Melick v. Commonwealth
| Decision Date | 31 July 2018 |
| Docket Number | Record No. 1564-17-1 |
| Citation | 816 S.E.2d 599,69 Va.App. 122 |
| Parties | Joseph John MELICK v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Anthony J. Balady, Jr., Assistant Public Defender, for appellant.
Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges O’Brien, Russell and Retired Judge Bumgardner*
OPINION BY JUDGE WESLEY G. RUSSELL, JR.
Joseph John Melick was convicted in a bench trial of one count of grand larceny in violation of Code § 18.2-95. On appeal, he asserts that the trial court erred in the admission of certain evidence and in finding the evidence sufficient to support his conviction. For the reasons that follow, we affirm the judgment of the trial court.
"On appeal, we will consider the evidence in the light most favorable to the Commonwealth, as it prevailed in the trial court." Whitehurst v. Commonwealth, 63 Va. App. 132, 133, 754 S.E.2d 910, 910 (2014). 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 internal quotation marks omitted).
So viewed, the evidence established that, in the fall of 2015, Mary Neal hired a home improvement company to perform repairs at her home, which is located in the Buckroe section of Hampton. Workers for the company spent approximately five months working on various projects at the home. One of the workers was Melick.
In February of 2016, Melick contacted Neal. He told her that he was losing his home and would be forced to live on the street. He asked if he could stay at Neal’s home.
Despite some initial resistance to the idea, Neal eventually agreed to allow Melick to stay at her house. Melick was to pay $100 a week in rent and to cover his own expenses, such as paying for his own groceries. By August, Melick had fallen behind regarding his rent payments and had not been covering his expenses. He left the residence in mid-August.
While Melick lived in her home, Neal was a field biologist for the City of Newport News. Because her job required her to work outdoors, she did not "have the opportunity to wear [her] good jewelry on [the] job." On September 6, however, she had an interview for a new position with the city. In dressing for the interview, she went to the armoire where she kept her "good jewelry."
When Neal opened the armoire, she discovered that many pieces of her jewelry were missing. At trial, she described various pieces of jewelry that were missing, the majority of which consisted of sterling silver pieces that had been signed by the designer. She testified that the missing jewelry was worth far in excess of $200 and that Melick did not have permission to take any of it. During her testimony, photos of Neal wearing some of the missing jewelry prior to it going missing were introduced into evidence.
After discovering the jewelry missing, Neal went to the Hampton Roads Exchange, a business that both Neal and Melick previously had patronized. The store was in the business of purchasing items of personal property, such as jewelry, for resale.1
At the store, Neal identified some of her missing jewelry, which she characterized as "insignificant trinkets." When she informed the store that the items had been stolen from her, the identified items were released to her.
Neal then contacted the police. She also engaged the services of Ronald Fino, a "friend of a friend," who is a private investigator. On September 14, 2016, Fino contacted Melick and arranged to return some clothing that Melick had left when he moved out of Neal’s home. While returning the clothing, Fino engaged Melick in conversation. According to Fino, Melick admitted to taking the missing jewelry, but stated that "it was owed to him." Fino asked Melick if he had "pawned" the jewelry. Melick responded that he had done so, but he would not tell Fino where.
John Worth and Kenny Cantrell, the owners of the Hampton Roads Exchange, testified at trial regarding the store’s operations. The store was open Monday through Saturday, with one of the two owners working in the store every day. When a seller came in with jewelry, a representative of the store made a determination as to what the item was made of and what it was worth. Depending on the evaluation, the store might offer to purchase the item.
When a potential seller accepted the store’s offer, a store representative would ask the seller for photo identification, such as a driver’s license. The representative would make a copy of the identification, prepare paperwork related to the transaction (including recording information about the seller), and take pictures of the items. Within a few days all of the information collected, including copies of the identification and the pictures of the item(s) the store had purchased, as well as descriptions of the item(s) purchased and the seller, would be uploaded by either Cantrell, Worth, or one of their wives, onto the website LeadsOnline.com ("LeadsOnline"). The uploaded information to LeadsOnline also includes information regarding the date and time of the transaction; a typewritten entry listing the seller’s address, date of birth, identification number, and telephone number; and the identity of who conducted the transaction on behalf of the store. Cantrell testified that collecting and uploading this information is "required," is done for every transaction, and is done in the ordinary course of the store’s business.2
Police detective George Barker was assigned to investigate the jewelry theft. He became aware of the items sold by appellant through LeadsOnline. He explained that LeadsOnline is an internet service based in Texas that allows pawn shops, second-hand stores, and scrap and precious metal dealers to upload records regarding what they acquire for resale.
Agents of the businesses upload information into the system at no charge to the business. LeadsOnline then enters into agreements with law enforcement agencies that allow the agencies to access the uploaded information for investigative purposes. The City of Hampton has such an agreement with LeadsOnline for police officers to access the information.
After speaking with Neal, Barker conducted a search of LeadsOnline using Melick’s name. The search produced documents regarding nine transactions at the Hampton Roads Exchange between April and June 2016. Each of the documents contained the information that Cantrell had testified an agent of the store was required to collect at the time of the transaction. This included a description of Melick as the seller, a copy of his driver’s license, a description of the jewelry, and a picture of each item of jewelry the store had purchased. Some of the printouts, marked as Commonwealth’s Exhibit 3, identified the store clerk who purchased the items as Ken; the remainder, marked as Commonwealth’s Exhibit 4, identified the store clerk who had purchased the items as John. Barker testified that, as the end user, he only could print the documents from the website; he did not have the ability to alter them.
The Commonwealth showed the LeadsOnline printouts to Worth and Cantrell during their testimony. Although neither remembered the specific transactions reflected in the documents, they were able to identify the documents as being downloaded from LeadsOnline. Cantrell testified that the documents were the result of the information collection and uploading process that Cantrell and later Worth testified was required to be done for every purchase at the store.
The Commonwealth moved for the admission of Exhibits 3 and 4 into evidence. Melick objected on hearsay grounds. The Commonwealth argued that the documents fell within the business records exception to the hearsay rule. The trial court, agreeing that the documents fell within the business records exception, admitted the documents into evidence.
After the documents had been admitted into evidence, the Commonwealth recalled Neal as a witness. At that time, Neal confirmed that the items pictured in the documents were pieces of her jewelry that had gone missing. The Commonwealth then rested its case.
Melick moved to strike the Commonwealth’s evidence, arguing that the evidence was insufficient to support a conviction for grand larceny. The trial court denied the motion. Melick elected not to put on any evidence, rested his case, and renewed his motion to strike. The trial court again denied the motion and, after hearing closing arguments, found Melick guilty of grand larceny.
Melick now appeals his conviction, asserting that the trial court erred in two respects. First, he argues that the trial court erred by admitting into evidence the printouts from LeadsOnline because the documents constituted hearsay and did not fall within the business records exception. Next, he asserts that the evidence was insufficient to support his conviction for grand larceny.
There is no dispute that the LeadsOnline printouts are "statement[s], other than [those] made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted ...," Va. R. Evid. 2:801(c), and thus, constitute hearsay. Hearsay "is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule ...." McDowell v. Commonwealth, 48 Va. App. 104, 109, 628 S.E.2d 542, 544 (2006) (quoting Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 477 (1999) ).
The burden of establishing a statement or document that is otherwise inadmissible hearsay falls within a recognized exception to the hearsay rule is borne on the proponent of the statement or document. Id. The proponent must establish the elements of the exception by a preponderance of the evidence....
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