Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
LESTER BERNARD LYNCH, JR. OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 052079 June 8, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Lester Bernard Lynch, Jr., was convicted by a jury in the
Circuit Court of the City of Norfolk of first-degree murder,
armed robbery, burglary and three firearms offenses. He was
sentenced to a total of 68 years confinement. The Court of
Appeals affirmed the convictions, Lynch v. Commonwealth, 46
Va. App. 342, 617 S.E.2d 399 (2005), and denied a petition for
rehearing en banc. We awarded Lynch an appeal. There are two
assignments of error: (1) that the Court of Appeals erred in
ruling that certain testimony was admissible against Lynch as
an adoptive admission, and (2) that the Court of Appeals erred
in ruling that a litigant offering evidence under an exception
to the hearsay rule has the burden of showing that the
exception applies by a preponderance of the evidence, rather
than by clear and convincing evidence.
Facts
Under familiar principles of appellate review, the facts
will be stated in the light most favorable to the
Commonwealth, the prevailing party at trial. On June 9, 2001,
Ronald Scott and Tamika Reid were visiting Scott’s mother,
Belinda Scott, in her home. Three men entered the house and
struck Ronald Scott repeatedly with a gun, robbed him, shot
Belinda Scott in the face, fatally, and stole other items from
the house before leaving. The surviving witnesses, Ronald
Scott and Tamika Reid, both identified the defendant, Lynch,
as one of the three perpetrators. Scott also identified
Gregory Williams as another of the trio, but neither could
identify the third man.
At trial, the court heard the testimony of Kenneth Parker
out of the presence of the jury by agreement of counsel.
Parker’s evidence was proffered by the Commonwealth to lay a
foundation for an adoptive admission. At the conclusion of
the proffer, the court ruled that Parker’s testimony would be
admitted under an exception to the hearsay rule. Because this
appeal concerns only that ruling, we will confine our
consideration of the evidence to the pertinent parts of
Parker’s proffered testimony on which the ruling was based.
Parker testified that he was visiting Christopher
Williams, Gregory’s brother, on the day of the crimes. Parker
was standing at the head of the stairs in Christopher’s house,
engaged in a conversation with Christopher, who was standing
in his bedroom door. Gregory Williams had recently arrived
and was also present. Gregory was telling Christopher what
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had just happened at the Scott house. Parker, who knew Ronald
Scott and his mother, entered the conversation. Gregory said
that “they had just come from off a sting at Little Ronald’s
house” and that there was “another little young guy downstairs
standing at the car” who was “trigger happy” and had “shot a
woman.” While Gregory was telling what had happened at the
Scott house, Lynch came up the stairs and said, “why is you
telling them what we just done?”
On cross-examination, Parker elaborated. He testified
that he did not know exactly when Lynch entered the house and
began overhearing the conversation, but “he might have been
standing at the bottom of the stairs listening to us the whole
time.” In any event, the conversation had lasted long enough
to go into some detail. Parker, after hearing about the
murder, said to Gregory, “you know, that was probably that
man’s mama.” Gregory replied, “no, it was a skinny lady.”
Parker said that Ronald Scott’s mother was “skinny.” Gregory
said, “probably was his sister.” Parker testified that he
then said, “his sister and them don’t even stay there. His
mama stay there. You all probably hurt that man’s mama, you
know what I am saying? As I was saying that to him, [Lynch]
was coming up the stairs . . . . I am quite sure he was
hearing everything.” It was at that point that Lynch asked
Gregory “why was he telling us that . . . what we just done.”
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At the conclusion of the proffer, the trial court overruled
Lynch’s hearsay objection and found that Parker’s testimony
showed that Lynch had heard the statements that incriminated
him, fully understood them, had a full opportunity to deny
them, but instead acquiesced in them. The court admitted the
evidence and Parker’s testimony before the jury was
substantially the same as the proffer. Neither Gregory
Williams nor Christopher Williams testified at the trial.
Analysis
A party relying upon an exception to the hearsay rule for
the admissibility of evidence bears the burden of persuading
the court that the evidence falls within the exception.∗ We
have consistently held that the standard of proof to meet that
burden is by a preponderance of the evidence, not by the
∗
Lynch contends that the standard of proof required to
place evidence within the hearsay exception is "clear and
convincing," not a simple preponderance. Lynch argues that we
established such a standard in Doe v. Thomas, 227 Va. 466, 318
S.E.2d 382 (1984), where we quoted from a Texas Supreme Court
decision, Skillern and Sons, Inc. v. Rosen, 359 S.W.2d 298,
301 (Tex. 1962), as follows: "One seeking to have hearsay
declarations of a witness admitted as an exception to the
general rule must clearly show that they are within the
exception." We referenced the Texas case, not to establish a
standard of proof for admissibility, but to illustrate that
"[a] party who relies upon an exception to an exclusionary
rule of evidence bears the burden of establishing
admissibility." Doe, 227 Va. at 472, 318 S.E.2d at 386.
Nothing we said in Doe stands for the proposition that the
standard of proof required to establish the underlying facts
necessary to admit a statement under an exception to the
hearsay rule is other than proof by a preponderance.
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higher “clear and convincing” standard. Bloom v.
Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84, 87 (2001); Witt
v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975).
Factual questions must usually be resolved to determine
whether the proponent of the evidence has carried that burden,
and those antecedent or predicate facts are to be determined
by the trial court alone. If the court admits the evidence,
the credibility of the witnesses and the weight of the
evidence are to be determined by the jury. Bloom, 262 Va. at
821, 554 S.E.2d at 87; Mullins v. Commonwealth, 113 Va. 787,
791, 75 S.E. 193, 195-96, (1912). Therefore, Lynch’s second
assignment of error is not well taken.
We now turn to the legal correctness of the trial court’s
decision to admit the statements of Gregory Williams. In
Knight v. Commonwealth, 196 Va. 433, 83 S.E.2d 738 (1954), we
said:
The general rule that when a statement accusing one
of the commission of an offense is made in his
presence and hearing and is not denied or
contradicted by him, both the statement and the fact
of his failure to deny are admissible in a criminal
proceeding against him, as evidence of his
acquiescence in its truth, is based on the theory
that the natural reaction of one accused of a crime
is to deny the accusation if it is unjust or untrue.
The accusation and his silence thereunder to be
admissible must, however, have been under such
circumstances as would naturally call for a reply or
denial, and such as would afford a favorable
opportunity for denial. . . . The hearsay character
of the incriminating statement made to the accused
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would render it inadmissible, except for the fact
that the statement is not offered in evidence as
proof of a fact asserted but as a predicate to the
showing of the reaction of the accused thereto.
Id. at 436, 83 S.E.2d at 740 (internal quotation marks
omitted).
Most of the adoptive admissions that we have considered
have been characterized as tacit admissions, or admissions by
silence. In such cases, the Commonwealth has the burden of
establishing, by a preponderance of the evidence, the
predicate facts that (1) the defendant must have heard the
incriminating statements, (2) he must have understood that
they accused him of complicity in a crime, (3) the
circumstances afforded him a fair opportunity to deny or
object, and (4) the circumstances would naturally call for a
reply. Owens v. Commonwealth, 186 Va. 689, 699, 43 S.E.2d
895, 899 (1947). See Welch v. Commonwealth, 271 Va. 558, 564-
65, 628 S.E.2d 340, 343 (2006).
A statement may become admissible under the adoptive
admission exception to the hearsay rule upon a showing of its
tacit adoption by a party, as well as by more overt
demonstrations of adoption. A party may manifest adoption of
a statement made by another in any number of ways, including
words, conduct, or silence. United States v. Robinson, 275
F.3d 371, 383 (4th Cir. 2001). In some cases, the defendant’s
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words or conduct may supply most, if not all, of the predicate
facts that the Commonwealth must prove to bring the evidence
within the adoptive admission exception. See, e.g., United
States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996).
Conclusion
The trial court and the Court of Appeals determined that
this is such a case, and we agree. Although, as Lynch points
out, the Commonwealth’s evidence places him outside the house
when the conversation began among the three men at the head of
the stairs, that fact is immaterial in the light of Lynch’s
subsequent words and conduct. Although we do not know the
exact point at which he began to overhear their conversation,
he obviously heard enough of it to propel him into the house
and up the stairs to confront them. As he was coming up the
stairs, Parker was remonstrating with Gregory Williams by
saying: “You all probably hurt that man’s mama.” Lynch’s
reaction was immediate. Instead of denying that statement, or
any of the preceding conversation, he upbraided Gregory for
revealing “what we just done.” His words: “Why [are] you
telling them” clearly indicate that he had heard and
understood the full import of Gregory’s statements. Lynch’s
words and conduct thus supplied all of the predicate facts
required by Owens to render Gregory’s statements admissible
under the adoptive admission exception to the hearsay rule.
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Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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