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. 
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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. 
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 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 
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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 
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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 
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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.