Laquinta Diane Morris v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Malveaux and Fulton
Argued at Fredericksburg, Virginia
LAQUINTA DIANE MORRIS
MEMORANDUM OPINION* BY
v. Record No. 1075-22-4 JUDGE MARY BENNETT MALVEAUX
OCTOBER 3, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
James A. Willett, Judge
Danielle Brown (Danielle S. Brown Law, PLLC, on brief), for
appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Laquinta Diane Morris (“appellant”) appeals her conviction by a jury for abuse or neglect of
an incapacitated adult for whom she was responsible, resulting in serious bodily injury or disease, in
violation of Code § 18.2-369. She argues that the trial court misapplied Virginia Rule of Evidence
2:901 governing the authentication of evidence, misapplied the silent witness doctrine governing the
admissibility of photographs and video evidence, and abused its discretion by admitting videos that
were unduly prejudicial. Finding no error, we affirm.
I. BACKGROUND
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Myers v. Commonwealth, 299 Va. 671, 674 (2021) (quoting
Vasquez v. Commonwealth, 291 Va. 232, 236 (2016)). “Further, we ‘discard the evidence of the
*
This opinion is not designated for publication. See Code § 17.1-413(A).
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Barnett v.
Commonwealth, 73 Va. App. 111, 115 (2021) (quoting Yerling v. Commonwealth, 71 Va. App. 527,
530 (2020)).
A.J.,1 a 27-year-old woman, lived in a group home for individuals with developmental
delays. A.J. had been diagnosed with an intellectual disability, major depression, and adjustment
disorder. Her conditions impacted her ability to communicate and rendered her “very limited in her
words.” Appellant worked at the group home, where she was responsible for assisting A.J. with
hygiene, food, and medication.
On October 30, 2019, Ernest Adu-Afram, an operations manager responsible for the group
home, received notice of an incident involving A.J. When Adu-Afram arrived at the home,
appellant informed him that “she was just providing care for [A.J.], and that there was a behavioral
issue, and it escalated.” Appellant did not have any visible injuries, but A.J. had several, including a
bruise on her cheek, a ripped-out braid, and scratches on and around her face. Frederic Amamoo,
another group home employee, observed that A.J. had a black eye and swollen face. A.J. was taken
to the hospital where emergency room staff observed visible injuries to her face and swelling around
her eyes. A.J.’s attending physician observed a large hematoma near her eye, and a CT scan
revealed an acute fracture of one of the bones of A.J.’s eye socket.
Kimberly Ducharme, the group home’s director of investigation, reviewed recordings from
the home’s video surveillance system for evidence of the cause of A.J.’s injuries. She found two
video recordings that depicted portions of the incident (the “surveillance videos”) and used her cell
phone to make recordings of them (the “cell phone videos”). At trial, Ducharme testified about the
group home’s surveillance system and explained that it included motion-activated cameras that
1
We use initials, rather than the victim’s name, to protect her privacy.
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automatically began recording after detecting motion. Any recorded video was stored in “the VNR,
the Video Network Recording,” a device located in the home that was also remotely accessible
through “the Cloud.” Ducharme told the jury that data was kept in the Cloud for approximately 30
days in a secure system managed by the home’s IT department. A username and password were
required to obtain system access. Ducharme did not know how many people possessed credentials
to access the system, but believed it was more than one and less than ten.
Ducharme testified that the “date and time stamp” displayed in the surveillance videos could
not be altered and that the recording system was functioning properly on the date of the incident.
She explained that she made the cell phone videos by “record[ing] the . . . playback” of the
surveillance videos on the system’s computer because “[t]hat was the only way [she] knew how to
get the footage.” Ducharme confirmed that there was no way to alter or edit the surveillance videos
while they were playing on the computer. She also confirmed that the DVD of her cell phone
videos that was played in court was a “copy of the [surveillance video] footage that [she] examined”
and that she had not altered the cell phone videos before burning them to the DVD. Ducharme
further testified that she had reviewed the cell phone videos contained on the DVD, and agreed that
they “appear[ed] the same on th[e] DVD as [they] did on the server and . . . computer” when she
reviewed the surveillance videos on October 30, 2019.
The first cell phone video of the surveillance footage depicted A.J. walking down a hallway
and out of sight, with appellant following and likewise disappearing from view. The two women
soon reemerged into view, slapping at and grappling with each other before falling to the floor.
Appellant then struck A.J., pinned her arms to the ground, pushed her face to the floor, and sat on
and immobilized her. Eventually, the two women stood, but they quickly began grappling again.
Appellant pulled A.J. back to the floor by her hair, briefly sat on her with A.J.’s face to the floor,
and then dragged A.J. out of view by her hair. Moments later, appellant pulled A.J. back into the
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camera’s view and struck her multiple times. When A.J. attempted to strike appellant, who was
standing over her, appellant repeatedly struck A.J. and jerked her by the neck before again sitting on
her and pinning her to the floor. Although the total length of the first cell phone video that was
admitted into evidence was 10 minutes and 26 seconds, it depicted Ducharme adjusting the
playback speed of the surveillance video. Accordingly, the surveillance video’s time stamps
indicated that a total of almost 15 minutes had elapsed in the underlying surveillance video.
The second cell phone video of the surveillance footage depicted A.J. walking down a
hallway and out of view up a staircase, with appellant following and standing at the foot of the
stairs. A.J. then descended the stairs, and the two women began slapping at and grappling with each
other before appellant pulled A.J. down the hallway by her shirt. The playback time of the second
cell phone video was 33 seconds, although the surveillance video’s timestamps indicated that 50
seconds had elapsed in the underlying surveillance video.
When the Commonwealth moved the admission of the cell phone videos, counsel for
appellant moved to voir dire Ducharme. She argued that Ducharme would be unable to testify
about how the underlying surveillance videos had been “kept, stored, or whether it’s digital or
analog,” and noted that the proffered evidence was “a recording of a recording” and the “time
stamps on the video do not sync up to how much time . . . actually elapsed.” The court stated that it
thought appellant’s objections went to the videos’ weight rather than their admissibility, but
instructed the Commonwealth’s attorney that she would “have to set some basis for what this video
shows.”
The Commonwealth’s attorney further questioned Ducharme about the cell phone videos
before again moving their admission. Counsel for appellant objected, stating that she “still [had]
foundational questions.” The court permitted counsel for appellant to voir dire Ducharme about the
surveillance system, after which counsel reiterated her concerns about how the underlying
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surveillance videos had been stored, who may have had access to them, and the fact that the
proffered evidence was “a recording of a recording. That in and of itself . . . raises a lot of
authenticity issues.”
The court ruled that Ducharme had established herself as a witness qualified to testify on
authentication matters, overruled appellant’s objection, and received the cell phone videos into
evidence. The Commonwealth was permitted to play the cell phone videos for the jury.
While the jury was viewing the cell phone videos, counsel for appellant moved to strike the
videos, reiterating her concerns about “authenticity and foundation” and contending that the cell
phone videos were “inauthentic.” Outside the presence of the jury, counsel for appellant argued that
for the cell phone videos to be admissible, “this is supposed to be a true and accurate depiction of
how these events transpired . . . . [Ducharme] has testified that this is true and accurate. She’s not
there, though. She didn’t actually see anything happen at the time in that she was not physically
present.” The Commonwealth’s attorney argued in response that an adequate foundation for
admission of the cell phone videos had been laid and that they were admissible as a “silent witness.”
The court overruled appellant’s objection, stating that “[t]he authentication requirement, Rule 2:901,
is simply that there’s sufficient evidence to support the finding that the thing in question is what its
proponent claims it to be. I think the arguments that [counsel] had . . . , they’re arguments for the
jury in closing, but don’t govern the admissibility of the tape.”
Appellant testified in her own defense. She stated that A.J. initiated physical contact
between the two women by punching her in the side of the head and that A.J. then “went in action
mode and started coming at me.” Appellant tried to “grab . . . [A.J.’s] wrists to kind of restrain [her]
hands,” as appellant had been shown how to do in her training, and asked A.J., “what are you
doing?” and “why are you . . . fighting me?” A.J. then threatened to kill appellant. Appellant stated
that “[t]he force that [A.J.] was using was very excess[ive]” and that she called for other staff to
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help her, but no one came to assist her in restraining A.J. The two women “fell several times”
during their altercation when A.J. “pulled [appellant],” and appellant “definitely was in fear for [her]
life” and “felt like [she] had to self-defend [her]self.” Appellant also testified that coworkers had
told her A.J. had a reputation for violence and that she had seen A.J. attack another staff member the
month before her altercation with A.J.
The jury convicted appellant of abuse or neglect of an incapacitated adult for whom she was
responsible, resulting in serious bodily injury or disease, and appellant filed a motion to set aside the
verdict. At the hearing on the motion, appellant argued that the cell phone videos failed to meet
“basic foundational requirements [of] admissibility” and that in the absence of “any other witnesses
who could say what happened, this video was the key” to her conviction.2 The trial court denied the
motion, stating, “I think the foundation was adequate” and that “the silent witness doctrine is
perfectly applicable.”
This appeal followed.
II. ANALYSIS
A. Authentication of the Cell Phone Videos
Appellant argues that because Ducharme did not create the underlying surveillance videos,
and because time stamp discrepancies rendered the surveillance videos “demonstrably unreliable,”
the Commonwealth failed to lay a sufficient foundation to admit “the subject matter of the
recordings”—i.e., the images of the altercation. Accordingly, appellant contends, the cell phone
videos failed to satisfy the authentication requirement of Virginia Rule of Evidence 2:901, and the
trial court erred in admitting them.3 We disagree.
2
A.J.’s conditions rendered her unavailable to testify at trial.
Appellant also assigns error to the trial court for “Misapplying the ‘Silent Witness’
3
Doctrine to Admit the Recordings of the Recordings,” alleging that “[t]he Commonwealth . . .
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“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.” Vera v. Commonwealth,
77 Va. App. 271, 281 (2023) (quoting Conley v. Commonwealth, 74 Va. App. 658, 670 (2022)).
“Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.”
Cellucci v. Commonwealth, 77 Va. App. 36, 46 (2023) (en banc) (quoting Commonwealth v. Swann,
290 Va. 194, 197 (2015)). “‘[B]y definition,’ however, a trial court ‘abuses its discretion when it
makes an error of law.’” Williams v. Commonwealth, 71 Va. App. 462, 487 (2020) (alteration in
original) (quoting Coffman v. Commonwealth, 67 Va. App. 163, 166 (2017)).
“Ordinarily, the admissibility of videotape films is governed by the same rules which apply
to the admission of photographs or motion pictures.” Alvarez Saucedo v. Commonwealth, 71
Va. App. 31, 46 (2019) (quoting Stamper v. Commonwealth, 220 Va. 260, 271 (1979)). “If the
court determines that the information on the tape is relevant” and that its contents’ “probative
value . . . outweighs any prejudicial effect, it should be admitted. Before asking the court to
moved to admit [the cell phone videos] under the ‘silent witness’ theory.” However, the record
does not support that the trial court applied the “silent witness” doctrine in ruling that the cell
phone videos were admissible. Although appellant objected to the cell phone videos on
foundational grounds prior to their admission into evidence, the Commonwealth did not
articulate a “silent witness” argument at that point; nor did the trial court articulate a “silent
witness” rationale in ruling that the cell phone videos were admissible, stating simply that
appellant’s foundation objections were overruled. Only when appellant moved to strike the cell
phone videos after they had been admitted into evidence, and while they were being played for
the jury, did the Commonwealth argue that they “may be admitted as a silent witness.” Then, in
denying appellant’s motion to strike, the court did not articulate a “silent witness” rationale;
rather, it stated only that the cell phone videos had been authenticated and appellant’s arguments
were “for the jury in closing, but don’t govern the [videos’] admissibility.” Thus, although the
trial court ultimately ruled that “the silent witness doctrine is perfectly applicable” when denying
appellant’s post-conviction motion to set aside, there is no evidence in the record that the “silent
witness” doctrine was a basis of the court’s much earlier ruling “to Admit the Recordings of the
Recordings.” Accordingly, we do not reach the merits of appellant’s second assignment of error.
See Gibson v. Commonwealth, 276 Va. 176, 180-81 (2008) (holding assignment of error was not
properly before the Court because it was “based upon a faulty premise concerning what actually
transpired in the trial court” and “the record reflect[ed] no ruling of the trial court” to the effect
asserted by appellant).
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admit a videotape into evidence, however, the party offering it must authenticate it.” Brooks v.
Commonwealth, 15 Va. App. 407, 410 (1992) (citation omitted); see also Midgette v.
Commonwealth, 69 Va. App. 362, 375 n.4 (2018) (quoting Brooks for same proposition). This
principle comports with the “general rule” that “before evidence can be admitted in any case, the
proponent bears the burden of presenting . . . ‘evidence sufficient to support a finding that the
thing in question is what its proponent claims.’” Canada v. Commonwealth, 75 Va. App. 367,
377 (2022) (quoting Va. R. Evid. 2:901). Accordingly, “[t]he authentication inquiry is a narrow
one and is only concerned with the genuineness of the offered evidence.” Id. at 377 n.4; cf.
Snowden v. Commonwealth, 62 Va. App. 482, 485 (2013) (“Authentication is . . . the process of
showing that a document is genuine and that it is what its proponent claims it to be.” (quoting
Owens v. Commonwealth, 10 Va. App. 309, 311 (1990), overruled in part by Waller v.
Commonwealth, 278 Va. 731 (2009))). “The measure of the burden of proof with respect to
factual questions underlying the admissibility of evidence is proof by a preponderance of the
evidence.” Bista v. Commonwealth, ___ Va. App. ___, ___ (Sep. 12, 2023) (en banc) (quoting
Campos v. Commonwealth, 67 Va. App. 690, 702 (2017)).
Here, under the specific facts and circumstances of this case, the cell phone videos
satisfied the authentication requirement of Rule 2:901. In offering the cell phone videos as
evidence of the altercation between A.J. and appellant, the Commonwealth represented that the
images of the altercation contained within them were genuine and what it claimed them to be.
Although Ducharme did not herself record the surveillance videos that, the parties agree,
captured the altercation, she did record them in the cell phone videos that appellant “does not
dispute” she “authenticated . . . because she created them.” Ducharme also testified that the
underlying surveillance videos captured in her cell phone videos were produced by an
automated, on-site recording and storage system with limited access secured by username and
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password protection. She recorded the cell phone videos from the surveillance videos the same
day the surveillance system recorded the altercation, and she stated that the system was
functioning properly that day. Ducharme additionally testified that there was no way to edit the
surveillance videos during playback on the computer from which she made her cell phone
recordings. She also testified that the images of the altercation “appear[ed] the same” in her cell
phone videos “as [they] did on the server and . . . computer” when she viewed them the day of
the altercation. Thus, despite discrepancies in the playback speeds between the cell phone videos
and the underlying surveillance videos, the preponderance of the evidence supports that the cell
phone videos’ contents—i.e., the images of the altercation between A.J. and appellant—were
reliably genuine and what the Commonwealth represented them to be. Accordingly, they were
properly authenticated as required by Rule 2:901. And because the cell phone videos, under the
specific facts and circumstances of this case, satisfied the Rule’s authentication requirement, we
cannot say that the trial court abused its discretion by admitting those videos.
B. Prejudice to Appellant
Appellant argues that “the admission of the cell phone recordings showing the security footage
was [an] abuse of discretion because the modified security footage was unduly prejudicial to [her].”
Specifically, she contends that because of an apparent discrepancy between the playback speeds of the
underlying surveillance videos and the cell phone videos admitted into evidence, the videos seen by the
jury “d[id] not present a clear picture of what happened” or “reflect reality.” We disagree.
“[W]e review a trial court’s decision to admit or exclude evidence using an abuse of discretion
standard and, on appeal, will not disturb trial court’s decision to admit evidence absent a finding of
abuse of that discretion.” Warren v. Commonwealth, 76 Va. App. 788, 802 (2023) (quoting Avent v.
Commonwealth, 279 Va. 175, 197 (2010)). “Applying this standard, ‘we do not substitute our judgment
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for that of the trial court. Rather, we consider only whether the record fairly supports the trial court’s
action.’” Id. (quoting Satterwhite v. Commonwealth, 56 Va. App. 557, 563 (2010)).
“Generally, ‘[a]ll relevant evidence is admissible.’” Jones v. Commonwealth, 71 Va. App. 70,
88 (2019) (alteration in original) (quoting Va. R. Evid. 2:402(a)). “‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact in issue more probable or less probable than it
would be without the evidence.” Warren, 76 Va. App. at 802 (quoting Va. R. Evid. 2:401). However,
“[r]elevant evidence may be excluded if ‘the probative value of the evidence is substantially outweighed
by . . . the danger of unfair prejudice.’” Fields v. Commonwealth, 73 Va. App. 652, 672 (2021)
(quoting Va. R. Evid. 2:403(a)(i)); see also Commonwealth v. Proffitt, 292 Va. 626, 639 (2016) (noting
that this determination requires a “balancing test”).
“The requirement under Rule 2:403 that only ‘unfair’ prejudice may be considered reflects the
fact that all probative direct evidence generally has a prejudicial effect to the opposing party.” Lee v.
Spoden, 290 Va. 235, 251 (2015). Accordingly, because “[a]ll evidence tending to prove guilt is
prejudicial to an accused, . . . the mere fact that such evidence is powerful because it accurately depicts
the gravity and atrociousness of the crime or the callous nature of the defendant does not thereby render
it inadmissible.” Fields, 73 Va. App. at 672-73 (quoting Powell v. Commonwealth, 267 Va. 107, 141
(2004)); see also Powell, 267 Va. at 141 (“[D]irect evidence . . . is rarely subject to exclusion on the
ground that it would be unfairly prejudicial.”). “‘Unfair prejudice’ within its context means an undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional
one.” Lee, 290 Va. at 251-52 (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997) (construing
the federal analogue to Va. R. Evid. 2:403)). It “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.” Id. at 251. “Put . . . succinctly, the nature of the evidence
must be such that it generates such a strong emotional response that it is unlikely that the jury could
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make a rational evaluation of its proper evidentiary weight.” Fields, 73 Va. App. at 673; see also id.
(citing, as “[c]ommon examples of such evidence,” “particularly graphic crime scene or autopsy
photos” because “their shock effect prevents a . . . jury from being able to properly evaluate or weigh
them in the context of the other evidence”).
Here, appellant was the only witness available to testify about what transpired between
herself and A.J. Although appellant did not deny an altercation had occurred between the two
women, she told the jury that A.J. had attacked and threatened to kill her and she responded by
engaging in self-defense. Accordingly, the cell phone video evidence of the two women’s
altercation was relevant and highly probative of whether appellant had abused or neglected A.J. as
alleged in the indictment. With respect to this argument, appellant does not allege on brief that the
sequential, frame-by-frame images of the altercation captured by the surveillance videos were
themselves altered or falsified in any way prior to or during their recording by the cell phone videos,
or that those images were in any way inaccurate. Rather, her contention is that a differential in the
playback speed of these uncontested images was sufficient to render the cell phone recordings of the
images incapable of “reflect[ing] reality” or providing the jury with “a clear picture of what
happened.” But nothing about the differential in playback speed prevented the jury from comparing
the uncontested images they witnessed with appellant’s own account of the altercation, and
determining the credibility of appellant’s testimony and the weight to accord that testimony and the
cell phone videos. While the cell phone videos depicted the “gravity and atrociousness” of the
altercation that led to A.J.’s injuries, Fields, 73 Va. App. at 672 (quoting Powell, 267 Va. at 141),
they did not “suggest decision on an improper basis, . . . [such as] an emotional one,” Lee, 290 Va.
at 252 (quoting Old Chief, 519 U.S. at 180), or “invite decision based upon a factor unrelated to the
elements of the claims and defenses in the . . . case,” id. at 251. Accordingly, because the cell phone
video evidence was not of such nature to prevent the jury from “mak[ing] a rational evaluation of
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its proper evidentiary weight,” the trial court did not abuse its discretion by admitting the videos.
Fields, 73 Va. App. at 673.
III. CONCLUSION
We hold that under the particular facts and circumstances of this case, the trial court did not
abuse its discretion by admitting the Commonwealth’s video evidence. Accordingly, we affirm.
Affirmed.
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