                     COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


JOHNNY LUNDY
                                           MEMORANDUM OPINION * BY
v.   Record No. 3194-96-1                  JUDGE WILLIAM H. HODGES
                                              NOVEMBER 25, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Frederick B. Lowe, Judge

             Thomas L. Watkins, Deputy Public Defender
             (Office of the Public Defender, on brief),
             for appellant.
             John K. Byrum, Jr., Assistant Attorney
             General (Richard Cullen, Attorney General, on
             brief), for appellee.



         Johnny Lundy, appellant, was convicted of grand larceny.

On appeal, appellant asserts that the trial court erred in

admitting a document into evidence.      Appellant also argues that

the evidence was insufficient to prove that he committed grand

larceny.    For the following reasons, we affirm appellant's

conviction.
                                 Facts

     On November 3, 1995, at about 3:00 or 4:00 p.m., power tools

were stolen from the victim's van.       The stolen tools consisted of

a Makita table saw, a Roybi chop saw, a Hitachi chop saw, two

Craftsman routers, a Roll Air air compressor, four Makita drills,

and two Pass Load nail guns.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        Jeffrey Knight testified that, at about 5:00 or 6:00 p.m.,

on November 3, 1995, appellant asked Knight to sell some tools to

a pawn broker for him.      Knight had never met appellant before

this incident.      Knight accompanied appellant to Gene Daniels'

auction house where they pawned five or six "electric" items,

including "some drills" and a "hand planer."

        The Commonwealth showed Knight Commonwealth's Exhibit 1, a

document containing a "Gene Daniels" logo, the number "5467,"

"Page 1," and dated "11-3-95."        Knight testified that Exhibit 1

contained a list of the items that appellant asked him to pawn

and that it contained Knight's signature.        Knight could not

identify Commonwealth's Exhibit 3, a document containing the same

"Gene Daniels" logo, "Page 2," a list of power tools, and the

partial handwritten number "5_67." 1

        Gene Daniels, the owner of an auction house, testified that

he purchased some tools from Knight and appellant on November 3,

1995.       Daniels testified that Exhibit 1 contained both his

handwriting and the handwriting of one of his employees, but he

could not identify which employee.        Daniels also testified that

Exhibit 3 contained handwriting from "the same person" who wrote

Exhibit 1 and that the exhibits "go together" because Exhibit 1
                                2
"says continued on Page 2."         Daniels stated, "Each document is
        1
      Exhibit 3, as submitted in the record for appeal, has a
hole punched through the handwritten number, so that the number
"5_67" appears on the exhibit.
        2
      Exhibit 1 actually says "Content on Page 2" near the bottom
of the document.



                                      2
numbered; and 5467, if you go to the next page, we write that at

the top of the page."   Included in the listing on the two

exhibits were the same type of tools described by the victim and

made by the same manufacturers.

     Daniels also testified that he had previously purchased

tools from appellant which the police had confiscated from

Daniels concerning another case.       A few days to a week before

November 3, 1995, Daniels advised appellant that he would not

purchase tools from him until that matter was "straightened out."

                     Admissibility of Exhibit 3

     At his trial, appellant objected to the admissibility of

Exhibit 3, arguing that Daniels could not identify the

handwriting on the document and that there was never "any

identification of [Exhibit 3] being related to the first page

[Exhibit 1]."   The trial judge overruled appellant's objection

and admitted Exhibit 3 into evidence.

     In his brief, appellant argues that Exhibit 3 contained

hearsay and that the Commonwealth failed to qualify the document

under the business records exception to the hearsay rule.

However, at trial, appellant did not make a hearsay objection or

make a business records argument to the trial court concerning

the admissibility of Exhibit 3.    The Court of Appeals will not

consider an argument on appeal which was not presented to the

trial court.    See Jacques v. Commonwealth, 12 Va. App. 591, 593,

405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).      Therefore, Rule



                                   3
5A:18 bars our consideration of these arguments on appeal.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

     Appellant also argues that Exhibit 3 was not admissible

because it was not properly identified by Daniels, the auction

house owner.   "Before any writing may be introduced into

evidence, it must be authenticated, 'which is the providing of an

evidentiary basis sufficient for the trier of fact to conclude

that the writing came from the source claimed.'"       Ragland v.

Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675, 679 (1993)

(citation omitted).   "Authentication is merely the process of

showing that a document is genuine and that it is what its

proponent claims it to be."    Owens v. Commonwealth, 10 Va. App.

309, 311, 391 S.E.2d 605, 607 (1990).

     Concerning the authenticity of Exhibit 3, the Commonwealth

presented direct evidence as to the origin and execution of the

document and testimony as to the genuineness of the handwriting

on the document.   See Jackson v. Commonwealth, 13 Va. App. 599,

602, 413 S.E.2d 662, 665 (1992).       Daniels, the owner of the

auction house, testified that he recognized Exhibit 1 and that

the document contained both his own handwriting and the

handwriting of one of his employees.      "'If direct testimony of

the authorship of a writing . . . is given, this is sufficient

authentication . . . .   The writing . . . comes in, if not

otherwise objectionable.'"    Id. at 603, 413 S.E.2d at 665




                                   4
(citation omitted).   Daniels also stated that Exhibits 1 and 3

"go together"; that it was the practice at his business to

continue onto another page when listing numerous items; that they

would write the ticket number from the first page onto the second

page when needed; and that Exhibit 3 had the same number, "5467,"

as Exhibit 1.   He testified that Exhibit 1 indicated that the

document was continued onto a page two and that the items listed

were the items brought into the store by appellant and Knight on

November 3, 1995.   Thus, the evidence established that Exhibit 3

was "'what its proponent claims it to be.'"    Id. (citation

omitted).

     Further, Exhibit 1 was authenticated by Knight's testimony

that Exhibit 1 contained a list of the items that he and

appellant sold to Daniels.   It also contained Knight's signature.

     "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).

From Daniels' testimony, and from the fact that both exhibits

appear to contain the same handwriting, the two documents were

sufficiently linked so that the authenticity of Exhibit 3 was

established.    Cf. Washington v. Commonwealth, 228 Va. 535, 550,

323 S.E.2d 577, 587 (1984) ("If the exhibit has a unique

characteristic by which it may be identified and distinguished

with reasonable certainty from others of its kind, identification




                                  5
by that characteristic is sufficient proof of authenticity.").

Therefore, the trial court did not err in admitting Exhibit 3

into evidence.

                   Sufficiency of the Evidence

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."   Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
     Appellant contends that, because only "some" of the items

connected with him were similar to items taken from the victim,

the evidence was insufficient to find that he was in exclusive

possession of recently stolen property and was, therefore, guilty

of the theft of the property.   However, "[w]hen an accused is

found in possession of goods of a type recently stolen, strict

identity of the goods is not required."   Henderson v.

Commonwealth, 215 Va. 811, 812-13, 213 S.E.2d 782, 783 (1975).

          "'It is not necessary that the identity of
          stolen property should be invariably
          established by positive evidence. In many
          such cases identification is impracticable,
          and yet the circumstances may render it
          impossible to doubt the identity of the
          property, or to account for the possession of
          it by the accused upon any reasonable
          hypothesis consistent with his innocence.'"

Id. at 813, 213 S.E.2d at 783 (citation omitted).

     The evidence proved that appellant possessed certain power

tools that were goods of the same distinctive types as those

stolen from the victim and that appellant possessed this unique



                                 6
combination of tools within two hours of the theft.    Further,

appellant approached a complete stranger to assist him in pawning

the tools.    Moreover, the owner of the auction house had advised

appellant that he would not purchase tools from him because prior

purchases were under police investigation.    Considered together,

these circumstances support an inference that the drill, nail

gun, compressor, and two routers pawned by appellant and Knight

were tools stolen from the victim.     "It is immaterial that the

quantity of goods possessed was less than the quantity stolen and

charged in the indictment, for the fact-finder 'may infer the

stealing of the whole from the possession of part.'"        Id. at 813,

213 S.E.2d at 784 (citation omitted).    From the evidence of

appellant's recent possession of the stolen items, the fact

finder could also reasonably infer that appellant stole the

items.     See Bright v. Commonwealth, 4 Va. App. 248, 251, 356

S.E.2d 443, 444 (1987).    Therefore, the evidence was sufficient

to prove beyond a reasonable doubt that appellant committed grand

larceny.

     For the foregoing reasons, the judgment of the trial court

is affirmed.
                                                Affirmed.




                                   7
Benton, J., concurring and dissenting.

     I agree that the trial judge did not err in admitting

Commonwealth's Exhibit 3 into evidence.    I dissent, however, from

that portion of the majority opinion holding that the evidence

was sufficient to support the conviction.

     "[W]here, as here, a conviction is based on circumstantial

evidence, 'all necessary circumstances proved must be consistent

with guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'"     Garland v. Commonwealth,

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).        "It

is not sufficient that the evidence create a suspicion of guilt,

however strong, or even a probability of guilt, but must exclude

every reasonable hypothesis save that of guilt."    Webb v.

Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).       See

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197

(1981) ("Suspicion, however, no matter how strong, is

insufficient to sustain a criminal conviction.").    Thus, the

evidence must "establish . . . guilt beyond a reasonable doubt."
Webb, 204 Va. at 34, 129 S.E.2d at 29.    Because the evidence in

this case fails to prove beyond a reasonable doubt that Johnny

Lundy possessed the items stolen from William Monroe, I would

reverse the conviction.

     Although, "possession of goods recently stolen is prima

facie evidence of guilt [of the crime of larceny]," Fout v.




                                8
Commonwealth, 199 Va. 184, 190-91, 98 S.E.2d 817, 821-22 (1957),

the evidence must prove that the items were in fact stolen.

Thus, the victim must identify in some way the items recovered as

those that were stolen.   In this case, the articles that were in

Lundy's possession shortly after the theft were not sufficiently

identified as the articles stolen from Monroe.

     Where the articles are not sufficiently identified, the

evidence is insufficient to convict the defendant of larceny.
Barnett v. Commonwealth, 210 Va. 348, 349, 170 S.E.2d 760, 761

(1969).   In Barnett, the evidence proved that the defendant was

in the vicinity of the victim's home on the day of the theft and

that he was "in possession of articles meeting the general

description of those stolen from [the victim]."     Id.   The

Commonwealth introduced some of the stolen items at trial.

"Although [the victim] took the stand, he did not identify any of

those articles or even express an opinion whether they belonged

to him.   So the person who was in the best position to prove the

Commonwealth's case or to acquit [the defendant] gave no

testimony on this crucial issue."    Id.   Thus, the victim's

unexplained failure to make an identification made the evidence

insufficient to support the conviction.     See also Griffith v.

Commonwealth, 213 Va. 50, 51, 189 S.E.2d 366, 367 (1972) (holding

that while the actions of the defendant "were suspicious," the

evidence in total was not sufficient to prove beyond a reasonable

doubt that the goods the defendant was seen carrying near the




                                 9
victim's apartment were the goods which had been stolen).

     The majority relies on Henderson v. Commonwealth, 215 Va.

811, 213 S.E.2d 782, (1975), where the Supreme Court of Virginia

held that "when an accused is found in possession of goods of a

type recently stolen, strict proof of identity of the goods is

not required."   215 Va. at 813, 213 S.E.2d at 783.   Relying on

Kelly v. Commonwealth, 181 Va. 576, 26 S.E.2d 63 (1943), and

Gravely v. Commonwealth, 86 Va. 396, 10 S.E. 431 (1889), the

Court held that under the circumstances proved in Henderson,
there was "no room for reasonable doubt" that the goods the

defendant possessed were the goods stolen.   215 Va. at 813, 213

S.E.2d at 783.   However, the Supreme Court in Barnett

distinguished Kelly, 181 Va. at 578, 26 S.E.2d at 64 (involving

larceny of clothing whose labels had been removed), and Gravely,

86 Va. at 396, 10 S.E. at 432 (involving burglary of flour, meal,

and eggs), because "[t]he stolen articles in those cases were not

capable of specific identification."    Barnett, 210 Va. at 349-50,

170 S.E.2d at 761.

     In this case, Monroe testified that several of his carpentry

tools had been stolen from his van.    Monroe listed the names and

manufacturers of each of the tools stolen.   These articles

included a table saw, two chop saws, two routers, an air

compressor, a finish nail gun, and four drills, two or which were

cordless.

     Jeffrey Knight testified that Lundy gave him fifteen dollars



                                10
to pawn several items at the pawn shop because Lundy did not have

identification with him.   Knight testified that Lundy gave him

five or six items to pawn, including some electric drills and a

hand planer.   At trial, Commonwealth's Exhibits 1 and 3 listed

the items that had been purchased by the pawn shop.   The list on

Exhibit 1 included two rotary hammers, a power planer, a hammer

drill, and two drills.   Exhibit 3 listed a table saw, a miter

saw, a drill, two routers, a plane, a circular saw, and an air

compressor.    The serial numbers and model numbers, as well as the

manufacturers of the tools, were also listed.
     Although some of the items pawned by Knight for Lundy were

similar in a general description to some of the items Monroe

testified were stolen from him, the evidence did not further

identify the pawned tools as belonging to Monroe.    These items

were not such that they could not be specifically identified.

Furthermore, "[t]here is no suggestion that [Monroe] could not

have specifically identified any of the articles."    Barnett, 210

Va. at 349, 170 S.E.2d at 761.    The Commonwealth did not produce

the items, or pictures of the items, at trial for Monroe to

identify.   The Commonwealth did not match the serial numbers,

model names, or model numbers of the items recovered with the

items Monroe listed as missing.    Monroe never identified the

items listed on Exhibit 1 or 3 as his.   Nowhere in the record

were the tools identified as being the tools stolen from Monroe.

     Under these facts, "there exists a serious void in the



                                  11
proof, filled only with the suspicion that the defendant may have

been the guilty agent; and suspicion is never enough to sustain a

conviction."   Simmons v. Commonwealth, 208 Va. 778, 783, 160

S.E.2d 569, 573 (1968).   The evidence is insufficient to prove

beyond a reasonable doubt that Lundy possessed items belonging to

Monroe.   Therefore, I dissent.




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