THE CIRCUIT COURT OF AMHERST COUNTY F. Patrick Yeatts, Judge
Gregory W. Smith for appellant.
Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Beales and Decker Argued at
GRAFF DECKER JUDGE
Larnell Bennett appeals his conviction for drug distribution,
a third or subsequent offense, in violation of Code §
18.2-248. He contends that the admission of video and audio
recordings reflecting the drug sale violated his
constitutional right of confrontation. He also challenges the
sufficiency of the evidence to prove that he was the seller
of the illegal drugs. We hold that admission of the
recordings did not violate his constitutional right to
confront the witnesses against him. We further conclude that
the evidence proves the charged offense. Consequently, we
affirm the conviction.
challenged conviction arises out of a controlled purchase of
illegal drugs made by an informant on April 28, 2016. The
informant died prior to the appellant's trial. Subsequent
to the informant's death, the appellant made a motion to
exclude video and audio recordings depicting the controlled
purchase, as well as photographs made from the video. The
court heard evidence and argument on the motion and denied
After taking additional evidence, the court found the
Testimony Regarding the Controlled Purchase
Brandon Hurt, Jason Staton, and James Begley of the Amherst
County Sheriff's Office oversaw the controlled purchase.
The investigators used a "live" audio feed, which
they monitored as the sale occurred. They also made separate
audio and video recordings of the transaction, which they
were able to review only afterward. All three investigators
knew the appellant personally and identified his voice on the
audio feed and audio recording. Investigators Hurt and Staton
also identified the appellant in the video and photographs
made from the video. Additionally, Investigator Begley had
known the informant for several years and was "[v]ery
familiar" with his "prior work" with law
before the transaction, Investigators Hurt and Staton
searched the informant, his cigarette pack, and his
motorcycle, and found no contraband. The investigators then
equipped him with an audio and video recording device, which
was "essentially . . . a cell phone." They listened
as the informant made a telephone call in which he spoke to
Hurt confirmed that during the phone conversation between the
appellant and the informant, the informant made
"reference" to "two funny sticks." Hurt,
a narcotics investigator familiar with "lingo" in
"the drug trade," explained that this term
"referr[ed] to tobacco cigarettes dipped in PCP."
He testified further that the informant also mentioned
"the whole 3.5," which, in context, meant "an
eight ball or three and a half grams of crack cocaine."
investigator indicated that based on the conversation, these
were the items that he expected the informant to purchase
from the appellant. When the phone call ended, Hurt gave the
informant $270 with which to buy the drugs.
informant then rode his motorcycle to a second location. The
investigators followed him and confirmed visually that he did
not "stop anywhere or do anything" on the way. From
the new location, the informant engaged in a second telephone
conversation, in which the appellant told the informant where
to meet him. The officers followed the informant to the
specified location, maintaining visual surveillance until he
drove into an apartment complex.
activated the video recording device remotely. The
investigators positioned themselves at the sole entrance and
exit to the apartment complex and continued to monitor the
live audio feed. Once they heard the informant's
motorcycle stop, they noted the informant's and
appellant's voices on the audio feed, as well as other
Investigator Hurt heard the informant leaving the apartment
complex, he remotely stopped the video recording. The
investigators then followed the informant to another
location, where they took possession of the recording device
and two plastic bags containing suspected illegal drugs. The
informant also returned $40 to Hurt because he obtained less
cocaine than he had sought. After the informant handed over
these items, Staton searched him and his motorcycle and found
no other drugs or money.
Silent Video Recording of the Drug Transaction
video recording depicting the in-person transaction was
played for the trial court at the motion
hearing. It depicts the inside of a residence. A
working television is visible as it displays a person moving
on the screen. The video further shows the informant
encountering two different people inside the residence.
Fleetingly at the beginning of the video, a woman is visible
in the living room. Thereafter, only two men are visible
throughout the remainder of the video-the informant and a
second man, identified by two of the investigators as the
appellant. The video and some of the photographs include the
appellant's face and show him holding at least one
plastic sandwich bag and two slightly discolored cigarettes.
Audio Recording of the Telephone Calls and Drug Transaction
audio recording, which encompasses two telephone calls
between the appellant and the informant as well as the
subsequent in-person transaction, was also played for the
trial court at the motion hearing.
first conversation, the informant tells the appellant that he
has "money now" and "want[s] two of them funny
sticks" and "a whole three and a half." The
appellant responds, "O.k.," to each of the two
specific requests for drugs and concludes with, "I
gotcha." The two then discuss where to meet. The
appellant instructs the informant to give him five to ten
minutes, after which the appellant says he will tell the
informant where to go. In a second conversation, the
appellant says something unintelligible, and the informant
responds, "Alright, I'll be right there." The
informant then tells the investigators where he is going.
the sound of a motorcycle, the informant can be heard in the
next portion of the audio greeting another person whose voice
the investigators identified as the appellant's.
Additional voices or other noises can be heard in the
background but not in a way that clearly indicates either any
interaction with the informant or appellant, or the presence
of people other than as heard through a television. Only
portions of the recording of the approximately five-minute
exchange are intelligible. Most of what is intelligible
appears to be in the informant's voice. The majority of