PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Stephenson, S.J.
GREGORY MICHAEL BLOOM
OPINION BY
v. Record No. 010600 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The sole issue in this appeal is whether the record
supports the trial court's finding that the defendant was
sufficiently identified as the person who had made certain out-
of-court statements that constituted admissible party
admissions.
I
A jury in the Circuit Court of Roanoke County convicted
Gregory Michael Bloom of (1) attempting to take indecent
liberties with a child, in violation of Code §§ 18.2-26 and -
370(5), and (2) solicitation to commit sodomy, in violation of
Code § 18.2-29. The jury fixed Bloom's punishment at 12 months
in jail for each offense. Thereafter, the trial court sentenced
Bloom in accordance with the jury's verdict.
The Court of Appeals affirmed Bloom's convictions. Bloom
v. Commonwealth, 34 Va. App. 364, 542 S.E.2d 18 (2001). We
awarded Bloom this appeal, limited to the previously stated
issue.
II
Samantha Nicole Neff testified that, about November 1998,
she began to communicate via the Internet with a person whose
screen name was "Philter425." At the time, Samantha was 13
years of age; however, she told Philter425 that she was 15.
According to Samantha, she and Philter425 continued to
communicate via the Internet for two to three months, and the
communications occurred "[m]aybe like once every other day, [or]
like twice a week."
The person identified as Philter425 told Samantha that he
was 28 years old, that his name was Greg, that he was originally
from Ohio, and that he had a three-year-old daughter. Samantha
told Philter425 that she was 5'8" tall, that she had brown hair
and brown eyes, and that she was sexy. Samantha testified that,
in early February 1999, Philter425 offered to buy her alcohol
and to take her on dates. Philter425 also offered to give her
$100 if she would sneak out of her house because, as Samantha
had previously told him, she was "grounded."
Lisa Neff Akers, Samantha's mother, testified that, in
early February 1999, based upon information she had received
from Samantha's school, she called the police and spoke with
Detective Scott Smith. Immediately thereafter, Akers went
online, posing as "Nikki4403," Samantha's Internet screen name.
Akers received a message from a person identified as Philter425,
stating, "Hi sexy. Looking forward to Friday/Saturday." Akers,
2
as Nikki4403, responded that she would communicate with
Philter425 again on the night of Friday, February 5, 1999.
Akers then contacted Detective Smith.
Detective Smith testified that, based on the information he
had received from Samantha and her mother, he logged onto the
Internet that Friday night as Nikki4403. Shortly thereafter,
Smith received an "instant message" 1 from Philter425, and the
following exchange occurred via the Internet:
Philter425: hey, baby...what's the scoop?
Nikki4403: just chillin
Philter425: are you un-grounded now
Nikki4403: yea kinda
Philter425: kinda?
Nikki4403: can get out tonite
Philter425: you can :o)
Nikki4403: what ya have in mind
Philter425: letting you meet my daughter so you can
babysit tomorrow for me Philter425: :o)
Philter425: or whatever you want to do
Nikki4403: not babysit
Nikki4403: I'm alone its cool
Philter425: getting drunk and having wild monkey sex
Nikki4403: sounds like a plan
1
An "instant message" permits parties to communicate
virtually instantaneously via the Internet. A message typed and
sent appears immediately on the addressee's computer screen.
3
Philter425: cool
Nikki4403: what sex do you like
Philter425: good sex
Philter425: what do you mean
Nikki4403: how do you like it
Philter425: well, we'll play that part as it
comes...I like what you said before about
just chillin
Philter425: is that cool?
Nikki4403: I'm for anything but up the ass
Philter425: ok...as long as I can lick and suck your pussy
Nikki4403: cool
Nikki4403: where
Philter425: you like that
Nikki4403: oh yeah
Philter425: here I guess
Philter425: whereabouts are you
Philter425: what part of vinton
Nikki4403: Cave Spring
Philter425: near Franklin?
Philter425: Franklin/Ellectric?
Nikki4403: pick me up
Philter425: where?
Nikki4403: garst mill park
Philter425: never heard of it
4
Nikki4403: near apartments maybe sens souci
Philter425: tell you what...I just got home
...gotta shower and find a babysitter for
real tomorrow...take a cab here (I'll pay)
and then I'll drop you off where ever you need
to be
Nikki4403: i'll sneak out around 1000 want to you pick me
up
Philter425: but I don't know where you are talking about
Nikki4403: Hills cave spring corner electric rd
Philter425: I know Hills...Caves Spring and Brambleton
Philter425: right?
Nikki4403: aight
Nikki4403: at payphone burger king
Philter425: ok...what will you be wearing?
Nikki4403: what do you want me to
Philter425: something you...just so I can find you
Nikki4403: blue jeans yellow jacket i'll be the cute one
Philter425: the cute one...are you bringing someone else?
Nikki4403: no just me
Philter425: oh...ok...exactly what time
Nikki 4403: 1030 I got to walk what will you be in
Philter425: Silver Tercel...just walk on up
Nikki4403: cool cya babe
Philter425: bye bye sweetie
5
Based upon this communication, Detective Smith surmised
that the person identified as Philter425 would arrive at the
designated place at 10:30 p.m., driving a silver Tercel
automobile. Therefore, Smith arranged to have several police
officers accompany him to that location.
At 10:34 p.m., a 1992 silver Toyota Tercel entered the
Burger King parking lot, paused near the unattended pay
telephone, and then departed. The officers immediately stopped
the vehicle, which was driven by Bloom and registered in his
name.
Detective Smith questioned Bloom about whether he had been
online that evening as Philter425. Bloom initially denied, but
eventually admitted, that he had sent the messages under the
screen name Philter425.
III
Prior to trial, Bloom filed a motion in limine, seeking to
prohibit the Commonwealth from introducing into evidence all
statements made by Philter425 to Samantha via the Internet.
Bloom asserted that these statements "should not be admitted
into evidence because there is no reliable evidence to suggest
that [he] actually made the statements."
In its response to Bloom's motion in limine, the
Commonwealth represented to the trial court the following:
6
Samantha Neff will testify that she posted a "profile"
of personal information on [the Internet], and that
sometime in November 1998 she was contacted by
Philter425. She began having instant messaging
conversations with Philter425 on an almost daily
basis. Over time, Philter425 indicated that he was
male, that his first name was Greg, that he was
originally from Ohio, that he was 28 years old, that
he had a young daughter, and that his home telephone
number was 985-0430. [Bloom's] first name is Greg, he
has a three year old daughter, he was born April 25,
1970, and his home telephone number is 985-0430.
. . . On February 1, 1999, . . . Samantha Neff
had an instant messaging conversation with Philter425,
during which Philter425 asked Samantha to go out on a
date with him, offering money and alcohol if she would
come out.
. . . The personal facts obtained by Samantha
Neff over time from Philter425 match the personal
information of [Bloom], who admits using the screen
name Philter425 and engaging in instant messaging with
Detective Smith on February 5th. These facts, plus the
ongoing nature of the online relationship with
[Samantha] . . . are sufficient to identify [Bloom] as
the person making contact with Samantha Neff using the
screen name Philter425.
Based upon these representations by the Commonwealth, which
were unchallenged by Bloom, the trial court concluded that Bloom
was sufficiently identified as the person who had communicated
with Samantha via the Internet as Philter425. The court,
therefore, overruled Bloom's motion in limine and permitted
Samantha to testify to the statements made to her by Philter425
under the party-admission exception to the hearsay rule. The
court aptly noted, however, that whether the statements were
made by Bloom was "one of the ultimate questions to be
determined by the jury."
7
IV
Bloom contends in this appeal, as he did in the trial court
and the Court of Appeals, that Samantha's testimony about
statements made to her by Philter425 was inadmissible because
the Commonwealth failed to show that he actually had made them.
Thus, Bloom asserts, the statements were not admissible under
the party-admission exception to the hearsay rule.
It is well established, as Bloom concedes, that an
out-of-court statement by a criminal defendant, if
relevant, is admissible as a party admission, under an
exception to the rule against hearsay. See, e.g., Prince
v. Commonwealth, 228 Va. 610, 613, 324 S.E.2d 660, 662
(1985); Land v. Commonwealth, 211 Va. 223, 229, 176 S.E.2d
586, 590-91 (1970). The identity of the person making the
out-of-court statement may be established by either direct
or circumstantial evidence. Atlantic Coast Realty Co. v.
Robertson, 135 Va. 247, 261, 116 S.E. 476, 480 (1923).
"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." Witt v. Commonwealth,
215 Va. 670, 674, 212 S.E.2d 293, 296 (1975). The trial
court determines these facts, and a jury determines the
weight of the evidence and the credibility of the
8
witnesses. Mullins v. Commonwealth, 113 Va. 787, 791, 75
S.E. 193, 195-96 (1912).
We think the record in the present case, when viewed
in its totality, clearly supports the trial court's
finding, for the purpose of the admissibility of evidence,
that Bloom was the person who had made the statements to
Samantha via the Internet. Philter425 revealed that his
name is Greg, which is Bloom's given name. He told
Samantha that he had a three-year-old daughter, as did
Bloom. He also told Samantha that he was 28 years of age,
which was Bloom's age. Philter425 had learned from
Samantha that she had been grounded, and, when Detective
Smith, posing as Nikki4403, communicated with Philter425,
Philter425 began the exchange by asking whether Nikki4403
was "ungrounded." Moreover, Philter425 agreed to meet
Nikki4403 at a designated place, and Bloom appeared at that
place and admitted to Smith that he had, in fact,
communicated with Nikki4403 via the Internet that evening.
Bloom further contends that "[t]he flaw of the
Commonwealth's argument from the post-trial perspective is
that, at trial, the Commonwealth failed to sufficiently
prove a nexus between the Philter425 personal facts
obtained by Samantha . . . and those of [Bloom]."
Continuing, Bloom asserts that "[n]o person testified at
9
trial as to: [his] age . . . , whether he was from Ohio
. . . , or the digits of his phone number. The only
biographical information about [Bloom] that was actually
proven at trial was that he had a young daughter."
As previously stated, matters regarding the
admissibility of evidence, including underlying factual
issues, are solely within the province of a trial court.
Mullins, 113 Va. at 791, 75 S.E. at 195-96. We have also
held that a unilateral avowal of counsel of testimony that
could be presented constitutes a proper proffer, if
unchallenged. Whittaker v. Commonwealth, 217 Va. 966, 969,
234 S.E.2d 79, 81 (1977).
In the present case, the trial court, in ruling on
Bloom's motion in limine, relied upon facts submitted by
the Commonwealth in its response to the motion and
determined that Bloom had been sufficiently identified as
the person who had made certain out-of-court statements.
The facts so submitted by the Commonwealth constituted an
avowal of counsel of the testimony that would be relied
upon at trial. This avowal of counsel was not challenged
by Bloom when the motion in limine was argued or at trial.
Therefore, the trial court was entitled to rely on the
unchallenged pretrial proffer in deciding the evidentiary
issue, and the Commonwealth was not required to prove these
10
facts at trial to establish the admissibility of the
statements.
V
In conclusion, we hold that the trial court did not
err in admitting into evidence certain out-of-court
statements because Bloom was sufficiently identified as the
person who had made the statements via the Internet.
Therefore, for the reasons stated in this opinion, we will
affirm the judgment of the Court of Appeals. 2
Affirmed.
2
While we affirm the judgment of the Court of Appeals and
conclude that its decision rests upon proper principles of law,
we do not adopt its observation that "[c]onversations over the
internet are analogous to telephone conversations." Bloom, 34
Va. App. at 369, 542 S.E.2d at 20. For example, in telephone
conversations, unlike communications via the Internet, the
participants have the opportunity for voice recognition.
11