Maurice Francis Neenan III v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge O’Brien and Senior Judge Haley
UNPUBLISHED
Argued at Richmond, Virginia
MAURICE FRANCIS NEENAN III
MEMORANDUM OPINION* BY
v. Record No. 1124-21-2 JUDGE JAMES W. HALEY, JR.
OCTOBER 4, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ricardo Rigual, Judge
Kelsey Bulger, Senior Assistant Public Defender (Virginia Indigent
Defense Commission, on briefs), for appellant.
Jason D. Reed, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The trial court convicted Maurice Francis Neenan III, appellant, of grand larceny and
larceny with the intent to sell. On appeal, appellant contends that the trial court erred by admitting
surveillance video and still photographs from the video, as well as a pawn shop receipt into
evidence at his trial. He also asserts that the evidence is insufficient to prove he intended to sell the
stolen items. For the following reasons, we affirm.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
doing so, we discard any of appellant’s conflicting evidence and regard as true all credible evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
On June 3, 2020, appellant entered a Lowe’s store in Spotsylvania County. Katelyn Gibson
was working as an asset protection agent at the store when “some activity . . . was brought to [her]
attention.” In response to the report, Gibson reviewed the store’s video surveillance. On the video,
appellant is seen leaving the store with items without paying for them. Gibson testified that the
video, still photographs from the video, and an inventory record were all records made and kept in
the course of Lowe’s regularly conducted business and that she had access to those records as a part
of her daily obligations and duties. After viewing the June 3 video, Gibson created the inventory
record, focusing on the outdoor power equipment section based on what she had observed in the
video. She discovered that two Husqvarna chainsaws and one Husqvarna backpack blower were
missing from the store, which matched the items seen in the video. The retail value of the three
items exceeded one thousand dollars.
In the June 3 video, appellant approached the store’s customer service desk and attempted to
return the three items. When the transaction was declined, appellant exited the store without paying
for any of the items in his cart. On June 23, 2020, appellant returned to the Lowe’s store, interacted
with Gibson, and “attempt[ed] to pay for the products that had been taken,” specifically mentioning
the items stolen on June 3. After seeing appellant in person on June 23, Gibson confirmed that he
was the same person depicted in the surveillance video from June 3.
Corey Bibey, an employee at Pawn King in Spotsylvania County, confirmed that he is “a
person that has access to records that are kept in the normal course of Pawn King’s business.”
Bibey reviewed a document which he explained was the “original transaction ticket” from June 3,
2020, less than thirty minutes after the theft of the items from Lowe’s, showing that a person who
presented appellant’s identification sold two Husqvarna chainsaws and one Husqvarna backpack
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blower to the pawn shop for $400. Bibey acknowledged that he did not create the document, but he
stated that he had “full access” to the store’s records as part of his employment.
The trial court found Gibson’s testimony “quite credible.” The court held that appellant
removed the three items from the store without paying for them and less than thirty minutes later he
sold the same items to the pawn shop. The trial court concluded that the evidence was
“overwhelming beyond a reasonable doubt that [appellant] did this.” This appeal followed.
ANALYSIS
ADMISSION OF THE VIDEO, PHOTOS, AND PAWN TICKET
Appellant argues that the trial court abused its discretion by admitting the surveillance
video, the still photographs taken from the video, and the pawn shop transaction receipt. “It is
well-settled that [d]ecisions regarding the admissibility of evidence lie within the trial court’s
sound discretion and will not be disturbed on appeal absent an abuse of discretion.” Nottingham
v. Commonwealth, 73 Va. App. 221, 231 (2021) (internal quotation marks omitted). “A court
has abused its discretion if its decision was affected by an error of law or was one with which no
reasonable jurist could agree.” Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022).
Appellant contends that the “Commonwealth did not lay a sufficient foundation to admit
the video or the photographs from the video.” “The requirement of authentication or
identification [is] a condition precedent to [the] admissibility [of evidence that] is satisfied by
evidence sufficient to support a finding that the thing in question is what its proponent claims.”
Va. R. Evid. 2:901. “Photographs are admissible under either of two theories: ‘to illustrate a
witness’ testimony’ or ‘as an “independent silent witness” of matters revealed by the
photograph.’” Bennett v. Commonwealth, 69 Va. App. 475, 487 (2018) (quoting Bailey v.
Commonwealth, 259 Va. 723, 738 (2000)). “[V]ideos are admissible under the same principles.”
Id. “‘Once the threshold for proving admissibility’” is met, questions concerning the accuracy of
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photographs are relevant “only to the [fact finder’s] assessment of the weight to give it.”
McDaniel v. Commonwealth, 73 Va. App. 299, 316 (2021) (quoting Church v. Commonwealth,
71 Va. App. 107, 122 (2019)). See also Reedy v. Commonwealth, 9 Va. App. 386, 391 (1990)
(“Where there is mere speculation that contamination or tampering could have occurred, it is not
an abuse of discretion to admit the evidence and let what doubt there may be go to the weight to
be given the evidence.”).
Here, the video and photographs were offered as an independent “silent witness” of the
depicted facts. As such, the test for whether the photograph was admissible is “whether the
evidence [was] sufficient to provide an adequate foundation assuring the accuracy of the process
producing it.” Bynum v. Commonwealth, 57 Va. App. 487, 492 n.3 (2011) (quoting Ferguson v.
Commonwealth, 212 Va. 745, 747 (1972)). We have held that the authentication requirement had
been met where the evidence showed that the videotape the Commonwealth sought to introduce
“included an on-screen display of the passage of time in seconds and that the tabs which allow
alteration of the tape had been removed” and “police officers identified the voice [in the video] as
appellant’s . . . .” Brooks v. Commonwealth, 15 Va. App. 407, 410-11 (1992).
Gibson testified that the HR and IT departments conduct daily tests to verify the accuracy of
the surveillance system, and she verified that the tests had been run on June 3, 2020. Gibson further
verified that the time and dates on the video were correct. Gibson identified appellant as the
individual depicted in the video after having met him in person when he returned to the store and
attempted to pay for the stolen merchandise. Gibson downloaded the video files to her computer
which only she could access and stored the files there until she copied them onto a disk to be used at
court. Gibson confirmed that the video had not been altered. Gibson’s testimony sufficiently
authenticated the video and photos taken from the video, and the record supports the trial court’s
decision to admit the video and photographs.
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Appellant further argues that the trial court abused its discretion by admitting the pawn shop
ticket because Bibey had not prepared the document himself and therefore was not a proper
custodian of the record. “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.” Melick v. Commonwealth, 69 Va. App. 122, 133
(2018). “The proponent must establish the elements of the exception by a preponderance of the
evidence.” Id. at 133-34.
The business records exception to the rule against hearsay permits “the admission into
evidence of verified regular entries without requiring proof from the original observers or record
keepers.” McDowell v. Commonwealth, 273 Va. 431, 434 (2007) (quoting Neeley v. Johnson,
215 Va. 565, 571 (1975)). Settled principles make clear that a witness need not be the sole
official custodian of business records to provide foundational testimony that establishes a
hearsay exception provided that the witness “ha[s] knowledge of how [the company’s] records
[are] compiled and maintained[] and . . . ha[s] access to those records as an integral part of his
responsibilities . . . for his employer.” Lee v. Commonwealth, 28 Va. App. 571, 576 (1998); see
also Va. R. Evid. 2:803(6)(D) (requiring “testimony of the custodian or another qualified
witness” to verify origin under the business records exception (emphasis added)).
Virginia appellate courts have found that persons who are familiar
with the regular operations of the business and the circumstances
under which the subject records normally are created are
competent to establish the requirements of the business records
exception even if they are neither the creator nor the formal
custodian of the record.
Melick, 69 Va. App. at 141.
Bibey testified that all employees are required to scan a seller’s identification at the time
a purchase is made. The pawn tickets are made at the time of the transaction, and both the ticket
and the copy of the identification were made and kept in the regular course of business. As in
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Melick, Bibey knew how the records were created, had access to the records, and made use of the
records as part of his duties. See id. at 142. Bibey was sufficiently familiar with the operations
of the business and the policy regarding the creation of the records to satisfy the “another
qualified witness” requirement of Rule 2:803(6)(D).
Accordingly, we find no abuse of discretion with the trial court’s decision to admit the
video, the photographs, and the pawn store ticket.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to support his conviction for larceny
with the intent to sell because “the Commonwealth failed to prove [he] intended to sell the items.”
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed
correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’”
McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith
v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather,
the relevant question is whether ‘any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Vasquez, 291 Va. at 248 (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at
521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
In appellant’s view, “the evidence failed to establish that [he] was the individual who sold
the items.” He notes that no witnesses identified him as being at the pawn shop. He asserts that the
Commonwealth “relied on a copy of the transaction ticket to show that [he] sold the items” and that
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“[w]ithout further evidence, . . . the Commonwealth cannot meet its burden to prove that he stole the
items with the intention of selling them.”
“Proving intent by direct evidence often is impossible. Like any other element of a
crime, it may be proved by circumstantial evidence, as long as such evidence excludes all
reasonable hypotheses of innocence flowing from it.” Gilbert v. Commonwealth, 45 Va. App.
67, 71 (2005) (quoting Adams v. Commonwealth, 33 Va. App. 463, 470-71 (2000)).
“Determining a defendant’s intent ‘is a factual question, which lies peculiarly within the
province of the [fact finder].’” Barnett v. Commonwealth, 73 Va. App. 111, 120 (2021) (quoting
Hughes v. Commonwealth, 18 Va. App. 510, 519 (1994) (en banc)).
Here, the evidence proved that appellant stole two Husqvarna chainsaws and one
Husqvarna backpack blower from Lowe’s and less than thirty minutes later, an individual who
presented appellant’s identification sold the same items to the pawn shop. “The trier of fact resolves
conflicts in the evidence, weighs the evidence, and draws ‘reasonable inferences from basic facts to
ultimate facts.’” Holmes v. Commonwealth, 41 Va. App. 690, 691 (2003) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). “An inference ‘permits a finder of fact to conclude the
existence of one fact from the proof of one or more other facts.’” Crowder v. Commonwealth, 41
Va. App. 658, 665 (2003) (quoting Carfagno v. Commonwealth, 39 Va. App. 718, 727 (2003)).
Based on all the evidence presented, the trial court reasonably concluded that appellant was the
person who sold the items to the pawn shop and that he stole them with the specific intent to sell
them. The trial court did not exceed its factfinding discretion in drawing these reasonable
inferences from the proven facts of this case.
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CONCLUSION
For the foregoing reasons, we find no abuse of discretion with the trial court’s admission
of the disputed evidence and that the evidence was sufficient to prove appellant’s guilt beyond a
reasonable doubt. Therefore, we affirm appellant’s convictions.
Affirmed.
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