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SABUR v. COMMONWEALTH


SABUR

v.

COMMONWEALTH

(unpublished)


JUNE 20, 2000

Record No. 0880-99-2

WAKEEL ABDUL SABUR, A/K/A WILLIE SEWARD

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge

Present: Judge Annunziata, Senior Judge Duff and Judge
Clements*

Argued at Alexandria, Virginia

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.


MEMORANDUM OPINION** BY JUDGE CHARLES H. DUFF

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
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.

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.

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."

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
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.
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 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 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 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 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.

* 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.

FOOTNOTES:

[1]
In his brief, appellant also argues that no evidence was
introduced as to what name was written on the Food Lion sales
draft. However, appellant did not present this argument to the
trial judge. Accordingly, Rule 5A:18 bars our consideration of
this argument.

 

 

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