded for a new trial, if the Commonwealth be so

advised.

           Because we reverse on the basis of improperly admitted evidence and remand the case for

a new trial, we must address appellant’s fourth assignment of error alleging that the evidence at

trial was insufficient to prove constructive possession of the marijuana beyond a reasonable

doubt.4 Pursuant to Code § 19.2-324.1:

                  In appeals to the Court of Appeals or the Supreme Court, when a
                  challenge to a conviction rests on a claim that the evidence was
                  insufficient because the trial court improperly admitted evidence,
                  the reviewing court shall consider all evidence admitted at trial to
                  determine whether there is sufficient evidence to sustain the
                  conviction. If the reviewing court determines that evidence was
                  erroneously admitted and that such error was not harmless, the
                  case shall be remanded for a new trial if the Commonwealth elects
                  to have a new trial.

Accordingly, we are required by statute to consider all evidence admitted at trial to determine

whether the evidence proved that appellant constructively possessed the marijuana in question.

                  Possession may be actual or constructive. Constructive possession
                  may be established by “evidence of acts, statements, or conduct of
                  the accused or other facts or circumstances which tend to show that

           4
          A full sufficiency analysis is required because, if the evidence adduced at trial was
insufficient to convict appellant, a remand for a new trial would violate the Constitution’s
prohibition against double jeopardy. See Parsons v. Commonwealth, 32 Va. App. 576, 581, 529
S.E.2d 810, 812 (2000) (citing Burks v. United States, 437 U.S. 1 (1978)).
                                                 -8-
               the defendant was aware of both the presence and the character of
               the substance and that it was subject to his dominion and control.”

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) (en banc)

(quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)) (other

citation omitted).

       We find that the evidence at trial was sufficient for a rational factfinder to conclude

beyond a reasonable doubt that appellant possessed marijuana with the intent to distribute. The

evidence, viewed in the light most favorable to the Commonwealth, established that the vehicle

appellant was driving was emitting a strong odor of marijuana that was easily detectable as

Officer Madeline approached the vehicle. Detective Kewish, testifying as an expert at trial in the

distribution and possession of marijuana, concluded that several of the text message

conversations discussed the sale and distribution of marijuana. Kewish also testified that the

possession of thirty-three bags of marijuana (found in the trunk) and $500 in cash were facts that

were indicative of the sale or distribution of marijuana. A rational factfinder could infer from the

text messages that appellant was aware of the presence of the large quantity of marijuana that

was packaged for distribution in the vehicle’s trunk and that it was subject to his dominion and

control. Therefore, we conclude that a rational fact finder could have found appellant guilty of

possession of marijuana with the intent to distribute upon consideration of all the evidence that

was admitted at trial.5




       5
          Considering this ruling, the Court does not need to address appellant’s second, third,
and fifth assignments of error. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628
S.E.2d 74, 77 (2006) (“[A]n appellate court decides cases ‘on the best and narrowest ground
available.’” (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531
(1991) (Stevens, J., concurring))).
                                                -9-
                                          CONCLUSION

       Since the circuit court abused its discretion in admitting the text messages and that error

was not harmless, the circuit court’s ruling is reversed. However, because all of the evidence

admitted at trial was sufficient to support appellant’s conviction for possession with intent to

distribute one-half ounce to five pounds of marijuana, we remand for a new trial if the

Commonwealth is so inclined.

                                                                            Reversed and remanded.




                                                - 10 -
