COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Clements 

Argued at Alexandria, Virginia 

JOSHUA MARK TESTA 

 OPINION BY 

v. Record No. 2438-08-4 JUDGE D. ARTHUR KELSEY 

DECEMBER 1, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

J. Howe Brown, Jr., Judge Designate 

J. Daniel Griffith, Assistant Public Defender (Office of the 

Public Defender, on brief), for appellant. 

Eugene Murphy, Senior Assistant Attorney General (William C. 

Mims, Attorney General, on brief), for appellee. 

The trial court convicted Joshua Mark Testa of misdemeanor obstruction of justice for 

threatening two deputies with violence if they attempted to arrest him. Testa argues on appeal 

that the trial court should have suppressed the evidence of his threats. Testa also contends his 

conviction rests on insufficient evidence. Finding the exclusionary rule inapplicable and the 

evidence sufficient, we affirm Testa’s conviction. 

I. 

 We review the facts “in the light most favorable to the Commonwealth, giving it the 

benefit of any reasonable inferences.” Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 

S.E.2d 282, 283 (2007) (en banc) (citation omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008). 

This standard requires us to “give due weight to inferences drawn from those facts by resident 

judges and local law enforcement officers.” Malbrough v. Commonwealth, 275 Va. 163, 169, 

655 S.E.2d 1, 3 (2008) (citation omitted). 

When affirming a trial court’s denial of a suppression motion, we consider facts 

presented both at the suppression hearing and at trial. See Emerson v. Commonwealth, 43 

Va. App. 263, 272, 597 S.E.2d 242, 247 (2004); DePriest v. Commonwealth, 4 Va. App. 577, 
583, 359 S.E.2d 540, 542-43 (1987); accord United States v. Han, 74 F.3d 537, 539 (4th Cir. 

1996). 

 The evidence showed that Testa lived with his stepfather, Kevin Griffin. Two deputy 

sheriffs arrived at Griffin’s home to investigate a complaint of domestic violence involving Testa 

and his girlfriend. Outside the home, the deputies were met by the girlfriend’s father. He 

advised them that Testa was armed and dangerous.1 Prior to entering the home, the deputies also 

had been warned that Testa had recently assaulted other deputies, one of them severely. Griffin 

met the deputies at the door and invited them to come inside. When Griffin discovered that 

Testa had locked himself in his bedroom, Griffin offered the deputies the use of a wire coat 

hanger to unlock the door from the outside. The deputies declined Griffin’s suggestion and 

attempted to speak with Testa through the closed bedroom door. 

 One of the deputies said to Testa, “I’m not here to arrest you. I just need to get your side 

of the story. This is what we do in a domestic situation. I want to hear your side of the story. 

Can you please come out?” Testa replied, “Go fuck yourself” or something to that effect. 

Shortly thereafter, less than a minute after the deputies first spoke to him, Testa said through the 

closed bedroom door: “I’m going to pick you motherfuckers off one by one.” He continued 

making such threats for about ten minutes. “[I]f I’m going back to jail, I’m bringing you down 

with me,” Testa warned. The deputies understood Testa to be “threatening [their] lives.” Testa 

 1

 Testa objected to this testimony as hearsay and argues on appeal the trial court 

erroneously failed to sustain his objection. The hearsay rule, however, “excludes out-of-court 

declarations only when they are ‘offered for a special purpose, namely, as assertions to evidence 

the truth of the matter asserted.’ If the court can determine, from the context and from the other 

evidence in the case that the evidence is offered for a different purpose, the hearsay rule is no 

barrier to its admission.” Winston v. Commonwealth, 268 Va. 564, 591, 604 S.E.2d 21, 36 

(2004) (emphasis in original and citation omitted). It necessarily follows that “[t]he hearsay rule 

does not operate to exclude evidence of a statement offered for the mere purpose of explaining 

the conduct of the person to whom it was made.” Id. (citation omitted). Because the record 

reveals that the prosecutor offered this testimony “not for the truth of the matter” but only to 

explain the deputies’ reaction to this information, the trial court did not err in admitting it. 

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also made threatening statements concerning the complaining witness and her family. The 

deputies remained outside the door with weapons drawn and attempted to diffuse the situation. 

They did not forcibly enter the bedroom or order him to remain in it. Nor did they search the 

bedroom or any other area of the home. 

 Settling down after his tirade, Testa decided to talk to the deputies. After giving Testa an 

opportunity to give his side of the story in reply to the domestic violence complaint, the deputies 

arrested him for obstructing justice. At no time prior to Testa’s arrest did Testa ask the deputies 

to leave his stepfather’s home or assert any putative right to countermand his stepfather’s 

invitation to the police to enter the home. Nor did Testa ever request assistance of counsel or 

insist upon any right to remain silent. 

 Prior to trial, Testa moved to suppress his threatening statements to the deputies on the 

ground that they had no constitutional right to be present in the hallway of his stepfather’s home 

after Testa told them, “Go fuck yourself.” Testa also claimed that the deputies violated his right 

against self-incrimination by failing to advise him of his Miranda rights prior to his threatening 

statements. The trial court denied the motion, proceeded to trial, and found Testa guilty of 

obstruction of justice under Code § 18.2-460(B). 

II. 

On appeal, Testa renews the arguments he made in support of his unsuccessful motion to 

suppress. He also challenges the sufficiency of the evidence supporting his misdemeanor 

conviction for obstruction of justice. We find no merit in either assertion. 

 A. MOTION TO SUPPRESS — GEORGIA v. RANDOLPH

Testa’s suppression argument devolves into a simple syllogism: Had the deputies left his 

stepfather’s home when Testa said, “Go fuck yourself,” they would not have been there to hear 

his later threats — consequently, it was the deputies’ fault (constitutionally speaking) that Testa 

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made those threats while the deputies were within earshot of him. Testa erects this argument 

upon Georgia v. Randolph, 547 U.S. 103 (2006), which held that police may not conduct a 

consent search of a home when one co-owner grants permission while another co-owner 

expressly refuses it. We do not believe Randolph can sustain the weight of Testa’s argument. 

Randolph involved the application of the exclusionary rule to “a warrantless search of a 

shared dwelling” for evidence of a crime. Id. at 120 (emphasis added); see also id. at 119 (noting 

that the majority was “recognizing limits on merely evidentiary searches”); id. at 122 (limiting 

issue to situation involving an “express refusal of consent to a police search”). Here, the 

deputies did not search Griffin’s home. They simply entered it with the owner’s permission, 

walked into the common hallway at the owner’s invitation, and remained there throughout with 

the owner’s approval.2

 Testa was not a co-owner, renter, or boarding house tenant.3 He simply 

occupied a bedroom in his stepfather’s home. Nothing in Randolph suggests that a live-in guest 

of a homeowner can veto the owner’s right to invite anyone he may choose (whether police 

officers or anyone else) to accompany him into the common areas of his own home. See id. at 

114 (explaining that Fourth Amendment privacy analysis takes into account any “recognized 

hierarchy” between the consenter and objector).4

 2

 Because of our holding, we need not decide whether Testa’s guttural outburst (“Go fuck 

yourself”) can be analogized to the statements of the co-owner in Randolph who “unequivocally 

refused” when the officers asked for consent to search his home. Id. at 107. 

3

 If he had any such status, it was his burden to prove it. Under settled principles, the 

“defendant alone bears the ‘burden of proving’ factual circumstances giving rise to a reasonable 

expectation of privacy.” Logan v. Commonwealth, 47 Va. App. 168, 171 n.2, 622 S.E.2d 771, 

773 n.2 (2005) (en banc) (citation omitted). “This is not a mere burden of production, requiring 

only a going forward with the evidence; it is a ‘burden of persuasion,’ requiring the defendant to 

prove to the satisfaction of the factfinder the existence of those facts upon which a legal 

conclusion can be drawn.” Id. (citation omitted). 

4

 The deputies did not ask Testa for permission either to enter the home or to remain in it. 

Nor did they have any constitutional duty to do so. “[W]e think it would needlessly limit the 

capacity of the police to respond to ostensibly legitimate opportunities in the field if we were to 

hold that reasonableness required the police to take affirmative steps to find a potentially 

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Equally important, the evidence suppressed in Randolph involved evidence of a past

crime found during an unlawful search. In contrast, Testa seeks to suppress evidence of a new

crime committed during an allegedly unlawful entry. This assertion takes the exclusionary rule 

well beyond Randolph and further still beyond traditional boundaries. As we recently explained, 

“the overwhelming weight of authority on this issue” makes clear that “if a person engages in 

new and distinct criminal acts” during an allegedly unlawful police encounter, “the exclusionary 

rule does not apply, and evidence of the events constituting the new criminal activity, including 

testimony describing the defendant’s own actions, is admissible.” Brown v. City of Danville, 44 

Va. App. 586, 600, 606 S.E.2d 523, 530 (2004); see also United States v. Sprinkle, 106 F.3d 613, 

619 (4th Cir. 1997) (holding exclusionary rule inapplicable to “a new, distinct crime” occurring 

during an allegedly unlawful detention (citation omitted)). 

 B. MOTION TO SUPPRESS — MIRANDA WARNINGS

Testa also argues that, prior to making his threats against the deputies, they should have 

advised him of his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966). We 

again disagree. 

Even when otherwise applicable,5 Miranda bars from evidence only a suspect’s responses 

to police interrogation and has no impact on a suspect’s volunteered statements. “Volunteered 

statements of any kind are not barred by the Fifth Amendment,” Miranda explained, “and their 

 

objecting co-tenant before acting on the permission they had already received.” Randolph, 547 

U.S. at 122. 

5 Miranda requires warnings to be given to a suspect only when there is a “formal arrest 

or restraint on the freedom of movement of the degree associated with a formal arrest.” 

Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (citation omitted). Miranda does not apply to 

a temporary investigatory detention that does not escalate into a de facto arrest. Ramos v. 

Commonwealth, 30 Va. App. 365, 516 S.E.2d 737 (1999). The Commonwealth argues that at 

the time of Testa’s threats against them, the deputies never detained Testa at all, much less to the 

degree associated with a formal arrest. Given our holding, we need not address this issue. 

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admissibility is not affected by our holding today.” Id. at 478. “Indeed, a statement following a 

police officer’s question may qualify as at least the equivalent of being volunteered when it is 

unresponsive.” 2 Wayne R. LaFave, Criminal Procedure § 6.7(d), at 792 (3d ed. 2007). In this 

respect, if a suspect’s statement is “not foreseeable, then it is volunteered.” Watts v. 

Commonwealth, 38 Va. App. 206, 217, 562 S.E.2d 699, 705 (2002) (quoting Gates v. 

Commonwealth, 30 Va. App. 352, 356, 516 S.E.2d 731, 733 (1999), in turn quoting Blain v. 

Commonwealth, 7 Va. App. 10, 15, 371 S.E.2d 838, 841 (1988)). 

When a “suspect responds to questioning with statements which themselves are 

criminal,” Miranda does not bar their admission into evidence. 3 LaFave, supra § 9.5(e), at 484. 

Verbal crimes are intrinsically unforeseeable and volunteered. As one court has explained: 

Committing a crime is far different from making an inculpatory 

statement, and the treatment we afford the two events differs 

accordingly. An inculpatory statement usually relates to a 

previously committed illegal act; there is nothing unlawful about 

the statement itself. A crime, on the other hand, whether 

committed by word or deed is by definition an act that violates the 

law. We exclude inculpatory evidence when it is obtained as a 

result of an unlawful search or seizure. We have never, however, 

applied the exclusionary rule as a bar to the prosecution of a crime. 

United States v. Garcia-Jordan, 860 F.2d 156, 160 (5th Cir. 1998) (citation omitted). “Consistent 

with the approach taken with respect to the Fourth Amendment exclusionary rule, the courts 

have answered that the Miranda exclusionary rule need not be pushed so far that such crimes-bywords cannot be proved and punished.” 3 LaFave, supra at 484. Given our agreement with this 

principle in the Fourth Amendment context, see Brown, 44 Va. App. at 599-600, 606 S.E.2d at 

530-31, and our view that verbal crimes constitute unforeseeable, volunteered statements when 

made in the context of an interrogation, we hold that Miranda did not require the suppression of 

Testa’s verbal threats to the deputies. 

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 C. SUFFICIENCY OF THE EVIDENCE — OBSTRUCTION OF JUSTICE

The trial court found Testa guilty of misdemeanor obstruction of justice under Code 

§ 18.2-460(B), which prohibits a person from “using threats or force to knowingly attempt to 

intimidate or impede a law-enforcement officer lawfully engaged in the performance of his 

duties.” Washington v. Commonwealth, 273 Va. 619, 624, 643 S.E.2d 485, 488 (2007). The 

obstruction of justice statute does not “require the defendant to commit an actual or technical 

assault upon the officer.” Craddock v. Commonwealth, 40 Va. App. 539, 552-53, 580 S.E.2d 

454, 461 (2003). Under the plain wording of Code § 18.2-460(B), the crime involves merely an 

attempt to intimidate or impede the officer with either threats or force. See Wise v. 

Commonwealth, 49 Va. App. 344, 356, 641 S.E.2d 134, 140 (2007) (observing that “it is 

immaterial whether the officer is placed in fear or apprehension” because the “offense is 

complete when the attempt to intimidate is made” (citation omitted)). 

Ample evidence in this case proved Testa attempted to intimidate the deputies by 

threatening them with violence. Behind a closed, locked door, Testa told the deputies he would 

“pick” them “off one by one” if they tried to arrest him. He added, “[I]f I’m going back to jail. 

I’m bringing you down with me.” He continued making these threats for about ten minutes. In 

context, the deputies understood all too well the situation facing them: A domestic violence 

suspect, barricaded behind a closed door, was threatening to kill them. For all the deputies knew, 

Testa could have burst through the door and opened fire at any moment during the tirade. 

Sufficient evidence, therefore, supports Testa’s conviction for obstruction of justice. 

III. 

Finding no legal error in the trial court’s denial of Testa’s suppression motion or factual 

insufficiency supporting Testa’s conviction, we affirm. 

 Affirmed.