David B. Moore v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 16, 1995
• Docket: 2378932
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

DAVID B. MOORE

v. Record No. 2378-93-2 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA MAY 16, 1995

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.

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

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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.

-2- 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

-3- 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 trial judge found that Lee subsequently had heard

Moore's voice and because of the numerous calls and Moore's

distinctive voice Lee identified him independently of the

hearsay.

In reviewing whether the evidence is sufficient to prove

-4- beyond a reasonable doubt that the appellant was the person who

made the threatening phone call to Lee, we consider whether the

evidence, independent of the excluded hearsay, pointed unerringly

to the appellant as the caller. That determination depends upon

the validity of Lee's independent identification of Moore's voice

as being that of the caller and the circumstantial evidence which

tends to support Lee's identification.

Identity of a caller can be established by direct or

circumstantial evidence. See Snead v. Commonwealth, 4 Va. App.

493, 495, 358 S.E.2d 750, 752 (1987). Testimony by a witness who

recognizes the voice of the telephone caller is sufficient to

prove identity. See Opanowich v. Commonwealth, 196 Va. 342,

351-53, 83 S.E.2d 432, 438 (1954); see also United States v.

Robinson, 707 F.2d 811 (4th Cir. 1983). Identification of a

voice heard over the telephone is valid even when the witness has

acquired knowledge or become familiar with whose voice it is

after the subject call. See Arnes v. Commonwealth, 3 Va. App.

189, 193, 349 S.E.2d 150, 152-53 (1986).

Lee "positively" identified the appellant's voice, which Lee

had heard in the general district court, as being the voice of

the person that had made the threatening phone call to him. Lee

also testified that Moore's voice is distinctive and that he was

familiar with the voice of the caller because he had heard it

during numerous phone calls. Furthermore, during the telephone

call for which the appellant was prosecuted, the caller stated

-5- that he was in jail. At the time the call was made, the

appellant was in jail. Lee also testified that he was "seeing"

the appellant's wife, which established a motive for the

appellant to have made the threatening phone call. These

circumstances tend to corroborate Lee's "positive" identification

of Moore's voice as being that of the person who made the

threatening phone call. We find the evidence is sufficient,

therefore, we affirm the conviction.

Affirmed.

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