Christopher Thomas Tinsley v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 6, 2024
• Docket: 2184232
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges O’Brien, Malveaux and Raphael

CHRISTOPHER THOMAS TINSLEY MEMORANDUM OPINION* v. Record No. 2184-23-2 PER CURIAM NOVEMBER 6, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NEW KENT COUNTY B. Elliott Bondurant, Judge

(Sharif L. Gray; Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant.

(Jason S. Miyares, Attorney General; William K. Hamilton, Assistant Attorney General, on brief), for appellee.

Christopher Thomas Tinsley entered conditional guilty pleas to two counts of forcible

sodomy, two counts of object sexual penetration, carnal knowledge of a child between 13 and 14

years old, and rape. The court sentenced him to a total of 260 years’ incarceration with 240

years suspended. On appeal, Tinsley argues that the court erred by denying his motion to

exclude audio recordings as inadmissible under Code § 19.2-65. After examining the briefs and

record, the panel unanimously holds that oral argument is unnecessary because “the appeal is

wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

“[W]e recite the evidence below ‘in the “light most favorable” to the Commonwealth, the

prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard “requires us to

* This opinion is not designated for publication. See Code § 17.1-413(A). ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324

(2018)).

In January 2023, a grand jury indicted Tinsley for several felonies relating to his sexual

abuse of his stepdaughter. During discovery, the Commonwealth disclosed audio recordings of

Tinsley made while he was in his bedroom. Tinsley moved to exclude the recordings from evidence

because they had been obtained in violation of the Commonwealth’s Wiretap Act. His motion

included a portion of a police report that referred to “an audio recording” from “June 29, 2022.”

According to the police report, Tinsley’s wife had been “using a micro-recorder due to recent

marital problems” and had “mov[ed] the recorder around to different locations in their bedroom.”

She played the recording for a police officer, who “heard what sounded like sexual intercourse and

other sexual acts.” Tinsley’s wife “identified the female voice on the recording as her daughter, . . .

and the male voice” as Tinsley.

Tinsley argued that the recordings violated Code § 19.2-62 because Tinsley’s wife was not a

party to the interaction. Although the police report and Tinsley’s motion only identified one

recording, Tinsley requested the exclusion of “multiple illegal recordings” based on Code § 19.2-65.

At a hearing on the motion, Tinsley stated that there was no “factual dispute” and his “only

evidence” was the “snippet of the police report” he had reproduced in his motion. Tinsley did not

present any recordings or transcripts of recordings to the court. During argument, Tinsley stated

that he was “praying in his bedroom by himself” in one recording and was “speaking with” his

stepdaughter in another. Tinsley asserted that the recordings contained “oral communication[s]”

that were inadmissible as “evidence in any trial, hearing, or other proceeding in or before any court”

under Code § 19.2-65. He contended that the recordings met Code § 19.2-61’s definition of “oral

-2- communication” because they were “uttered by a person exhibiting an expectation that such

communication was not subject to interception under circumstances justifying . . . such

expectations.” He maintained that whether he had a “reasonable expectation” of privacy in the

conversations was not the governing analytical standard; under Code § 19.2-61, the question was

whether he had an “expectation of noninterception,” which he did in his bedroom.

The court emphasized that it had not “heard the recording” but asked Tinsley whether

“sounds[,] as if someone was having sexual intercourse,” were “oral communication” under Code

§ 19.2-61. (Emphasis added). Tinsley described the question as “interesting” but merely answered

that he “could see the argument that a sound is not necessarily a communication.” He stated that the

recordings contained “words”1 but conceded that he did not “know . . . whether a sound would

constitute an oral communication.”

The court denied the motion. First, it found that Tinsley did not have “a reasonable

expectation of privacy . . . in a room that [he] share[d] with” his wife. Second, while reiterating that

it had not “heard the tape,” the court held that a “sound” was not an “oral communication” subject

to exclusion under Code § 19.2-61. The court explicitly based its ruling on “what [Tinsley] filed.”

After the ruling, Tinsley filed a “supplement” to his motion, arguing that (1) the “reasonable

expectation of privacy” test did not apply, (2) there was no evidence about whether he shared the

bedroom with his wife and, in fact, he would testify that he did not because of the parties’ “marital

issues,” and (3) other states’ wiretapping statutes did not “contain interspousal exceptions”

permitting admission of wiretap evidence. The supplement did not directly ask the court to

reconsider its ruling and did not include any recordings. Rather, it merely identified the issues

1 Tinsley suggested that the Commonwealth would “stipulate” that “there are words in these recordings”; the Commonwealth did not respond. -3- “should either [the trial court or the Commonwealth] wish to take [them] up . . . prior to the plea.”

The record does not contain any ruling by the court concerning the supplement.

Tinsley entered conditional guilty pleas under a written plea agreement, preserving his right

to appeal the court’s denial of his motion. On appeal, he argues that the court erred because the

Wiretap Act makes it a felony to record an oral communication unless one party to the

communication consents. Absent such consent, the contents of a recording cannot be admitted as

evidence. He contends that the court incorrectly invoked the “reasonable expectation of privacy”

test to determine whether the recordings contained “oral communications”; instead, the court should

have applied Code § 19.2-61, which required the court to consider only whether he had a reasonable

expectation that his communication was not subject to interception. He also maintains that he

reasonably expected his communications in his bedroom would not be intercepted irrespective of

whether he shared the bedroom with his wife. Regardless, he asserts that “the extent of how [he]

shared the bedroom . . . with his spouse was not in evidence” and he “would have testified that,

because of marital issues, his [wife] often slept in a trailer and that their bedroom was not shared to

the extent one might assume of a married couple.” Finally, Tinsley relies on other jurisdictions’

wiretapping statutes, such as Florida, Georgia, Maryland, and Louisiana, which do not “contain

interspousal exceptions” allowing admission of wiretap evidence.

ANALYSIS

Generally, “[w]e review a trial court’s decision to admit or exclude evidence” for an

abuse of discretion. Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (quoting Avent v.

Commonwealth, 279 Va. 175, 197 (2010)). “In evaluating whether a trial court abused its

discretion, . . . ‘we do not substitute our judgment for that of the trial court. Rather, we consider

only whether the record fairly supports the trial court’s action.’” Carter v. Commonwealth, 293

Va. 537, 543 (2017) (alteration in original) (quoting Grattan v. Commonwealth, 278 Va. 602,

-4- 620 (2009)). To the extent Tinsley’s argument “requires ‘statutory interpretation, it is a question

of law reviewed de novo on appeal.’” Ragland v. Commonwealth, 67 Va. App. 519, 530 (2017)

(quoting Grimes v. Commonwealth, 288 Va. 314, 318 (2014)).

“[A]ny person who . . . [i]ntentionally intercepts . . . any wire, electronic or oral

communication . . . shall be guilty of a Class 6 felony.” Code § 19.2-62(A)(1), (4). “‘Intercept’

means any . . . means of acquisition of the contents of any wire, electronic or oral

communication through the use of any electronic, mechanical or other device.” Code § 19.2-61.

“‘Oral communication’ means any oral communication uttered by a person exhibiting an

expectation that such communication is not subject to interception under circumstances

justifying such expectations but does not include any electronic communication.” Id.

“Whenever any . . . oral communication has been intercepted, no part of the contents of such

communication and no evidence derived therefrom may be received in evidence in any trial,

hearing or other proceeding . . . if the disclosure of that information would be in violation of [the

Wiretap Act].” Code § 19.2-65.

The Supreme Court has held that “an oral communication is not protected” by the Wiretap

Act “unless (1) the speaker exhibits the expectation that his conversation will not be intercepted,

and (2) the circumstances justify the expectation of noninterception.” Wilks v. Commonwealth, 217

Va. 885, 888 (1977). Noting that Code § 19.2-61’s language “‘tracks’ the Fourth Amendment

concept of right to privacy,” the Supreme Court ruled in Wilks that whether a person has a

“justifiable expectation of noninterception” under the statute is “equivalent to the constitutional

expectation of privacy.” Id. at 889 (emphasis added) (quoting United States v. Pui Kan Lam, 483

F.2d 1202, 1206 (2d Cir. 1973)). Thus, if a “particular conversation was held” in a setting where

the speaker did not have a constitutionally protected expectation of privacy, the conversation is

not an “oral communication” under the Wiretap Act. Id. Accordingly, notwithstanding

-5- Tinsley’s argument, the trial court properly ruled on his motion to exclude by considering

whether he had a reasonable constitutionally protected expectation of privacy.2

Tinsley asserts that there is a distinction between (1) “a ‘reasonable expectation of

privacy’ test” under the constitution, and (2) the “expectation of noninterception” test provided

by Code § 19.2-61. He argues that the court incorrectly applied the constitutional standard and

that under the correct, statutory test, he had a justifiable expectation that his communications

were “not subject to interception” because he was “in his bedroom, a private area.” Tinsley

disavows the constitutional expectation of privacy standard and presents no argument under that

standard. Indeed, he cites no authority detailing the scope and protections of such constitutional

protections in the context of this case. But it is well-established that “[i]t is not the role of the

courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her,

and where a party fails to develop an argument in support of his or her contention or merely

constructs a skeletal argument, the issue is waived.” Bartley v. Commonwealth, 67 Va. App.

740, 746 (2017) (alteration in original) (quoting Sneed v. Bd. of Prof’l Resp. of the Sup. Ct. of

Tenn., 301 S.W.3d 603, 615 (Tenn. 2010)). To the contrary, if an appellant believes “that the

trial court erred, Rule 5A:20(e) require[s] him ‘to present that error to us with legal authority to

support [his] contention.’” Id. (second alteration in original) (quoting Fadness v. Fadness, 52

2 Although the General Assembly has amended the Wiretap Act since the Supreme Court’s opinion in Wilks, those amendments did not address the Supreme Court’s interpretation equating an “expectation of noninterception” with a “constitutionally protected expectation of privacy.” 1988 Va. Acts ch. 889; 2002 Va. Acts ch. 588; 2005 Va. Acts ch. 934. “The General Assembly is presumed to be familiar with [the Supreme Court’s] cases.” Cygnus Newport-Phase 1B, LLC v. City of Portsmouth, 292 Va. 573, 582 (2016) (citing Waterman v. Halverson, 261 Va. 203, 207 (2001)). Moreover, the General Assembly’s “inaction . . . despite awareness of the [Supreme] Court’s interpretation of a statute ‘is not only acquiescence but approval’ of that interpretation.” Id. (quoting Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 428 (2012)). To the extent Tinsley asks this Court to ignore Wilks by applying a different analytical standard, we cannot do so as “‘we are bound by decisions of the Supreme Court of Virginia and are without authority to overrule’ them.” Vay v. Commonwealth, 67 Va. App. 236, 258 n.6 (2017) (quoting Roane v. Roane, 12 Va. App. 989, 993 (1991)). -6- Va. App. 833, 851 (2008)). Tinsley did not do so. Thus, any argument that he had a

constitutional expectation of privacy is waived.3

Further, we do not consider whether the “sounds” on the recordings were “oral

communications” under Code § 19.2-61 because Tinsley did not present such an argument to the

trial court. Indeed, when the court raised the issue, Tinsley took no position and instead

commented merely that he “could see the argument that a sound is not necessarily a

communication.” Thus, he may not argue on appeal that the sounds on the recordings were oral

communications. Rule 5A:18.

Nor do we consider whether the court should have excluded any recording of Tinsley

allegedly praying in his bedroom because the court did not rule on that issue and thus the issue is

waived. When an appellant does not “obtain a ruling from the trial court” on a motion, “‘there is

no ruling for [this Court] to review’ on appeal,” and the “argument is waived under Rule 5A:18.”

Williams v. Commonwealth, 57 Va. App. 341, 347 (2010) (alternation in original) (quoting

Fisher v. Commonwealth, 16 Va. App. 447, 454 (1993)).

Here, the record establishes that the trial court did not consider or rule on the motion to

exclude evidence of Tinsley allegedly praying, largely because no evidence of such a recording was

presented. At the hearing, Tinsley stated that his “only evidence” was the “snippet of the police

report” he had included in his motion. That police report indicated that there was “one” recording

that only captured sounds of “sexual intercourse.” The court explicitly ruled based only on what

Tinsley had “filed,” that is, the police report, emphasizing that it had not “heard the tape.” The

court’s ruling did not address any recording of Tinsley allegedly praying in his bedroom, and

3 Although the constitutional expectation of privacy standard and statutory standard are “equivalent,” Wilks, 217 Va. at 889, Tinsley insists they are different and presents argument only under what he perceives as the correct standard. Consequently, he presents no argument under the constitutional expectation of privacy test. -7- Tinsley did not bring that circumstance to the court’s attention or otherwise request a ruling on the

issue. Thus, that issue is waived.4

Next, Tinsley argues that the court erred by denying his motion based on “its sua sponte

argument that [he] shared a bedroom with his spouse.” He contends that “the extent of how

shared the bedroom was with his spouse was not in evidence” and that he “would have testified

that, because of marital issues, his spouse often slept in a trailer.” This argument is not

reviewable because the court did not rule on it. As noted above, when an appellant does not

“obtain a ruling from the trial court” on a motion, “‘there is no ruling for [this Court] to review’

on appeal,” and the “argument is waived under Rule 5A:18.” Williams, 57 Va. App. at 347

(alteration in original) (quoting Fisher, 16 Va. App. at 454).

Here, Tinsley did not argue that the evidence failed to demonstrate that he shared the

bedroom with his wife until his “supplement” to the motion to exclude. The supplement did not

request a ruling, but merely advised that he broached the issue “should either [the trial court or

the Commonwealth] wish to take up [the matter] prior to the plea.” Nothing in the record

suggests that the court ruled on the supplement or considered the arguments it contained. Thus,

the argument is not preserved, as there is nothing for us to review on appeal.

CONCLUSION

For these reasons, we affirm the court’s ruling.

Affirmed.

4 In his opening brief, Tinsley does not mention the alleged recording of him praying in his bedroom, let alone present any argument that we should separately analyze that recording. Thus, the issue is also waived under Rule 5A:20(e). -8-