Melvin Nathaniel Hatcher v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia
MELVIN NATHANIEL HATCHER
MEMORANDUM OPINION * BY
v. Record No. 0317-09-2 JUDGE ROBERT P. FRANK
FEBRUARY 23, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Leslie M. Osborn, Judge
Andrew J. Adams, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Jennifer C. Williamson, Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Melvin Nathaniel Hatcher, appellant, was convicted, in a bench trial, of grand larceny, in
violation of Code § 18.2-95. On appeal, he challenges the sufficiency of the evidence only as to
the value of the item stolen, contending the evidence did not prove the item stolen was valued at
$200 or more. He also asserts the trial court erred in admitting the testimony of two witnesses as
to the value. For the reasons stated, we affirm the trial court.
BACKGROUND
M.B. owned a pressure washer that he had inherited from his recently deceased
grandfather. When he received it, the washer was “brand new” and was still in the original box.
M.B. had only used the washer for a couple of hours prior to the theft. He had damaged the
washer’s hose but repaired the damage with an insert and “C” clamps. M.B. testified that the
washer was still new and “worked fine.”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
When M.B. was asked the value, appellant objected because the Commonwealth had not
laid a foundation to establish the source of M.B.’s knowledge.
M.B. testified he worked in construction and had previously used pressure washers. He
was familiar with the value of a pressure washer. He then testified, without objection, that the
value of the stolen washer was “well over $200.” Additionally, M.B. later testified that given his
line of work, he regularly looked at and priced all types of tools at Home Depot.
Sometime in late June 2007, M.B. determined the power washer had been stolen from
outside his residence.
S.H., a clerk at a pawnshop in Chase City, testified that on June 22, 2007 appellant and
another male entered her store with a pressure washer to pawn. She characterized the washer as
essentially brand new, perhaps a month old. It had “never been used once, if that.” S.H. did
notice the damaged hose but indicated the washer worked “just fine.”
When the Commonwealth asked S.H. how she would arrive at a value, appellant objected
on relevancy and hearsay grounds, contending any value based on outside research would be
hearsay. The trial court allowed S.H.’s testimony.
S.H. then testified she searched the internet through Home Depot and Shopzilla 1 to
determine a price range. S.H. determined the value of the pressure washer to be about $260 and
pursuant to company policy, offered appellant $70, which represented approximately one-quarter
of its value.
The trial court was satisfied that the value of the stolen item was at least $200 and found
appellant guilty of grand larceny.
This appeal followed.
1
Shopzilla is an online shopping network. It delivers search results for products and
services offered by third-party merchants, including descriptions and prices. See
www.shopzilla.com (last visited January 25, 2010).
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ANALYSIS
On appeal, appellant contends the trial court erred in allowing the testimony of M.B., the
owner, and S.H., the pawnshop clerk, as to value. Appellant also challenges the sufficiency of
the evidence, maintaining the evidence did not prove that the value of the pressure washer was
$200 or greater.
“The admissibility of evidence is within the broad discretion of the trial court, and a
ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). Furthermore, when
considering a challenge that the evidence presented at trial is insufficient, we “presume the
judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly
wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570
S.E.2d 875, 876-77 (2002).
Appellant contends that only expert testimony was admissible in order to establish the
value of the stolen pressure washer. However, appellant did not make this argument at trial.
Under Rule 5A:18, “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.”
Thus, this argument is waived and we will not consider it.
Appellant further argues the victim’s testimony was inadmissible, because M.B. had no
knowledge of value as he did not buy the washer and only knew the value from using similar
equipment and shopping at Home Depot. Therefore, he concludes the victim’s testimony was
irrelevant and thus inadmissible.
This argument is waived as well. Appellant objected to the victim’s initial testimony,
arguing there was no foundation as to the source of the victim’s knowledge. Thereafter, the
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Commonwealth laid a proper foundation, and the testimony was admitted. Appellant made no
further objection.
Appellant further contends the trial court erred in admitting the valuation testimony of the
pawnshop clerk because she was not qualified as an expert witness. However, appellant made no
objection at the time the clerk testified as to the value of the pressure washer. “To be timely, an
objection to the admissibility of evidence must be made when the occasion arises – that is, when
the evidence is offered, the statement made or the rulings given.” Harward v. Commonwealth, 5
Va. App. 468, 473, 364 S.E.2d 511, 513 (1988). Appellant’s failure to object to the testimony at
the time it was offered violates the contemporaneous objection rule contained in Rule 5A:18.
The primary purpose of requiring timely and specific objections is
to allow the trial court an opportunity to rule intelligently on the
issues presented, thereby avoiding unnecessary appeals and
reversals. A specific, contemporaneous objection also provides the
opposing party an opportunity to address an issue at a time when
the course of the proceedings may be altered in response to the
problem presented. If a party fails to make a timely objection, the
objection is waived for purposes of appeal.
Shelton v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007) (citations omitted).
Therefore, under Rule 5A:18, appellant’s objection was waived and his argument
regarding the necessity of expert testimony is defaulted.
Appellant further argues the clerk’s testimony of value was based on inadmissible
hearsay, where she relied on information obtained from her online research, i.e. information
obtained from third parties, when the original source was not admitted into evidence. Assuming
without deciding that the trial court erred in allowing this testimony, such error is harmless,
because the victim’s testimony established the requisite value.
In Kotteakos v. United States, 328 U.S. 750 (1946), the Supreme Court adopted the test
to be applied in determining if nonconstitutional error is harmless. The test is as follows:
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If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but very slight effect, the verdict
and the judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. . . . If so, or if one is left in
grave doubt, the conviction cannot stand.
Id. at 764-65 (citation omitted).
Applying the Kotteakos harmless error test, we can say, “with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole,” that it
plainly appears appellant had a fair trial. Id. at 765. The verdict was not affected by the clerk’s
testimony, because the victim had already established the requisite value. Therefore, we hold
that any error is harmless.
Finally, appellant challenges the sufficiency of the evidence, as to value only. He does
not dispute he was the perpetrator.
“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, 9-10, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). “[W]e presume the judgment of the trial court to be
correct,” Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and “will not set it
aside unless it is plainly wrong or without evidence to support it,” Dodge v. Dodge, 2 Va. App.
238, 242, 343 S.E.2d 363, 365 (1986).
When considering a challenge that the evidence presented at trial is insufficient, we
“presume the judgment of the trial court to be correct” and reverse only if the trial court’s
decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39
Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of
the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).
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“Instead, the relevant question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id.
To convict appellant of grand larceny, the Commonwealth was required to prove the
property he unlawfully took was valued at $200 or more. Code § 18.2-95(ii). The relevant value
is the “current value” of the stolen items, Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d
792, 792 (1981) (per curiam), “measured as of the time of the theft,” Parker v. Commonwealth,
254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).
M.B. testified he had inherited the Coleman pressure washer from his grandfather, it was
“brand new,” and he “took it out of the box [himself].” He also stated he had used the pressure
washer for only a couple of hours and he had to repair a hose on it, but that it worked fine
thereafter and “was still brand new.” M.B. testified he was familiar with the value of pressure
washers because he was in construction work and “sometimes you pressure wash houses and
stuff,” and he had “been around that kind of stuff.” M.B. also testified he frequently looked at
and priced tools at Home Depot. Based on his experience, the victim estimated the pressure
washer was worth “well over $200.”
The victim was the owner of the property and was thus competent to state his opinion
concerning the value of the pressure washer. See Walls v. Commonwealth, 248 Va. 480, 482,
450 S.E.2d 363, 364 (1994). Any argument that the victim lacked knowledge of the value went
to the weight that the trial court gave the victim’s testimony and not its admissibility. See Kern
v. Commonwealth, 2 Va. App. 84, 86, 341 S.E.2d 397, 399 (1986).
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The trial court accepted the value evidence from the victim. “The credibility of the
witnesses and the weight accorded the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20
Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
CONCLUSION
The testimony of the victim was sufficient to prove beyond a reasonable doubt that the
value of the stolen pressure washer was at least $200 and that appellant was guilty of grand
larceny. We therefore affirm the judgment of the trial court.
Affirmed.
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