BRITT v. Commonwealth Of Va.
| Decision Date | 22 June 2010 |
| Docket Number | No. 1447-09-1,01 September 1447 |
| Court | Virginia Court of Appeals |
| Parties | LADARIS BRITTv.COMMONWEALTH OF VIRGINIA |
Ned Andrews, Assistant Public Defender (Brenda C. Spry, Public Defender; Joseph A. Sadighian, Senior Assistant Appellate Defender, on briefs), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Frank, Kelsey and Powell Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge Designate
The trial court found Ladaris Britt guilty of grand larceny. On appeal, he contends the court erroneously admitted hearsay evidence and convicted him on insufficient evidence. We disagree with both assertions and affirm his conviction.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
In addition, our examination of the record "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling." Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008). In determining whether there is evidence to sustain a conviction, an appellate court must consider "all the evidence" admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586).
In 2007, Carla Turner Hale left her black, two-door, 1991 Acura Legend coupe at her mechanic's home in Portsmouth so he could perform repairs. The Acura had flat tires, cracked rims, and a key stuck in the ignition. Hale testified the cracked rims punctured the tires when the car was driven. The mechanic parked Hale's car in his driveway and covered it with a gray car cover in between repairs.
On November 19, 2007, the mechanic returned home from work and discovered Hale's Acura had been stolen. Hale immediately contacted police to report the theft. That same day, Officer B.D. Davis saw Britt driving a black, two-door Acura coupe on Portsmouth Boulevard. Officer Davis noticed the rear driver's side window was broken out and, suspecting the Acura might be stolen, approached Britt. Britt parked the Acura in a convenience store parking lot and asked Officer Davis for help because the car had a flat tire. Britt told Davis he had purchased the Acura from his uncle for $3,500, but did not have a receipt. Officer Davis looked up the Vehicle Information Number (VIN) in his computer database. The database identified Hale as the owner but did not list the vehicle as stolen. Officer Davis issued Britt two summons, one for driving on a suspended license and another for driving an unregistered vehicle.
On December 2, 2007, Officer Davis again saw Britt during his investigation of a domestic assault. When the officer approached, Britt was standing next to the same black Acura Britt was driving on November 19. This time, however, the Acura had a different set of licenseplates. The officer's VIN computer check tracked the plates to a blue Dodge owned by Britt. Officer Davis again checked the VIN number on the vehicle and, on this occasion, the updated database reported the vehicle stolen. Officer Davis told Britt he was under arrest for grand larceny. In response, Britt conspicuously announced that the officer "hadn't seen him in the car" earlier. Officer Davis described the remark as a "spontaneous utterance" wholly unprompted by anything he had said to Britt.
Police officers secured the Acura in an impound lot. Hale later identified it as hers and regained possession of the vehicle.
At trial, Britt took the stand in his defense. A convicted felon, Britt said he bought the 1991 black Acura from Hale's mechanic for $3,500. He acknowledged the Acura had two flat tires and a cracked rim. The mechanic retook the stand in rebuttal and testified Britt's story was wholly fabricated. He testified he did not meet Britt on November 19, did not take any money from him, and did not sell him the Acura.
Britt's counsel moved to strike the evidence claiming the Commonwealth failed to prove the Acura in Britt's possession was the same one stolen from Hale. After patiently summarizing the extensive evidence to the contrary, the trial court denied the motion as "a ridiculous argument." At the close of evidence, Britt renewed his motion to strike and also argued the evidence supported a reasonable hypothesis of innocence. The court again denied his motion.
Twice during the trial Officer Davis testified about entering the Acura's VIN in the police computer and receiving information about the vehicle. The first time he conducted a VIN check was on the day of the theft when he stopped Britt in the Acura. On that date, the database identified Hale as the owner but did not list the vehicle as stolen. The second time Officer Davisused the VIN database was the day he arrested Britt. That time, the database specifically identified the Acura as having been reported stolen.
Britt's counsel objected to the testimony regarding the VIN database on hearsay grounds. The trial court overruled the first objection without comment. On the second occasion, the court again overruled the objection stating:
Let me explain. I don't think it's inadmissible when used by a policeman for the purposes of establishing basis for his taking action. It certainly is not admission to prove the car was stolen. It's not admissible for anything other than for what I just said. So I overrule your objection, generally.
(Emphasis added.) When Britt's counsel repeated his objection during closing argument, the court again explained:
On appeal, Britt frames the issue this way: "Although the trial court said the evidence was not being admitted to prove the car was stolen, the admission of the hearsay was prejudicial." Appellant's Br. at 10. The balance of his argument restates the proposition that hearsay evidence, absent an applicable exception, is inadmissible. Britt concludes his argument with this request: "Britt asks this Court to find that the trial court committed reversible error in admitting the hearsay testimony." Id. at 13.
We find Britt's argument confused and self-defeating. The trial court expressly held the computer reports received from the VIN database were not admissible to prove the truth of the matter asserted which, as the trial court noted, was "the fact that it said it was a stolen car." The court admitted the evidence only to explain the officer's actions.1 The hearsay rule Testa v. Commonwealth, 55 Va. App. 275, 280 n.1, 685 S.E.2d 213, 215 n.1 (2009) (quoting Winston v. Commonwealth, 268 Va. 564, 591, 604 S.E.2d 21, 36 (2004) (citation omitted)). "It necessarily follows that '[t]he hearsay rule does not operate to exclude evidence of a statement offered for the mere purpose of explaining the conduct of the person to whom it was made.'" Id (citation omitted). The trial court, therefore, did not improperly admit the VIN database information as hearsay evidence.
We need not address whether the information, though admitted for a non-hearsay purpose, was nonetheless relevant and non-prejudicial. At trial, Britt's counsel did not object on either ground. We have often said:
As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal. Not just any objection will do. It must be both specific and timely so that the trial judge would know the particular point being made in time to do something about it.
Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742 (emphasis in original), adopted upon reh'g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). "Making one specific argument on an issue," moreover, "does not preserve a separate legal point on the same issue for review." Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) (emphasis added), affd by unpublished order, No. 040019 (Va. Oct. 15, 2004).2 Whenmaking an evidentiary objection counsel must identify the "specific rule of evidence" on which he relies. Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525 (1992) (citation omitted).
Objecting to evidence as unduly prejudicial is different from attacking it as logically irrelevant or, even if relevant, nonetheless barred by the hearsay rule. No matter how "remote or insignificant," evidence is relevant so long as it "tends to establish the probability or improbability" of a material fact. Thomas, 44 Va. App. at 753, 607 S.E.2d at 743 (citation omitted). Evidence is unduly prejudicial, despite logical relevance, when it has a tendency to "inflame irrational emotions" or lead a factfinder to "illegitimate inferences." Id. at 758, 607 S.E.2d at 746. Even when logically relevant and not unduly prejudicial, evidence can still be independently barred by the hearsay rule. While related, these three concepts are far from synonymous. See generally Kent Sinclair, A Guide to Evidence in Virginia §§ 401, 403 & 802 (2010).
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