                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued at Chesapeake, Virginia


              EMANUEL DALE ELLIS
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1530-14-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                JANUARY 26, 2016
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                              Bonnie L. Jones, Judge

                               Charles E. Haden for appellant.

                               John W. Blanton, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     A Hampton jury convicted Emanuel Dale Ellis of robbery and use of a firearm in the

              commission of that robbery. Ellis wished to introduce into evidence at trial a photograph from

              his Facebook page with an accompanying timestamp. The trial judge, however, granted the

              Commonwealth’s motion in limine, admitting the photograph but redacting the timestamp. The

              sole issue on appeal is the propriety of that redaction. Assuming without deciding that the

              timestamp was erroneously excluded, we find such error harmless and affirm.

                                                        I. BACKGROUND

                                                          A. The Crime

                      In August of 2013, Miles Conley (“the victim”) was walking home after completing

              some freelance tattoo work. Ellis, seventeen years old at the time, approached the victim, and

              asked about the price of a tattoo. (The victim and Ellis knew each other, though not well.) They


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
walked together and discussed a price. As they entered a breezeway, however, Ellis produced a

revolver and robbed the victim of a book bag and suitcase, both of which contained tattooing

equipment. These items were worth more than $200. Ellis also demanded the victim’s Air

Jordan “Concord 11” shoes. When the victim balked at giving his shoes to Ellis, Ellis pulled the

hammer back on the revolver and said: “I’m not playing.” The victim relinquished his shoes

and ran home, where he arrived “in a state of panic, shocked and terrified,” according to his

foster father. The next day, based on information provided by the victim, police arrested Ellis.

At the time of his arrest, Ellis was wearing Air Jordan “Concord 11” shoes, though the victim’s

bag and suitcase were never recovered. The grand jury indicted Ellis for two felonies: robbery

and use of a firearm in the commission of that robbery.

                                      B. The Motion in Limine

       Prior to trial, the Commonwealth moved, in limine, to exclude the timestamp from a

Facebook1 photograph that the Commonwealth anticipated Ellis would introduce at trial.2 The

timestamp attached to the photograph showed a date over a year prior to the robbery. In its

motion in limine, the Commonwealth argued that the timestamp was hearsay and that its

“probative value is substantially outweighed by the likelihood of misleading the trier of fact.”

The Commonwealth also argued that, because Facebook timestamps were unreliable and subject

to modification, it would be foundationally inadequate for the person who posted the photograph

to authenticate it. Ellis argued that the timestamp was not hearsay and that he could properly

authenticate the timestamp. He asserted that the timestamp on the photograph would corroborate


       1
         Facebook is a social networking Web site. “Users of that Web site may post items on
their Facebook page that are accessible to other users, including Facebook ‘friends’ who are
notified when new content is posted.” Elonis v. United States, 135 S. Ct. 2001, 2004 (2015).
       2
           The trial at issue in this appeal was actually Ellis’s second trial on these charges. The
first trial, in which Ellis introduced the photograph showing the timestamp, resulted in a
deadlocked jury and a mistrial.
                                                   -2-
his testimony that he did not rob the victim, but in fact owned his own pair of Air Jordan

“Concord 11” shoes, and had uploaded a photograph of himself wearing such shoes over a year

before the robbery.3 The trial judge agreed with the Commonwealth and granted the motion in

limine, finding that Ellis had laid inadequate foundation to authenticate the timestamp.

                                            C. The Trial

       At trial, the victim testified in detail about the shoes taken from him. Although the shoes

retailed for $180, due to high demand, the victim had paid a premium and purchased them for

$240.4 Normally, the victim wore size 9 shoes, but when he purchased these shoes, all of the

shoes in his size had been sold. As a solution, the victim purchased size 8½ shoes but removed

the insoles so the shoes would fit properly. The victim also testified that one of his shoes had a

minor defect. He examined the shoes recovered from Ellis and pointed out this defect to the

jury, stating “I can recognize my shoes when I see them.”


       3
          The photograph at issue shows Ellis wearing some sort of athletic-style shoes, or at least
one such shoe, since only the right shoe is visible. (We will refer to the shoes as being black and
white, although the photograph is a black and white computer printout, so it is possible that the
dark color could be some hue other than black.) The visible shoe has a black strip up the left
side, and a black area above the toe. There is also a black strip near the top of the laces. At trial,
the shoes Ellis was wearing when he was arrested were offered into evidence. At the conclusion
of the trial, however, these shoes were returned to the Hampton Police Department. See App. at
200. (This is the second page of a document labeled “Sentencing Order.” Based on its contents
and the presence of a later sentencing order, this document actually appears to be a conviction
order.) The last sentence of this document reads: “The Court returned Commonwealth’s exhibit
# 1, Sneakers, to the Officer of the Hampton Police Department.” Presumably, the trial court
returned the exhibit pursuant to Code § 19.2-270.4(B). That code section permits return of
exhibits “to the owners thereof, notwithstanding the pendency of any appeal . . . .” The return of
exhibits under this subsection “may be upon such conditions as the court deems appropriate for
future identification and inclusion in the record . . . .” In this case, the record ideally would have
contained a photograph of the shoes in place of the actual shoes. Neither the joint appendix nor
the record contains any such photograph. As such, we are unable to compare, visually, the shoes
worn by Ellis when he was arrested and the shoe in Ellis’s photograph.
       4
         The secondary market for basketball shoes, particularly Nike’s Air Jordan brand shoes,
can be lucrative, as many models increase dramatically in value following their release. See
Grant Glickson, At ‘Sneakerhead’ Fairs, Air Jordans Are Golden, N.Y. Times, Apr. 17, 2014, at
A1.
                                              -3-
       In addition to having the same minor defect described by the victim, the shoes recovered

from Ellis were size 8½, with the insoles removed. At trial, the shoes were in substantially

worse condition than they were on the evening of the robbery. Ellis stressed this at trial, since

police recovered the shoes from Ellis just one day after the robbery. The victim testified that the

degradation in the condition and appearance of the shoes was likely a result of the shoes’ storage

in an evidence bag for months between seizure and trial, without having been cleaned

beforehand.

       Ellis’s foster mother testified that Ellis left home the day before the robbery, returning

home late on the night of the robbery wearing different clothes and different shoes. Ellis

testified in his own behalf. He claimed the shoes he was wearing when he was arrested were his

own and that he had purchased them in “March or February of 2012,” more than a year before

the robbery. He introduced a photograph of himself and two friends, which he claimed showed

him wearing the same shoes he was wearing when he was arrested. He testified that he uploaded

the photograph to his Facebook page in June of 2012. In compliance with the trial court’s ruling

on the Commonwealth’s motion in limine, the date on the photograph was redacted before the

photograph was introduced into evidence.

       Ultimately, the jury found Ellis guilty of robbery and use of a firearm in the commission

of the robbery. The trial judge sentenced Ellis to ten years in the penitentiary with six years

suspended for the robbery, and three years in the penitentiary for the firearm charge.5




       5
          Because Ellis was a juvenile when he committed the crime, the trial judge, rather than
the jury, sentenced Ellis. See Code § 16.1-272(A).
                                              -4-
                                           II. ANALYSIS

                                          A. Introduction

       Along with a profusion of hashtags and cat videos, the rise of social media has brought

about a reexamination, among Virginia’s judges and lawyers, of the use of electronic information

in criminal investigations and proceedings. See, e.g., Stith v. Commonwealth, 65 Va. App. 27,

773 S.E.2d 165 (2015); Dalton v. Commonwealth, 64 Va. App. 512, 769 S.E.2d 698 (2015);

Moter v. Commonwealth, 61 Va. App. 471, 737 S.E.2d 538 (2013); Holcomb v. Commonwealth,

58 Va. App. 339, 709 S.E.2d 711 (2011). Academic writers have also begun to grapple with the

challenges of social media evidence, in particular its authentication. See, e.g., Michael J.

Hannon, An Increasingly Important Requirement: Authentication of Digital Evidence, 70

J. Mo. B. 314 (2014); Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in

Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues, 19

Rich. J.L. & Tech. 11 (2013); Ira P. Robbins, Writings on the Wall: The Need for an

Authorship-Centric Approach to the Authentication of Social-Networking Evidence, 13

Minn. J.L. Sci. & Tech. 1 (2012).

       When authentication is required prior to the admission of evidence, “evidence sufficient

to support a finding that the thing in question is what its proponent claims” will satisfy such

requirement. Va. R. Evid. 2:901. Ellis compares the process and requirements for authenticating

a timestamp with the procedure for authenticating a photograph. See Bynum v. Commonwealth,

57 Va. App. 487, 492 n.3, 704 S.E.2d 131, 133 n.3 (2011). For purposes of addressing Ellis’s

assignment of error, we assume, without deciding, that the trial court wrongly excluded the




                                                -5-
timestamp.6 Even operating under such an assumption, we affirm his convictions, because we

find that any error was harmless.

                                         B. Harmless Error

        We undertake a harmless error analysis because “the Constitution entitles a criminal

defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).

Assessing error for harmlessness “promotes public respect for the criminal process by focusing

on the underlying fairness of the trial rather than on the virtually inevitable presence of

immaterial error.” Id. Ellis’s assignment of error has two parts, one constitutional and one

non-constitutional. Our analysis for harmless error changes depending on the nature of the error

alleged. See Lavinder v. Commonwealth, 12 Va. App. 1003, 1006 n.1, 407 S.E.2d 910, 911 n.1

(1991) (holding that the test for constitutional harmless error is different from the test for

non-constitutional harmless error). We thus analyze the two types of alleged error under two

different standards.7

                                  1. Constitutional Harmless Error

        Ellis first alleges that by requiring redaction of the timestamp, the trial court “deprive[d]

Ellis of his constitutional right to call forth evidence in his favor.” The right to call forth

evidence in one’s favor is guaranteed by the “compulsory process” clause of the Sixth

Amendment to the Constitution of the United States, which mandates that “[i]n all criminal



        6
        See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en
banc) (noting that “an appellate court may structure a decision upon an ‘assuming but not
deciding’ basis”).
        7
         The admission, or exclusion, of one piece of evidence can be the subject of both
constitutional harmless error analysis and non-constitutional harmless error analysis. See
Fitzgerald v. Commonwealth, 61 Va. App. 279, 292 n.4, 734 S.E.2d 708, 714 n.4 (2012)
(“Fitzgerald alleged both constitutional and non-constitutional errors in the admission of the
[evidence]. We believe that any error in admitting the [evidence] was harmless under either
standard.”).
                                               -6-
prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining

witnesses in his favor . . . .” Similarly, Article I, Section 8 of the Constitution of Virginia reads

in part that “in criminal prosecutions a man hath a right . . . to call for evidence in his favor . . . .”

Because this portion of Ellis’s assignment of error alleges a constitutional error, we analyze it

within a constitutional harmless error framework.

        “On appeal, issues of constitutional interpretation are reviewed de novo.” Huguely v.

Commonwealth, 63 Va. App. 92, 106, 754 S.E.2d 557, 564 (2014). “‘[B]efore a federal

constitutional error can be held harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt;’ otherwise the conviction under review must be set aside.”

Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999) (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). “A federal constitutional error is harmless, and thus

excusable, only if it appears ‘beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’” Quinn v. Commonwealth, 25 Va. App. 702, 719, 492 S.E.2d

470, 479 (1997) (quoting Chapman, 386 U.S. at 24).

        In Van Arsdall, the trial court erroneously limited the defendant’s cross-examination of a

prosecution witness. The Supreme Court explained its harmless error review this way:

                The correct inquiry is whether, assuming that the damaging
                potential of the cross-examination were fully realized, a reviewing
                court might nonetheless say that the error was harmless beyond a
                reasonable doubt. Whether such an error is harmless in a particular
                case depends upon a host of factors, all readily accessible to
                reviewing courts. These factors include the importance of the
                witness’ testimony in the prosecution’s case, whether the
                testimony was cumulative, the presence or absence of evidence
                corroborating or contradicting the testimony of the witness on
                material points, the extent of cross-examination otherwise
                permitted, and, of course, the overall strength of the prosecution’s
                case.

Van Arsdall, 475 U.S. at 684. In conducting such an analysis of the facts and incidents of Ellis’s

trial, we conclude that any constitutional error was harmless.
                                                  -7-
       The victim knew Ellis and identified him as the culprit. Ellis was arrested the day after

the crimes wearing shoes matching those taken from the victim. The victim testified in detail

about his shoes, explaining the deterioration in their condition, and pointing out the distinctive

defect in the shoes Ellis was wearing. The shoes, besides being the same brand and size, had the

insoles removed as well. Following the crimes, the victim arrived home “in a state of panic,

shocked and terrified.” Ellis’s foster mother testified that he returned home late on the night of

the robbery, wearing different shoes than he had been wearing the last time she saw him. As to

the timestamp on the photograph, it would have been cumulative of other evidence of the date of

the photograph, since Ellis himself testified to the date he uploaded the photograph. The

photograph to which the timestamp was attached showed Ellis wearing a pair of shoes, as

described above in footnote 2. Ellis asserts on appeal that the photograph showed him “wearing

a pair of Air Jordan sneakers identical to the model of Air Jordan sneakers that were taken from

the robbery victim . . . but in [Ellis]’s possession more than a year prior to the robbery.”

However, this Court is unable to say how similar the shoe in the photograph is to the shoes

admitted into evidence, since we have neither the shoes admitted into evidence, nor a photograph

of such shoes with which to conduct such a comparison.8 The strength of the Commonwealth’s

case is overwhelming. For all of these reasons, we hold “beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.” Quinn, 25 Va. App. at 719, 492

S.E.2d at 479 (quoting Chapman, 386 U.S. at 24).




       8
         To the extent our harmless error analysis calls upon us to make such a comparison, we
are unable to do so. (See supra note 2). Appellants are responsible for ensuring that this Court
has an adequate record. See Rule 5A:25; Via v. Commonwealth, 42 Va. App. 164, 185 n.4, 590
S.E.2d 583, 593 n.4 (2004) (observing that “it is the appellant’s responsibility on appeal to
provide this Court with an appropriate appendix and record”). And we note that there is no
indication in the record that Ellis objected to the return of the shoes to the Hampton Police
Department.
                                                  -8-
                                 2. Non-Constitutional Harmless Error

        Ellis also alleges that the trial court erroneously excluded the timestamp, because “the

Facebook posting by Emanuel Ellis could [have been] properly authenticated by Ellis and the

weight to be placed upon the date of the posting was a matter for the jury to decide, not the

judge.” Because this portion of his assignment of error alleges a non-constitutional error, we

analyze it within the non-constitutional harmless error context. “In a non-constitutional context,

we review a trial court’s rulings on whether to admit or exclude evidence under an abuse of

discretion standard.” Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265, 267 (2015).

        The standard for determining whether non-constitutional error was harmless is set out in

both the case law of Virginia and the Code.

                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)). Code § 8.01-678 codified the doctrine of harmless

error in Virginia, and states:

                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 other defect, imperfection, or omission in
                the record, or for any error committed on [sic] the trial.

        This code section “puts a limitation on the powers of this court to reverse the judgment of

the trial court—a limitation which we must consider on every application for an appeal and on

the hearing of every case submitted to our judgment.” Kirby v. Commonwealth, 50 Va. App.

691, 699, 653 S.E.2d 600, 604 (2007) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131
                                                  -9-
S.E. 230, 231 (1926)). “We will not reverse a trial court for evidentiary errors that were

harmless to the ultimate result.” Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906,

908 (2015). Non-constitutional harmless error analysis subjects an error to a more lenient

standard of review. See Grant v. Commonwealth, 54 Va. App. 714, 729, 682 S.E.2d 84, 91

(2009) (discussing “the lesser standard of non-constitutional harmless error”). Because we are

assessing the same error under different standards, and the error passed muster when subjected to

the more stringent constitutional harmless error analysis, we find that it also satisfies the

requirements of non-constitutional harmless error.

                                          III. CONCLUSION

       Assuming without deciding that the trial court erred when it excluded the timestamp from

evidence, we find such exclusion constitutes harmless error.

                                                                                            Affirmed.




                                                - 10 -
