Alessandro Ferreira Lima v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
ALESSANDRO FERREIRA LIMA
MEMORANDUM OPINION * BY
v. Record No. 1263-99-3 JUDGE ROSEMARIE ANNUNZIATA
MAY 9, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
William N. Alexander, II, Judge
Barry A. Schneiderman (Kincheloe &
Schneiderman, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Alessandro Lima appeals from his conviction of grand
larceny in the Circuit Court of Franklin County. Lima contends
1) that the evidence offered by the Commonwealth was
insufficient to support his conviction; 2) that the trial court
improperly valued the items in question, so that even if Lima's
guilt was proven by sufficient evidence, he should only have
been convicted of petit larceny; and 3) that Lima was deprived
of his right to due process by his attorney's failure to inform
him prior to the representation that he had recently accepted an
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
offer of employment in the Office of the Commonwealth's
Attorney. Finding no error, we affirm his conviction.
FACTS
"In reviewing the sufficiency of the evidence, we examine
the record in the light most favorable to the Commonwealth,
granting to it all reasonable inferences deducible therefrom."
DeAmicis v. Commonwealth, 29 Va. App. 751, 753, 514 S.E.2d 788,
789 (1999) (citation omitted). The trial court's judgment will
only be disturbed if plainly wrong or without evidence to
support it. See Marshall v. Commonwealth, 26 Va. App. 627, 633,
496 S.E.2d 120, 123 (1998). "The credibility of a witness and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination." Id. (citing Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989)).
The fact finder is entitled to disbelieve the self-serving
testimony of the accused and to conclude that he is lying to
conceal his guilt. See id. (citing Speight v. Commonwealth, 4
Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc)).
At Lima's bench trial on February 25, 1999, Lima's
accusers, James and Kay Potter, testified that they had been
acquainted with Lima for approximately nine years, that he had
formerly lived in their home, and that he was considered a part
of their family. They testified that they owned four
poster-prints of artwork by Waynesboro artist P. Buckley Moss,
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and several gold pendants which James Potter had purchased while
traveling in the Middle East. While visiting Lima's home in
North Carolina in October, 1998, Kay Potter became suspicious
when Lima's children noticed pictures of Moss prints in a
catalog and told her that they owned such prints. The Potters
also noticed Lima's wife, Vanessa, wearing a gold Arabic pendant
during their visit, and noted its similarity to the pendants
James had purchased in the Middle East. Lima had visited the
Potters' home in May, 1996, December, 1996, May, 1997, and May,
1998.
Upon returning home, Kay Potter was unable to find her Moss
prints, which she and James had previously placed in storage
during renovations to their house. The Potters also discovered
that one of the pendants was missing, and reported to the police
their suspicion that Lima had stolen the prints and the pendant.
When the police arrived at Lima's home to investigate, they
found a Moss print prominently displayed near the doorway that
resembled one of those reported missing by the Potters. Vanessa
Lima voluntarily produced and surrendered the Arabic pendant the
Potters had observed her wearing. The framed Moss print,
Vanessa's pendant, and the other pendants owned and retained by
the Potters were admitted into evidence at trial. Also admitted
were a receipt for the gold chain which Kay Potter said she
purchased for the pendant that was stolen from her and a letter
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from Lima to Kay Potter, dated "November, 1998," in which Lima
denied the Potters' accusations.
Lima testified that he had been given the Moss print by the
Potters and that he had purchased the pendant from a Saudi
Arabian friend in college, whom he could identify only as
"Mohammed." He offered as evidence a letter written in Arabic
that he said accompanied the pendant when it was sent to him
from Saudi Arabia, as well as a drawing of the pendant which he
claimed to have made to show his friend Mohammed exactly how he
wanted it designed. The drawing and letter were admitted into
evidence.
At the close of the Commonwealth's case-in-chief, defense
counsel moved to strike the Commonwealth's evidence with respect
to the pendant, on the ground that the Commonwealth had failed
to offer any evidence proving that Vanessa Lima's pendant had
ever been in the Potters' possession. Counsel made a second,
more general motion to strike all the Commonwealth's evidence,
on the ground that "the Commonwealth ha[d] not proven up to the
evidence needs at this point to go past on all the evidence."
The court denied both motions. Lima bases his appeal that the
evidence was insufficient to convict him on these two motions by
counsel.
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SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTION
The Commonwealth argues that Lima's motions at trial were
insufficiently specific to preserve for appeal the question of
sufficiency of the evidence. "Pursuant to Rule 5A:18, 1 this
Court will not consider trial court error as a basis for
reversal where no timely objection was made, except to attain
the ends of justice." Marshall, 26 Va. App. at 636, 496 S.E.2d
at 125 (footnote added). A general objection to the sufficiency
of the evidence that does not specify the manner in which the
evidence was insufficient to prove the charged offense fails to
preserve the issue for appeal. See id. (citing Redman v.
Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997)).
We hold that Lima objected with sufficient specificity to
preserve his appeal with respect to the pendant, but that his
objection to the other evidence adduced by the Commonwealth was
insufficiently specific to preserve a challenge on appeal.
A. Arabic pendant
Lima objected with specificity to the evidence with respect
to the Arabic pendant, arguing that the Commonwealth failed to
present any evidence that Vanessa Lima's pendant was among those
purchased by James Potter in the Middle East. Thus, Lima's
1
The Rule provides, in relevant part: "No ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling . . . ." (Emphasis added).
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objection with respect to the sufficiency of the evidence to
prove he stole the pendant was preserved for appeal in
accordance with Rule 5A:18.
However, we reject his argument that the Commonwealth
failed to offer evidence tending to prove that the pendant was
among those belonging to the Potters. Although the trial court
ruled that the case against Lima was circumstantial, in the
court's view as fact finder, the evidence, on the whole, tended
to prove beyond a reasonable doubt that Vanessa's pendant
originated with the Potters and that Lima stole it to give it to
his wife. "'Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.'" Id. at 633, 496 S.E.2d at 123 (quoting
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983)). The court noted that the pendant was "more than just
similar" to those owned by the Potters and that it was so
similar to the Potters' pendants, which James Potter had
purchased together in Saudi Arabia, that "from the naked eye
. . . they are identical." The Potters testified that before
Lima's last visit to their home all of the pendants had been
present, and only after their visit to Lima's home in October,
1998 did they find that one of them was missing. The court
deemed these facts sufficient circumstantially to prove beyond a
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reasonable doubt that Lima had stolen the pendant. "The
judgment of a trial court [as fact finder] will be disturbed
only if plainly wrong or without evidence to support it." Id.
Because the evidence offered supported the court's conclusion
that Lima stole the pendant in question from the Potters, its
judgment cannot be said to be plainly wrong.
B. P. Buckley Moss print
The only motion made by defense counsel with respect to the
P. Buckley Moss print was the general motion that the
Commonwealth had simply failed to offer sufficient evidence.
Because this motion did not state with specificity the basis for
contending that the evidence was insufficient, the Redman rule
applies and establishes that the issue was not preserved for
appeal unless the "ends of justice" exception to Rule 5A:18
should be found to apply.
"To invoke the ends of justice exception . . . the record
must 'affirmatively show[ ] that a miscarriage of justice has
occurred, not . . . merely . . . that a miscarriage might have
occurred.'" Id. at 636, 496 S.E.2d at 125 (quoting Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)).
"To satisfy this burden, an appellant must show 'more than that
the Commonwealth failed to prove an element of the
offense. . . . [T]he appellant must demonstrate that he or she
was convicted for conduct that was not a criminal offense[,] or
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the record must affirmatively prove that an element of the
offense did not occur.'" Id. at 636-37, 496 S.E.2d at 125
(quoting Redman, 25 Va. App. at 221-22, 487 S.E.2d at 272-73).
In cases where the "ends of justice" exception is applied, "the
Commonwealth's evidence either prove[s] that an essential
element of the offense ha[s] not occurred or . . . the defendant
was convicted for conduct that was not criminal." Redman, 25
Va. App. at 222-23, 487 S.E.2d at 273.
Lima's case does not give rise to the "ends of justice"
exception. Nothing in the record affirmatively proves that the
larceny in question did not occur. Although Lima testified that
he received the Moss print from the Potters as a gift, Kay
Potter denied making any such gift. The trial court was
entitled to disbelieve Lima's testimony. See Marshall, 26
Va. App. at 633, 496 S.E.2d at 123 (citing Speight, 4 Va. App.
at 88, 354 S.E.2d at 98). Thus, because Lima's general
objection to the sufficiency of the evidence with respect to the
Moss print was not preserved for appeal, Rule 5A:18 bars
consideration of that claim, and the "ends of justice" exception
to the rule is inapplicable.
SUFFICIENCY OF THE EVIDENCE TO ESTABLISH
VALUE OF THE PENDANT AND PRINT
Lima appeals the trial court's finding that the evidence
was sufficient to establish the value of the pendant and the
print, contending that the combined value of the two items was
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less than $200 and he, therefore, was wrongly convicted of grand
larceny. His claim is barred by Rule 5A:18.
Lima raised no objection to the court's valuation of the
goods at trial. Consequently, this issue was not preserved for
appeal, and Rule 5A:18 bars us from considering the issue on
appeal unless the "ends of justice" exception applies. As
noted, the record must affirmatively prove that the value of the
goods was less than $200. The record provides no such
affirmative proof. Kay Potter testified that the framed print
was worth $150, and an expert appraiser testified that the
pendant with its chain was also worth approximately $150.
Nothing in the record affirmatively proved that the combined
value of the two items was less than $200, and, consequently, we
consider the question no further.
DUE PROCESS CLAIM
Lima made no objection to his counsel either at trial or
during the hearing on Lima's motion to reconsider the sentence
imposed by the court. The trial court noted at the
re-sentencing hearing on May 17, 1999 that Lima's prior counsel
had disqualified himself from further representation of Lima
because he had accepted employment in the Office of the
Commonwealth's Attorney. Lima made no objection at this time;
thus, as noted, he is barred by Rule 5A:18 from arguing on
appeal that his prior counsel's failure to advise him of that
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offer of employment deprived him of due process rights.
Moreover, Lima concedes that his prior counsel represented him
ably, but contends that the mere "appearance of impropriety"
qualifies as a due process violation. Because the "ends of
justice" exception is inapplicable here, we do not consider this
issue. 2
For the reasons stated herein, we affirm the conviction.
Affirmed.
2
We note generally that it is well established in Virginia
that "[w]hile . . . an ethical rule that strives to avoid the
appearance of impropriety is a worthy standard of professional
conduct, a criminal defendant's constitutional right to due
process does not entitle him to a prosecution free of such
appearances." Lux v. Commonwealth, 24 Va. App. 561, 574, 484
S.E.2d 145, 151 (1997). See also Turner v. Commonwealth, __ Va.
__, __ S.E.2d __ (2000) (whether evidence establishes a conflict
of interest is a discretionary decision for the trial court).
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