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LUNDY v. COMMONWEALTH OF VIRGINIA


LUNDY v. COMMONWEALTH OF
VIRGINIA

(unpublished)


NOVEMBER 25, 1997
Record No. 3194-96-1

JOHNNY LUNDY

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1] BY JUDGE WILLIAM H. HODGES
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Frederick B. Lowe, Judge
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia

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.

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."[2]

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 "says continued on Page 2."[3]
Daniels stated, "Each document is 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 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 (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 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
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.

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. 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 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
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
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.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

[2] 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.

[3]
Exhibit 1 actually says "Content on Page 2" near the
bottom of the document.

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