Wakeel Abdul Sabur, a/k/a v. Commonwealth ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and Judge Clements *
Argued at Alexandria, Virginia
WAKEEL ABDUL SABUR, A/K/A
WILLIE SEWARD
MEMORANDUM OPINION ** BY
v. Record No. 0880-99-2 JUDGE CHARLES H. DUFF
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Francis C. Terwilliger for appellant.
John H. McLees, Assistant Attorney General
(Mark L. Earley, Attorney General; Jeffrey S.
Shapiro, Assistant Attorney General), on
brief, for appellee.
Appellant was convicted of credit card theft and credit card
forgery. On appeal, he argues the trial judge erred in:
(1) allowing the jury to view a videotape of a Target store
parking lot; (2) allowing the Commonwealth to refer to the Target
videotape in its closing argument; and (3) instructing the jury
regarding the permissible inference allowed from the recent
unexplained possession of stolen goods. He also contends the
*
Judge Clements took part in the consideration of this case
by designation pursuant to Code § 17.1-400, recodifying Code
§ 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
evidence was insufficient to prove he committed the offenses.
Finding no error, we affirm the convictions.
FACTS
The evidence proved that the victim was in possession of her
wallet containing her credit card before she went to work in an
administrative building at the University of Virginia Hospital
between 8:30 a.m. and 9:00 a.m. on October 23, 1997. The victim
kept her wallet in her purse, which she kept behind her desk in
her office. The victim testified that between 11:00 a.m. and
11:30 a.m. on October 23, 1997, she was standing in the office
across the hall from her own office. She turned and saw
appellant standing in the hallway between the offices, a few
feet from her office door. The victim testified that appellant
"looked like he might be lost." She asked appellant if he was
looking for the medical records department, and he replied,
"Yes." The victim gave appellant directions, and he left.
Another witness saw appellant in a nearby building at the
university on October 23, 1997 at about 10:30 a.m.
The victim did not notice anything else unusual around her
office that day. Later that evening, the victim learned that
her wallet was missing from her purse. The next morning, an
employee of the credit card division of the victim's bank
telephoned her and questioned her concerning the extensive use
of her credit card over the past twenty-four hours. The victim
reported the stolen credit card to the police.
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A receipt from a Food Lion cash register indicated that the
victim's stolen credit card was used at a Charlottesville Food
Lion store on October 23, 1997 at 12:28 p.m., about one hour
after the victim saw appellant standing near her office. The
victim stated that she did not sign the credit card receipt from
the Food Lion store and that she did not give appellant or
anyone else permission to use her credit card.
A videotape from the Food Lion store ("the Food Lion tape")
was admitted into evidence, and evidence was presented that the
videotape represented the transaction made at the time and at
the cash register where the victim's stolen credit card was used
in that store. Evidence was also presented that the victim's
stolen credit card was used twelve more times on October 23,
1997 at various locations in Charlottesville and in and around
Richmond, Virginia.
Officer Kimberly Pugh investigated the incidents. She
interviewed appellant on November 7, 1997 concerning the charges
on the victim's credit card. Appellant told Pugh that he might
have been in the Food Lion store, but that he used his own
credit card. Appellant also told Pugh that he had been at the
University of Virginia Hospital a couple of weeks prior to the
interview, but he denied any knowledge of the credit card theft.
Appellant admitted that he may have been in some of the other
stores where the stolen credit card was used, but he denied
using the victim's stolen credit card.
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During the trial, the Commonwealth made a motion to show
the jury a videotape ("the Target tape") from a Richmond,
Virginia Target store parking lot. The Target tape depicted the
parking lot shortly after the victim's stolen credit card was
used to make a purchase in that store on the evening of
October 23, 1997. Appellant objected to the admission of the
tape on the ground of relevancy. The trial judge overruled the
objection, and the tape was shown to the jury.
After the tape was played for the jury, the Commonwealth
moved to admit the tape into evidence. Appellant renewed his
relevancy objection. The following colloquy occurred:
TRIAL JUDGE: I'm going to sustain, I don't
see where it's relevant. It hasn't been
tied up to this defendant. I haven't heard
this man identify this man on that tape.
COMMONWEALTH: Isn't that an issue for the
jury--I would have asked him but I thought--
TRIAL JUDGE: I don't know, nobody's
identified the defendant in that tape. I
sustain the objection.
Later, the Commonwealth attempted to ask Officer Pugh to
identify appellant from the Target tape; however, the trial
judge sustained appellant's objection to the testimony, ruling,
"the jury can look at the tape and make their own conclusions.
They don't need some witness to say I've looked at the tape and
this is who I think it is." When the Commonwealth again moved
to admit the Target tape, the trial judge stated, "The jury's
seen the tape."
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At the conclusion of the evidence, the Commonwealth
proffered a jury instruction regarding the permissible inference
allowed from evidence of the recent possession of stolen goods.
Appellant objected to the instruction, but the trial judge
overruled the objection and gave the instruction to the jury.
During its closing argument, the Commonwealth made
reference to the Target tape. Appellant objected on the ground
that the tape was never admitted into evidence. The trial judge
overruled the objection, stating, "But the jury saw the tape, so
I think that counsel can comment on the tape."
ANALYSIS
I. and II. The Target Tape
"'[E]vidence is relevant if it tends to establish the
proposition for which it is offered.' Evidence is material if
it relates to a matter properly at issue." Evans-Smith v.
Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)
(citation omitted).
Although the record is somewhat unclear as to whether the
Target tape was admitted into evidence, the record clearly
indicates the jury viewed the tape. The content of the Target
tape was material because it related to a matter properly at
issue--the identification of the credit card thief and forger.
The content of the Target tape was relevant evidence because it
depicted the Target parking lot just after the victim's stolen
credit card had been used in that store on the same day the card
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was stolen. Although the Target tape was not conclusive proof
that the same person used the victim's credit card at both the
Food Lion and Target stores, it was evidence relevant to that
determination.
Moreover, videotapes may be admitted into evidence as
"'"mute," "silent," or "dumb" independent photographic
witnesses.'" Brooks v. Commonwealth, 15 Va. App. 407, 410, 424
S.E.2d 566, 569 (1992) (citations omitted). "'[E]ven though no
human is capable of swearing that he personally perceived what a
photograph [or videotape] purports to portray . . . there may
nevertheless be good warrant for receiving [it] in evidence.'"
Id. (citation omitted). Thus, it was not necessary that a
witness identify appellant on the Target tape. Rather, the
content of the tape acted as a "silent," "independent
photographic witness." Id. Moreover, "[t]he fact finder may
take into consideration and regard as evidence details of [a]
photograph about which no testimony has been offered." Wilson
v. Commonwealth, 29 Va. App. 236, 240, 511 S.E.2d 426, 428
(1999). Accordingly, the trial judge did not err in allowing
the jury to view the content of the Target videotape.
Because we find the trial judge did not err in allowing the
jury to view the Target tape, we likewise find the trial judge
did not abuse his discretion in allowing the Commonwealth to
refer to the Target tape in its closing argument. As stated
above, the content of the tape was relevant and material.
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Furthermore, the trial judge has broad discretion in supervising
closing arguments. See Jordan v. Taylor, 209 Va. 43, 51, 161
S.E.2d 790, 795 (1968).
III. and IV. Sufficiency of the Evidence
Appellant contends the evidence was insufficient to prove
he committed credit card theft and credit card forgery based on
the lack of identification evidence.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). While the case against appellant is
circumstantial, convictions based on circumstantial evidence
will be upheld on appeal as long as "'all necessary
circumstances [are] consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence.'" Moran v. Commonwealth, 4 Va. App. 310, 314, 357
S.E.2d 551, 553 (1987) (citation omitted).
The evidence proved appellant was seen near the victim's
office on the day the credit card was taken. Within one hour of
this event, the victim's stolen credit card was used at a nearby
Food Lion store, and the jury viewed a videotape of that
transaction. Therefore, the jury had the opportunity to see the
physical characteristics of the user of the stolen credit card.
Moreover, appellant admitted to the officer that he may have
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been in the Food Lion store and several other stores where the
victim's stolen card was used. Although appellant denied he
paid for merchandise with the victim's credit card, the jury was
not required to accept his statement in its entirety. See
Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991). Therefore, from the evidence that appellant was
outside the victim's office on the day the credit card was
stolen, the Food Lion tape, the timing of that transaction, and
appellant's admissions, the jury could conclude beyond a
reasonable doubt that appellant stole the victim's credit card.
Appellant also contends the Commonwealth provided no proof
that he committed forgery because no handwriting expert
testified that his handwriting was on the Food Lion receipt.
However, it was not necessary that a handwriting expert testify
concerning the writing on the Food Lion receipt in order for the
jury to conclude appellant forged the document. From the
evidence of the Food Lion tape showing the actual transaction
made with the victim's stolen credit card, the jury could
conclude beyond a reasonable doubt that appellant, with the
intent to defraud the victim, forged a sales draft or used the
victim's credit card number, or uttered as true the forged
draft, knowing it to be forged, in violation of Code
§ 18.2-193(c). 1 Therefore, the evidence was sufficient to prove
1
In his brief, appellant also argues that no evidence was
introduced as to what name was written on the Food Lion sales
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beyond a reasonable doubt appellant committed the charged
offenses.
V. Jury Instruction
Appellant contends the trial judge erred in giving the
following jury instruction:
Proof of exclusive personal possession by
the defendant of recently stolen goods is a
circumstance from which you may reasonably
infer that the defendant was the thief,
unless the defendant offers a reasonable
account of possession consistent with
innocence which the Commonwealth has failed
to prove untrue.
At trial, appellant objected to the instruction on the
ground that no evidence was presented that appellant was found
in possession of recently-stolen goods. The trial judge
overruled the objection, finding that the evidence of the use of
the stolen credit card at Food Lion by a person who appeared on
the videotape to be "similar to defendant" was sufficient
evidence to support the instruction.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). The evidence relied
on to support a proffered instruction must amount to "more than a
draft. However, appellant did not present this argument to the
trial judge. Accordingly, Rule 5A:18 bars our consideration of
this argument.
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scintilla." Morse v. Commonwealth, 17 Va. App. 627, 633, 440
S.E.2d 145, 149 (1994). "Whether the recently stolen inference
is permissible . . . depend[s] . . . upon whether the possession
was knowing and recent." Bunn v. Commonwealth, 21 Va. App. 593,
600, 466 S.E.2d 744, 747 (1996).
The Food Lion receipt showed that, within one hour of the
victim's sighting of appellant near her office, the victim's
stolen credit card was used to purchase merchandise at a local
Food Lion store. The jury viewed the Food Lion tape depicting
the transaction using the victim's stolen credit card.
Therefore, sufficient evidence was presented of the recent,
post-theft use of the stolen credit card to support the jury
instruction.
In his brief, appellant also argues the trial judge erred
in giving the jury instruction because credit card offenses are
statutory in nature; the instruction was an incorrect statement
of the law; and the instruction violated appellant's
constitutional right to remain silent. However, appellant did
not present these arguments to the trial judge. "The Court of
Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). See Rule 5A:18.
Accordingly, Rule 5A:18 bars our consideration of these
arguments on appeal. Moreover, the record does not reflect any
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reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
We find no error and affirm appellant's convictions.
Affirmed.
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