Michael Fincham v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 14, 2000
• Docket: 1197994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Frank Argued at Alexandria, Virginia

MICHAEL FINCHAM MEMORANDUM OPINION * BY v. Record No. 1197-99-4 JUDGE RUDOLPH BUMGARDNER, III MARCH 14, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge

Janell M. Wolfe (Law Office of Janell M. Wolfe, on brief), for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Michael Fincham of two counts of grand

larceny by false pretenses in violation of Code § 18.2-95. On

appeal, the defendant argues the trial court erred in admitting

evidence that the defendant may have committed other crimes.

Finding no error, we affirm his convictions.

The defendant was charged with receiving payment for but

never completing repair work to the home of an elderly Arlington

couple, Edward and Mary Beardman. The Commonwealth filed a

motion in limine to determine whether the trial court would

admit evidence that referred to other offenses. The

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Commonwealth proffered that FBI Agent Charles Price interviewed

the defendant about defrauding an elderly resident of

Washington, D.C. During the interview, the defendant told him

about defrauding the Beardmans in Arlington. The trial court

did not exclude the evidence because the proffer indicated a

pattern and practice in a common scheme, but the trial court

cautioned that it would keep the objection in mind and rule as

the evidence developed. As the hearing ended, the trial court

stated, "So I rule in advance that it is not inadmissible and I

will consider objections as they come in item by item." The

defendant made no objection.

At trial, Price testified that he interviewed the defendant

during an investigation "in which [he] received allegations that

[the defendant] and others had defrauded an elderly resident of

Washington, D.C." The defendant did not object to this

evidence, but the trial court immediately gave a cautionary

instruction sua sponte limiting the use of the evidence. The

defendant did not object to the instruction and made no request

to modify or supplement the instruction as given. When the

trial court instructed the jury before it began deliberating,

the trial court gave an instruction patterned from Model Jury

Instruction 2.260 limiting the use of evidence of other

offenses. The defendant neither objected to the instruction nor

offered any alternative.

- 2 - During the Commonwealth's examination of Price, it asked

for details of the case in Washington, D.C. The defendant

objected to evidence of "what the case involved," and the trial

court sustained the objection. It ruled that the Commonwealth

could not introduce details of other crimes, and the

Commonwealth withdrew the question. Price testified about the

defendant's statements concerning the offense being tried. The

defendant "told me that he and Robert Bowers defrauded Mr. and

Mrs. Beardman in Arlington. . . . And he told me about the fact

that they received three checks from the Beardmans and the

amounts of those checks." The defendant also acknowledged that

"charges were pending on that matter in Arlington [regarding the

Beardmans], that Detective Comfort in Arlington was

investigating that matter and that Bowers paid back . . . two

thousand."

When the Commonwealth sought clarification of the trial

court's pretrial ruling that she could introduce "the other

victims as part of the scheme," the trial court advised that the

Commonwealth could offer the defendant's admissions that "linked

Beardman to other activities somewhere in the nature of

obtaining by false pretenses checks and/or money." However, the

court prohibited the Commonwealth from presenting "a total

description of all the other cases." The Commonwealth did not

question Price further about the other crimes.

- 3 - On appeal, the defendant generally argues that the trial

court erroneously admitted evidence of other crimes. The

defendant complains about four incidents: Price's testimony

that he was investigating the defendant for a D.C. crime; the

reference to a third check taken from the Beardmans; the court's

failure to rule during the motion in limine; and the court's

failure to explain during its sua sponte cautionary instruction

the purpose for admitting the evidence of other crimes.

However, the defendant raised none of these objections at trial,

and he is precluded from raising them for the first time on

appeal. See Rule 5A:18; Barnabei v. Commonwealth, 252 Va. 161,

177, 477 S.E.2d 270, 279 (1996) (failure to object when

instruction given), cert. denied, 520 U.S. 1224 (1997); Buck v.

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)

(failure to make same objection to trial court); Boblett v.

Commonwealth, 10 Va. App. 640, 650-51, 396 S.E.2d 131, 136-37

(1990) (acquiescence).

The trial court carefully considered the positions of the

parties, gave tentative rulings based on the proffers but

clearly indicated that it would consider the matters as they

actually developed during testimony, and invited objections as

each item was offered. The trial court sustained the only

objection made. The jury was promptly and effectively

instructed both when the evidence was first offered and then

- 4 - when the court submitted the case for decision. Finding no

error, we affirm the convictions.

Affirmed.

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