COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
JOHNNY LUNDY MEMORANDUM OPINION * BY v. Record No. 3194-96-1 JUDGE WILLIAM H. HODGES NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge
Thomas L. Watkins, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. John K. Byrum, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Johnny Lundy, appellant, was convicted of grand larceny.
On appeal, appellant asserts that the trial court erred in
admitting a document into evidence. Appellant also argues that
the evidence was insufficient to prove that he committed grand
larceny. For the following reasons, we affirm appellant's
conviction. Facts
On November 3, 1995, at about 3:00 or 4:00 p.m., power tools
were stolen from the victim's van. The stolen tools consisted of
a Makita table saw, a Roybi chop saw, a Hitachi chop saw, two
Craftsman routers, a Roll Air air compressor, four Makita drills,
and two Pass Load nail guns.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Jeffrey Knight testified that, at about 5:00 or 6:00 p.m.,
on November 3, 1995, appellant asked Knight to sell some tools to
a pawn broker for him. Knight had never met appellant before
this incident. Knight accompanied appellant to Gene Daniels'
auction house where they pawned five or six "electric" items,
including "some drills" and a "hand planer."
The Commonwealth showed Knight Commonwealth's Exhibit 1, a
document containing a "Gene Daniels" logo, the number "5467,"
"Page 1," and dated "11-3-95." Knight testified that Exhibit 1
contained a list of the items that appellant asked him to pawn
and that it contained Knight's signature. Knight could not
identify Commonwealth's Exhibit 3, a document containing the same
"Gene Daniels" logo, "Page 2," a list of power tools, and the
partial handwritten number "5_67." 1
Gene Daniels, the owner of an auction house, testified that
he purchased some tools from Knight and appellant on November 3,
1995. Daniels testified that Exhibit 1 contained both his
handwriting and the handwriting of one of his employees, but he
could not identify which employee. Daniels also testified that
Exhibit 3 contained handwriting from "the same person" who wrote
Exhibit 1 and that the exhibits "go together" because Exhibit 1 2 "says continued on Page 2." Daniels stated, "Each document is 1 Exhibit 3, as submitted in the record for appeal, has a hole punched through the handwritten number, so that the number "5_67" appears on the exhibit. 2 Exhibit 1 actually says "Content on Page 2" near the bottom of the document.
2 numbered; and 5467, if you go to the next page, we write that at
the top of the page." Included in the listing on the two
exhibits were the same type of tools described by the victim and
made by the same manufacturers.
Daniels also testified that he had previously purchased
tools from appellant which the police had confiscated from
Daniels concerning another case. A few days to a week before
November 3, 1995, Daniels advised appellant that he would not
purchase tools from him until that matter was "straightened out."
Admissibility of Exhibit 3
At his trial, appellant objected to the admissibility of
Exhibit 3, arguing that Daniels could not identify the
handwriting on the document and that there was never "any
identification of [Exhibit 3] being related to the first page
[Exhibit 1]." The trial judge overruled appellant's objection
and admitted Exhibit 3 into evidence.
In his brief, appellant argues that Exhibit 3 contained
hearsay and that the Commonwealth failed to qualify the document
under the business records exception to the hearsay rule.
However, at trial, appellant did not make a hearsay objection or
make a business records argument to the trial court concerning
the admissibility of Exhibit 3. The Court of Appeals will not
consider an argument on appeal which was not presented to the
trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Therefore, Rule
3 5A:18 bars our consideration of these arguments on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Appellant also argues that Exhibit 3 was not admissible
because it was not properly identified by Daniels, the auction
house owner. "Before any writing may be introduced into
evidence, it must be authenticated, 'which is the providing of an
evidentiary basis sufficient for the trier of fact to conclude
that the writing came from the source claimed.'" Ragland v.
Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675, 679 (1993)
(citation omitted). "Authentication is merely the process of
showing that a document is genuine and that it is what its
proponent claims it to be." Owens v. Commonwealth, 10 Va. App.
309, 311, 391 S.E.2d 605, 607 (1990).
Concerning the authenticity of Exhibit 3, the Commonwealth
presented direct evidence as to the origin and execution of the
document and testimony as to the genuineness of the handwriting
on the document. See Jackson v. Commonwealth, 13 Va. App. 599,
602, 413 S.E.2d 662, 665 (1992). Daniels, the owner of the
auction house, testified that he recognized Exhibit 1 and that
the document contained both his own handwriting and the
handwriting of one of his employees. "'If direct testimony of
the authorship of a writing . . . is given, this is sufficient
authentication . . . . The writing . . . comes in, if not
otherwise objectionable.'" Id. at 603, 413 S.E.2d at 665
4 (citation omitted). Daniels also stated that Exhibits 1 and 3
"go together"; that it was the practice at his business to
continue onto another page when listing numerous items; that they
would write the ticket number from the first page onto the second
page when needed; and that Exhibit 3 had the same number, "5467,"
as Exhibit 1. He testified that Exhibit 1 indicated that the
document was continued onto a page two and that the items listed
were the items brought into the store by appellant and Knight on
November 3, 1995. Thus, the evidence established that Exhibit 3
was "'what its proponent claims it to be.'" Id. (citation
omitted).
Further, Exhibit 1 was authenticated by Knight's testimony
that Exhibit 1 contained a list of the items that he and
appellant sold to Daniels. It also contained Knight's signature.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges Argued at Norfolk, Virginia
JOHNNY LUNDY MEMORANDUM OPINION * BY v. Record No. 3194-96-1 JUDGE WILLIAM H. HODGES NOVEMBER 25, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge
Thomas L. Watkins, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. John K. Byrum, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Johnny Lundy, appellant, was convicted of grand larceny.
On appeal, appellant asserts that the trial court erred in
admitting a document into evidence. Appellant also argues that
the evidence was insufficient to prove that he committed grand
larceny. For the following reasons, we affirm appellant's
conviction. Facts
On November 3, 1995, at about 3:00 or 4:00 p.m., power tools
were stolen from the victim's van. The stolen tools consisted of
a Makita table saw, a Roybi chop saw, a Hitachi chop saw, two
Craftsman routers, a Roll Air air compressor, four Makita drills,
and two Pass Load nail guns.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Jeffrey Knight testified that, at about 5:00 or 6:00 p.m.,
on November 3, 1995, appellant asked Knight to sell some tools to
a pawn broker for him. Knight had never met appellant before
this incident. Knight accompanied appellant to Gene Daniels'
auction house where they pawned five or six "electric" items,
including "some drills" and a "hand planer."
The Commonwealth showed Knight Commonwealth's Exhibit 1, a
document containing a "Gene Daniels" logo, the number "5467,"
"Page 1," and dated "11-3-95." Knight testified that Exhibit 1
contained a list of the items that appellant asked him to pawn
and that it contained Knight's signature. Knight could not
identify Commonwealth's Exhibit 3, a document containing the same
"Gene Daniels" logo, "Page 2," a list of power tools, and the
partial handwritten number "5_67." 1
Gene Daniels, the owner of an auction house, testified that
he purchased some tools from Knight and appellant on November 3,
1995. Daniels testified that Exhibit 1 contained both his
handwriting and the handwriting of one of his employees, but he
could not identify which employee. Daniels also testified that
Exhibit 3 contained handwriting from "the same person" who wrote
Exhibit 1 and that the exhibits "go together" because Exhibit 1 2 "says continued on Page 2." Daniels stated, "Each document is 1 Exhibit 3, as submitted in the record for appeal, has a hole punched through the handwritten number, so that the number "5_67" appears on the exhibit. 2 Exhibit 1 actually says "Content on Page 2" near the bottom of the document.
2 numbered; and 5467, if you go to the next page, we write that at
the top of the page." Included in the listing on the two
exhibits were the same type of tools described by the victim and
made by the same manufacturers.
Daniels also testified that he had previously purchased
tools from appellant which the police had confiscated from
Daniels concerning another case. A few days to a week before
November 3, 1995, Daniels advised appellant that he would not
purchase tools from him until that matter was "straightened out."
Admissibility of Exhibit 3
At his trial, appellant objected to the admissibility of
Exhibit 3, arguing that Daniels could not identify the
handwriting on the document and that there was never "any
identification of [Exhibit 3] being related to the first page
[Exhibit 1]." The trial judge overruled appellant's objection
and admitted Exhibit 3 into evidence.
In his brief, appellant argues that Exhibit 3 contained
hearsay and that the Commonwealth failed to qualify the document
under the business records exception to the hearsay rule.
However, at trial, appellant did not make a hearsay objection or
make a business records argument to the trial court concerning
the admissibility of Exhibit 3. The Court of Appeals will not
consider an argument on appeal which was not presented to the
trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593,
405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Therefore, Rule
3 5A:18 bars our consideration of these arguments on appeal.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Appellant also argues that Exhibit 3 was not admissible
because it was not properly identified by Daniels, the auction
house owner. "Before any writing may be introduced into
evidence, it must be authenticated, 'which is the providing of an
evidentiary basis sufficient for the trier of fact to conclude
that the writing came from the source claimed.'" Ragland v.
Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675, 679 (1993)
(citation omitted). "Authentication is merely the process of
showing that a document is genuine and that it is what its
proponent claims it to be." Owens v. Commonwealth, 10 Va. App.
309, 311, 391 S.E.2d 605, 607 (1990).
Concerning the authenticity of Exhibit 3, the Commonwealth
presented direct evidence as to the origin and execution of the
document and testimony as to the genuineness of the handwriting
on the document. See Jackson v. Commonwealth, 13 Va. App. 599,
602, 413 S.E.2d 662, 665 (1992). Daniels, the owner of the
auction house, testified that he recognized Exhibit 1 and that
the document contained both his own handwriting and the
handwriting of one of his employees. "'If direct testimony of
the authorship of a writing . . . is given, this is sufficient
authentication . . . . The writing . . . comes in, if not
otherwise objectionable.'" Id. at 603, 413 S.E.2d at 665
4 (citation omitted). Daniels also stated that Exhibits 1 and 3
"go together"; that it was the practice at his business to
continue onto another page when listing numerous items; that they
would write the ticket number from the first page onto the second
page when needed; and that Exhibit 3 had the same number, "5467,"
as Exhibit 1. He testified that Exhibit 1 indicated that the
document was continued onto a page two and that the items listed
were the items brought into the store by appellant and Knight on
November 3, 1995. Thus, the evidence established that Exhibit 3
was "'what its proponent claims it to be.'" Id. (citation
omitted).
Further, Exhibit 1 was authenticated by Knight's testimony
that Exhibit 1 contained a list of the items that he and
appellant sold to Daniels. It also contained Knight's signature.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
From Daniels' testimony, and from the fact that both exhibits
appear to contain the same handwriting, the two documents were
sufficiently linked so that the authenticity of Exhibit 3 was
established. Cf. Washington v. Commonwealth, 228 Va. 535, 550,
323 S.E.2d 577, 587 (1984) ("If the exhibit has a unique
characteristic by which it may be identified and distinguished
with reasonable certainty from others of its kind, identification
5 by that characteristic is sufficient proof of authenticity.").
Therefore, the trial court did not err in admitting Exhibit 3
into evidence.
Sufficiency of the Evidence
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Appellant contends that, because only "some" of the items
connected with him were similar to items taken from the victim,
the evidence was insufficient to find that he was in exclusive
possession of recently stolen property and was, therefore, guilty
of the theft of the property. However, "[w]hen an accused is
found in possession of goods of a type recently stolen, strict
identity of the goods is not required." Henderson v.
Commonwealth, 215 Va. 811, 812-13, 213 S.E.2d 782, 783 (1975).
"'It is not necessary that the identity of stolen property should be invariably established by positive evidence. In many such cases identification is impracticable, and yet the circumstances may render it impossible to doubt the identity of the property, or to account for the possession of it by the accused upon any reasonable hypothesis consistent with his innocence.'"
Id. at 813, 213 S.E.2d at 783 (citation omitted).
The evidence proved that appellant possessed certain power
tools that were goods of the same distinctive types as those
stolen from the victim and that appellant possessed this unique
6 combination of tools within two hours of the theft. Further,
appellant approached a complete stranger to assist him in pawning
the tools. Moreover, the owner of the auction house had advised
appellant that he would not purchase tools from him because prior
purchases were under police investigation. Considered together,
these circumstances support an inference that the drill, nail
gun, compressor, and two routers pawned by appellant and Knight
were tools stolen from the victim. "It is immaterial that the
quantity of goods possessed was less than the quantity stolen and
charged in the indictment, for the fact-finder 'may infer the
stealing of the whole from the possession of part.'" Id. at 813,
213 S.E.2d at 784 (citation omitted). From the evidence of
appellant's recent possession of the stolen items, the fact
finder could also reasonably infer that appellant stole the
items. See Bright v. Commonwealth, 4 Va. App. 248, 251, 356
S.E.2d 443, 444 (1987). Therefore, the evidence was sufficient
to prove beyond a reasonable doubt that appellant committed grand
larceny.
For the foregoing reasons, the judgment of the trial court
is affirmed. Affirmed.
7 Benton, J., concurring and dissenting.
I agree that the trial judge did not err in admitting
Commonwealth's Exhibit 3 into evidence. I dissent, however, from
that portion of the majority opinion holding that the evidence
was sufficient to support the conviction.
"[W]here, as here, a conviction is based on circumstantial
evidence, 'all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "It
is not sufficient that the evidence create a suspicion of guilt,
however strong, or even a probability of guilt, but must exclude
every reasonable hypothesis save that of guilt." Webb v.
Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). See
Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197
(1981) ("Suspicion, however, no matter how strong, is
insufficient to sustain a criminal conviction."). Thus, the
evidence must "establish . . . guilt beyond a reasonable doubt." Webb, 204 Va. at 34, 129 S.E.2d at 29. Because the evidence in
this case fails to prove beyond a reasonable doubt that Johnny
Lundy possessed the items stolen from William Monroe, I would
reverse the conviction.
Although, "possession of goods recently stolen is prima
facie evidence of guilt [of the crime of larceny]," Fout v.
8 Commonwealth, 199 Va. 184, 190-91, 98 S.E.2d 817, 821-22 (1957),
the evidence must prove that the items were in fact stolen.
Thus, the victim must identify in some way the items recovered as
those that were stolen. In this case, the articles that were in
Lundy's possession shortly after the theft were not sufficiently
identified as the articles stolen from Monroe.
Where the articles are not sufficiently identified, the
evidence is insufficient to convict the defendant of larceny. Barnett v. Commonwealth, 210 Va. 348, 349, 170 S.E.2d 760, 761
(1969). In Barnett, the evidence proved that the defendant was
in the vicinity of the victim's home on the day of the theft and
that he was "in possession of articles meeting the general
description of those stolen from [the victim]." Id. The
Commonwealth introduced some of the stolen items at trial.
"Although [the victim] took the stand, he did not identify any of
those articles or even express an opinion whether they belonged
to him. So the person who was in the best position to prove the
Commonwealth's case or to acquit [the defendant] gave no
testimony on this crucial issue." Id. Thus, the victim's
unexplained failure to make an identification made the evidence
insufficient to support the conviction. See also Griffith v.
Commonwealth, 213 Va. 50, 51, 189 S.E.2d 366, 367 (1972) (holding
that while the actions of the defendant "were suspicious," the
evidence in total was not sufficient to prove beyond a reasonable
doubt that the goods the defendant was seen carrying near the
9 victim's apartment were the goods which had been stolen).
The majority relies on Henderson v. Commonwealth, 215 Va.
811, 213 S.E.2d 782, (1975), where the Supreme Court of Virginia
held that "when an accused is found in possession of goods of a
type recently stolen, strict proof of identity of the goods is
not required." 215 Va. at 813, 213 S.E.2d at 783. Relying on
Kelly v. Commonwealth, 181 Va. 576, 26 S.E.2d 63 (1943), and
Gravely v. Commonwealth, 86 Va. 396, 10 S.E. 431 (1889), the
Court held that under the circumstances proved in Henderson, there was "no room for reasonable doubt" that the goods the
defendant possessed were the goods stolen. 215 Va. at 813, 213
S.E.2d at 783. However, the Supreme Court in Barnett
distinguished Kelly, 181 Va. at 578, 26 S.E.2d at 64 (involving
larceny of clothing whose labels had been removed), and Gravely,
86 Va. at 396, 10 S.E. at 432 (involving burglary of flour, meal,
and eggs), because "[t]he stolen articles in those cases were not
capable of specific identification." Barnett, 210 Va. at 349-50,
170 S.E.2d at 761.
In this case, Monroe testified that several of his carpentry
tools had been stolen from his van. Monroe listed the names and
manufacturers of each of the tools stolen. These articles
included a table saw, two chop saws, two routers, an air
compressor, a finish nail gun, and four drills, two or which were
cordless.
Jeffrey Knight testified that Lundy gave him fifteen dollars
10 to pawn several items at the pawn shop because Lundy did not have
identification with him. Knight testified that Lundy gave him
five or six items to pawn, including some electric drills and a
hand planer. At trial, Commonwealth's Exhibits 1 and 3 listed
the items that had been purchased by the pawn shop. The list on
Exhibit 1 included two rotary hammers, a power planer, a hammer
drill, and two drills. Exhibit 3 listed a table saw, a miter
saw, a drill, two routers, a plane, a circular saw, and an air
compressor. The serial numbers and model numbers, as well as the
manufacturers of the tools, were also listed. Although some of the items pawned by Knight for Lundy were
similar in a general description to some of the items Monroe
testified were stolen from him, the evidence did not further
identify the pawned tools as belonging to Monroe. These items
were not such that they could not be specifically identified.
Furthermore, "[t]here is no suggestion that [Monroe] could not
have specifically identified any of the articles." Barnett, 210
Va. at 349, 170 S.E.2d at 761. The Commonwealth did not produce
the items, or pictures of the items, at trial for Monroe to
identify. The Commonwealth did not match the serial numbers,
model names, or model numbers of the items recovered with the
items Monroe listed as missing. Monroe never identified the
items listed on Exhibit 1 or 3 as his. Nowhere in the record
were the tools identified as being the tools stolen from Monroe.
Under these facts, "there exists a serious void in the
11 proof, filled only with the suspicion that the defendant may have
been the guilty agent; and suspicion is never enough to sustain a
conviction." Simmons v. Commonwealth, 208 Va. 778, 783, 160
S.E.2d 569, 573 (1968). The evidence is insufficient to prove
beyond a reasonable doubt that Lundy possessed items belonging to
Monroe. Therefore, I dissent.