Michael Fincham v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
MICHAEL FINCHAM
MEMORANDUM OPINION * BY
v. Record No. 1197-99-4 JUDGE RUDOLPH BUMGARDNER, III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Janell M. Wolfe (Law Office of Janell M.
Wolfe, on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted Michael Fincham of two counts of grand
larceny by false pretenses in violation of Code § 18.2-95. On
appeal, the defendant argues the trial court erred in admitting
evidence that the defendant may have committed other crimes.
Finding no error, we affirm his convictions.
The defendant was charged with receiving payment for but
never completing repair work to the home of an elderly Arlington
couple, Edward and Mary Beardman. The Commonwealth filed a
motion in limine to determine whether the trial court would
admit evidence that referred to other offenses. The
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth proffered that FBI Agent Charles Price interviewed
the defendant about defrauding an elderly resident of
Washington, D.C. During the interview, the defendant told him
about defrauding the Beardmans in Arlington. The trial court
did not exclude the evidence because the proffer indicated a
pattern and practice in a common scheme, but the trial court
cautioned that it would keep the objection in mind and rule as
the evidence developed. As the hearing ended, the trial court
stated, "So I rule in advance that it is not inadmissible and I
will consider objections as they come in item by item." The
defendant made no objection.
At trial, Price testified that he interviewed the defendant
during an investigation "in which [he] received allegations that
[the defendant] and others had defrauded an elderly resident of
Washington, D.C." The defendant did not object to this
evidence, but the trial court immediately gave a cautionary
instruction sua sponte limiting the use of the evidence. The
defendant did not object to the instruction and made no request
to modify or supplement the instruction as given. When the
trial court instructed the jury before it began deliberating,
the trial court gave an instruction patterned from Model Jury
Instruction 2.260 limiting the use of evidence of other
offenses. The defendant neither objected to the instruction nor
offered any alternative.
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During the Commonwealth's examination of Price, it asked
for details of the case in Washington, D.C. The defendant
objected to evidence of "what the case involved," and the trial
court sustained the objection. It ruled that the Commonwealth
could not introduce details of other crimes, and the
Commonwealth withdrew the question. Price testified about the
defendant's statements concerning the offense being tried. The
defendant "told me that he and Robert Bowers defrauded Mr. and
Mrs. Beardman in Arlington. . . . And he told me about the fact
that they received three checks from the Beardmans and the
amounts of those checks." The defendant also acknowledged that
"charges were pending on that matter in Arlington [regarding the
Beardmans], that Detective Comfort in Arlington was
investigating that matter and that Bowers paid back . . . two
thousand."
When the Commonwealth sought clarification of the trial
court's pretrial ruling that she could introduce "the other
victims as part of the scheme," the trial court advised that the
Commonwealth could offer the defendant's admissions that "linked
Beardman to other activities somewhere in the nature of
obtaining by false pretenses checks and/or money." However, the
court prohibited the Commonwealth from presenting "a total
description of all the other cases." The Commonwealth did not
question Price further about the other crimes.
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On appeal, the defendant generally argues that the trial
court erroneously admitted evidence of other crimes. The
defendant complains about four incidents: Price's testimony
that he was investigating the defendant for a D.C. crime; the
reference to a third check taken from the Beardmans; the court's
failure to rule during the motion in limine; and the court's
failure to explain during its sua sponte cautionary instruction
the purpose for admitting the evidence of other crimes.
However, the defendant raised none of these objections at trial,
and he is precluded from raising them for the first time on
appeal. See Rule 5A:18; Barnabei v. Commonwealth, 252 Va. 161,
177, 477 S.E.2d 270, 279 (1996) (failure to object when
instruction given), cert. denied, 520 U.S. 1224 (1997); Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)
(failure to make same objection to trial court); Boblett v.
Commonwealth, 10 Va. App. 640, 650-51, 396 S.E.2d 131, 136-37
(1990) (acquiescence).
The trial court carefully considered the positions of the
parties, gave tentative rulings based on the proffers but
clearly indicated that it would consider the matters as they
actually developed during testimony, and invited objections as
each item was offered. The trial court sustained the only
objection made. The jury was promptly and effectively
instructed both when the evidence was first offered and then
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when the court submitted the case for decision. Finding no
error, we affirm the convictions.
Affirmed.
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