Christopher Thomas Tinsley v. Commonwealth of Virginia ( 2024 )


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  •                                             COURT OF APPEALS OF VIRGINIA
    UNPUBLISHED
    Present: Judges O’Brien, Malveaux and Raphael
    CHRISTOPHER THOMAS TINSLEY
    MEMORANDUM OPINION*
    v.     Record No. 2184-23-2                                         PER CURIAM
    NOVEMBER 6, 2024
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF NEW KENT COUNTY
    B. Elliott Bondurant, Judge
    (Sharif L. Gray; Blackburn, Conte, Schilling & Click, P.C., on brief),
    for appellant.
    (Jason S. Miyares, Attorney General; William K. Hamilton, Assistant
    Attorney General, on brief), for appellee.
    Christopher Thomas Tinsley entered conditional guilty pleas to two counts of forcible
    sodomy, two counts of object sexual penetration, carnal knowledge of a child between 13 and 14
    years old, and rape. The court sentenced him to a total of 260 years’ incarceration with 240
    years suspended. On appeal, Tinsley argues that the court erred by denying his motion to
    exclude audio recordings as inadmissible under Code § 19.2-65. After examining the briefs and
    record, the panel unanimously holds that oral argument is unnecessary because “the appeal is
    wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).
    BACKGROUND
    “[W]e recite the evidence below ‘in the “light most favorable” to the Commonwealth, the
    prevailing party in the trial court.’” Hammer v. Commonwealth, 
    74 Va. App. 225
    , 231 (2022)
    (quoting Commonwealth v. Cady, 
    300 Va. 325
    , 329 (2021)). This standard “requires us to
    *
    This opinion is not designated for publication. See Code § 17.1-413(A).
    ‘discard the evidence of the 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.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 
    295 Va. 323
    , 324
    (2018)).
    In January 2023, a grand jury indicted Tinsley for several felonies relating to his sexual
    abuse of his stepdaughter. During discovery, the Commonwealth disclosed audio recordings of
    Tinsley made while he was in his bedroom. Tinsley moved to exclude the recordings from evidence
    because they had been obtained in violation of the Commonwealth’s Wiretap Act. His motion
    included a portion of a police report that referred to “an audio recording” from “June 29, 2022.”
    According to the police report, Tinsley’s wife had been “using a micro-recorder due to recent
    marital problems” and had “mov[ed] the recorder around to different locations in their bedroom.”
    She played the recording for a police officer, who “heard what sounded like sexual intercourse and
    other sexual acts.” Tinsley’s wife “identified the female voice on the recording as her daughter, . . .
    and the male voice” as Tinsley.
    Tinsley argued that the recordings violated Code § 19.2-62 because Tinsley’s wife was not a
    party to the interaction. Although the police report and Tinsley’s motion only identified one
    recording, Tinsley requested the exclusion of “multiple illegal recordings” based on Code § 19.2-65.
    At a hearing on the motion, Tinsley stated that there was no “factual dispute” and his “only
    evidence” was the “snippet of the police report” he had reproduced in his motion. Tinsley did not
    present any recordings or transcripts of recordings to the court. During argument, Tinsley stated
    that he was “praying in his bedroom by himself” in one recording and was “speaking with” his
    stepdaughter in another. Tinsley asserted that the recordings contained “oral communication[s]”
    that were inadmissible as “evidence in any trial, hearing, or other proceeding in or before any court”
    under Code § 19.2-65. He contended that the recordings met Code § 19.2-61’s definition of “oral
    -2-
    communication” because they were “uttered by a person exhibiting an expectation that such
    communication was not subject to interception under circumstances justifying . . . such
    expectations.” He maintained that whether he had a “reasonable expectation” of privacy in the
    conversations was not the governing analytical standard; under Code § 19.2-61, the question was
    whether he had an “expectation of noninterception,” which he did in his bedroom.
    The court emphasized that it had not “heard the recording” but asked Tinsley whether
    “sounds[,] as if someone was having sexual intercourse,” were “oral communication” under Code
    § 19.2-61. (Emphasis added). Tinsley described the question as “interesting” but merely answered
    that he “could see the argument that a sound is not necessarily a communication.” He stated that the
    recordings contained “words”1 but conceded that he did not “know . . . whether a sound would
    constitute an oral communication.”
    The court denied the motion. First, it found that Tinsley did not have “a reasonable
    expectation of privacy . . . in a room that [he] share[d] with” his wife. Second, while reiterating that
    it had not “heard the tape,” the court held that a “sound” was not an “oral communication” subject
    to exclusion under Code § 19.2-61. The court explicitly based its ruling on “what [Tinsley] filed.”
    After the ruling, Tinsley filed a “supplement” to his motion, arguing that (1) the “reasonable
    expectation of privacy” test did not apply, (2) there was no evidence about whether he shared the
    bedroom with his wife and, in fact, he would testify that he did not because of the parties’ “marital
    issues,” and (3) other states’ wiretapping statutes did not “contain interspousal exceptions”
    permitting admission of wiretap evidence. The supplement did not directly ask the court to
    reconsider its ruling and did not include any recordings. Rather, it merely identified the issues
    1
    Tinsley suggested that the Commonwealth would “stipulate” that “there are words in
    these recordings”; the Commonwealth did not respond.
    -3-
    “should either [the trial court or the Commonwealth] wish to take [them] up . . . prior to the plea.”
    The record does not contain any ruling by the court concerning the supplement.
    Tinsley entered conditional guilty pleas under a written plea agreement, preserving his right
    to appeal the court’s denial of his motion. On appeal, he argues that the court erred because the
    Wiretap Act makes it a felony to record an oral communication unless one party to the
    communication consents. Absent such consent, the contents of a recording cannot be admitted as
    evidence. He contends that the court incorrectly invoked the “reasonable expectation of privacy”
    test to determine whether the recordings contained “oral communications”; instead, the court should
    have applied Code § 19.2-61, which required the court to consider only whether he had a reasonable
    expectation that his communication was not subject to interception. He also maintains that he
    reasonably expected his communications in his bedroom would not be intercepted irrespective of
    whether he shared the bedroom with his wife. Regardless, he asserts that “the extent of how [he]
    shared the bedroom . . . with his spouse was not in evidence” and he “would have testified that,
    because of marital issues, his [wife] often slept in a trailer and that their bedroom was not shared to
    the extent one might assume of a married couple.” Finally, Tinsley relies on other jurisdictions’
    wiretapping statutes, such as Florida, Georgia, Maryland, and Louisiana, which do not “contain
    interspousal exceptions” allowing admission of wiretap evidence.
    ANALYSIS
    Generally, “[w]e review a trial court’s decision to admit or exclude evidence” for an
    abuse of discretion. Kenner v. Commonwealth, 
    299 Va. 414
    , 423 (2021) (quoting Avent v.
    Commonwealth, 
    279 Va. 175
    , 197 (2010)). “In evaluating whether a trial court abused its
    discretion, . . . ‘we do not substitute our judgment for that of the trial court. Rather, we consider
    only whether the record fairly supports the trial court’s action.’” Carter v. Commonwealth, 
    293 Va. 537
    , 543 (2017) (alteration in original) (quoting Grattan v. Commonwealth, 
    278 Va. 602
    ,
    -4-
    620 (2009)). To the extent Tinsley’s argument “requires ‘statutory interpretation, it is a question
    of law reviewed de novo on appeal.’” Ragland v. Commonwealth, 
    67 Va. App. 519
    , 530 (2017)
    (quoting Grimes v. Commonwealth, 
    288 Va. 314
    , 318 (2014)).
    “[A]ny person who . . . [i]ntentionally intercepts . . . any wire, electronic or oral
    communication . . . shall be guilty of a Class 6 felony.” Code § 19.2-62(A)(1), (4). “‘Intercept’
    means any . . . means of acquisition of the contents of any wire, electronic or oral
    communication through the use of any electronic, mechanical or other device.” Code § 19.2-61.
    “‘Oral communication’ means any oral communication uttered by a person exhibiting an
    expectation that such communication is not subject to interception under circumstances
    justifying such expectations but does not include any electronic communication.” Id.
    “Whenever any . . . oral communication has been intercepted, no part of the contents of such
    communication and no evidence derived therefrom may be received in evidence in any trial,
    hearing or other proceeding . . . if the disclosure of that information would be in violation of [the
    Wiretap Act].” Code § 19.2-65.
    The Supreme Court has held that “an oral communication is not protected” by the Wiretap
    Act “unless (1) the speaker exhibits the expectation that his conversation will not be intercepted,
    and (2) the circumstances justify the expectation of noninterception.” Wilks v. Commonwealth, 
    217 Va. 885
    , 888 (1977). Noting that Code § 19.2-61’s language “‘tracks’ the Fourth Amendment
    concept of right to privacy,” the Supreme Court ruled in Wilks that whether a person has a
    “justifiable expectation of noninterception” under the statute is “equivalent to the constitutional
    expectation of privacy.” Id. at 889 (emphasis added) (quoting United States v. Pui Kan Lam, 
    483 F.2d 1202
    , 1206 (2d Cir. 1973)). Thus, if a “particular conversation was held” in a setting where
    the speaker did not have a constitutionally protected expectation of privacy, the conversation is
    not an “oral communication” under the Wiretap Act. 
    Id.
     Accordingly, notwithstanding
    -5-
    Tinsley’s argument, the trial court properly ruled on his motion to exclude by considering
    whether he had a reasonable constitutionally protected expectation of privacy.2
    Tinsley asserts that there is a distinction between (1) “a ‘reasonable expectation of
    privacy’ test” under the constitution, and (2) the “expectation of noninterception” test provided
    by Code § 19.2-61. He argues that the court incorrectly applied the constitutional standard and
    that under the correct, statutory test, he had a justifiable expectation that his communications
    were “not subject to interception” because he was “in his bedroom, a private area.” Tinsley
    disavows the constitutional expectation of privacy standard and presents no argument under that
    standard. Indeed, he cites no authority detailing the scope and protections of such constitutional
    protections in the context of this case. But it is well-established that “[i]t is not the role of the
    courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her,
    and where a party fails to develop an argument in support of his or her contention or merely
    constructs a skeletal argument, the issue is waived.” Bartley v. Commonwealth, 
    67 Va. App. 740
    , 746 (2017) (alteration in original) (quoting Sneed v. Bd. of Prof’l Resp. of the Sup. Ct. of
    Tenn., 
    301 S.W.3d 603
    , 615 (Tenn. 2010)). To the contrary, if an appellant believes “that the
    trial court erred, Rule 5A:20(e) require[s] him ‘to present that error to us with legal authority to
    support [his] contention.’” 
    Id.
     (second alteration in original) (quoting Fadness v. Fadness, 52
    2
    Although the General Assembly has amended the Wiretap Act since the Supreme
    Court’s opinion in Wilks, those amendments did not address the Supreme Court’s interpretation
    equating an “expectation of noninterception” with a “constitutionally protected expectation of
    privacy.” 1988 Va. Acts ch. 889; 2002 Va. Acts ch. 588; 2005 Va. Acts ch. 934. “The General
    Assembly is presumed to be familiar with [the Supreme Court’s] cases.” Cygnus Newport-Phase
    1B, LLC v. City of Portsmouth, 
    292 Va. 573
    , 582 (2016) (citing Waterman v. Halverson, 
    261 Va. 203
    , 207 (2001)). Moreover, the General Assembly’s “inaction . . . despite awareness of the
    [Supreme] Court’s interpretation of a statute ‘is not only acquiescence but approval’ of that
    interpretation.” 
    Id.
     (quoting Manchester Oaks Homeowners Ass’n v. Batt, 
    284 Va. 409
    , 428
    (2012)). To the extent Tinsley asks this Court to ignore Wilks by applying a different analytical
    standard, we cannot do so as “‘we are bound by decisions of the Supreme Court of Virginia and
    are without authority to overrule’ them.” Vay v. Commonwealth, 
    67 Va. App. 236
    , 258 n.6
    (2017) (quoting Roane v. Roane, 
    12 Va. App. 989
    , 993 (1991)).
    -6-
    Va. App. 833, 851 (2008)). Tinsley did not do so. Thus, any argument that he had a
    constitutional expectation of privacy is waived.3
    Further, we do not consider whether the “sounds” on the recordings were “oral
    communications” under Code § 19.2-61 because Tinsley did not present such an argument to the
    trial court. Indeed, when the court raised the issue, Tinsley took no position and instead
    commented merely that he “could see the argument that a sound is not necessarily a
    communication.” Thus, he may not argue on appeal that the sounds on the recordings were oral
    communications. Rule 5A:18.
    Nor do we consider whether the court should have excluded any recording of Tinsley
    allegedly praying in his bedroom because the court did not rule on that issue and thus the issue is
    waived. When an appellant does not “obtain a ruling from the trial court” on a motion, “‘there is
    no ruling for [this Court] to review’ on appeal,” and the “argument is waived under Rule 5A:18.”
    Williams v. Commonwealth, 
    57 Va. App. 341
    , 347 (2010) (alternation in original) (quoting
    Fisher v. Commonwealth, 
    16 Va. App. 447
    , 454 (1993)).
    Here, the record establishes that the trial court did not consider or rule on the motion to
    exclude evidence of Tinsley allegedly praying, largely because no evidence of such a recording was
    presented. At the hearing, Tinsley stated that his “only evidence” was the “snippet of the police
    report” he had included in his motion. That police report indicated that there was “one” recording
    that only captured sounds of “sexual intercourse.” The court explicitly ruled based only on what
    Tinsley had “filed,” that is, the police report, emphasizing that it had not “heard the tape.” The
    court’s ruling did not address any recording of Tinsley allegedly praying in his bedroom, and
    3
    Although the constitutional expectation of privacy standard and statutory standard are
    “equivalent,” Wilks, 
    217 Va. at 889
    , Tinsley insists they are different and presents argument only
    under what he perceives as the correct standard. Consequently, he presents no argument under
    the constitutional expectation of privacy test.
    -7-
    Tinsley did not bring that circumstance to the court’s attention or otherwise request a ruling on the
    issue. Thus, that issue is waived.4
    Next, Tinsley argues that the court erred by denying his motion based on “its sua sponte
    argument that [he] shared a bedroom with his spouse.” He contends that “the extent of how
    shared the bedroom was with his spouse was not in evidence” and that he “would have testified
    that, because of marital issues, his spouse often slept in a trailer.” This argument is not
    reviewable because the court did not rule on it. As noted above, when an appellant does not
    “obtain a ruling from the trial court” on a motion, “‘there is no ruling for [this Court] to review’
    on appeal,” and the “argument is waived under Rule 5A:18.” Williams, 
    57 Va. App. at 347
    (alteration in original) (quoting Fisher, 
    16 Va. App. at 454
    ).
    Here, Tinsley did not argue that the evidence failed to demonstrate that he shared the
    bedroom with his wife until his “supplement” to the motion to exclude. The supplement did not
    request a ruling, but merely advised that he broached the issue “should either [the trial court or
    the Commonwealth] wish to take up [the matter] prior to the plea.” Nothing in the record
    suggests that the court ruled on the supplement or considered the arguments it contained. Thus,
    the argument is not preserved, as there is nothing for us to review on appeal.
    CONCLUSION
    For these reasons, we affirm the court’s ruling.
    Affirmed.
    4
    In his opening brief, Tinsley does not mention the alleged recording of him praying in
    his bedroom, let alone present any argument that we should separately analyze that recording.
    Thus, the issue is also waived under Rule 5A:20(e).
    -8-
    

Document Info

Docket Number: 2184232

Filed Date: 11/6/2024

Precedential Status: Non-Precedential

Modified Date: 11/6/2024