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GPS accuracy expert testimony was cumulative

Virginia Lawyers Weekly//June 5, 2023

GPS accuracy expert testimony was cumulative

Virginia Lawyers Weekly//June 5, 2023

Where appellant was convicted of breaking and entering, and two petit larceny counts, the trial court correctly excluded a defense expert who would have testified about the accuracy of a GPS ankle monitor appellant was wearing as a term of his probation from a prior conviction.

The GPS data from the monitor placed him at or near the scenes of two different larcenies when they occurred.


Appellant Jones was convicted of entering Stewart’s garage and taking a lawn mower, and, several weeks later, “in the early morning hours,” of entering the Smith home and stealing money from a pocketbook.

“On May 9, 2020, GPS location data from Jones’s monitor placed him within the area of the Stewarts’ lawnmower at 11:51 p.m. The data from May 31, 2020, showed Jones in and around the Smiths’ home at 3:38 a.m. Six data points indicated Jones’s presence inside the house.

“In addition to the two counts of petit larceny and one count of breaking and entering, Jones was tried on two counts of spying into a dwelling – a house belonging to Troy and Glenda Ford – with offense dates in June 2020.

“Jones’s GPS data from the dates and times for the June offenses were consistent with Jones being inside the Fords’ house. However, the Fords testified that Jones was never inside their house. At the close of the Commonwealth’s evidence, the trial court granted Jones’s motion to strike both spying-into-a-dwelling charges.

“Jones subsequently called Christopher Elke, who testified as a GPS expert. During Elke’s direct examination, Jones attempted to elicit testimony about the GPS data from the June offense dates. The Commonwealth objected to the relevance of the June GPS data, as the June charges were no longer before the court.

“Jones proffered that the June GPS data was relevant to show inaccuracies with the GPS data, notably that the GPS data indicating that Jones was inside the dwelling was contradicted by witness testimony. The trial court sustained the Commonwealth’s objection on the ground that the charges from June were no longer before the court.

“Jones was subsequently convicted of petit larceny of the Stewarts’ lawnmower, the petit larceny of Anne’s cash, and breaking and entering into the Smiths’ house. This appeal followed.”

GPS data

“Jones … asserts that the trial court erred in excluding Elke’s testimony concerning the accuracy of the GPS monitor. Jones argues that testimony referencing two specific instances of inaccuracy were relevant to show that ‘[t]he margin of error is clearly true and not just some statistic.’

“The trial court acted within its discretion in excluding this testimony because, although relevant, it was cumulative. …

“Jones attempted to elicit Elke’s expert opinion about the accuracy of GPS data from June offense dates. The June GPS data was consistent with Jones’s presence inside the Fords’ house, but the testimony indicated that he never entered the home, but rather was on the front porch.

“Jones conceded that he was in this general area on the dates and times in question and does not dispute that he was within thirty feet of the Fords’ house.

“‘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. … Relevant evidence may be excluded if … the evidence is needlessly cumulative.’ …

“The GPS’s accuracy in placing Jones inside the home is a fact at issue and therefore relevant. However, the record is replete with recitations that the accuracy of the GPS device is limited and is only expected to accurately determine position within thirty feet, ninety percent of the time.

“When the trial court excluded testimony interpreting two specific instances in which Jones’s GPS system reported positions inside a house when Jones was actually outside, the record included ample evidence that GPS data points inside a house but less than thirty feet from the exterior of the house may be inaccurate because it is within the margin of error for the GPS monitor.

“Therefore, the evidence Jones sought to introduce provided no new evidence for the court to consider; it was cumulative evidence about the limitations of the GPS monitor’s accuracy. We therefore conclude that the trial court did not abuse its discretion in excluding this testimony.”

Sufficient evidence

“This Court also finds no merit in Jones’s contention that the trial court erred in finding the evidence sufficient to prove that he was the individual who committed the crimes of petit larceny and breaking and entering. …

“The evidence, however, established that Jones was at the Stewarts’ house at the same time that the video surveillance indicated that a person removed the lawnmower from the area.

“Additionally, Jones conceded his presence in the general area and the GPS data placed Jones at the Stewarts’ house. Screenshots from the video surveillance recording showed an individual whose movements were tracked to the Stewarts’ house. …

“The court had the opportunity to view both Jones and the stills from the surveillance video and make a visual comparison. The record supports that a rational trier of fact could find that Jones was the individual who took the Stewarts’ lawnmower. …

“The record also supports the finding that Jones was the individual who broke into the Smiths’ home and took money from Anne’s wallet. Although there was no eyewitness testimony, there is sufficient circumstantial evidence such that a rational trier of fact could conclude that Jones unlawfully entered the home and took the money.

“The GPS monitoring evidence establishes Jones’s presence in or around the Smiths’ house at the time the Smiths’ daughter heard an intruder. The record shows that R.S. heard a person inside the family home opening the back door and climbing the stairs several times. A reasonable factfinder could infer that Jones was the individual that R.S. heard. …

“The record supports a finding that Jones’s entry into the house was not lawful, as three members of the Smith family testified that Jones did not have permission to be in their house. …

“The GPS data shows Jones was present in or around the Smiths’ house at approximately the same time that an unknown person was heard entering the ground level back door of the Smiths’ home and moving throughout the house.”


Jones Jr. v. Commonwealth, Record No. 0712-22-2, May 23, 2023. CAV (unpublished opinion) (Ortiz). From the Circuit Court of Nottoway County (Cella). David G. Moss for appellant. Robert Bauer, Jason S. Miyares, Leanna C. Minix for appellee. VLW 023-7-189, 10 pp.

VLW 023-7-189

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