COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

JASON JEROME WATLINGTON 

 MEMORANDUM OPINION* BY 

v. Record No. 2332-99-3 JUDGE RICHARD S. BRAY 

 NOVEMBER 7, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Elwood Earl Sanders, Jr., Appellate Defender 

(Public Defender Commission, on briefs), 

 for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Jason Jerome Watlington (defendant) was convicted in a 

bench trial of one count of statutory burglary and two counts of 

grand larceny. On appeal, defendant complains the trial judge 

erroneously overruled a "hearsay objection" to testimony that 

his name and telephone number were displayed on a "caller ID 

box." Finding no error, we affirm the convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 
I. 

 While John Messick and his family were vacationing, someone 

burglarized their residence. Significant property was taken 

from the home, including a truck owned by Messick's business. 

When the truck was found abandoned in North Carolina, stolen 

articles, together with a "camouflage hat" with "Kim W. written 

. . . inside," which Messick was unable to identify, were 

recovered from the vehicle. Over defendant's hearsay objection, 

Messick was permitted to testify that a "caller ID box," 

installed in his home, had reported a telephone call at 

3:48 a.m. the morning of the burglary from a "Watlington" and a 

telephone number. 

Cyril Kramer, Messick's father-in-law, obtained the 

telephone number from the device and entered it into a computer 

system that stored names and telephone numbers of customers at 

Messick's pizza restaurants, seeking a match. Defendant also 

objected to this testimony, challenging the "reliability or 

credibility" of Kramer's information and "the system," and, 

again, asserting "hearsay." Overruling the objection, the trial 

judge permitted the witness to relate "what he did," and Kramer 

testified that the computer connected an address on Clement 

Street and the name "Watlington" to the telephone number. The 

ensuing police investigation confirmed defendant resided on 

Clement Street. 

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 The investigation further disclosed that a basement window 

at the Messick home had been broken, removed from the sash and 

placed against an exterior wall. Five latent fingerprints were 

obtained from the window, all belonging to defendant. However, 

no fingerprints were recovered from the truck because it "had 

been wiped clean." Defendant was familiar with the Messick home 

and, while denying ownership of the hat, acknowledged an 

acquaintance with a Kim Whitcher. 

II. 

Defendant first assigns error to the admission into 

evidence of "the results of a caller ID box with a last name of 

Watlington over a hearsay objection without the showing of 

reliability required by Virginia law." 

"'Hearsay evidence is testimony in court, or written 

evidence, of a statement made out of court, the statement being 

offered as an assertion to show the truth of matters asserted 

therein, and thus resting for its value upon the credibility of 

the out-of-court asserter.'" Tatum v. Commonwealth, 17 Va. App. 

585, 588, 440 S.E.2d 133, 135 (1994) (quoting McCormick on 

Evidence § 246, at 584 (2d ed. 1972)). In Tatum, we concluded 

that caller ID evidence is not hearsay because "there is no 

'out-of-court asserter,' because the caller ID display is based 

on computer generated information and not simply the repetition 

of prior recorded human input or observation." Id. 

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Accordingly, guided by Tatum, we find that the caller ID 

evidence in issue is not hearsay. 

 "An objection made at trial on one ground does not preserve 

for appeal a contention on a different ground." Clark v. 

Commonwealth, 30 Va. App. 406, 411, 517 S.E.2d 260, 262 (1999). 

Defendant's hearsay objection to the ID evidence voiced during 

trial and reliability argument presented on appeal raise 

substantially different issues. Thus, we will not consider 

defendant's appellate argument challenging the reliability of 

the caller ID data. See Luck v. Commonwealth, 30 Va. App. 36, 

49 n.1, 515 S.E.2d 325, 331 n.1 (1999); see also Rule 5A:18 ("No 

ruling of the trial court . . . will be considered as a basis 

for reversal unless the objection was stated together with the 

grounds therefor at the time of the ruling . . . ."). "A 

contrary rule would 'deny the trial court the opportunity to 

consider and weigh, and, if necessary, reconsider before finally 

ruling.'" Taylor v. Taylor, 27 Va. App. 209, 218 n.1, 497 

S.E.2d 916, 920 n.1 (1998) (citation omitted). 

Defendant next objected to Kramer's testimony relating 

information obtained from the restaurant computer based upon the 

caller ID report, which, arguably, again placed the caller ID 

evidence in issue. On this occasion, defendant mentioned 

reliability in articulating his objection. Assuming, without 

deciding, that defendant was then referencing the caller ID 

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device, rather than the computer system, his argument is without 

merit. 

In overruling the objection, the trial court expressly 

admitted the testimony solely to explain "what [Kramer] did." A 

judge is presumed to consider evidence only for the purpose for 

which it was admitted. Eckhart v. Commonwealth, 222 Va. 213, 

216, 279 S.E.2d 155, 157 (1981). This presumption controls 

"'absent clear evidence to the contrary.'" Cole v. 

Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305 (1993) 

(quoting Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 

455, 462 (1992) (en banc)). The instant record does not suggest 

the court considered the disputed testimony for any purpose 

beyond the limitations of the ruling. To the contrary, the 

court, in denying defendant's motion to strike, recounted the 

persuasive evidence for the record, without mention of the 

computer data. 

Accordingly, we affirm the convictions. 

 Affirmed.

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Benton, J., dissenting. 

 The Commonwealth argues that Watlington's objections 

concerning hearsay and the reliability of the caller 

identification evidence are procedurally defaulted. 

Specifically, the Commonwealth asserts that the argument 

concerning the reliability of the caller identification device 

"was never made in the trial court and is, in any event, without 

merit." The majority holds that Watlington's claim of 

reliability is procedurally barred because his objections were 

inadequate to preserve the issue for appeal. I disagree. 

 I. 

 It is well established that the primary purpose of 

requiring a timely and specific objection is to "'provide the 

trial [judge] with the opportunity to remedy any error so that 

an appeal is not necessary.'" McLean v. Commonwealth, 30 Va. 

App. 322, 331, 516 S.E.2d 717, 721 (1999) (citation omitted). 

When the trial judge has an opportunity to rule on the merits of 

the issue, the matter has been properly preserved for appeal. 

See Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 

1,2 (1991) (en banc) (holding that an issue is properly 

preserved for appeal when "the trial [judge] was adequately 

advised of the defendant's position, . . . consider[ed] the 

issue raised, and . . . had the opportunity to take corrective 

action"). 

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 When Watlington's counsel objected to John Messick's 

testimony concerning the identification device, the following 

colloquy occurred between the attorneys and the trial judge: 

[DEFENSE COUNSEL]: Your Honor, I am going 

to object to this because he's testifying 

to, I guess, a machine that we can't 

cross-examine in this Courtroom, and we 

don't know the accuracy of that testimony. 

I think it would be hearsay if it is out of 

Court testimony offered for the truth of the 

matter asserted. 

[COMMONWEALTH'S ATTORNEY]: Judge, caller ID 

boxes are common devices that millions of 

Americans have on their phones. They rely 

upon them to identify the identity of 

callers and they are commonly accepted 

pieces of technology, and I don't think it 

is hearsay. I think it is something that he 

can testify to. 

THE COURT: I think he can testify to and 

you can cross examine him. 

* * * * * * * 

[COMMONWEALTH'S ATTORNEY]: All right. What 

did the caller ID box show? 

[MESSICK]: It showed that a call had come 

in at 3:48 A.M. on the morning of the 28th, 

and it displayed the phone number and the 

last name, Watlington. 

Clearly, the trial judge had the opportunity to rule on the 

issue whether Messick's testimony concerning the identification 

device was hearsay. 

 In Penny v. Commonwealth, 6 Va. App. 494, 370 S.E.2d 314 

(1988), we did not rule that testimony concerning a computer 

display was not hearsay. The contention was made by Penny that 

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the trial judge "erred in admitting the telephone company 

records without the proper foundation." Id. at 496, 370 S.E.2d 

at 316. In response, the Commonwealth argued that the records 

were admissible as an exception to the hearsay rule. See id. at 

496-98, 370 S.E.2d at 315-17. We merely said "we do not believe 

that the admissibility [of computer-generated displays] . . . 

should be resolved solely by resort to traditional hearsay 

analysis." Id. at 497, 370 S.E.2d at 316 (emphasis added). In 

response to the parties' arguments, we held "that the call trap 

results may be admitted only after the particular device in 

question has been proven reliable." Id. at 499, 370 S.E.2d at 

317. 

 Traditionally, "[i]n determining the admissibility of 

computer records, when the argument has been advanced that they 

are inadmissible hearsay, [Virginia courts] have employed the 

. . . business records exception to the hearsay rule." Kettler 

& Scott, Inc. v. Earth Technology Cos., 248 Va. 450, 457, 449 

S.E.2d 782, 785 (1994); see also Simpson v. Commonwealth, 227 

Va. 557, 566-67, 318 S.E.2d 386, 392 (1984) (holding that 

testimony concerning a taxi's meter display was admissible as a 

business records exception to the hearsay rule); Fitzhugh v. 

Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995) 

(quoting Kettler & Scott, Inc.). See generally Randy Snyder, 

Note, Assuring the Competency of Computer-Generated Evidence, 9 

Computer L.J. 103, 104 (1989) (noting that "[i]t is unlikely 

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that computer-generated evidence will be offered into evidence 

for some purpose other than 'to prove the truth of a matter 

asserted,' and thus is hearsay"). I agree, however, that in 

Tatum v. Commonwealth, 17 Va. App. 585, 440 S.E.2d 133 (1994), 

we held that testimony about a caller identification display was 

not hearsay. Broadly reading our prior holding, we said "the 

Penny analysis" dictates that a hearsay objection is not the 

proper basis for challenging the admissibility of a homeowner's 

testimony of the display generated on a telephone caller ID box. 

See id. at 588, 440 S.E.2d at 135. Thus, the trial judge's 

ruling, which overruled Watlington's first hearsay objection, 

was consistent with our precedent in Tatum. 

 In Penny, however, we also made a connection between the 

issues of reliability and accuracy. We expressly noted that 

"the reliability of the results [of the device] . . . depend[s] 

on the accuracy of the call trap device." 6 Va. App. at 498, 

370 S.E.2d at 317. Thus, I would hold that Watlington's 

objection concerning "accuracy" and the prosecutor's response to 

that objection sufficiently put before the trial judge the issue 

of the reliability of the device. See McLean, 30 Va. App. at 

331, 516 S.E.2d at 721; Campbell, 12 Va. App. at 480, 405 S.E.2d 

at 2. 

 II. 

 When Cyril Kramer began to testify concerning the display 

on the computer used by his son-in-law's pizza restaurants, the 

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following colloquy occurred between defense counsel and the 

trial judge: 

[DEFENSE COUNSEL]: Your Honor, I am going 

to object to this testimony. 

[TRIAL JUDGE]: On what grounds? 

[DEFENSE COUNSEL]: I am going to object 

. . . first of all, he is saying that . . . 

Messick gave him a telephone number and 

. . . Messick never testified as to what 

telephone number he wrote off of his caller 

ID. And based on . . . Kramer's testimony, 

we don't know how accurate this telephone 

number is or whether . . . Kramer, himself, 

looked at the caller ID and wrote down this 

telephone number . . . that he put in the 

system that we have no way of examining or 

know nothing about to go on the reliability 

or credibility of this system that he 

utilized and tried to identify an address. 

 * * * * * * * 

THE COURT: I think he can testify to what 

he did. 

I would hold that this objection was sufficient to preserve 

Watlington's objection to the reliability of the device. 

 Moreover, by allowing Kramer "to testify to what he did," 

the trial judge improperly permitted the prosecutor to establish 

facts about the operation of the device without the prerequisite 

proof that the device was reliable. Kramer was permitted to 

testify as follows: 

Q. All right. What did you do with it? 

A. Okay. The phone number was on the 

caller ID. I looked at the phone number and 

I took the phone number down. I went to the 

computer in the office, okay, I dial up the 

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store, which is the NorDan store and we can 

access to any part of the computer in the 

NorDan store from the office. I went to the 

order entry part of the program and put the 

phone number in. Okay, and then it brings 

up the address on Clement and the 

[Watlington] name on that because the reason 

it would bring it up is because a previous 

order had been placed at that phone number, 

at that address, and we would keep that in 

our data base. 

Q. Okay. And what was the address, the 

name and the address that the phone number 

came back to? 

A. The name was [Watlington] and the street 

was Clement. I don't remember the street 

number. 

III. 

 We have previously held that when the prosecutor seeks to 

admit in evidence the results of a computer-generated telephone 

device, the evidence must establish that the equipment is 

reliable. See Tatum, 17 Va. App. at 588-89, 440 S.E.2d at 136; 

Penny, 6 Va. App. at 499, 370 S.E.2d at 317. In Penny, the 

prosecutor sought to introduce the evidence of a 

computer-generated "call trap" record. The prosecutor 

introduced no evidence, however, that the particular trap placed 

on the victim's telephone "accurately traced" calls made to that 

telephone. 6 Va. App. at 500, 370 S.E.2d at 317. We held that 

computer-generated call trap identification is the result of 

technological or scientific procedures and, therefore, the 

results may be admitted only after the particular device is 

proven reliable. Id. at 498-99, 370 S.E.2d at 316-17. Cf.

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Dance v. Commonwealth, 32 Va. App. 466, 474-75, 528 S.E.2d 723, 

727-28 (2000) (noting that the reliability of the computer 

operated "call trace" system was established by the testimony of 

a technician who helped design the system and train people in 

its use); Tatum, 17 Va. App. at 588-90, 440 S.E.2d at 135-36 

(noting that the testimony of the homeowner may be sufficient to 

establish the reliability of a telephone caller identification 

device). 

 The evidence in this record established that the 

identification devices displayed computer-generated information. 

The witness was permitted to testify concerning that 

information. The evidence failed to establish, however, the 

reliability, the accuracy, or the proper functioning of the 

devices. 

 The information gleened from the identification devices was 

an important piece of evidence supporting these convictions. 

Significantly, the prosecutor included the following references 

to this evidence in his closing argument: 

With reference to the phone call, the 

significance of this phone call is that it 

was made at 3:48 A.M. on the morning of June 

28th during that twenty-four hour window 

when the burglary could have occurred. And 

it doesn't stretch one's imagination to 

conclude that he undoubtedly made this call 

to the home to find out if anybody was there 

so he could then come over and burglarize 

it. 

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After hearing this and other arguments of counsel, the trial 

judge made no specific findings. We can only conclude that this 

evidence as recited by the prosecutor was persuasive to the 

trial judge when he ruled as follows in convicting Watlington: 

 Have the defendant stand. (Defendant 

stands). Jason Jerome Watlington, based on 

the evidence the Court has heard in this 

case, the Court finds you guilty of 

statutory burglary as charged in Indictment 

#1, and guilty of grand larceny as charged 

in Indictments 2 and 3. 

For these reasons, I would hold that the evidence was improperly 

admitted and relied upon to support the convictions. I would 

reverse the convictions and remand for a new trial. 

 I dissent. 

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