                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Alston and Russell
              Argued at Alexandria, Virginia
UNPUBLISHED




              JOSE DE LEON GARCIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0400-17-4                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                FEBRUARY 6, 2018
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                              Grace Burke Carroll, Judge1

                               Shawn A. Stout (The Irving Law Firm, on brief), for appellant.

                               Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Jose de Leon Garcia (“appellant”) was convicted by a jury for assault on a law enforcement

              officer in violation of Code § 18.2-57. On appeal, he argues the trial court erred in admitting

              hearsay testimony when considering and ultimately denying his motion to suppress. We affirm.

                                                        BACKGROUND

                                                      A. Underlying Facts

                     Under settled principles, we address the legal issues arising from a suppression motion “only

              after the relevant historical facts have been established.” Logan v. Commonwealth, 47 Va. App.

              168, 171, 622 S.E.2d 771, 772 (2005) (en banc). On appeal, we are “bound by the trial court’s

              findings of historical fact unless ‘plainly wrong’ or without evidence to support them and we give



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       The final conviction and sentencing order, dated February 21, 2017, was entered by
              Judge Carroll; however, the October 30, 2016 order denying appellant’s motion to suppress was
              entered by Judge Bruce White.
due weight to the inferences drawn from those facts by resident judges and local law enforcement

officers.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc).

We “consider the facts in the light most favorable to the Commonwealth, the prevailing party at

trial.” Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 3 (2008). Further, when

addressing suppression issues, “an appellate court reviews not only the evidence presented at the

pretrial hearing but also the evidence later presented at trial.” Commonwealth v. White, 293 Va.

411, 414, 799 S.E.2d 494, 495 (2017). The factual findings to which we defer include the trial

court’s assessment of the credibility of the witnesses. McCary v. Commonwealth, 36 Va. App. 27,

35, 548 S.E.2d 239, 243 (2001).

       Thus viewed, the evidence establishes that on July 1, 2016, Officer Mario Felipe Colorado

of the Fairfax County Police Department was called to assist other officers with translating in their

response to a service call for a domestic dispute at the residence of Ruth Beltran. Colorado already

was familiar with Beltran because of his work patrolling the area and based on his service as a

school resource officer at her teenaged daughter’s high school. Beltran’s two other daughters, one

an adult and the other a small child, were also at the scene. Beltran told Colorado that she had had a

dispute with her husband, the appellant. Another officer on the scene informed Colorado that he

previously had been called to the residence and that Beltran’s husband was wanted on an

outstanding capias arising from a prior domestic disturbance. Appellant was not at home when

Colorado arrived, and Colorado had not had any previous interaction with appellant.

       A few days later, on July 3, 2016, Colorado was on duty patrolling the area. He was driving

a marked police cruiser and wearing his uniform. Colorado had nineteen years of law enforcement

experience, including several as a detective. While he was driving, he saw a Hispanic man, later

identified as appellant, walking with Beltran and her youngest daughter. They were about three

blocks from the Beltran residence. The little girl was between the two adults, with each adult

                                                 -2-
holding one of the child’s hands. Because they appeared to have been walking as a family,

Colorado suspected that the man was Beltran’s husband, and thus someone who was wanted, based

on his being informed a few days prior, of the outstanding warrant. Colorado had never seen the

man before and had not been provided a description of Beltran’s husband.

        Colorado noticed that the group stopped. They all made eye contact with one another,

appellant whispered something to Beltran, and appellant gave her the child. Colorado came to a

stop, exited his vehicle, and asked appellant if he could speak to him. Colorado testified at trial that

“the manner in which they were walking . . . led me to initiate contact with him.” Appellant ignored

Colorado, turned around, and walked in the opposite direction, away from Beltran and the child. In

Spanish, Colorado said, “police, stop”; appellant began running, and Colorado pursued him. They

came upon a fence that appellant was able to jump, but Colorado was not. Colorado believed

appellant lost his shoe at this point. Colorado called for backup, explaining that he was in pursuit on

foot of a suspect wanted for domestic assault and Colorado provided a description, but no name, of

appellant. While in pursuit, Colorado yelled for appellant to stop at least three times.

        Officer Jeremy Harvey responded to the request for backup. He saw appellant running

through an alley near a shopping center. Appellant was wearing clothing that matched the

description Harvey had received. Harvey proceeded in his vehicle to the front of the stores, where

appellant was still running. Harvey exited his vehicle to pursue appellant on foot; he chased after

him, yelling “police, stop running and get on the ground.” Appellant kept running, and Harvey

followed, for approximately a total of 100 feet. Harvey announced himself twice. Grabbing

appellant by the right arm, Harvey again announced that he was a police officer. Appellant started

to resist and was making statements Harvey could not understand. Harvey was wearing his

police-issued bullet proof vest at the time.




                                                  -3-
        When Harvey grabbed appellant’s arm, appellant pulled away from him, jerking as he

resisted Harvey’s attempt to restrain him. Harvey determined that it was in his best interest to get

appellant on the ground. After he took appellant down to the sidewalk, Harvey applied pressure to

appellant’s back to control him because appellant was moving his arms and legs. Appellant was

able to get one hand free to push up with. When Harvey attempted to radio for backup, appellant

got back up and knocked Harvey back. Harvey fell backwards and ended up in a sitting position.

When both men were standing again, Harvey tried to get closer to appellant and appellant pushed

Harvey in the chest with both arms. Harvey was able to grab appellant’s arm again, but appellant

continued to resist and tried to pull away. Harvey pushed appellant against a wall to hold him in

place and tried to strike him in the abdomen to subdue him, but could not make contact because of

appellant’s continued movement. Despite Harvey’s repeated requests for him to stop, appellant did

not. Another citizen came to Harvey’s aid, but appellant was not taken to the ground successfully

until other officers arrived at the scene.

        Officer Jonathon Long also responded to the call for backup and eventually arrived at the

location where Harvey had detained appellant. Long testified that there was an outstanding warrant

for appellant on July 3, 2016. Long was the officer who had obtained the warrant from the

magistrate on April 9, 2016 based on a domestic dispute at the Beltran residence. Without

objection, a copy of the warrant was admitted into evidence. Long recognized appellant from the

scene of the April incident, when appellant appeared but then ran away after Beltran identified him

as her husband and Long was unable to catch him. On July 3, 2016, Long confirmed with dispatch

that the warrant was active on that day. When Colorado arrived on the scene, he confirmed that

appellant was the man he had been pursuing.




                                                 -4-
                                       B. Suppression Hearing

        Prior to trial, on December 16, 2016, appellant filed a motion to suppress evidence. In it, he

requested the trial court “to suppress all evidence obtained by officers during the warrantless stop

and arrest of [his person].” Appellant alleged that “[p]olice chased, tackled, and beat [him] without

reasonable suspicion that he had committed any crime, all in violation of the Fourth Amendment to

the Constitution of the United States of America.” In his memorandum in support of his motion,

appellant asserted that neither Colorado nor Harvey “had reasonable suspicion that any crime was

committed and had no reason to stop [him].” Arguing that “[a]n officer must have a reasonable

articulable suspicion that a crime has been committed in order to conduct even a brief investigatory

detention of a person[,]” appellant again asked that “[a]ll evidence uncovered as a result of that

detention . . . be suppressed.”

        A hearing on the suppression motion was held on December 30, 2016. During Colorado’s

testimony, the following exchange occurred:

                [COMMONWEALTH]: And how did you learn that there was a
                warrant out for the Defendant’s arrest?

                [COLORADO]: When I assisted my colleague, I responded to his
                address two days prior to the contact that I had on that -- on July 3rd
                with him. And the nature of the call was, is that there was a domestic
                dispute between he and Ms. Beltran. While I was translating for
                them I was informed –

                [APPELLANT]: Objection, hearsay.

                THE COURT: You need to lay some foundation, who it is and that
                sort of thing.

                [COMMONWEALTH]: Your Honor, I –

                THE COURT: He’s about to tell me what someone else told him.
                At this stage of the proceedings I have no idea any of those
                circumstances, who told him that or the reliability of it and whether
                it’s hearsay.



                                                 -5-
                [COMMONWEALTH]: Right, Your Honor. I think -- well, what
                he’s about to say isn’t necessarily for the truth of the matter asserted.
                It’s for his state of mind, how he came to learn about how he had a
                warrant. So, I’m not necessarily offering it for the truth of the matter
                asserted but I am offering it for his state of mind.

                [APPELLANT]: Your Honor, if it’s not for the truth it’s irrelevant.
                The Court has already allowed in that he thought there was a warrant
                that, yet, it’s hearsay whatever of it basis for that is. We know
                what’s in his mind. There’s a warrant in his mind.

                [COMMONWEALTH]: Well, in terms of establishing reasonable
                suspicion, how he came to learn of that is – I want to distinguish
                between; was this some random citizen who came up to you and
                said, oh, this guy might have a warrant or was this somebody reliable
                and you’ve confirmed that he did have a warrant. So, that’s -- that
                does go to the reasonable suspicion, the reliability of the tip and so, I
                do believe that that is relevant to that.

        At that time, the trial court concluded that the statement was offered for the truth of the

matter asserted and sustained appellant’s objection.2 The Commonwealth continued, “in terms of

the motion to suppress, hearsay is not – it’s still admissible on a motion to suppress.” The

Commonwealth likened the suppression hearing to a magistrate’s consideration of probable cause in

issuing a warrant, stating

                that’s exactly what reasonable suspicion and probable cause is based
                on, is hearsay. . . . [I]n most cases, unless an officer witnesses a
                crime which usually does not occur, they’re actually responding to
                something, they are told what happened. I’m responding to this
                because of this call. I spoke with the witness, they said this. . . . And
                then the [c]ourt determines whether that hearsay was reliable or not
                reliable and then we go from there. . . . – you can’t do a motion a
                suppress without hearsay.

        Later, the Commonwealth asked Colorado, “Did you have knowledge that the defendant had

a warrant out for his arrest?” When Colorado responded in the affirmative, appellant objected on

foundation grounds. Appellant conceded that Colorado could respond if he had seen the warrant.


        2
           By definition, appellant’s assignment of error does not implicate the trial court’s ruling
that initially sustained his hearsay objection. Rather, he challenges the trial court’s ultimately
admitting similar testimony. Accordingly, the initial ruling is not before us.
                                                 -6-
Based on the trial court’s response, the Commonwealth then asked, “Who told you there was a

warrant out for his arrest?” Colorado answered, “Master Police Officer Paul Bennett, Fairfax

County Police Department.” The trial court concluded, “That’s good enough for me, if another

officer told him there was a warrant.” Upon further questioning, Colorado reiterated, “in just

speaking to [Bennett], he informed me that [appellant] had a warrant for his arrest for domestic

assault.” There was no objection to that statement. Colorado also noted that Bennett had told him

that Bennett “had had prior dealings with Ms. Beltran and there was a warrant out for [her] husband

and that it is a frequent thing between them. And that she had been non-compliant in the

department serving that warrant.”

        Harvey also testified at the suppression hearing. He relayed his actions in receiving the

dispatch regarding Colorado’s pursuit of appellant, including the description he was provided; in

chasing appellant; and in struggling against appellant when he resisted arrest. At the time of the

pursuit, Harvey knew that Colorado “had been involved in a subject stop and the subject had run

away from him[,]” but did not know the substance of the stop.

        Ultimately, the trial court denied the motion to suppress. The court entered its order denying

the motion to suppress on December 30, 2016. A jury later convicted appellant of assault and

battery of a police officer.

        On appeal, appellant contends the trial court erred when it admitted and considered hearsay

in denying his motion to suppress. The Commonwealth argues that the challenged statements from

the suppression hearing did not constitute hearsay. Alternatively, the Commonwealth argues that,

even if the motion to suppress had been granted, there was no actual evidence that could have been

suppressed.




                                                 -7-
                                               ANALYSIS

        “The doctrine of judicial restraint dictates that we decide cases on the best and narrowest

grounds available.” Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2015)

(internal quotation marks and citations omitted). Accordingly, we do not reach the questions of

whether the hearsay rule applies in suppression hearings3 or whether there was any evidence to

suppress if the trial court had granted the suppression motion. Rather, we affirm the judgment

below because the challenged statement does not constitute inadmissible hearsay.

        “Hearsay is a statement, other than one made by the declarant while testifying at trial, which

is offered to prove the truth of the matter asserted.” Clark v. Commonwealth, 14 Va. App. 1068,

1070, 421 S.E.2d 28, 30 (1992); see also Va. R. Evid. 2:801(c). Accordingly, “if the declaration is

offered solely to show that it was uttered, without regard to the truth or falsity of its content, the

declaration is not excluded by the hearsay rule.” Bryant v. Commonwealth, 39 Va. App. 465, 473,

573 S.E.2d 332, 336 (2002) (quoting Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361

S.E.2d 436, 441 (1987)). “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.” Swain v. Commonwealth, 28 Va. App. 555, 559, 507 S.E.2d 116, 118 (1998). “The

hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the

mere purpose of explaining or throwing light on the conduct of the person to whom it was made.”

Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670 (1960).

        Here, the challenged statement, that there was an outstanding arrest warrant for appellant,

was not offered for the truth of the matter asserted. Rather, it was offered to show Colorado’s (and


        3
         Under the Federal Rules of Evidence, the United States Supreme Court has held that the
prohibition on hearsay testimony does not apply at suppression hearings. United States v.
Matlock, 415 U.S. 164, 172-75 (1974). We have not addressed the issue under the Virginia
Rules of Evidence in a published opinion. But see Barrett v. Commonwealth, No. 1741-14-2,
2015 Va. App. LEXIS 282, at *15 n.8 (Va. Ct. App. Oct. 6, 2015).
                                              -8-
later Harvey’s) state of mind regarding whether either had sufficient reason to approach, question,

stop, and eventually arrest appellant. Whether there actually was such a warrant was not the issue at

the suppression hearing; why the officers believed they had a sufficient basis to engage appellant

was. Because the out-of-court statement regarding the existence of an outstanding warrant was

offered solely for the “purpose of explaining or throwing light on the conduct” of the officers, id.,

the statement was not inadmissible hearsay. Accordingly, the trial court did not err by admitting

and considering the statement.

                                           CONCLUSION

        For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                             Affirmed.




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