Jeffery Todd Hirschberg, s/k/a Jeffrey Todd Hirschberg v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Ortiz and Lorish
Argued at Norfolk, Virginia
JEFFERY TODD HIRSCHBERG, S/K/A
JEFFREY TODD HIRSCHBERG
MEMORANDUM OPINION* BY
v. Record No. 0203-22-1 JUDGE LISA M. LORISH
DECEMBER 20, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Jeffrey W. Shaw, Judge
(Michael T. Soberick, Jr.; Dusewicz & Soberick, on brief), for
appellant. Appellant submitting on brief.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Jeffrey Todd Hirschberg challenges his conviction for possession of methamphetamine from
the Circuit Court of Gloucester County. Because he failed to preserve his argument that the
evidence was insufficient to convict him of this offense, we do not consider that argument here. We
also affirm the trial court’s evidentiary decision to admit testimony about Hirschberg’s prior
encounter with law enforcement.
BACKGROUND
A confidential informant, Douglas Batley, identified Hirschberg as a narcotics distributor in
Gloucester County. On November 19, 2020, three Gloucester County Sheriff’s Investigators used
Batley to conduct a controlled purchase of narcotics from Hirschberg. The officers met with and
searched Batley before equipping him with $500 in “confidential Virginia State Police buy funds,”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
as well as a recording device. Investigator Hubbard then drove Batley to a residence on Sandy
Clay Lane in Gloucester County to make the controlled purchase.
Investigator Hubbard dropped Batley off on the road near the house and watched Batley
walk through a tree line toward the property. However, he could not see the house from his
position on the road. Batley had the recording device in his pocket.
Batley returned to Investigator Hubbard’s vehicle twenty to thirty minutes later. He
handed Hubbard the recording device and a baggie of suspected narcotics later tested and found
to contain methamphetamine. Batley was paid $100 for the transaction. Recorded audio from
the device included the interaction between Investigator Hubbard and Batley on the way to the
purchase location, as well as the controlled purchase.
At trial, Batley identified Hirschberg in court as the person who sold him
methamphetamine at the residence on Sandy Clay Lane. Batley explained that he arranged to
purchase methamphetamine from Hirschberg over text message or Facebook Messenger and that
Hirschberg proposed meeting at the residence on Sandy Clay Lane, where Batley believed
Hirschberg lived.1 And Batley testified that after he got out of Investigator Hubbard’s vehicle,
he called Hirschberg and walked up the driveway to the house. Batley explained that Hirschberg
answered the door and the two went upstairs to his bedroom, where they “chitchatted” and
completed the methamphetamine transaction.
Batley testified that he had listened to the audio captured by the recording device and
confirmed at trial that the recording was “an accurate reflection of the conversation between”
him and Hirschberg. The Commonwealth then played the recording for the jury, pausing several
times to allow Batley to provide context for several statements made on the recording. Batley
1
Charles Sparrer testified that Hirschberg was his roommate at the Sandy Clay Lane
residence in November 2020.
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identified his and Hirschberg’s voices on the recording. The voice that Batley identified as
Hirschberg’s made several statements, including: “They got my pistol,” “My blue cooler, I had
everything in there,” and “They’re charging her with my shit. I was driving.” The voice also
stated: “It was a Bulldog Short. I can’t claim the gun.”
On cross-examination, the defense played the audio recording again and Batley
acknowledged that a voice that was not Hirschberg said, “hi.” Batley testified that he did not
recall the identity of the speaker. He also admitted that he sold illegal drugs while he was
working as a confidential informant. Finally, the defense questioned him about favorable
treatment he received in a plea agreement because of his cooperation.
The Commonwealth then sought to elicit testimony from Deputy Shiflett about a traffic stop
involving Hirschberg that occurred nine days before the controlled purchase. The defense objected
to Deputy Shiflett’s testimony, arguing that its “sole purpose” was to “bolster” Batley’s
identification of Hirschberg on the audio recording and that the potential for unfair prejudice
outweighed the probative value of the testimony. In response, the Commonwealth argued the
testimony was relevant to proving Hirschberg’s identity as one of the voices on the recording.
The trial court overruled the defense’s objection and allowed the testimony for the purpose of
proving the identity of Hirschberg’s voice on the recording. The trial court gave the jury the
following limiting instruction with the agreement of the parties: “Ladies and gentlemen, you’re
going to next hear the testimony of Deputy Shiflett. I want to let you know that the testimony of
Deputy Shiflett may only be considered by you for the purpose of identifying the other voice on
the recording that has been introduced as Exhibit 3.”
Deputy Shiflett testified that nine days before the controlled purchase, he stopped a
vehicle Hirschberg was driving for an expired registration. There were two passengers with
Hirschberg. During a search of the vehicle, Deputy Shiflett saw a smoking device on the front
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passenger seat and found on the front passenger floorboard a blue cooler and a black zippered
pouch containing a Target Bulldog .357 Magnum revolver. Suspected methamphetamine,
suspected marijuana, syringes, scales with powdery residue, and smoking devices were inside the
cooler. Deputy Shiflett arrested the female passenger in the front seat, but not Hirschberg.
After the Commonwealth rested its case-in-chief, the defense rested without presenting
evidence or making a motion to strike. The jury convicted Hirschberg of possessing
methamphetamine. Hirschberg did not move to set aside the verdict. He now appeals.
ANALYSIS
Hirschberg argues that the evidence at trial is insufficient as a matter of law because
Batley’s testimony is inherently incredible. He also contends that the trial court abused its
discretion by admitting Deputy Shiflett’s testimony about the prior traffic stop.
A. Sufficiency of the Evidence
Hirschberg failed to preserve any argument as to the sufficiency of the evidence, so we
do not consider it. “No ruling of the trial court . . . will be considered as a basis for reversal
unless an objection was stated with reasonable certainty at the time of the ruling, except for good
cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of
this contemporaneous objection requirement is to allow the trial court a fair opportunity to
resolve the issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v.
Commonwealth, 64 Va. App. 185, 195 (2015).
Hirschberg argues that his sufficiency challenge based on Batley’s purported inherent
incredibility “is well preserved in the closing argument of trial counsel.” But a challenge to the
sufficiency of the evidence to sustain a conviction is a legal issue that the court will decide. See
Dickerson v. Commonwealth, 58 Va. App. 351, 357 (2011). In a bench trial, the defense may
preserve a challenge to the sufficiency of the evidence through an “appropriate argument made
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during closing.” Id. at 356. In a jury trial, however, the defendant must preserve a challenge to
the sufficiency of the evidence in a motion to strike or by moving to set aside the verdict.
Commonwealth v. Bass, 292 Va. 19, 33 (2016). Neither occurred here.
Finally, Hirschberg does not invoke the good cause or ends of justice exceptions to
Rule 5A:18, and this Court will not apply the exceptions sua sponte. Edwards v.
Commonwealth, 41 Va. App. 752, 761 (2003) (en banc).
B. Deputy Shiflett’s Testimony
We review Hirschberg’s argument that the trial court erred in admitting Deputy Shiflett’s
testimony for abuse of discretion. Howard v. Commonwealth, 74 Va. App. 739, 753 (2022). We
will find such an abuse of discretion “only when reasonable jurists could not differ about the
correct result.” Id.“Evidence of other crimes, wrongs, or acts is inadmissible if offered merely to show the
accused’s propensity to commit the crime for which he is charged.” Conley v. Commonwealth,
74 Va. App. 658, 670 (2022). Such evidence is admissible, however, “if it tends to prove any
relevant fact pertaining to the offense charged, such as where it is relevant to show . . . identity.”
Id. (quoting Va. R. Evid. 2:404(b)). If the trial court “determine[s] that the ‘prior bad acts’
evidence is relevant, and not mere ‘propensity evidence,’ the [c]ourt must still determine whether
the risk of unfair prejudice outweighs the probative value of the evidence.” Id. at 671. “The
responsibility for balancing the two considerations rests in the trial court’s discretion and we will
not disturb the court’s determination in the absence of a clear abuse of discretion.” Id. at 673
(quoting Kenner v. Commonwealth, 299 Va. 414, 427 (2021)).
Hirschberg contends that the trial court abused its discretion by admitting Deputy
Shiflett’s testimony because “the issue of identity was not in question during trial,” so the
testimony had no probative value. We disagree. Hirschberg pled not guilty to the charge, and
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the Commonwealth bore the burden of proving every element of the offense beyond a reasonable
doubt. Kenner, 299 Va. at 425. The defense never conceded that it was Hirschberg’s voice on
the recording. To the contrary, Hirschberg vigorously impeached Batley’s credibility on
cross-examination, including his testimony about the recording. Hirschberg also asserted both in
his opening statement and closing argument that the Commonwealth’s case rested entirely on
Batley’s credibility and that the Commonwealth could not prove beyond a reasonable doubt that
Hirschberg was even present at the residence at the relevant time. Therefore, the question of
identity remained in dispute.
Deputy Shiflett’s testimony corroborated Batley’s identification of the voice on the
recording as Hirschberg by linking the speaker’s recorded statements about driving, a Bulldog
pistol, and a blue cooler with the recent traffic stop where Deputy Shiflett seized those very
items from a vehicle Hirschberg was driving. Thus, the testimony supports a reasonable
inference that the speaker on the recording and the driver of the vehicle Deputy Shiflett stopped
were the same person, and was probative as to the identity issue.
Hirschberg argues that—even if probative—the trial court erred in admitting the
testimony because any probative value was outweighed by the risk of unfair prejudice.
“‘[U]nfair prejudice’ refers to the tendency of some proof to inflame the passions of the trier of
fact, or to invite decision based upon a factor unrelated to the elements of the claims and
defenses in the pending case.” Commonwealth v. Proffitt, 292 Va. 626, 636 (2016) (quoting Lee
v. Spoden, 290 Va. 235, 251 (2015)).
Hirschberg contends that Deputy Shiflett’s testimony unfairly prejudiced him by showing
that he was “a drug user,” was “involved in drug events,” and “allegedly ha[d] a bad character
because he didn’t step up . . . and take responsibility for what was in the car.” He also asserts
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that “[t]he Commonwealth’s real motivation” was to argue to the jury that if Hirschberg “had
drugs with his blue cooler, then that is him on the tape and that is him selling drugs now.”
The question here is not whether there was any risk of unfair prejudice, but whether that
risk was so great it substantially outweighed the probative value of the evidence. See Lee, 290
Va. at 252 (“Evidence that is factually relevant may be excluded from the jury’s consideration if
the probative value of that evidence is substantially outweighed by the danger of unfair
prejudice.” (quoting Gamache v. Allen, 268 Va. 222, 227 (2004))). We have held that “[t]he
prejudicial effect of the evidence of other crimes [may be] limited by the instructions of the court
to the jury . . . [delimiting] the jury’s use of the evidence to that which was permissible and
prohibit[ing] its use for any other purpose.” Winston v. Commonwealth, 32 Va. App. 864, 872
(2000) (first four alterations in original). And “juries are presumed to follow limiting
instructions.” Abunaaj v. Commonwealth, 28 Va. App. 47, 57 (1998). Nothing in the record
rebuts the presumption that the jury followed the trial court’s clear instruction to consider Deputy
Shiflett’s testimony only for the purpose of determining the identity of the speaker on the
recording, rather than the improper purposes Hirschberg asserts. Additionally, when the
Commonwealth referenced Deputy Shiflett’s testimony in its closing argument, it did so within
the limits set by the trial court’s instruction.
The trial court mitigated the risk of unfair prejudice with its instruction limiting the jury’s
consideration of Deputy Shiflett’s testimony. Therefore, the trial court did not abuse its
discretion by concluding that the mitigated risk of unfair prejudice did not outweigh the
testimony’s probative value and admitting Deputy Shiflett’s testimony.
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CONCLUSION
For these reasons, we affirm Hirschberg’s conviction for possession of
methamphetamine.
Affirmed.
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