Wakeel Abdul Sabur, a/k/a v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 20, 2000
• Docket: 0880992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judge Duff and Judge Clements * Argued at Alexandria, Virginia

WAKEEL ABDUL SABUR, A/K/A WILLIE SEWARD MEMORANDUM OPINION ** BY v. Record No. 0880-99-2 JUDGE CHARLES H. DUFF JUNE 20, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge

Francis C. Terwilliger for appellant.

John H. McLees, Assistant Attorney General (Mark L. Earley, Attorney General; Jeffrey S. Shapiro, Assistant Attorney General), on brief, for appellee.

Appellant was convicted of credit card theft and credit card

forgery. On appeal, he argues the trial judge erred in:

(1) allowing the jury to view a videotape of a Target store

parking lot; (2) allowing the Commonwealth to refer to the Target

videotape in its closing argument; and (3) instructing the jury

regarding the permissible inference allowed from the recent

unexplained possession of stolen goods. He also contends the

* Judge Clements took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01. ** Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. evidence was insufficient to prove he committed the offenses.

Finding no error, we affirm the convictions.

FACTS

The evidence proved that the victim was in possession of her

wallet containing her credit card before she went to work in an

administrative building at the University of Virginia Hospital

between 8:30 a.m. and 9:00 a.m. on October 23, 1997. The victim

kept her wallet in her purse, which she kept behind her desk in

her office. The victim testified that between 11:00 a.m. and

11:30 a.m. on October 23, 1997, she was standing in the office

across the hall from her own office. She turned and saw

appellant standing in the hallway between the offices, a few

feet from her office door. The victim testified that appellant

"looked like he might be lost." She asked appellant if he was

looking for the medical records department, and he replied,

"Yes." The victim gave appellant directions, and he left.

Another witness saw appellant in a nearby building at the

university on October 23, 1997 at about 10:30 a.m.

The victim did not notice anything else unusual around her

office that day. Later that evening, the victim learned that

her wallet was missing from her purse. The next morning, an

employee of the credit card division of the victim's bank

telephoned her and questioned her concerning the extensive use

of her credit card over the past twenty-four hours. The victim

reported the stolen credit card to the police.

- 2 - A receipt from a Food Lion cash register indicated that the

victim's stolen credit card was used at a Charlottesville Food

Lion store on October 23, 1997 at 12:28 p.m., about one hour

after the victim saw appellant standing near her office. The

victim stated that she did not sign the credit card receipt from

the Food Lion store and that she did not give appellant or

anyone else permission to use her credit card.

A videotape from the Food Lion store ("the Food Lion tape")

was admitted into evidence, and evidence was presented that the

videotape represented the transaction made at the time and at

the cash register where the victim's stolen credit card was used

in that store. Evidence was also presented that the victim's

stolen credit card was used twelve more times on October 23,

1997 at various locations in Charlottesville and in and around

Richmond, Virginia.

Officer Kimberly Pugh investigated the incidents. She

interviewed appellant on November 7, 1997 concerning the charges

on the victim's credit card. Appellant told Pugh that he might

have been in the Food Lion store, but that he used his own

credit card. Appellant also told Pugh that he had been at the

University of Virginia Hospital a couple of weeks prior to the

interview, but he denied any knowledge of the credit card theft.

Appellant admitted that he may have been in some of the other

stores where the stolen credit card was used, but he denied

using the victim's stolen credit card.

- 3 - During the trial, the Commonwealth made a motion to show

the jury a videotape ("the Target tape") from a Richmond,

Virginia Target store parking lot. The Target tape depicted the

parking lot shortly after the victim's stolen credit card was

used to make a purchase in that store on the evening of

October 23, 1997. Appellant objected to the admission of the

tape on the ground of relevancy. The trial judge overruled the

objection, and the tape was shown to the jury.

After the tape was played for the jury, the Commonwealth

moved to admit the tape into evidence. Appellant renewed his

relevancy objection. The following colloquy occurred:

TRIAL JUDGE: I'm going to sustain, I don't see where it's relevant. It hasn't been tied up to this defendant. I haven't heard this man identify this man on that tape.

COMMONWEALTH: Isn't that an issue for the jury--I would have asked him but I thought--

TRIAL JUDGE: I don't know, nobody's identified the defendant in that tape. I sustain the objection.

Later, the Commonwealth attempted to ask Officer Pugh to

identify appellant from the Target tape; however, the trial

judge sustained appellant's objection to the testimony, ruling,

"the jury can look at the tape and make their own conclusions.

They don't need some witness to say I've looked at the tape and

this is who I think it is." When the Commonwealth again moved

to admit the Target tape, the trial judge stated, "The jury's

seen the tape."

- 4 - At the conclusion of the evidence, the Commonwealth

proffered a jury instruction regarding the permissible inference

allowed from evidence of the recent possession of stolen goods.

Appellant objected to the instruction, but the trial judge

overruled the objection and gave the instruction to the jury.

During its closing argument, the Commonwealth made

reference to the Target tape. Appellant objected on the ground

that the tape was never admitted into evidence. The trial judge

overruled the objection, stating, "But the jury saw the tape, so

I think that counsel can comment on the tape."

ANALYSIS

I. and II. The Target Tape

"'[E]vidence is relevant if it tends to establish the

proposition for which it is offered.' Evidence is material if

it relates to a matter properly at issue." Evans-Smith v.

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)

(citation omitted).

Although the record is somewhat unclear as to whether the

Target tape was admitted into evidence, the record clearly

indicates the jury viewed the tape. The content of the Target

tape was material because it related to a matter properly at

issue--the identification of the credit card thief and forger.

The content of the Target tape was relevant evidence because it

depicted the Target parking lot just after the victim's stolen

credit card had been used in that store on the same day the card

- 5 - was stolen. Although the Target tape was not conclusive proof

that the same person used the victim's credit card at both the

Food Lion and Target stores, it was evidence relevant to that

determination.

Moreover, videotapes may be admitted into evidence as

"'"mute," "silent," or "dumb" independent photographic

witnesses.'" Brooks v. Commonwealth, 15 Va. App. 407, 410, 424

S.E.2d 566, 569 (1992) (citations omitted). "'[E]ven though no

human is capable of swearing that he personally perceived what a

photograph [or videotape] purports to portray . . . there may

nevertheless be good warrant for receiving [it] in evidence.'"

Id. (citation omitted). Thus, it was not necessary that a

witness identify appellant on the Target tape. Rather, the

content of the tape acted as a "silent," "independent

photographic witness." Id. Moreover, "[t]he fact finder may

take into consideration and regard as evidence details of [a]

photograph about which no testimony has been offered." Wilson

v. Commonwealth, 29 Va. App. 236, 240, 511 S.E.2d 426, 428

(1999). Accordingly, the trial judge did not err in allowing

the jury to view the content of the Target videotape.

Because we find the trial judge did not err in allowing the

jury to view the Target tape, we likewise find the trial judge

did not abuse his discretion in allowing the Commonwealth to

refer to the Target tape in its closing argument. As stated

above, the content of the tape was relevant and material.

- 6 - Furthermore, the trial judge has broad discretion in supervising

closing arguments. See Jordan v. Taylor, 209 Va. 43, 51, 161

S.E.2d 790, 795 (1968).

III. and IV. Sufficiency of the Evidence

Appellant contends the evidence was insufficient to prove

he committed credit card theft and credit card forgery based on

the lack of identification evidence.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). While the case against appellant is

circumstantial, convictions based on circumstantial evidence

will be upheld on appeal as long as "'all necessary

circumstances [are] consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of

innocence.'" Moran v. Commonwealth, 4 Va. App. 310, 314, 357

S.E.2d 551, 553 (1987) (citation omitted).

The evidence proved appellant was seen near the victim's

office on the day the credit card was taken. Within one hour of

this event, the victim's stolen credit card was used at a nearby

Food Lion store, and the jury viewed a videotape of that

transaction. Therefore, the jury had the opportunity to see the

physical characteristics of the user of the stolen credit card.

Moreover, appellant admitted to the officer that he may have

- 7 - been in the Food Lion store and several other stores where the

victim's stolen card was used. Although appellant denied he

paid for merchandise with the victim's credit card, the jury was

not required to accept his statement in its entirety. See

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991). Therefore, from the evidence that appellant was

outside the victim's office on the day the credit card was

stolen, the Food Lion tape, the timing of that transaction, and

appellant's admissions, the jury could conclude beyond a

reasonable doubt that appellant stole the victim's credit card.

Appellant also contends the Commonwealth provided no proof

that he committed forgery because no handwriting expert

testified that his handwriting was on the Food Lion receipt.

However, it was not necessary that a handwriting expert testify

concerning the writing on the Food Lion receipt in order for the

jury to conclude appellant forged the document. From the

evidence of the Food Lion tape showing the actual transaction

made with the victim's stolen credit card, the jury could

conclude beyond a reasonable doubt that appellant, with the

intent to defraud the victim, forged a sales draft or used the

victim's credit card number, or uttered as true the forged

draft, knowing it to be forged, in violation of Code

§ 18.2-193(c). 1 Therefore, the evidence was sufficient to prove

1 In his brief, appellant also argues that no evidence was introduced as to what name was written on the Food Lion sales

- 8 - beyond a reasonable doubt appellant committed the charged

offenses.

V. Jury Instruction

Appellant contends the trial judge erred in giving the

following jury instruction:

Proof of exclusive personal possession by the defendant of recently stolen goods is a circumstance from which you may reasonably infer that the defendant was the thief, unless the defendant offers a reasonable account of possession consistent with innocence which the Commonwealth has failed to prove untrue.

At trial, appellant objected to the instruction on the

ground that no evidence was presented that appellant was found

in possession of recently-stolen goods. The trial judge

overruled the objection, finding that the evidence of the use of

the stolen credit card at Food Lion by a person who appeared on

the videotape to be "similar to defendant" was sufficient

evidence to support the instruction.

"A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted). The evidence relied

on to support a proffered instruction must amount to "more than a

draft. However, appellant did not present this argument to the trial judge. Accordingly, Rule 5A:18 bars our consideration of this argument.

- 9 - scintilla." Morse v. Commonwealth, 17 Va. App. 627, 633, 440

S.E.2d 145, 149 (1994). "Whether the recently stolen inference

is permissible . . . depend[s] . . . upon whether the possession

was knowing and recent." Bunn v. Commonwealth, 21 Va. App. 593,

600, 466 S.E.2d 744, 747 (1996).

The Food Lion receipt showed that, within one hour of the

victim's sighting of appellant near her office, the victim's

stolen credit card was used to purchase merchandise at a local

Food Lion store. The jury viewed the Food Lion tape depicting

the transaction using the victim's stolen credit card.

Therefore, sufficient evidence was presented of the recent,

post-theft use of the stolen credit card to support the jury

instruction.

In his brief, appellant also argues the trial judge erred

in giving the jury instruction because credit card offenses are

statutory in nature; the instruction was an incorrect statement

of the law; and the instruction violated appellant's

constitutional right to remain silent. However, appellant did

not present these arguments to the trial judge. "The Court of

Appeals will not consider an argument on appeal which was not

presented to the trial court." Ohree v. Commonwealth, 26

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18.

Accordingly, Rule 5A:18 bars our consideration of these

arguments on appeal. Moreover, the record does not reflect any

- 10 - reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

We find no error and affirm appellant's convictions.

Affirmed.

- 11 -