Anthony Wade Ragland v. Commonwealth of Virginia , 67 Va. App. 519 ( 2017 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Humphreys, Petty and Chafin
Argued at Lexington, Virginia
ANTHONY WADE RAGLAND
OPINION BY
v. Record No. 0294-16-3 JUDGE ROBERT J. HUMPHREYS
MARCH 28, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
David A. Oblon (Albo & Oblon, L.L.P., on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Anthony Wade Ragland (“Ragland”) appeals the February 18, 2016 decision by the
Circuit Court of Augusta County (the “trial court”) convicting him of one count of possession of
a cellular telephone by a prisoner, in violation of Code § 18.2-431.1. Ragland’s three
assignments of error are that the trial court erred in (1) finding that Ragland possessed a “cellular
telephone” as opposed to an “other wireless telecommunications device,” (2) finding that
Ragland possessed a cellular telephone during his period of incarceration, and (3) refusing to
take judicial notice of Federal Communication Commission (“FCC”) documents.
I. Background
In November 2014, Ragland was serving a sentence at the Middle River Regional Jail
(the “jail”) in Augusta County, Virginia. During the course of this sentence, Ragland was
enrolled in the jail’s work release program. Pursuant to his participation in this program,
Ragland signed an eight-page document, entitled “Work Release Rules and Regulations” (the
“Regulations”). Paragraph 62 of the signed Regulations noted, “Cellular telephones are not
permitted unless required by your employer. It is up to your employer to contact the Work
Release Department if you need to have a cellular telephone.” On November 16, 2014, Ragland
was found with a cellular telephone in his possession after he passed the primary entrance to the
jail. As a result, he was charged with one count of possession of a cellular telephone by a
prisoner, in violation of Code § 18.2-431.1. Ragland was tried via a bench trial on November 30,
2015.
In summary, the Commonwealth’s evidence at trial was that at approximately 9:45 p.m.
on November 16, 2014, Ragland returned to the jail following his workday. Corporal David
Gregory (“Gregory”), a jail security officer, testified that, as he prepared to commence Ragland’s
security “shake down,” he observed Ragland holding a “brown lunch bag in his hand.” Gregory
asked Ragland “why he had the lunch bag?” In response, Ragland indicated that he intended to
bring it with him into the jail. Gregory asserted that Ragland could not do this, and Ragland
responded that he had been permitted to bring it in previously. Gregory explained that he would
not allow it, as it was against the rules, and directed Ragland to throw the bag away.
Because Ragland “became kind of uneasy [and] didn’t want to put [the brown lunch bag]
in the trash,” Gregory inspected its contents, finding what he believed was a cellular telephone
underneath a sandwich. Upon this discovery, Gregory immediately asked Ragland “where he
got the cell phone?” Ragland responded that “it was his” and claimed he had been told by
Joanna Kay Shifflett (“Shifflett”), a work release specialist at the jail, that he “could bring it in
[the jail].” Gregory told Ragland that he did not “believe Shifflett told [Ragland] that [Ragland]
could have the phone.” Gregory confiscated the cellular telephone and charged Ragland with
having a cellular telephone or trying to introduce a cellular telephone into the jail.
-2-
At this point in the testimony, the Commonwealth submitted four photographs of the
cellular telephone in question. Gregory identified the cellular telephone as being the one that he
confiscated from Ragland. The photos were admitted into evidence without objection.
A couple days prior to his initial term of incarceration at the jail, Ragland called Shifflett
to inquire about cellular telephones, explaining that he needed one for his employment with
Martin’s. At trial, Shifflett testified that she discussed the rules and regulations with Ragland
prior to the service of his sentence.1 Shifflett directed Ragland to have his supervisor call the
jail, but indicated that it would be necessary for him to keep the cellular telephone secured at his
place of employment, because he would not be permitted to bring a cellular telephone with him
upon his return to the jail. Shifflett expressly denied that she ever told Ragland that he was
permitted to bring a cellular telephone into the jail. Moreover, she noted that a large sign in the
jail’s work release area proclaimed the prohibition on possessing cellular telephones while in
custody.
On cross-examination, Shifflett acknowledged that she could not testify as to whether
Ragland’s employer might have contacted one of her co-workers with respect to inquiring about
arrangements for Ragland’s use of a cellular telephone during his participation in the work
release program. Nevertheless, she affirmed that even if Ragland’s employer had made the
necessary contact, the jail would not have approved Ragland’s possession of a cellular telephone
while in custody. She further noted that, while such determinations were made on a case-by-case
basis, the jail had never approved an inmate’s possession of a cellular telephone while in
custody.
During Gregory’s interrogation of Ragland when the cellular telephone was first
discovered, Ragland told Gregory that he had brought the phone with him, because “Martin’s
1
The Regulations were admitted into evidence through Shifflett without objection.
-3-
would not allow him to have the cellular telephone.” He further claimed that he kept the phone’s
charger at his place of employment. When Gregory asked Ragland why his employer would
permit him to keep the phone’s charger at work, but not the phone itself, Ragland simply replied,
“You got me.” Throughout this discussion both Gregory and Ragland referred to the item as
either a “phone” or a “cellular telephone,” and Ragland never asserted to Gregory or any other
jail official that the item recovered from the bag was anything other than a cellular telephone.
On cross-examination, Gregory was asked to describe the layout of the entrance to the
jail used by those inmates reporting in from the work release program. Gregory described an
“initial entry area,” through the jail’s “main door,” where visual searches of inmates are
conducted, in an effort to detect obvious contraband. Next, he described the “secondary area” as
the area where inmate strip searches are conducted. He explained that “you come in the primary
entrance, then you go through another door, the locker room is in that area. We call it the mud
room, but that’s where the locker area is located.” Gregory testified that the secondary area
contains lockers for the storage of specified items “listed on the work release agreement” that are
not permitted to be in the inmate’s possession while in custody. Each inmate has his own lock
for the locker room.
Gregory noted that his interaction with Ragland occurred in the initial entry area.
Gregory testified definitively, “When you enter the primary door, you’ve entered the jail. We go
ahead and do a visual search.” Furthermore, he testified that contraband was prohibited in both
the initial entry area as well as in the secondary area. He explained that jail staff members, in
general, were prohibited from having cellular telephones in the jail, but certain authorized staff
members could bring phones into either the primary or secondary locations employed by the
work release program.
-4-
Gregory admitted that he did not make any phone calls from the device nor see Ragland
using the device. Rather, upon finding the cellular telephone, Gregory saw that it was on and
directed Ragland to turn it off. Next, Gregory confiscated the phone, logged it into evidence, and
turned it over to Captain Robert Mowbray (“Mowbray”).
Prior to Ragland’s release from the jail for his original sentence, Mowbray informed
Ragland of the intention to charge him with the inmate possession of a cellular telephone
offense. Mowbray noted that Ragland was “upset” and “did not understand why he would be
charged with possession of the phone.” Mowbray testified that he then explained to Ragland
both the law and jail policies that Ragland violated in bringing the cellular telephone into the jail.
During this conversation, Ragland again never asserted the object in his possession was
something other than a cellular telephone. Additionally, Mowbray stated as far as he knew no
inmate has ever been permitted to bring a cellular telephone into the jail.
At the conclusion of the prosecution’s case, Ragland moved to strike, arguing that the
evidence failed to exclude the possibility that Ragland had been authorized to possess the cellular
telephone and that the evidence failed to affirmatively establish that the item possessed was, in
fact, a cellular telephone. Additionally, he argued that the cellular telephone was recovered prior
to his entry into the housing portion of the jail because the lockers located in the jail’s secondary
screening area are contemplated for the storage of items that were appropriate for work release
use, but which would otherwise be contraband within the facility. Accordingly, Ragland argued
that, in possessing the cellular telephone, he had not gone beyond this location of the facility
intended for that purpose.
The trial court rejected these arguments. In overruling the motion to strike the evidence,
the trial court stated that it believed Shifflett when she testified that no one could bring a cellular
telephone into the jail. Additionally, it found that Ragland did not prove that his employer had
-5-
requested that Ragland be allowed the use of a cellular telephone while working, as was required
of the employer per the Regulations. With respect to whether the Commonwealth had
established that the device was a cellular telephone, the trial court stated,
Well we certainly don’t have any expert testimony that this was a
cell phone, but we do have the testimony of both Investigator
Mowbray and Corporal Gregory, who testified it was a cell phone.
[The trial court] rarely [has] expert testimony when somebody is
speeding in a motor vehicle on the public highways [] to prove that
in fact what was being driven was a motor vehicle. . . . [C]ell
phones have sufficient currency these days that it doesn’t take an
expert to testify that it is what it is. Moreover, when Corporal
Gregory was asking him about it, Mr. Ragland never indicated it
wasn’t a cell phone on the contrary, [Ragland] . . . acknowledged
that it was [a cellular telephone] in his discussion about what
Martin’s permitted and did not permit.
The trial court also found that once an inmate came through the door of the jail the inmate is
incarcerated and that the “secondary area” is a room to provide privacy for strip searches.
As evidence in his own defense, Ragland requested the trial court to take judicial notice
of the version of Code § 18.2-431.1 in effect at the time of the offense because it did not include
the language “or other wireless telecommunications device.” Also, Ragland asked the trial court
to take judicial notice under Rules of Evidence 2:201, 2:202, and 2:203 of three printed pages his
counsel proffered were copied from the FCC website (https://www.fcc.gov/). The
Commonwealth objected to the trial court’s consideration of the proffered FCC evidence on
authentication grounds.
The trial court sustained this objection after the following colloquy:
[Defense Counsel]: Yeah uh, well to accept that this could be a
fact as to whether there are different types of technology between
cellular service, advance wireless service . . .
[Trial Court]: But it isn’t a fact, [counsel], just because the Federal
Government says it’s a fact.
[Defense Counsel]: Well, it is an official publication of the
government.
-6-
[Trial Court]: Of the Federal Government which I barely
recognize in this Courtroom.
[Defense Counsel]: Well, but the Rules of Evidence does
reference the United States – publications of the United States,
that’s 2203 and, you know, I believe that the Court should take
Judicial Notice of that. It’s to the extent that it’s in dispute as to
the authenticity, you know the Court can go online right now and
pull up the same data from a government website. . . .
....
[Trial Court]: [B]ased on what you have given me[,] is the Court
shall take Judicial Notice on the contents of all official publications
. . . , but how do I know that I’m looking at the right stuff? . . . I
don’t have a lot of confidence in uh, how do I know that what I’m
looking at on the internet is an official publication?
[Defense Counsel]: Well that’s where Rule 2201 of the Rules of
Evidence provides guidance. It says that the Court may take
Judicial Notice if- it’s a matter of common knowledge and I take it
that it’s not common knowledge or two, capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.
[Trial Court]: Yeah, well I’m not buying that the internet is one of
those sources. I can find more misinformation on the internet than
you can find accurate information on the internet.
[Defense Counsel]: Yeah, I understand, but if you go to uh,
FCC.gov., that – that’s – that’s a source. . .
[Trial Court]: I’m unpersuaded. I’m unpersuaded that FCC.gov is
something that’s binding on this Court. I mean I’m not, I’m just
telling you that I virtually guarantee you I could look up FCC.
something or other and it could easily be a rogue site that I
wouldn’t have any idea.
Following the renewal of Ragland’s motion to strike and closing argument, the trial court
found sufficient evidence to find Ragland guilty of Code § 18.2-431.1. The trial court found that
Ragland had “a cellular telephone.” In making this finding the trial court stated, “This isn’t an
iPad, it is a Verizon 3G, three gigabyte cell phone.” Additionally, the trial court found that
-7-
Ragland was incarcerated. On February 18, 2016, Ragland was sentenced to six months of
incarceration.
II. Analysis
A. Standard of Review
“When reviewing a defendant’s challenge to the sufficiency of the evidence to sustain a
conviction, this Court reviews the evidence in the light most favorable to the Commonwealth, as
the prevailing party at trial, and considers all inferences fairly deducible from that evidence.”
Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014). This examination “is
not limited to the evidence mentioned by a party in trial argument or by the trial court in its
ruling. . . . [A]n appellate court must consider all the evidence admitted at trial that is contained
in the record.” Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting
Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). The sole
responsibility to determine the credibility of witnesses, the weight to be given to their testimony,
and the inferences to be drawn from proven facts lies with the fact finder. Commonwealth v.
McNeal, 282 Va. 16, 22, 710 S.E.2d 733, 736 (2011).
An appellate court may reverse the judgment of the trial court “if the judgment ‘is plainly
wrong or without evidence to support it.’” Crawford v. Commonwealth, 281 Va. 84, 112, 704
S.E.2d 107, 123 (2011) (quoting Code § 8.01-680). “If there is evidence to support the
convictions, the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.” Id. (quoting
Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). The issue on appeal
is whether the record contains evidence from which “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” McMillan v. Commonwealth,
277 Va. 11, 19, 671 S.E.2d 396, 399 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
-8-
(1979)). However, to the extent the appellant’s assignment of error requires “statutory
interpretation, it is a question of law reviewed de novo on appeal.” Grimes v. Commonwealth,
288 Va. 314, 318, 764 S.E.2d 262, 264 (2014).
B. Ragland’s Possession of a Cellular Telephone
In challenging the sufficiency of the evidence, Ragland suggests a hypothesis of
innocence that the phone at issue could have been a device operated by something other than
cellular technology, thus he cannot be found in violation of Code § 18.2-431.1(B). In pertinent
part, Code § 18.2-431.1(B) currently states, “It is unlawful for an incarcerated prisoner . . .
without authorization to possess a cellular telephone or other wireless telecommunications
device during the period of his incarceration.” At the time of his offense however, the statutory
provision only criminalized the possession of a “cellular telephone” by an incarcerated prisoner.
Code § 18.2-431.1(B) (2015).
On appeal, Ragland argues that the legislature’s use of the phrase “cellular telephone” is
a “term of art” and that the evidence presented at trial was insufficient to establish the phone
seized was not another variation of a telecommunication device, citing a “satellite phone” or
“radiotelephone service” as specific examples. However, Code § 18.2-431.1, as it existed at the
time of Ragland’s offense, unambiguously criminalized the possession of a cellular telephone by
an inmate in a state or local correctional facility but did not define the term “cellular telephone”
thereby indicating that this phrase is not a term of art and that it intended the commonly
understood definition of the term. The dictionary defines a cellular phone as “a telephone with
access to a cellular radio system so it can be used over a wide area, without a physical
connection to a network. Also called mobile phone.” Oxford Living Dictionaries,
http://en.oxforddictionaries.com.
-9-
An appellate court must “presume that the General Assembly, in framing a statute, chose
its words with care.” Smith v. Commonwealth, 282 Va. 449, 454, 718 S.E.2d 452, 455 (2011)
(citing Halifax Corp. v. First Union Nat’l Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001)).
When a statute’s text is “clear and unambiguous, . . . courts are bound by the plain meaning of
clear statutory language.” Campbell v. Harmon, 271 Va. 590, 598, 628 S.E.2d 308, 312 (2006).
Moreover, “[w]hether an alternate hypothesis of innocence is reasonable is a question of fact
and, therefore, is binding on appeal unless plainly wrong.” Wood v. Commonwealth, 57
Va. App. 286, 306, 701 S.E.2d 810, 819 (2010) (internal citations and quotations omitted). In
addition, “the Commonwealth need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of the defendant.” Case v.
Commonwealth, 63 Va. App. 14, 23, 753 S.E.2d 860, 864 (2014) (quoting Emerson v.
Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004)).
In this case, Ragland relies on his rejected evidence in the form of printed documents
from the FCC website for the proposition that alternative communications technologies exist,
which operate in a fashion similar to cellular telephones. Ragland contends that, because there
might be a difference in the communication technology utilized, such devices are not cellular
telephones as contemplated under the statute. Yet, even if considered by the trial court, the FCC
evidence, standing alone, demonstrates nothing more than the existence of alternate technologies
making mobile communications possible. Evidence of the existence of alternative
communication technology in the abstract would not have any impact upon the specific
determination about the device seized from Ragland, and, therefore, was not relevant to the issue
of whether or not the device was sufficient to show that the device seized from Ragland was a
cellular telephone.
- 10 -
In contrast, the record contains affirmative testimony from both Gregory and Mowbray
that the phone seized from Ragland was a cellular telephone. Ragland did not object to the
admissibility of such testimony, in which he might have challenged the correctional officers’
basis for concluding the device possessed by Ragland was a cellular telephone. Additionally,
when found in possession of the phone, and accused of its unlawful possession, Ragland never
asserted that the device was anything other than a cellular telephone.
The trial court, in finding Ragland guilty, rejected his proffered hypothesis of innocence.
Specifically, the court observed:
I think the defense argument boils down to whether or not this was
a cell phone. . . . I find that it is. This isn’t an iPad . . . it is a
Verizon 3G, three gigabyte cell phone. As I said, [the defendant’s
position] is much like having to have expert testimony to
determine whether or not a motor vehicle riding down the road is a
motor vehicle before which [sic] one can be convicted of reckless
driving. . . . This is a cell phone and I find beyond a reasonable
doubt that it is.
The trial court credited the testimony of Gregory and Mowbray identifying the device as a
cellular telephone, and found that it did not require expert testimony for the purpose of making
such an identification. This was not error. Moreover, the four Commonwealth photographic
exhibits depict a device that is in common use bearing the Apple corporate logo and easily
recognizable by virtually anyone who has not been in a coma or on a deserted island for the last
decade as an Apple iPhone which has been turned on and shows a live connection to the Verizon
cellular network.
Furthermore, “consciousness of guilt” generally is applied to affirmative acts of
falsehood or flight immediately following the commission of a crime, which tend to show a
person’s guilty knowledge of, and participation in, a criminal act. Jones v. Commonwealth, 279
Va. 52, 57-58, 688 S.E.2d 269, 272 (2010). “Such acts . . . of deceitful behavior immediately
following the commission of a crime, are acts that generally cannot be explained in terms of
- 11 -
innocent human behavior. Thus, when a defendant affirmatively acts in such a manner, a court
may consider those acts in the context of all the facts presented as evidence tending to show the
defendant’s consciousness of guilt of the crime committed.” Id. at 58, 688 S.E.2d at 272. Here,
the trial court could reasonably have concluded Ragland lied when he told Gregory that his
possession of the phone had been approved by Shifflett. Moreover, Ragland conceded that
Gregory had “got [him],” when the irrationality of his claims about Martin’s purported refusal to
allow him to maintain the phone at his work site was exposed.
“While no single piece of evidence may be sufficient, the combined force of many
concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind
irresistibly to a conclusion.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003). The trial court, acting as the fact finder, was permitted to consider Ragland’s
untruthfulness, his effort at concealing the telephone, and his ultimate concession that Gregory
“got [him]” as evidence of the defendant’s “consciousness of guilt.” Therefore, the trial court’s
determination of Ragland’s guilt based on the evidence cannot be said to be plainly wrong or
without evidentiary support.
C. Ragland’s Possession of a Cellular Telephone while Incarcerated
Ragland also argues the trial court’s determination that he possessed a cellular telephone
“during the period of his incarceration” was error because the jail allowed inmates to store
material required for work in lockers provided for that purpose. Thus, because he was
intercepted prior to reaching the locker room, any conclusion that his possession of the cellular
telephone occurred while he was incarcerated was incorrect.
Ragland maintains that he had permission to possess a cellular telephone during his
participation in the work release program and that he would have to keep his phone locked up
somewhere. However, viewing the evidence in the light most favorable to the Commonwealth,
- 12 -
as we must since it was the prevailing party below, this assertion is not supported by the trial
record. First, Shifflett testified that she explained to Ragland that his employer would have to
make arrangements concerning his possession of a cellular telephone, and, if approved, any
cellular telephone would be required to remain at his place of employment. Second, the record
lacks any evidence demonstrating that Ragland’s employer obtained permission for him to
possess a cellular telephone during his employment hours, and Shifflett affirmatively
contradicted Ragland’s assertion that she had authorized him to possess the cellular telephone
while in the jail.
The evidence affirmatively established that cellular telephones were not permitted in the
facility at all, beginning at the primary door leading into the initial entry area. Moreover, by
rejecting Ragland’s motion to strike, the trial court credited the testimony of Shifflett and
highlighted Ragland’s inconsistency in his explanation of his use of a cellular telephone for
work. Finally, regardless of the existence of a locker room, in which certain items required for
work release could be stored by inmates so enrolled, no evidence demonstrated that Ragland, or
any inmate, was permitted to bring a cellular telephone into the facility. Therefore, we hold that
the trial court’s decision that Ragland was “incarcerated” at the time the cellular phone was
discovered about his person was not plainly wrong or without evidence in support.
D. Admission of Evidence: FCC Documents
Ragland argues the trial court erred in refusing to admit the proffered portions of the
“FCC Encyclopedia.” “The admissibility of evidence is within the broad discretion of the trial
court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.”
Gonzales v. Commonwealth, 45 Va. App. 375, 380, 611 S.E.2d 616, 618 (2005) (en banc)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). Where a
decision is reviewed for an abuse of discretion, the appellate court does not substitute its own
- 13 -
judgment “for that of the trial court,” but considers “only whether the record fairly supports the
trial court’s action.” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)
(citation omitted).
At trial, Ragland attempted to introduce printed documents, purportedly from FCC’s
website, in support of his argument demonstrating the existence of multiple forms of
communications technology that operate similarly to cellular telephone service. The
Commonwealth objected to the documents’ admission on authenticity grounds, which the trial
court sustained. The trial court declined defense counsel’s request for it to take judicial notice of
the documents. Citing a specific concern that if it resorted to finding the proffered information
on the internet, the trial court could not guarantee the material had not somehow been altered and
under such circumstances it might be directed to “a rogue site [it] would not have any idea.”
Code § 19.2-265.2(A) authorizes a court in a criminal case to take notice of law
“statutory or otherwise,” but leaves it up to the court to determine if “it becomes necessary” to
take judicial notice. However, the most elementary first step is that “[e]vidence must be relevant
to be admissible. It is relevant if it has ‘any tendency to make the existence of any fact in issue
more probable or less probable than it would be without the evidence.’” Payne v.
Commonwealth, 65 Va. App. 194, 217, 776 S.E.2d 442, 453 (2015) (quoting Va. R. Evid.
2:401). “[E]very fact, ‘however remote or insignificant, that tends to establish the probability or
improbability of a fact in issue is relevant.” Thomas v. Commonwealth, 44 Va. App. 741, 753,
607 S.E.2d 738, 753 (quoting Va. Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520 S.E.2d
164, 179 (1999)), adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). “Put
another way, evidence has relevance if it tends to cast any light on any material point.” Id. at
753, 607 S.E.2d at 743-44. We find that the information proffered by Ragland was irrelevant as
to whether the device at issue was actually a cellular telephone. The proffered evidence would
- 14 -
have simply provided the trial court with information that other technology existed and would
not have proven or disproven anything with respect to the nature of the device in question.
Ragland did not proffer any evidence demonstrating that the phone seized was not a cellular
telephone. Therefore, the trial court did not err in refusing to admit the proffered portions of the
“FCC Encyclopedia.”
III. Conclusion
We conclude that the trial court did not err in finding that Ragland possessed a “cellular
telephone” as opposed to an “other wireless telecommunications device.” Ragland possessed a
cellular telephone in the jail facility without permission. Further, it was not error for the trial
court to refuse to take judicial notice of the proffered FCC documents. Therefore, the trial court
properly convicted Ragland of one count of possession of a cellular telephone by a prisoner, in
violation of Code § 18.2-431.1.
Affirmed.
- 15 -