840 S.E.2d 568
Va. Ct. App.2020Background
- Appellant Herbert Jordan was incarcerated at Greensville Correctional Center when a lieutenant observed him hiding a piece of cardboard in his cell and moving it out of view.
- The lieutenant retrieved the cardboard from a cable-box socket and found a small black device he and other officers identified as a cell phone.
- Officers photographed the device and submitted it to special agents; no one activated the device or performed a forensic download.
- At bench trial the court viewed and held the device, admitted the phone and photos into evidence, and convicted Jordan under Va. Code § 18.2-431.1(B) (possession of a cellular telephone by a prisoner).
- Jordan moved to strike, arguing the Commonwealth failed to prove the device was a cellular telephone; the trial court denied the motion.
- On appeal the Court of Appeals affirmed, holding that officer identification, the physical device, and photographs sufficed and operability or expert testimony were not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved the seized item was a "cellular telephone" under Va. Code § 18.2-431.1(B) | Commonwealth: Officer testimony, contemporaneous photos, and the court's inspection established the item was a cell phone. | Jordan: Commonwealth only showed the device "appeared" to be a phone; no proof of functionality or expert ID. | Affirmed — officer IDs, photographs, and court observation suffice; operability and expert testimony not required. |
Key Cases Cited
- Ragland v. Commonwealth, 67 Va. App. 519 (2017) (holds "cellular telephone" uses commonly understood meaning and correctional officers may identify devices without expert testimony)
- Jackson v. Virginia, 443 U.S. 307 (1979) (establishes standard for reviewing sufficiency of the evidence)
- Marshall v. Commonwealth, 69 Va. App. 648 (2019) (articulates deference and standards on sufficiency review)
- McMillan v. Commonwealth, 277 Va. 11 (2009) (discusses the rational-trier-of-fact sufficiency inquiry)
- Kozmina v. Commonwealth, 281 Va. 347 (2011) (explains principles of statutory construction and plain-meaning rule)
- Armstrong v. Commonwealth, 263 Va. 573 (2002) (rejects unreasonably restrictive statutory interpretations; discusses "possession" not requiring operability)