COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Alston and Senior Judge Haley Argued at Richmond, Virginia

TERRELL DEWAYNE GARNETT MEMORANDUM OPINION * BY v. Record No. 1573-15-2 J UDGE JAMES W. HALEY, JR. DECEMBER 20, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY James S. Yoffy, Judge Amy E. Hensley (Owen & Owens PLC, on brief), for appellant. Craig W. Stallard, Assistant At torney General (Mark R. Herring, Attorney General, on brief), for appellee.

Terrell Dewayne Garnett appeals an order co nvicting him of possession with intent to distribute one-half ounce to five po unds of marijuana. Appellant ar gues that the circuit court erred by (1) admitting text messages into eviden ce over his objection for lack of founda tion; (2) admitting text messages into evid ence over his objection for best evidence; (3) admitti ng text mess ages into evidence over his objection for h earsay; (4) denying his motion to strike because the evidence was insufficient to prove beyond a reas onable doubt that he possessed marijuana with the intent to distribute it; and (5) admittin g the out-of-court statements of his sister into ev idence in violation of the hearsay rule. We agr ee with appellant that th e circuit court erred in admitting the text messages because the Commonwealth did no t provide an adequate foun dation for their admission. Accordingly, we reverse the decision of the circuit court and remand for further proceedings consistent with this opinion.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - BACKGROUND “On appeal, ‘we consider the evidence and al l reasonable inferences flowing from that evidence in the light most favorable to the Co mmonwealth, the prevailing party at trial.’” Terlecki v. Commonwealth, 65 Va. App. 13, 16, 772 S.E.2d 777, 779 (2015) (quoting Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc )). On April 9, 2015, appellant was the driver of a vehicle that stopped at a police checkpoint. Officer Emily K. Madeline approach ed the vehicle and smelled a strong odor of marijuana. She asked appellant to step out of the vehicle. 1 He consented to a personal search. Madeline found $528 in appellant’s pocket. Ma deline searched the car. She found a baggie containing 2.8 grams of marijuan a in the center console and a backpack containing thirty-three plastic bags filled with a tota l of 212.4 grams of marijuana in the trunk. Madeline also found a cellular phone, but at trial, sh e could not recall whether she f ound it in the center console or on appellant’s person. Appellant told Madeline that the vehicle bel onged to his sister from whom he borrowed it earlier that day. Madeline obtained a search warrant for the phone. Detective Cary Ne lson used a forensic extraction device to obtain and copy the text messages on the phone. After reviewing the text messages, Detective James Kewish opined that seve ral of the text messages, including those sent on April 9, 2015, were related to th e sale and distribution of drugs. When the Commonwealth moved to introdu ce the text messages at trial, appellant objected based on the grounds of lack of foundati on, best evidence, and hearsay. The circuit court overruled the objections and admitted the text messages into evidence. At the conclusion of the Co mmonwealth’s evidence, appellan t made a motion to strike, which the circuit court denied. Appellant did not present any evidence. The circuit court found

1 Appellant was the only person in the vehicle.- 3 - appellant guilty of possession of marijuana and po ssession with intent to distribute more than one-half ounce, but not more than five pounds, of marijuana. Appellant timely appealed the conviction of possession with intent to distribute.
ANALYSIS Appellant argues that the trial court erre d in admitting the text messages because the Commonwealth did not lay the proper foundation to prove that he owned the cell phone or wrote and received the text messages. “‘Generally, the admissibility of evidence is within the discretion of the trial court,’ and an appellate court will not reject the trial court’s decision absent an abuse of discretion.” Dalton v. Commonwealth, 64 Va. A pp. 512, 519, 769 S.E.2d 698, 703 (2015) (quoting Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010 )). “[A] reviewing court can only conclude that an abuse of discretion has occurr ed in cases where ‘reasonable jurists could not differ’ about the correct result.” Id. (quo ting Thomas v. Commonwea lth, 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)). This Court has previously held that text messages constitute writings for purposes of the best evidence rule. Id. at 523, 769 S.E.2d at 703-04. “It is elementary that before a writing can be admitted into evidence a proper foundation must be laid to show it is relevant and material . . . . The writing becomes evidence only when it is authenticated.” Lassiter v. Commonwealth, 16 Va. App. 605, 611, 431 S.E.2d 900, 904 (1993); s ee also Walters v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982) (“All writings are subj ect to the requirement of authentication, which is the providing of an eviden tiary basis sufficient for the trie r of fact to conclude that the writing came from the source claimed.”). “The requi rement of authentication or identification as a condition precedent to admissibility is satisfie d by evidence sufficient to support a finding that the thing in question is what its pro ponent claims.” Va. R. Evid. 2:901.- 4 - During the trial, the circuit court and the Commonwealth engaged in the following discussion regarding the cell phone: THE COURT: My natural questi on is why didn’t, why don’t we have evidence of whose phone it is? I mean it’s not that hard to find out whose phone it is. [COMMONWEALTH]: Well, is it? THE COURT: I mean you can get a cell phone number. You trace it back to who the cell phone, who the person is. [COMMONWEALTH]: Well, righ t, and we don’t have the Verizon or whoever record s before you today, Judge. THE COURT: Right. [COMMONWEALTH]: What we ha ve is the phone itself, and that was in the car. THE COURT: My point is w hy, why couldn’t the Commonwealth find out whose phone it was? [COMMONWEALTH]: There was only one person driving the car, and it was the defendant. A nd he didn’t have any other phone. I mean that’s the evidence we have , Judge. It was my belief that the phone was taken off of the defendant, but I understand what the evidence before you is. THE COURT: My point is the Commonwealth could go to the network carrier with a search warr ant, find out whose phone it was. [COMMONWEALTH]: And then we can’t get that evidence in without the network carr ier people being here. THE COURT: Right. [COMMONWEALTH]: Yes. But, again, as I, if the phone came out of the defendant’s pocket , is it, is that necessary? THE COURT: But your eviden ce is you don’t know where it came from. [COMMONWEALTH]: That is what the evidence was today, yes. As noted by the circuit court, the Commonwealth can authenticate the text messages and prove the ownership of the cell pho ne with either direct or circ umstantial evidence. See Bloom- 5 - v. Commonwealth, 262 Va. 814, 554 S. E.2d 84 (2001) (online instant messages were admissible because the Commonwealth proved they were sent from defendant by linking personal information known about defendant to the screen name used to send messages); Chewning v. Commonwealth, Record No. 2204-12-4, 2014 Va. A pp. LEXIS 82 (Va. Ct. App. Mar. 11, 2014) (authenticate text messages w ith testimony from a Verizon Wi reless employee and the Verizon records and the defendant admitted to police that he owned the cell phone from which the text messages were sent); Cobb v. Commonwealt h, Record No. 1526-12-1, 2013 Va. App. LEXIS 301 (Va. Ct. App. Oct. 22, 2013) (authenticate te xt messages with Verizon Wireless records). 2 In Smith v. State, 136 So. 3d 424, 433 (Miss. 2014) , the Supreme Court of Mississippi listed multiple ways to authenticate electronic communications: the purported sender admits author ship, the purported sender is seen composing the communication, business records of an internet service provider or cell phone company show that the communication originated from th e purported sender’s personal computer or cell phone under ci rcumstances in which it is reasonable to believe that only th e purported send er would have access to the computer or cell phon e, the communication contains information that only the purporte d sender could be expected to know, the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or other circumstance s peculiar to the particular case may suffice to establish a prima facie showing of authenticity. See also Butler v. State, 459 S.W.3d 595, 601 (Tex. Crim. App. 2015) (authenticate text messages with “testimony of a witness with knowl edge or through evidence showing distinctive characteristics”), and People v. Watkins, 25 N.E.3d 1189, 1204 (Ill. App. Ct. 2015) (use circumstantial evidence to authenticate text messages, including cell phon e records, eyewitness testimony that defendant owned phone and receiv ed text messages, identifying marks on the phone).

2 The unpublished cases are cited for info rmative purposes only, and are not binding authority. Rule 5A:1(f).- 6 - In this case, the Commonwealth relied on ci rcumstantial evidence to prove that appellant owned the cell phone and authored the text message s. The Commonwealth argued that appellant was the only person in the car, so the cell phone had to belong to him. However, Madeline could not recall where she found the cell phone, and proxi mity to the cell phone is insufficient to prove that appellant owned the cell phone and authored the text messages. See State v. Francis, 455 S.W.3d 56, 72 (Mo. Ct. App. 2014) (po ssession of the cell phone at the time of arrest is insufficient by itself to prove that the defenda nt owned the cell phone and authored the text messages). Appellant argued that there was no evidence that the cell pho ne belonged to him or that he used the phone to send or receive text messages. The Commonwealth did not offer the records from the cell phone carrier to prove that the cell phone be longed to appellant. Appellant did not make any statements to the police regard ing the ownership of th e cell phone. There was no evidence from other people who may have sent or received text messages from appellant and could recognize his text messages. The evidence is insufficient to establish a foundation for the admissibility of the text messages. Therefore, the trial court abused its discretion in admitting the text messages.

Finding error, the Court must determine whether the error was harmless. “No trial is perfect, and error will at times creep in.” Dalton, 64 Va. App. at 519, 769 S.E.2d at 701 (quoting Lavinder v. Commonwealth, 12 Va. App. 1003, 1009, 407 S.E.2d 910, 913 (1991) ( en banc )). The standard for non-constitutional error is esta blished in Code § 8.01-678, which provides, in pertinent part: 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 reach ed, no judgment shall be arrested or reversed . . . [f]or any . . . de fect, imperfection, or omission in the record, or for any error committed on the trial.- 7 - The test for nonconstitutional harmless error is as follows: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but slight effect, the verdict and the judgment should stand . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whol e, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the conviction cannot stand. Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E .2d 728, 731-32 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). The error in this case was not harmless. The Commonwealth conceded at oral argument that if the cell phone did not come into eviden ce, then there was not sufficient evidence to convict appellant. 3 At trial, the Commonwealth relied on circ umstantial evidence to prove that appellant possessed marijuana with the intent to distribute it. “As with any case, the fact-finder is entitled to make reasonable inferences from the evidence presented at trial to determine whether the defendant possessed drugs with the intent to distribute them.” Bu rrell v. Commonwealth, 58 Va. App. 417, 434, 710 S.E.2d 509, 518 (2011). Th e text messages included several conversations regarding the sale of marijuana. In addition to using the text messages to prove possession with intent to distribut e, the Commonwealth argued that the backpack in the trunk of the vehicle had thirty-three bags of marijuana, which the expert opined was inconsistent with personal use. However, the backpack contai ned no identifying information, and there was no evidence that it belonged to appellant. Furt hermore, the Commonwealth introduced evidence that at the time of the arrest, appellant was the only person in the car, and Madeline detected a

3 “We have no obligation to accept concessi ons of error.” Copeland v. Commonwealth, 52 Va. App. 529, 531, 664 S.E.2d 528, 529 (2008) (c iting United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008) (recognizing “the governme nt’s concession of error is not binding on this court”)).- 8 - strong odor of marijuana when she approached the car. Although appellant was the only person in the car at the time of the arrest, there was no evidence that other people had not been in the car earlier. We find that the circumstantial evidence in this case was not sufficient to convict appellant of possessing marijuana w ith the intent to distribute it without the evidence contained in the text messages. We cannot say that the trial court’s error in admitting the text messages was harmless. Therefore, appellant’s convicti on for possession with in tent to distribute marijuana is reversed, and the matter is remande d for a new trial, if the Commonwealth be so advised. Because we reverse on the basis of improperly admitted evidence and remand the case for a new trial, we must address appellant’s fourth assignment of error alleging that the evidence at trial was insufficient to prove constructive possession of the mariju ana beyond a reasonable doubt. 4 Pursuant to Code § 19.2-324.1: In appeals to the Court of Appeal s or the Supreme Court, when a challenge to a conviction rests on a claim that the evidence was insufficient because the trial court improperly admitted evidence, the reviewing court shall consider all evidence admitted at trial to determine whether there is suffi cient evidence to sustain the conviction. If the reviewing cour t determines that evidence was erroneously admitted and that such error was not harmless, the case shall be remanded for a new trial if the Commonwealth elects to have a new trial. Accordingly, we are required by statute to consider all evidence admitted at trial to determine whether the evidence proved that appellant constructively possesse d the marijuana in question. Possession may be actual or constr uctive. Constructive possession may be established by “evidence of acts, statements, or conduct of the accused or other facts or circum stances which tend to show that

4 A full sufficiency analysis is required becau se, if the evidence adduced at trial was insufficient to convict appellant, a remand fo r a new trial would vi olate the Constitution’s prohibition against double jeop ardy. See Parsons v. Common wealth, 32 Va. App. 576, 581, 529 S.E.2d 810, 812 (2000) (citing Burks v. United States, 437 U.S. 1 (1978)).- 9 - the defendant was aware of both th e presence and the character of the substance and that it was subject to his dominion and control.” Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994) ( en banc ) (quoting Powers v. Commonwealth, 227 Va . 474, 476, 316 S.E.2d 739, 740 (1984)) (other citation omitted). We find that the evidence at trial was su fficient for a rational f actfinder to conclude beyond a reasonable doubt that appellant possessed ma rijuana with the intent to distribute. The evidence, viewed in the light most favorable to the Commonwealth, estab lished that the vehicle appellant was driving was emitting a strong odor of marijuana that was easily detectable as Officer Madeline approached the vehicle. Detective Kewish, testifying as an expert at trial in the distribution and possession of marijuana, concluded that several of the text message conversations discussed the sale and distribution of marijuana. Kewish also testified that the possession of thirty-three bags of marijuana (found in th e trunk) and $500 in cas h were facts that were indicative of the sale or di stribution of marijuana. A rationa l factfinder could infer from the text messages that appellant was aware of the presence of the large quantity of marijuana that was packaged for distribution in the vehicle’s trunk and that it was subject to his dominion and control. Therefore, we concl ude that a rational fact finder co uld have found appellant guilty of possession of marijuana with the in tent to distribute upon consider ation of all the evidence that was admitted at trial. 5

5 Considering this ruling, th e Court does not need to a ddress appellant’s second, third, and fifth assignments of error. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (“[A]n appellate court deci des cases ‘on the best and narrowest ground available.’” (quoting Air C ourier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))).- 10 - CONCLUSION Since the circuit court abused its discretion in admitting the text messages and that error was not harmless, the circuit court’s ruling is re versed. However, because all of the evidence admitted at trial was sufficient to support appellant’s conviction for possession with intent to distribute one-half ounce to five pounds of marijuana, we remand for a new trial if the Commonwealth is so inclined. Reversed and remanded.