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Moore v. Commonwealth

Court of Appeals of Virginia

May 16, 1995

DAVID B. MOORE
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY D. W. Murphey, Judge Designate

Michael HuYoung (Patricia H. Munroe, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole Argued at Richmond, Virginia

MEMORANDUM OPINION [*]

SAM W. COLEMAN III JUDGE

David B. Moore was convicted in a bench trial of making a threatening telephone call in violation of Code § 18.2-427. On appeal he contends that the evidence is insufficient to support the conviction.

Steven Lee, the complaining witness, received a telephone call at his home in which the caller stated that "he couldn't wait to get his hands on [Lee] when he got out of jail so he could just whoop [Lee's] ass." The call was one in a series of approximately forty to fifty of the same nature which Lee recognized as having been from the same male caller.

At trial Lee testified, over objection, that in one of the earlier calls, the caller had identified himself as "David Moore." The trial judge ruled that no proper foundation had been laid to identify the caller in order to receive the evidence for the purpose of identifying the caller. No foundation was thereafter established.

The appellant asserts that because the trial judge did not expressly sustain the objection after ruling that no foundation had been laid, the judge admitted and considered the hearsay evidence. An appellant may not "fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied." Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Where ambiguity may exist in a trial judge's ruling, we consider the trial judge's comments in the light most favorable to the prevailing party. See Bassett v. Commonwealth, 13 Va.App. 580, 582, 414 S.E.2d 419, 420 (1992). In a bench trial, we presume that the trial judge considered and decided the case only on evidence that was admitted and that the judge did not consider evidence ruled to be inadmissible. See Williams v. Williams, 14 Va.App. 217, 221, 415 S.E.2d 252, 254 (1992) (quoting Brown v. Commonwealth, 8 Va.App. 126, 133, 380 S.E.2d 8, 12 (1989)). Based upon the trial judge's ruling that no foundation had been laid, it is apparent that the judge did not admit or consider the evidence that the caller previously had identified himself as "David Moore" for the purpose of establishing the identity of the later caller.

Lee further testified that during the time that he was receiving the threatening telephone calls, he was "seeing" the appellant's (David Moore's) wife. On one occasion when he received a phone call, the appellant's wife was with him and she identified the caller's voice as that of her husband, David Moore. The trial judge sustained the appellant's hearsay objection to her out-of-court voice identification coming into evidence through Lee. Mrs. Moore did not testify. Accordingly, the trial court excluded the hearsay identification, although the court properly admitted Lee's testimony concerning the other details of the conversation with the caller.

As to whether the remaining evidence is sufficient to identify Moore as the caller, Lee testified that he could "positively" identify Moore's voice as being the same voice as that of the caller who had made the threatening telephone call to him. Lee explained that he was able to make a "positive" identification of Moore's voice in the circuit court because after having received the threatening phone call, he had heard Moore testify in the general district court and was able to recognize his voice. Lee testified that Moore had a "very distinctive" voice.

"Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied." Yarborough, 217 Va. at 978, 234 S.E.2d at 291. The weight and credibility that a fact finder gives to evidence which has been admitted in a case is solely within the fact finder's discretion.

The appellant contends that, even though the hearsay statements of the caller and of Moore's wife were not admissible, nevertheless, Lee, in fact, based his "positive" identification of the caller on those hearsay statements and, thus, independent of that hearsay, Lee was unable to identify the caller. He asserts, therefore, that the evidence should be considered insufficient to support the conviction.

The extent to which Lee's identification of the caller may have been influenced by Moore's wife's purported identification of her husband's voice or by the caller's identifying himself as "David Moore" is a factual determination, which depends in large measure upon the weight and credibility that the trial judge gave to Lee's testimony and explanation as to how he identified the voice of the caller. We consider that the trial judge found credible and gave weight to Lee's statement that he recognized Moore's voice as having been that of the caller when he later heard Moore testify in the general district court. Because weight and credibility are factual determinations, we presume that the ...


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