COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Huff,* AtLee and Ortiz Argued by videoconference
DAVID JASANTE CUNNINGHAM MEMORANDUM OPINION** BY v. Record No. 1140-23-4 JUDGE GLEN A. HUFF FEBRUARY 25, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Kathleen M. Uston, Judge
Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following trial in the Circuit Court of the City of Alexandria (the “trial court”), a jury
convicted David Jasante Cunningham (“appellant”) of aggravated murder and two counts of
object sexual penetration. On appeal, appellant argues that the trial court erred by denying his
motion to suppress statements he made to the police, by admitting certain evidence at trial, and
that the evidence was insufficient to support one of his object sexual penetration convictions.
Finding no error, this Court affirms the convictions.
* Judge Huff prepared and the Court adopted the opinion in this case prior to the effective date of his retirement on December 31, 2024. ** This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
M.J., who was born with Down syndrome, was 23 years old in December 2021 and lived
alone in an Alexandria apartment. She texted her stepmother each morning to confirm that she
had showered, shaved, and brushed her teeth. She last texted her stepmother on the morning of
December 4, 2021.
On December 7, 2021, after not hearing from M.J. for several days, her stepmother and
father went to her apartment because they were concerned by her lack of communication. When
they arrived, they discovered the apartment had been “ransacked”; chairs were knocked over,
pillows were not on the sofa, and DVDs were strewn on the floor. They found M.J. lying face
down on the bedroom floor with a blanket and plastic bag over her head, and a shirt and bra
wrapped around her neck. Her father rolled her over, removed the blanket, and confirmed she
was dead. Her stepmother called 911. When first responders arrived, M.J. was lying on the
bedroom floor, partially nude, with a plastic bag near her head. A paramedic determined she had
been dead “for some time.”
While investigating the scene, officers found a pair of red-stained scissors under her bed
and crumpled aluminum foil with red stains near M.J.’s body. Several officers confirmed that
there were no signs of forced entry to the apartment, but many items in the apartment were
misplaced and “the apartment looked like it had been ransacked.” Detective Bikeramjit Gill
recovered a plastic cap from the dresser that he determined belonged to a Lysol container, but he
could not find the corresponding Lysol container and no other item was on the dresser.
1 On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). That principle requires this Court to “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 that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348 (1998)). -2- On December 8, 2021, Drs. Audrea Williams and Gene Maya examined M.J.’s body and
performed an autopsy. Williams determined M.J. had died of “[a]sphyxia including ligature
strangulation” at least 36 hours before the autopsy. The autopsy revealed three lacerations to
M.J.’s vaginal wall and “bloody fluid” between her legs but no “evidence of acute trauma or
injury” to her anus. Sara Jennings, a forensic nursing expert specializing in sexual assault,
testified that M.J.’s injuries were “consistent with sexual assault,” noting that while she did not
observe any injuries to M.J.’s anus “about 95 percent” of patients who report sexual abuse
exhibit no injuries. As part of her examination, Williams swabbed M.J.’s anorectal cavity.2
Maya testified that an anorectal swab is four swabs inserted “into the rectum and kind of twisted
all inside the rectum.” Williams and Maya also clipped M.J.’s fingernails and swabbed her oral
and vaginal cavities, neck, and hands.
In addition to the medical findings, the autopsy report included a case summary stating,
“[p]er investigation, this 23-year-old woman with a history of Down syndrome was found
unresponsive, nude, and prone on the floor of her residence wrapped in a blanket with a plastic
bag over her head. The residence was reported to be in disarray and locked without the chain
lock engaged.” Appellant objected to admission of the report on the ground that the case
summary was hearsay. The trial court admitted the report, only redacting “and locked without
the chain lock engaged.”
On December 7, 2021, M.J.’s father saw appellant twice: once while walking past M.J.’s
apartment and later near the leasing office. A detective also saw appellant walk past M.J.’s
apartment several times during the investigation. During their investigation, the police
canvassed the nearby apartments that day to collect information; during this process they spoke
2 Per Williams, the anorectal cavity is “the external portion of the anus as well as the internal portion” and inside the rectum but “not that far in” the rectum. -3- with appellant, who lived on the same floor as M.J. but he denied knowing her. The next day,
when questioned by a different officer, appellant admitted he had known M.J. for several months
and they used to “hang out.” He said that he had seen her on December 2 or 3 inside her
apartment and that “things were flirty, but nothing sexual happened.” He had also seen her
outside later that day.
The apartment building had continuously-recording surveillance cameras, including one
by the first-floor elevator and one by the leasing office. The building management company
retained any motion-activated footage “in the normal course of business.” Twelve employees,
including the assistant property manager, Karianne Wiley, could view and copy the footage with
time stamps from a computer in the office. Wiley downloaded the surveillance footage from
December 3, 4, and 7, 2021, and provided those videos to the police. She confirmed that the
Commonwealth’s exhibits were fair and accurate copies of the videos she provided to the police.
These cameras were installed and maintained by a separate company from the apartment
complex. That company’s employees could access the surveillance footage from the apartment
office but could not do so remotely. When asked how sensitive the motion activation was, the
type of software used, how long the system retained the footage, or how often the system was
updated, Wiley answered that she did not “know the exact details.” Appellant objected to the
videos being admitted, claiming the Commonwealth had failed to authenticate them. The trial
court admitted the videos over appellant’s objection.
One video showed M.J. in the parking lot on December 3, 2021, while appellant stood
nearby and watched her for several minutes. He briefly left the area but returned and spoke to
M.J. before she went inside. Another video showed appellant enter the first-floor elevator
wearing a work vest just after 11:00 a.m. on December 4, 2021. At 1:13 p.m. that same day,
appellant exited the elevator wearing different clothes and black and white sandals. Just before
-4- 4:00 p.m., he exited the elevator, again wearing different clothes. The final video showed
appellant inside the leasing office on December 4, 2021. A leasing consultant confirmed that
appellant had come to the office that day.
The apartment building was only accessible by call box or a key fob the building
provided its residents. Wiley testified that a computer system recorded each time a resident used
their key fob, and the management company kept those records “in the normal course of
business.” Appellant objected to the key fob records, arguing the Commonwealth had not laid
the foundation to establish how the records were collected, stored, accessed, or modified. The
trial court overruled appellant’s objection, finding “that the business records exception has been
met.” The records showed M.J. had last used her key fob in the evening of December 3, 2021,
and appellant entered the building at 11:13 a.m. and 3:04 p.m. on December 4, 2021.
Police obtained a search warrant for appellant’s apartment, DNA, and fingerprints. In the
early morning on January 11, 2022, Detective Michael Whelan and a SWAT team entered
appellant’s apartment, woke him up, handcuffed him, and transported him to the police
department. Whelan and Gill took appellant to a “soft” interview room, where they removed his
handcuffs, allowed him to use the restroom, and collected his DNA and fingerprints.
Whelan initially told appellant that he was not under arrest and was being questioned as
part of “an exploratory investigative process” for the crime of murder. He then read appellant
Miranda3 warnings from the Alexandria Police Department’s standard waiver form and asked
appellant after each right if he understood. Appellant confirmed his understanding and signed
the form. At the time, appellant was 40 years old, had completed high school and some college,
and had past experience with the criminal justice system. He told the detectives that he was
addicted to drugs and had last used about a week before.
3 Miranda v. Arizona, 384 U.S. 436 (1966). -5- Appellant stated he had last seen M.J. outside her apartment building the week she died.
He also admitted to being inside M.J.’s apartment that same week but could not remember
whether it was December 2 or 3. He acknowledged he was a “little flirtatious” with M.J. but
“nothing too crazy.” Initially, he denied doing anything “sexual” inside M.J.’s apartment but
soon admitted to inserting his finger into her vagina.
Throughout the interview, the detectives claimed to have forensic evidence that had not
yet been confirmed. For example, Whelan told appellant that his fingerprints had been found on
various items inside M.J.’s apartment, including a Lysol cap, tinfoil, a bag, a soap dispenser, and
some DVDs. The detectives also told appellant that his DNA was on M.J.’s body.
At one point, appellant asked whether the detectives were trying to trick him because
they had collected his fingerprints only at the start of the questioning. He mostly claimed he did
not remember whether he had touched any items inside the apartment. He denied using Lysol to
clean anything. But his story shifted during the interrogation. For example, when asked why his
DNA would be on M.J.’s body, he admitted for the first time that he had “grinded” his penis on
her. He also claimed that she bled on his hand when he put his finger into her vagina.
Nearly three hours into the interrogation, appellant repeatedly began to ask if he could
call his mother; the detectives told him that he could do so once they finished questioning him.
Whelan reiterated several times during the questioning that appellant’s Miranda rights remained
in force, to which he responded, “I get that.” The detectives permitted appellant several breaks
to use the restroom or smoke. When they asked him whether they had treated him with respect,
he responded “100%.” After about three hours, the detectives told appellant that they were going
to arrest him for murder. Finally, after about four and a half hours, he asked to speak to a
lawyer. Notwithstanding this request, appellant continued to answer the detectives’ questions for
some time.
-6- Appellant moved to suppress his statements, arguing that his Miranda waiver was not
knowing, intelligent, and voluntary. His statements were involuntary, he argued, because the
detectives overbore his will; and the detectives did not stop questioning him after he requested an
attorney. The trial court granted in part appellant’s motion for the statements he made after he
asked to speak to a lawyer but denied in part the motion as to his statements before that.
The police matched a fingerprint on the Lysol cap to appellant but found no other
fingerprints from the scene that were suitable for comparison. There was a mixed DNA profile
on the scissors. Neither M.J. nor appellant could be eliminated as contributors to that mixed
sample. The chance of the sample matching appellant was 1.5 trillion times more probable than
a random match of an unrelated African American. Appellant also could not be eliminated as a
contributor to DNA profiles developed from M.J.’s anorectal sample, left-hand fingernail
clippings, left hand swabs, and anterior neck sample. The probability of a random match among
the African American population was 1 in 87 for the anorectal sample and 1 in 2,300 for the
other three samples. The police recovered black and white sandals with blood on them from
appellant’s apartment. M.J. could not be eliminated as a contributor of that blood, with the
chance of a random match being 1 in greater than 7.2 billion.
The DNA sample from M.J.’s anorectal swab showed results suitable for comparison at 4
of the 17 loci. Dr. Daniele Podini, an expert in molecular biology and DNA analysis, testified as
part of appellant’s case in chief that “the lower the amount of DNA and the lower the quality of
that DNA, the lower is the number of regions that” can be detected. But she also testified that
“four loci are sufficient for a comparison.”
-7- The jury convicted appellant of murder and two counts of object sexual penetration. The
trial court sentenced him to three consecutive life sentences plus three years’ imprisonment with
three years suspended.
This appeal followed.
ANALYSIS
I. Appellant’s incriminating statements
Appellant first contends that “[t]he trial court erred by denying [his] pretrial motion to
suppress where [his] post-Miranda statements were not voluntary under the Fourteenth
Amendment.” When a trial court denies a suppression motion, the “appellant bears the burden of
establishing that reversible error occurred.” Moreno v. Commonwealth, 73 Va. App. 267, 274
(2021) (quoting Williams v. Commonwealth, 71 Va. App. 462, 474 (2020)). “When considering
whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the
evidence presented at the pretrial hearing but also the evidence later presented at trial.” Tirado v.
Commonwealth, 296 Va. 15, 24 (2018) (quoting Commonwealth v. White, 293 Va. 411, 414
(2017)).
“No person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. Thus, if a suspect is coerced into making a statement involuntarily, the
prosecution may not use that statement against him at trial. See Avent v. Commonwealth, 279
Va. 175, 195 (2010) (“If the suspect’s will has been overborne and his capacity for
self-determination critically impaired, the confession is considered involuntary and its use is
unconstitutional.” (quoting Midkiff v. Commonwealth, 250 Va. 262, 268 (1995))). An
incriminating statement is voluntary if it was “the product of an essentially free and unconstrained
choice by its maker” and involuntary if “the maker’s will has been overborne and his capacity for
self-determination critically impaired.” Tirado, 296 Va. at 28 (quoting Gray v. Commonwealth, 233
-8- Va. 313, 324 (1987)). “[V]oluntariness is a question of law, subject to independent appellate
review.” Secret v. Commonwealth, 296 Va. 204, 225 (2018) (quoting Avent, 279 Va. at 195).
“Subsidiary factual questions, however, are entitled to a presumption of correctness.” Id.
This Court assesses voluntariness by examining “the totality of the circumstances,”
including “‘the defendant’s age, intelligence, mental and physical condition, background and
experience with the criminal justice system, the conduct of the police, and the circumstances of the
interview.’” Thomas v. Commonwealth, 72 Va. App. 560, 582 (2020) (quoting Keepers v.
Commonwealth, 72 Va. App. 17, 41 (2020)). “[E]vidence of coercive police activity ‘is a necessary
predicate to the finding that a confession is not “voluntary.”’” Washington v. Commonwealth, 43
Va. App. 291, 303 (2004) (alteration in original) (quoting Commonwealth v. Peterson, 15 Va. App.
486, 488 (1992)).
Appellant argues that his statements were involuntary because Whelan and Gill would
not let him talk to his mother during the interrogation and deceived him by exaggerating the
strength of their evidence. Importantly, he does not argue that the Miranda waiver he made at the
beginning of the interrogation was invalid, but rather only that his later statements were
involuntary due to Whelan and Gill’s post-waiver conduct. Yet appellant appears to argue that
all of his statements were involuntary without identifying exactly when the detectives’ conduct
overbore his will. That argument is fundamentally flawed. Although, for example, appellant
highlights the detectives’ refusal to allow him to speak to his mother, he did not make that
request until nearly three hours into the interview. He had already made several incriminating
admissions before the detectives rebuffed his request, and he does not identify any incriminating
admissions he made afterward.
Regardless, the record makes clear that all of appellant’s statements were voluntary. In
Robinson v. Commonwealth, 63 Va. App. 302 (2014), the police interrogated a 15-year-old suspect,
-9- refused his repeated requests to call his mother, and falsely told him that he would necessarily be
tried as an adult. Id. at 308. This Court held that the suspect’s confession was voluntary
nonetheless because the police gave him Miranda warnings, interrogated him without restraints, and
let him use the restroom, while the suspect “gave no indication of being under the influence of
drugs” and responded to the detectives’ questions. Id. at 313-14.
The Robinson analysis applies equally to the circumstances here. Whelan read appellant his
Miranda warnings and even reiterated throughout the interview that they applied. Appellant was
questioned without handcuffs and allowed several breaks to use the restroom or smoke.
Although appellant explained that he was addicted to drugs, he did not appear to be under the
influence during the interview, told the detectives he had last used about a week before, and
cogently answered the detectives’ questions. Finally, appellant confirmed more than three hours
into the interview that he understood his rights and that they still applied.
These circumstances differ substantially from the circumstances in Peterson, 15 Va. App.
486, on which appellant’s argument relies. In Peterson, the police interrogated the suspect in an
ambulance en route to the hospital after he had been injured and was actively experiencing the
effects of recently-ingested cocaine. Id. at 488. During that interrogation he “was in pain, his vision
blurred, and he was unable to understand ‘everything that was going on around’ him,” making his
statements involuntary. Id. Here, by contrast, appellant was lucid, uninjured, did not appear to be
intoxicated, and agreed that the detectives had been respectful to him.
Here, the detectives did not overbear appellant’s will by exaggerating the strength of the
evidence against him. Although “‘[a] deliberate falsehood by a police officer in the course of his
duties’ is not condoned, it will not render a confession involuntary unless it ‘impede[s the
defendant’s] . . . “ability to understand the nature of his rights and the consequences of abandoning
them.”’” Robinson, 63 Va. App. at 312 (alterations in original) (quoting Wilson v. Commonwealth,
- 10 - 13 Va. App. 549, 554 (1992)); see also Frazier v. Cupp, 394 U.S. 731, 740 (1969) (finding a
confession voluntary even though the police lied to a suspect that his co-defendant had confessed).
Appellant fails to cite a single Virginia case holding that the police overbore a suspect’s will
by distorting the evidence during questioning. Indeed, many cases have held otherwise. See, e.g.,
Arthur v. Commonwealth, 24 Va. App. 102, 105, 107-08 (1997) (holding statements voluntary
despite the police showing the defendant “dummy” laboratory reports containing fabricated
fingerprint and DNA evidence); Novak v. Commonwealth, 20 Va. App. 373, 380, 387-88 (1995)
(holding statements voluntary notwithstanding that the police lied that the defendant’s fingerprints
were found on the victim’s clothes); Wilson, 13 Va. App. at 552-55 (holding statements voluntary
although the police falsely stated the victim had identified the defendant). Appellant stresses the
persuasive impact of DNA and fingerprint evidence, but this Court’s precedents establish that the
police can lie about possessing such evidence without rendering the suspect’s confession
involuntary. Moreover, appellant astutely challenged the detectives’ claims when he observed that
they had only taken his fingerprints at the beginning of the interview.
Finally, nothing in appellant’s background or characteristics made him particularly
susceptible to police coercion. He was 40 years old, had completed high school and some college,
and there was no evidence of any intellectual difficulties. He also had prior experience with the
criminal justice system. See Midkiff, 250 Va. at 269 (finding confession to be voluntary because the
defendant was “no stranger to the criminal justice system” and had “experienced several prior police
interrogations”); Washington, 43 Va. App. at 304 (stating that the defendant “was well experienced
in dealing with the police, having previously been convicted of three felonies”). Accordingly, the
trial court’s denial of the motion to suppress the post-Miranda statements is affirmed.
- 11 - II. The trial court’s evidentiary rulings
Appellant next assigns error to the trial court’s admission of the autopsy report which
allegedly contained hearsay, and the surveillance footage and key fob logs for allegedly lacking
adequate foundation. “It is well-settled that ‘[d]ecisions regarding the admissibility of evidence “lie
within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of
discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (alteration in original)
(quoting Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)). “Only when reasonable
jurists could not differ can we say an abuse of discretion has occurred.” Id. (quoting Grattan v.
Commonwealth, 278 Va. 602, 620 (2009)).
A. The autopsy report
Appellant argues that the trial court abused its discretion in admitting the autopsy report,
which he asserts contained inadmissible hearsay. Code § 8.01-678 requires harmless error review in
all cases.4 Commonwealth v. Kilpatrick, 301 Va. 214, 216 (2022). Non-constitutional error is
harmless if this Court determines that “there has been a fair trial on the merits and . . . substantial
justice has been reached” because “the alleged error [did not] substantially influence[] the” fact
finder. Id. at 217 (quoting Haas v. Commonwealth, 299 Va. 465, 467 (2021)). An error is harmless
“‘if other evidence of guilt is so “overwhelming” and the error so insignificant by comparison.’”
Dalton v. Commonwealth, 64 Va. App. 512, 520-21 (2015) (quoting Schwartz v. Schwartz, 46
Va. App. 145, 159 (2005)).
4 Code § 8.01-678 provides:
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 the trial. - 12 - The unredacted portion of the autopsy report’s case summary stated, “[p]er investigation,
this 23-year-old woman with a history of Down syndrome was found unresponsive, nude, and
prone on the floor of her residence wrapped in a blanket with a plastic bag over her head. The
residence was reported to be in disarray.” Assuming without deciding the summary was
inadmissible hearsay, many eyewitnesses corroborated the information reported and none of the
underlying facts were in genuine dispute.
Four witnesses, including M.J.’s parents and teachers, testified that she had Down
syndrome. M.J.’s father testified that he found her unresponsive wrapped in a blanket with a
plastic bag over her head. Other witnesses, including the first responders, testified that M.J. was
unresponsive, nude, and had a plastic bag near her head when they arrived. Many witnesses
testified that the apartment had been “ransacked” or was otherwise in disarray. Indeed, the
Commonwealth submitted photographs showing the condition of both M.J. and her apartment at
the time she was discovered. Importantly, no eyewitness testimony contradicted the autopsy
report’s case summary. Considering the multiple alternative sources of evidence—none of
which implicated appellant—this Court concludes that the admission of the autopsy report’s case
summary was harmless if error.
B. The surveillance footage
Next, appellant argues that the trial court erred by admitting the surveillance videos
because the Commonwealth failed to lay the proper foundation for their admission. “A proper
foundation must be laid for the introduction of all evidence.” Church v. Commonwealth, 71
Va. App. 107, 124 (2019) (quoting Sabo v. Commonwealth, 38 Va. App. 63, 79 (2002)). Video
footage is admissible either “to illustrate a witness’ testimony” or “as an ‘independent silent
witness.’” Bennett v. Commonwealth, 69 Va. App. 475, 487 (2018). A party seeking to admit
video evidence as a silent witness “must furnish ‘an adequate foundation assuring the accuracy
- 13 - of the process producing’” the video. Id. at 488 n.7 (quoting Brooks v. Commonwealth, 15
Va. App. 407, 410 (1992)). Admitting a video as a silent witness typically requires its maker to
authenticate it. Bailey v. Commonwealth, 259 Va. 723, 738 (2000). Authentication “is satisfied
by evidence sufficient to support a finding that the thing in question is what its proponent
claims.” Va. R. Evid. 2:901.
Appellant argues the Commonwealth failed to prove the accuracy of the video footage
because Wiley did not know the details of the recording process, which was known only to other
witnesses who also had access to the software. This Court disagrees. Wiley downloaded the
surveillance footage from the computer system and transferred it to a flash drive, which she
provided to the police. Her testimony established that the videos were what the Commonwealth
claimed they were: footage from the apartment building’s security camera system. That
testimony satisfied Virginia Rule of Evidence 2:901’s authentication requirement.
Other evidence in the record supports the authenticity of the footage. For example, just
as depicted in the surveillance footage, appellant told the police that he saw M.J. in the parking
lot on December 2 or 3, 2021. Details such as how often the software was updated or how long
the footage was retained in the system are not relevant to the accuracy of the footage itself.
The party offering the evidence bears the burden “to show with reasonable certainty that
there has been no alteration or substitution of it.” Church, 71 Va. App. at 124. But “[w]here
there is mere speculation that contamination or tampering could have occurred, it is not an abuse
of discretion to admit the evidence and let what doubt there may be go to the weight to be given
the evidence.” Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990). That is, the mere fact that
others had access to the camera system—absent any evidence that anyone altered or tampered
with the surveillance footage—went only to the weight of the evidence, not its admissibility.
Accordingly, the trial court did not abuse its discretion in admitting the surveillance videos.
- 14 - C. The key fob records
Finally, appellant contends the trial court erred in admitting the key fob records. He
argues the key fob records are not business records under Virginia Rule of Evidence 2:803(6)
because those records reflect the residents’, not the business’s, regularly conducted activity.
“Hearsay is inadmissible unless permitted by an exception, and the party offering the
evidence must ‘clearly show’ that the exception applies.” Khine v. Commonwealth, 75 Va. App.
435, 444-45 (2022) (quoting Clay v. Commonwealth, 33 Va. App. 96, 104 (2000) (en banc),
aff’d, 262 Va. 253 (2001)); see also Va. R. Evid. 2:802 (“Hearsay is not admissible except as
provided by these Rules, other Rules of the Supreme Court of Virginia, or by Virginia statutes or
case law.”). Rule 2:803(6) provides one such exception to the general rule against hearsay for
records of a regularly conducted business activity, known as the “business records exception.”
Business records are admissible under Rule 2:803(6) if:
(A) the record was made at or near the time of the acts, events, calculations, or conditions by—or from information transmitted by—someone with knowledge; (B) the record was made and kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making and keeping the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 2:902(6) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Va. R. Evid. 2:803(6).
Appellant cabins his challenge to the key fob records to Rule 2:803(6)(B) by arguing the
key fob records do not record the apartment’s regularly conducted activity but rather the activity
of the apartment’s residents. At trial, Wiley testified that the apartment complex’s buildings
were only accessed through a “fob or call box” and that each resident was provided a key fob. - 15 - She further testified that the key fob usage was continuously recorded and maintained by the
apartment complex. Based on this testimony the trial court found that “the business records
exception has been met” and admitted the key fob records. Accordingly, this record reflects that
the key fob records indicated which residents were accessing the apartment complex and when.
Insofar as the key fob records reflect the residents’ regular activity, they also reflect the
controlled access to the apartment complex itself by controlling and logging such access within
the “regularly conducted activity of” the apartment. Accordingly, this Court cannot say the trial
court abused its discretion in admitting the key fob records, and therefore the trial court’s
judgment as to the key fob records is affirmed.
III. Sufficiency of the evidence
Finally, appellant alleges that the trial court erred in denying his motion to strike one
count of sexual object penetration where the evidence was insufficient to establish penetration of
the anus. “When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “In such cases, ‘[t]he Court does not ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.’” Secret, 296 Va. at
228 (alteration in original) (quoting Pijor, 294 Va. at 512). “Rather, the relevant question is
whether ‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” McGowan v.
- 16 - Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App.
149, 161 (2018)).
Here, appellant argues that the evidence underlying one of his object sexual penetration
convictions was insufficient because the Commonwealth failed to prove that he penetrated M.J.’s
anus.5 A person is guilty of object sexual penetration if he “penetrates the [victim’s] labia
majora or anus.” Code § 18.2-67.2. “[P]enetration ‘need be only slight’” and “may be proved
by circumstantial evidence.” Jett v. Commonwealth, 29 Va. App. 190, 194 (1999) (first quoting
Horton v. Commonwealth, 255 Va. 606, 612 (1998); and then quoting Morrison v.
Commonwealth, 10 Va. App. 300, 301 (1990)).
At trial, the Commonwealth presented sufficient evidence for a reasonable jury to
conclude that appellant penetrated M.J.’s anus. The anorectal swab contained a DNA profile
from which appellant could not be eliminated as a contributor. Williams testified she swabbed
the external and internal portions of M.J.’s anus. Maya testified that an anorectal swab includes
four swabs “inserted into the rectum.” Although there was no observed injury to M.J.’s anus, the
Commonwealth’s expert witness testified that most sexual assault victims exhibit no injuries. On
that evidence, the jury’s conclusion that appellant penetrated M.J.’s anus was not plainly wrong
or without evidence to support it.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
5 Appellant does not challenge the evidence underlying that conviction on any other grounds, nor does he challenge the evidence underlying his other convictions. - 17 -