COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
CARRIE CLARKE COLLEY MEMORANDUM OPINION * BY v. Record No. 0675-97-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 17, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Carleton Penn, Judge Designate Elwood Earl Sanders, Jr., Director Capital/Appellate Services (Laura A. Cook, Assistant Public Defender; Public Defender Commission, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Richard Cullen, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
Carrie Clarke Colley (appellant) was tried without a jury in
the Circuit Court of Fauquier County on two felony charges:
grand larceny and credit card theft in violation of Code
§ 18.2-192. She was convicted of petit larceny and the felony
credit card theft offense and sentenced to serve one year and
nine months in prison on the credit card conviction and 60 days
in jail on the larceny, all but five months and 29 days
suspended.
On appeal, appellant contends that the trial court abused
its discretion by admitting into evidence a credit card
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. transaction record and carbon copies of two of the actual
transaction receipts, claiming the business records foundation
for their admissibility was not properly laid. She also contends
the evidence was not sufficient to support the convictions.
After a night of drinking, Cheryl Frazier (Cheryl) left her
purse, containing her credit card, in appellant's car. Without
authorization, appellant made several charges on Cheryl's credit
card. After Cheryl contacted the credit card company, she
learned that transactions had been made on the card. Cheryl's
mother, Marianne Frazier (Marianne), who was the only other
authorized user on the account, requested a summary of the
transactions on the account from the credit card company and
authorized the release of the summary to the police. At trial, Cheryl and Marianne reviewed Commonwealth Exhibits
1A-1D and testified they did not make the transactions listed for
March 21, 1996 and that they did not give permission for anyone
else to use the card. Exhibits 1C and 1D were computer printouts
of the transactions on the account. The printout showed three
charges and three declined charges because the credit card was
over the charge limit. The investigating officer obtained carbon
copies of two service station receipts listed on the transaction
reports which were offered into evidence as Exhibit 1A and
Exhibit 1B. The investigator's attempts to retrieve the original
receipts from an out-of-state warehouse where they were stored
were unsuccessful. The results of a handwriting analysis of
2 appellant's handwriting were "inconclusive."
The appellant objected to the introduction of Exhibits 1A-1D
on the grounds that the exhibits were hearsay and that they had
been prepared at the investigator's request rather than in the
ordinary course of business. The court ruled that the
prosecution had "shown a circumstantial guarantee of
trustworthiness with respect to the four documents and receive[d]
them into evidence." I.
Business Records Exception
Whether the computer records and receipts are admissible is
a question governed by established rules governing the
admissibility of hearsay. The Supreme Court of Virginia has
employed the business records exception to the hearsay rule in
assessing the admissibility of such documents. Fitzhugh v.
Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995);
see Kettler & Scott, Inc. v. Earth Tech Cos., 248 Va. 450, 457,
449 S.E.2d 782, 785 (1994). Admission is conditioned upon proof
that the record is kept by a proper custodian and that it is a
record kept in the ordinary course of business made
contemporaneously with the event by persons having a duty to keep
a true record. Kettler & Scott, 248 Va. at 457, 449 S.E.2d at
786 (citing Automatic Sprinkler Corp. v. Coley & Peterson, Inc.,
219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)); Simpson v. Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984); Ford
3 Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457
(1990); see 2 Charles E. Friend, The Law of Evidence in Virginia
135 (1993).
Assuming without deciding that the exhibits constitute
hearsay, we find their admission to be harmless. Under the
standard of harmlessness for non-constitutional error, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at trial" that the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (quoting Code § 8.01-678).
Where the other evidence of guilt is overwhelming, and the
content of the hearsay statement is clearly established by other
evidence, admission of hearsay is harmless. McDonnough v.
Commonwealth, 25 Va. App. 120, 132-33, 486 S.E.2d 570, 575-76
(1997). The testimony of both Cheryl and Marianne Frazier,
received without objection, established that the credit card was
taken without their consent on the date in question.
Circumstantial evidence established appellant's involvement with
the "taking." The element of intent to use the card without the
owner's authorization, was also established by their testimony as
well as the admissions of the appellant herself that she used the
4 card. 1 In the context of all the evidence, the computer records
were of marginal evidentiary value, and their admission was
harmless. Strohecker v. Commonwealth, 23 Va. App. 242, 253-54,
475 S.E.2d 844, 850 (1996).
II.
Sufficiency of the Evidence
Addressing the sufficiency of the evidence issue, we find
appellant's contention that the evidence was in conflict and
therefore insufficient to sustain her conviction beyond a
reasonable doubt is without merit. Where the sufficiency of the
evidence is challenged on appeal, this Court must consider all
the evidence and any reasonable inferences fairly deducible from
it in the light most favorable to the Commonwealth. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975);
Traverso v. Commonwealth, 6 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Bumgardner Argued at Alexandria, Virginia
CARRIE CLARKE COLLEY MEMORANDUM OPINION * BY v. Record No. 0675-97-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 17, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Carleton Penn, Judge Designate Elwood Earl Sanders, Jr., Director Capital/Appellate Services (Laura A. Cook, Assistant Public Defender; Public Defender Commission, on briefs), for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Richard Cullen, Attorney General; Leah A. Darron, Assistant Attorney General, on brief), for appellee.
Carrie Clarke Colley (appellant) was tried without a jury in
the Circuit Court of Fauquier County on two felony charges:
grand larceny and credit card theft in violation of Code
§ 18.2-192. She was convicted of petit larceny and the felony
credit card theft offense and sentenced to serve one year and
nine months in prison on the credit card conviction and 60 days
in jail on the larceny, all but five months and 29 days
suspended.
On appeal, appellant contends that the trial court abused
its discretion by admitting into evidence a credit card
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. transaction record and carbon copies of two of the actual
transaction receipts, claiming the business records foundation
for their admissibility was not properly laid. She also contends
the evidence was not sufficient to support the convictions.
After a night of drinking, Cheryl Frazier (Cheryl) left her
purse, containing her credit card, in appellant's car. Without
authorization, appellant made several charges on Cheryl's credit
card. After Cheryl contacted the credit card company, she
learned that transactions had been made on the card. Cheryl's
mother, Marianne Frazier (Marianne), who was the only other
authorized user on the account, requested a summary of the
transactions on the account from the credit card company and
authorized the release of the summary to the police. At trial, Cheryl and Marianne reviewed Commonwealth Exhibits
1A-1D and testified they did not make the transactions listed for
March 21, 1996 and that they did not give permission for anyone
else to use the card. Exhibits 1C and 1D were computer printouts
of the transactions on the account. The printout showed three
charges and three declined charges because the credit card was
over the charge limit. The investigating officer obtained carbon
copies of two service station receipts listed on the transaction
reports which were offered into evidence as Exhibit 1A and
Exhibit 1B. The investigator's attempts to retrieve the original
receipts from an out-of-state warehouse where they were stored
were unsuccessful. The results of a handwriting analysis of
2 appellant's handwriting were "inconclusive."
The appellant objected to the introduction of Exhibits 1A-1D
on the grounds that the exhibits were hearsay and that they had
been prepared at the investigator's request rather than in the
ordinary course of business. The court ruled that the
prosecution had "shown a circumstantial guarantee of
trustworthiness with respect to the four documents and receive[d]
them into evidence." I.
Business Records Exception
Whether the computer records and receipts are admissible is
a question governed by established rules governing the
admissibility of hearsay. The Supreme Court of Virginia has
employed the business records exception to the hearsay rule in
assessing the admissibility of such documents. Fitzhugh v.
Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995);
see Kettler & Scott, Inc. v. Earth Tech Cos., 248 Va. 450, 457,
449 S.E.2d 782, 785 (1994). Admission is conditioned upon proof
that the record is kept by a proper custodian and that it is a
record kept in the ordinary course of business made
contemporaneously with the event by persons having a duty to keep
a true record. Kettler & Scott, 248 Va. at 457, 449 S.E.2d at
786 (citing Automatic Sprinkler Corp. v. Coley & Peterson, Inc.,
219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)); Simpson v. Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984); Ford
3 Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457
(1990); see 2 Charles E. Friend, The Law of Evidence in Virginia
135 (1993).
Assuming without deciding that the exhibits constitute
hearsay, we find their admission to be harmless. Under the
standard of harmlessness for non-constitutional error, a criminal conviction must be reversed unless "it plainly appears from the record and the evidence given at trial" that the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc) (quoting Code § 8.01-678).
Where the other evidence of guilt is overwhelming, and the
content of the hearsay statement is clearly established by other
evidence, admission of hearsay is harmless. McDonnough v.
Commonwealth, 25 Va. App. 120, 132-33, 486 S.E.2d 570, 575-76
(1997). The testimony of both Cheryl and Marianne Frazier,
received without objection, established that the credit card was
taken without their consent on the date in question.
Circumstantial evidence established appellant's involvement with
the "taking." The element of intent to use the card without the
owner's authorization, was also established by their testimony as
well as the admissions of the appellant herself that she used the
4 card. 1 In the context of all the evidence, the computer records
were of marginal evidentiary value, and their admission was
harmless. Strohecker v. Commonwealth, 23 Va. App. 242, 253-54,
475 S.E.2d 844, 850 (1996).
II.
Sufficiency of the Evidence
Addressing the sufficiency of the evidence issue, we find
appellant's contention that the evidence was in conflict and
therefore insufficient to sustain her conviction beyond a
reasonable doubt is without merit. Where the sufficiency of the
evidence is challenged on appeal, this Court must consider all
the evidence and any reasonable inferences fairly deducible from
it in the light most favorable to the Commonwealth. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975);
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,
721 (1988). A trial court's judgment will not be disturbed on
appeal unless it is plainly wrong or without evidence to support
it. Stockton v. Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d
371, 385 (1984). In addition, the credibility of witnesses, and
the weight assigned their testimony are matters exclusively
1 Appellant contends that the admission of the exhibits was not harmless because the court relied on the documents to corroborate Cheryl's testimony that she would not have used the card because it was over the credit limit. This fact only went to establish the unauthorized use of the card, which was well established by other evidence. The court did not, as appellant argues, use this corroboration as evidence that Cheryl was generally a credible witness.
5 within the province of the trier of fact. Coppola v.
Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979). The
contention that inconsistencies in the testimony are sufficient
to attenuate the evidence on the issue of appellant's guilt was
addressed by this Court in Swanson v. Commonwealth, 8 Va. App.
376, 379, 382 S.E.2d 258, 259 (1989): When the law says that it is for the trier of fact to judge the credibility of a witness, the issue is not a matter of degree. So long as a witness deposes as to facts which, if true, are sufficient to maintain their verdict, then the fact that the witness' credit is impeached by contrary statements affects only the witness' credibility . . . [and] the weight and sufficiency of the testimony. If the trier of the facts sees fit to base the verdict upon that testimony there can be no relief in the appellate court.
See also Singleton v. Commonwealth, 19 Va. App. 728, 735-36, 453
S.E.2d 921, 926 (1995) (explaining that conflicts in the evidence
do not undermine the sufficiency of the evidence unless the
evidence is inherently incredible).
In this case, Cheryl testified that she placed her purse,
containing $80, her wallet and her credit card, under the seat in
appellant's car, locked the door and entered the hotel room with
appellant. Upon awakening, appellant and her car were gone.
Appellant admitted having Cheryl's purse and asked to meet
half-way to return it. Marianne testified that appellant
admitted to using the credit card and that she could not return
the purse, but that she wished to make restitution for the loss
6 when she received her paycheck. The trier of fact was free to
disbelieve appellant's denial of her involvement in the two
offenses. See Montgomery v. Commonwealth, 221 Va. 188, 190, 269
S.E.2d 352, 353 (1980) (per curiam). The trial court credited
the testimony of Cheryl and Marianne, whose evidence was
sufficient to support the convictions beyond a reasonable doubt.
For the foregoing reasons, we affirm.
Affirmed.