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MARCH 14, 2000

Record No. 1197-99-4





Paul F. Sheridan, Judge

Present: Judges Willis, Bumgardner and Frank

Argued at Alexandria, Virginia

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 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.

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.

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.
, 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 when
the court submitted the case for decision. Finding no error, we
affirm the convictions.




[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.