COURT OF APPEALS OF VIRGINIA
Present: Judges Fran k, Humphreys and Haley Argued at Chesapeake, Virginia

QUAMAR DE-WONE GREGORY MEMORANDUM ∗ OPINION BY v. Record No. 1395-10-1 J UDGE JAMES W. HALEY, JR. JULY 5, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge (James S. Ellenson, on brief), for appellant. Appellant submitting on brief. Alice T. Armstrong, Assistan t Attorney Genera l (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

I. Introduction Quamar De-Wone Gregory appeals his convi ctions for robbery, conspiracy to commit robbery, murder, and two counts of using a fi rearm during the commission of a felony. He maintains the trial court abused its discretion by admitting hearsay evidence. We disagree and affirm.
II. Facts On November 23, 2008, Quamar Gregory sp ent the afternoon drinking alcohol and smoking marijuana with a group of friends including, among others , Trevor Futrell and Antonio Williams. During the afternoon, the group decided to order Chinese food and rob the delivery driver. They planned to give the delivery driv er an address of a nearby home and use a gun to frighten the driver into gi ving them food and money.

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - In the early evening, Williams’s cousin arri ved with the gun the group intended to use to commit the robbery. After drinking more alcohol, Williams left to call the Chinese restaurant from a pay phone. Gregory and Futrell headed to the false address. When Williams found out the Chinese restaurant had closed, he called Futr ell, who told him to call Northern Lights Cab Company instead. Williams called the cab compa ny and ordered a taxi to pick up Futrell and Gregory at the false address. The taxi arrived a few minutes later. The two entered the taxi and shortly thereafter, Gregory bumped Futrell and told him “to get the shit over with.” Futr ell noticed Gregory was wearing his green bandanna, the sign al he was ready. Futrell told the driver to “stop the van and give it up.” The driver immediat ely complied, but nonetheless Futrell shot him in the back of the head. Gregory got out of the taxi and said, “come on.” Then he went through the driver’s pockets and took money before they bot h ran back to Futrell’s residence. When the pair returned, Futr ell told the group “that he just murked somebody.” Futrell then recounted the entire incident. As he did, Gregory stood nearby nodding and saying, “yeah, really.” At one point, Gregor y interjected, “I tho ught blood would be everywhere, but it didn’t get on me.” Futrell divided the money, betw een $260 and $300, amongst all the participants but gave Gregory more than the others, “because you helped me.” At trial, Williams testified about his role in the planning and execution of the robbery. He described the conversation he had with a fe male member of the group the evening of the murder. Williams asked her, “did [Futrell] rea lly do it?” She said, “Yeah,” and added that Gregory told her he thought it was unnecessary. Williams also established that when Futrell described the robbery and murder to the group, Gr egory remained silent despite being only a few feet away.- 3 - Tiffany Spivey, also at Futrell’s residence on th e night of the murder, testified Futrell told the whole story while Gregory, an arm’s lengt h away, nodded in agreement and stated, “yeah, really.” Gregory nodded his head when Futrell said Gregory picked the driver’s pockets after the shooting. She also remembered Gregory interjec ting, “I thought blood would be everywhere, but it didn’t get on me.” The tr ial judge overruled hearsay objec tions to both Williams’s and Spivey’s testimony. Gregory took the stand in his own defense. He testified he hear d the conversation about robbing the Chinese delivery driver , but thought they were going to take just the Chinese food, not money. When that plan fell through, Gregory t hought Futrell called a cab to take them home. He claimed he did not have any idea Futrell planned to rob and kill the driver. Gregory admitted he was at Futrell’s residence im mediately after the shooting, but claimed he was “in shock” and “obviously not” present when Futre ll explained what had happened. He did not recall any of the conversations implicating him in the robbery and murder. He said he was “zoned out” and “wasn’t paying no attention. I was in another zone.” After the close of evidence, the jury convicted Gregory of robbery, conspiracy to commit robbery, murder, and two counts of using a fir earm during the commission of a felony. Gregory appeals, arguing the trial c ourt erroneously admitted hear say evidence under the adoptive admission exception.
III. Admissibility of Hearsay Evidence Under the Adoptive Admission Exception Trial courts are given broa d discretion over the admissibility of evidence, and their decisions will not be disturbed on app eal absent an abuse of discretion. See Michels v. Commonwealth , 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006); Seaton v. Commonwealth , 42 Va. App. 739, 752, 595 S.E.2d 9, 15 (2004). In dete rmining whether the trial court abused its discretion, “‘we do not substitute our judgment for th at of the trial court. Rather, we consider- 4 - only whether the record fairly suppo rts the trial cour t’s action.’” Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Beck v. Commonwealth , 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997)). Only when “reasonable jurists could not di ffer” do we say an abuse of discretion occurred. Tynes v. Commonwealth , 49 Va. App. 17, 21 635 S.E.2d 688, 689 (2006) (quoting Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005)). When a “statement accusing one of the commission of an offense is made in his presence and hearing and is not denied or contradicted by him, both the statement and the fact of his failure to deny are admissible,” at trial. Lynch v. Commonwealth , 272 Va. 204, 208, 630 S.E.2d 482, 484 (2006) (quoting Knight v. Commonwealth , 196 Va. 433, 436, 83 S.E.2d 738, 740 (1954)). The admissibility of these adoptiv e admissions “as evidence of [the accused’s] acquiescence in [their] truth, is based on the theo ry that the natural reac tion of one accused of a crime is to deny the accusation if it is unjust or untrue.” Id. ; see also Welch v. Commonwealth , 271 Va. 558, 564-65, 628 S.E.2d 340, 343 (2006). For a statement to be admitted into evidence as an adoptive admission, the Commonwealth must demonstrate by a preponderan ce of the evidence (1) that the defendant heard the statements, (2) he understood that the st atements implicated him in a crime, (3) he had a fair opportunity to deny or object to the stat ements, and (4) the circumstances would naturally call for a reply. Lynch , 272 Va. at 208, 630 S.E.2d at 484; see Owens v. Commonwealth , 186 Va. 689, 699, 43 S.E.2d 895, 899 (1947). A party can “manifest adoption of a statement made by another in any number of ways, incl uding words, conduct, or silence.” Lynch , 272 Va. at 209, 630 S.E.2d at 485. Oftentimes the “defendant’s words or conduct . . . supply most, if not all, of the predicate facts” the Commonwealth must prove before the trial court admits the evidence under the adoptive admission exception to the hearsay rule. Id. “Factual questions- 5 - must usually be resolved to determine whether the proponent of the evidence has carried that burden, and those antecedent or pr edicate facts are to be determin ed by the trial court alone.” Id. at 208, 530 S.E.2d at 484. Here, two witnesses testified that Gregory was within arm’s length of Futrell when he described Gregory’s involvement in the robbery a nd murder. Gregory signaled he was ready to carry out the robbery when he pulled out a green bandanna and told Futrel l to “get the shit over with.” After the shooting, Gregory rummaged through the decedent’s pockets for money. During Futrell’s telling of the st ory, Gregory verbally and physica lly affirmed the veracity of Futrell’s statements by nodding his h ead and interjecting wi th an affirmative, “yeah.” The trial court found “sufficient evidence for the adoptive admission,” and we agree. Gregory’s words and conduct supply the predicate facts require d to render both Spivey’s and Williams’s statements admissible under the adoptive admission exception to the hearsay rule.
IV. Conclusion The trial court did not err in permitting hearsay evidence under the adoptive admission exception to the hearsay rule and, thus, we affirm. Affirmed.