COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Senior Judge Frank Argued at Norfolk, Virginia

MALIK LUQUAN KENNEDY MEMORANDUM OPINION * BY v. Record No. 0510-16-1 JUDGE ROBERT P. FRANK MARCH 7, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge Diallo K. Morris (Black & Jame s, P.C., on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
After finding appellant in violation of thr ee conditions of his pr obation, the trial court revoked appellant’s previously suspended sentence, resuspended eight years, and ordered that appellant serve one year and twenty-four months . Appellant argues on ap peal that the court erred in allowing allegedly inad missible hearsay evidence to establish appellant violated a condition of his probation prohibi ting communications with gang me mbers. We find that the court did not abuse its discreti on in admitting the evidence and a ffirm the judgment of the trial

court. BACKGROUND In December 2015, appellant’s probation officer, Juliana Isa, requested the circuit court to issue a capias for appellant and schedule a probati on violation hearing. The initial major violation report, dated December 1, 2015, recited that appe llant had been convicted of new charges while on

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - probation, had left the designated area outlined in his probation terms and conditions, and had failed to make any payments towards restitution. In an addendum to the major violation report, dated February 10, 2016, the pr obation officer reported th at appellant had violated another condition of his probation by contacting several incarcerate d gang members by re gular mail and J-Pay. 1 Specifically, the allegation stated: On 5/4/15, Norfolk Probation and Parole Officer Matthews read and explained the Specialized In structions for Validated Gang Members. Mr. Kennedy signed the required documents set forth for all certified gang members in accordance with the Department of Corrections. On 1/29/16, this Officer received correspondence from Gang Intelligence Officer Antony Royster from Greensville Correctional Center stating that he had intercepted letters that Mr. Kennedy was contacting se veral gang members by regular mail and J-Pay. At the outset of the February 25, 2016 revo cation hearing, the court advised appellant that the probation officer had reported violations of Condition 1 (a sp eeding violation in Southampton County), Condition 10 (leaving the designated area without the probation officer’s permission), and the Special Condition regarding cour t costs. The court further advi sed appellant that the probation officer had alleged in an addendum that appellant had violated Condition 6 by communicating “with alleged gang members in the Department of Corrections.” When the court asked appellant how he responded to the a llegations, appellant replied, “Guilty, Your Honor.” 2 The trial court made the violation re port and addendum pa rt of the record without objection by appellant.

1 J-Pay is a privately run corrections-related service provider that facilitates internet communications and transfers of money between incarcerated a nd non-incarcerated individuals.

2 While the trial court asked for appellant to respond to the charges, it did not ask for a plea, nor was there a colloquy to determine whether the plea was intelligently and voluntarily made. The trial court made no such finding. We further note that under Code § 19.2-306, the trial court does not make a finding of guilt, but, rather, must find only “good cause to believe the defendant has violated the terms of suspension.” We conclude that appellant’s “plea” of guilty, under the narrow facts of this case, did not waive his hearsay objections. S ee Miles v. Sheriff of- 3 - The prosecutor noted that there was a traffic vi olation in addition to speeding, and a failure to pay restitution, as well as costs. The Comm onwealth presented no further evidence. Appellant testified on his own behalf, explaining his misunderstanding about travel restrictions and his inability to pay restitution because he was being garnisheed. He admitted corresponding with his cousin, a gang member, but said the letter contained no codes, slang, symbols or signs pertaining to gang s. He denied writing to any ot her gang member. However, he did acknowledge the probation rules prohibited him from having any contac t with gang members. In rebuttal, the probation officer testified she had received correspo ndence from a gang intelligence officer at Greensville Correctional Center who ha d intercepted corre spondence from appellant. Three actual letters wr itten by appellant were attached to the e-mail. Although the probation officer had the le tters with her in court, they were not introduced into evidence. Appellant objected to the e-mail on hearsay grounds but did no t contest that appellant au thored the letters. The trial court ruled the evidence was admissible and reliable. The court further concluded that the evidence from the probation officer could be used to rebut appellant’s statement that he wrote only one letter to his cousin. The court al lowed the probation officer to testify. The probation officer testifie d as to an e-mail she had received from Gang Intelligence Officer Royster. Officer Royster indicated that on e of the letters written by appellant revealed that appellant was a part of the “NYB council” and communicated “reg ularly” with that group. The letter discussed a stabbing in the New York Department of Corrections, and warn ed that there could be a war between gangs. The probation officer al so referred to an e-mail to appellant from a member of the “Immorta l Outlaws,” regarding tr ansporting drugs into a correctional facility.

the Va. Beach City Jail, 266 Va. 110, 113-14, 581 S.E.2d 191, 193 (2003) (confirming well-settled principle of law that defenda nt who voluntarily pleads guilty waives all non-jurisdictional defects that occurred prior to entry of the guilty plea).- 4 - Appellant had provided a telephone number to receive calls from inmates, but the gang intelligence officer did not find th at any call to appellant had been completed. On cross-examination, the probation office r testified that she was not familiar with appellant’s handwriting. She said that she did not speak to appellant about the letters because he was in custody by the time sh e had received the information. Following the probation officer’s testimony, defense counsel renewed his objection to the testimony as “hearsay” and “not re liable.” The judge again found the “hearsay” was “reliable” and could be used to rebut appellant’s denial of writing to seve ral gang members. The judge then noted the serious nature of th e content of the gang co mmunications evidence and stated he would require the Commonwealth to give copies of the letters to the defense and would continue the hearing if appellant so c hose. The judge stated the Commonwealth could adduce evidence about appellant sending the letter s and the defense could challenge the evidence. After speaking with appellant, defense counsel advise d the court that appellant wanted to finish the case that day, thus indicating he chose not to challenge the corre spondence. The court commented that the content of the correspon dence with gang member s was the most serious violation and said to appellant, “I’m giving you an opportunity to rebut or contest an y of that if you want to. And you’re saying you don’t want to?” Counsel stated that appellant wo uld address it during allocution. During allocution, however, ap pellant only apologized for his actions and did not mention communications with gang members. This appeal followed.
ANALYSIS Appellant contends the trial court erred in allowing the probation officer to read into evidence an e-mail from the gang intelligence officer, which appellant contends is hearsay. Appellant does not contest that he violated the te rms of probation, including that he communicated- 5 - with gang members. The addendum to the violation report stated that the gang intelligence officer indicated appellant “was contacting several gang members . . . .” Appellant acknowledged he was “guilty” of these allegations , thus admitting he had communicated with gang members. In this appeal, both parties fr ame the hearsay issue as whether the gang intelligence officer’s e-mail satisfies the “relia bility” test under Hender son v. Commonwe alth, 285 Va. 31 8, 736 S.E.2d 901 (2013), and its progeny. In Henderson, the Supreme Court discussed two tests for determining whether the denial of the right to confrontation in a revocation proceeding comported with constitutional due process. “The first, the ‘reliability test,’ permits admission of testimonial hearsay in revocation proceedings if it possesses substantial guarantees of trustworthiness.” Id. at 327, 736 S.E.2d at 906. “T he second test, the ‘balancing test,’ requires the court to weigh the interests of the defenda nt in cross-examining his accusers against the interests of the prosecution in de nying confrontation.” Id. We note the trial court found the e-mail to be reliable, but the analysis in Henders on does not apply here because it was premised on a Fourteenth Amendment due pr ocess right to confrontation. Appellant did not make a due process argument below. 3 At trial, appellant challenged the evidence only as being unreliable hearsay. In Henderson, however, the hearsay objection was accompanied by a due process objection. See id. at 322, 736 S.E.2d at 903. Although appellant requested in his opening brief th at we apply the ends of jus tice exception if we found he had failed to preserve an issue, we decline to do s o, as the record does not show a “miscarriage of

3 At oral argument, appellant was questione d whether he made a due process right of confrontation argument below. He responded that he implicitly raised this argument by his objection to hearsay. Clearly, he did not preserve that argument. A hearsay objection, without more, raises no confrontation argument. S ee, e.g., Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ) (“Making one specific argument on an issue does not preserve a separate legal point on the same i ssue for review.”), aff’d by unpub’d order, Record No. 040019 (Va. Oct. 15, 2004).- 6 - justice has occurred.” Mounce v. Co mmonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). Thus, the issue before us does not concern ap pellant’s constitutional confrontational rights, and we apply an abuse of discretion standard of review. “Decisions regarding the admissibility of evidence lie within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion.” Saunders v. Commonwealth, 62 Va. App. 793, 807, 753 S.E.2d 602, 609 (2014) (quoting Swanson v. Commonwea lth, 56 Va. App. 147, 152, 692 S.E.2d 256, 258 (2010)). An abuse of discretion occurs when a relevant factor that s hould have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment. Mayberry v. Commonwealth, 66 Va. App. 93, 98, 782 S.E.2d 599, 601 (2016) (quoting Turner v. Commonwealth, 284 Va. 198, 206, 726 S.E.2d 325, 329 (2012)). The United States Supreme Court has stat ed that in revocation hearings “formal procedures and rules of evidence are not employed,” Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973), and that the process of revocation hearings “should be flexible enough to consider evidence that would not be admissible in an a dversary criminal trial,” Morrissey v. Brewer, 408 U.S. 471, 489 (1972). “Thus, hearsay evidence, which normally would be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court’s discretion.” Davis v. Commonwealth, 12 Va . App. 81, 84, 402 S.E.2d 684, 686 (1991) (finding trial court did not err in admitting probation officer’s testimony, which was based partly on information given to her by other government officials). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Va. R. Evid.- 7 - 2:801(c). Hearsay is not admissible unless it co mes within an exception established by Virginia rules of court, statutes, or case law. Va. R. Evid. 2:802. Any statement by a party to the proceedings, including an out-of-court statement by a defendant in a criminal case, is admissible as an exception to the hearsay rule when offe red against that party. Va. R. Evid. 2:803(0) (stating that a “party’s own statement” may be offered against him as a hearsay exception); see also E. Cleary, McCormick on Evidence § 262 (3d ed. 1984); Fed. R. Evidence § 801(d)(2). Thus, any correspondence from appellant to his c ousin or to inmates in the New York penal system was admissible as a party admissi on. See Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d 114, 127 (1996); McCarter v. Comm onwealth, 38 Va. App. 502, 508-09, 566 S.E.2d 868, 871 (2002). One of appellant’s letters discus sed a stabbing in New York and warned there could be a war between gangs. We conclude th e trial court did not abuse its discretion in admitting these letters. The only possible hearsay issue concerns th e correspondence to appellant from prisoners, which also was contained in the e-mail from th e gang intelligence officer. Assuming, without deciding, that portion of th e e-mail was hearsay, th e admission was harmless. A non-constitutional error, such as this one, is harmless if “when all is said and done, . . . the error did not influence the jury, or had but slight effect.” Ramsey v. Commonwealth, 63 Va. App. 341, 356, 757 S.E.2d 576, 584 (2014) (quo ting Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731 (2001)). However, if we “cannot say, with fair assurance, after pondering all that happened . . . , that the judgment was not substantially swayed by the error, . . . the conviction cannot stand.” Id. (quoti ng Clay, 262 Va. at 260, 546 S.E.2d at 731-32). Relevant to this analysis is whether “the evid ence admitted in error was merely cumulative of other, undisputed evidence.” Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d 442,- 8 - 445 (1993). In considering harmless error, we ex amine the full context of the case under these well-established principles. Certain facts are uncontroverted in this cas e. The probation violation report, which was admitted without objection, alleged appellant had communicated with several known gang members. Appellant admitted he had communi cated with his cousin, an imprisoned gang member, even though appellant knew a condition of his probation prohibited him from having any contact with gang members. The trial court stated that appellant’s communications with gang members were the most serious of his violations. However, as di scussed above, the letters appellant wrote to incarcerated gang members were admissible as pa rty admissions, an exception to the hearsay rule. That correspondence revealed that a ppellant was part of the “NYB Council” and communicated regularly with that group. One le tter appellant wrote di scussed a stabbing of a NYB member by a rival gang member in the New York Department of Corrections and warned of a gang war. We conclude the correspondence to appellant regarding transporting drugs into the prison was simply cumulative of appellan t’s correspondence with gang members, which relayed appellant’s gang participation and his awareness of dangerous conditions in the New York penal system involving rival gangs. Having reviewed the full context of this case, we conclude, with full assurance, that the judgment of the trial court wa s not substantially swayed by the admission of the challenged testimony about the e-mail to appellant. Absent that evidence, we are confident the outcome would have been the same. Furthermore, when given an opportunity to review and challenge the correspondence for accuracy, appellant declined to do so. Even though appellant told the court he would address the matter at allocution, he did not do so, but simp ly apologized for his acts. Appellant is- 9 - responsible for whatever prejudice he alle ges resulted. See Sigler v. Commonwealth, 61 Va. App. 674, 681, 739 S.E.2d 272, 275-76 (2013) (holdi ng trial court did not abuse discretion in awarding restitution and noting defendant could ha ve asked victim to produce list she made showing the value of her stolen property or for continuance to review vi ctim’s list, but “did nothing”). We affirm the judgment of the trial court. Affirmed.