                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia


TINA RENEE ROSSER
                                          MEMORANDUM OPINION * BY
v.   Record No. 2862-99-3                  JUDGE LARRY G. ELDER
                                             NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          George W. Nolley for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Tina Renee Rosser (appellant) appeals from her bench trial

convictions for statutory burglary and grand larceny.     On

appeal, she contends the trial court erroneously (1) admitted

testimony about the existence and contents of a letter allegedly

written by her; and (2) held the evidence was sufficient to

support her convictions.    We hold that the trial court did not

abuse its discretion in admitting testimony about the letter's

contents and that the evidence was sufficient to support both

convictions.   Therefore, we affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 A.

         ADMISSIBILITY OF TESTIMONY ABOUT CONTENTS OF LETTER

     The best evidence rule requires that, "when the terms of a

writing or document are material, the original must be produced

unless it be shown that the original is unavailable, in which

case secondary evidence may be introduced to prove the facts."

Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176,

179 (1991).   "Generally, the sufficiency of the evidence

relating to unavailability of the writing is a preliminary

question addressed to the sound discretion of the trial court."

Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881,

885 (1993).   If a dispute develops over whether the original

writing ever existed, "the conflicting evidence . . . must be

presented . . . [and the issue] resolved as a matter of

fact. . . .   The test of unavailability is proof with reasonable

certainty."    Id. at 379-80, 429 S.E.2d at 885.   If the trier of

fact concludes with reasonable certainty that the document

existed and that it is unavailable for admission at trial,

testimony about its contents is admissible, and any remaining

disputes center on the weight to be given the evidence, not its

admissibility. 1   See, e.g., Foley v. Commonwealth, 8 Va. App.

149, 164-65, 379 S.E.2d 915, 924 (1989).


     1
       We reject the Commonwealth's contention that appellant
failed properly to preserve for appeal her objection to the
admission of testimony about the contents of the letter.
Although appellant did not specifically argue the evidence was

                                - 2 -
     Here, McFadden and Stone both testified to their receipt

from appellant's stepmother of a letter written by appellant.

They also indicated that the letter had been misplaced or thrown

out and that they had been unable to find it despite

"[t]urn[ing] the[ir] house upside down."   Both McFadden and

Stone agreed the letter was from appellant and indicated

appellant's knowledge of the theft.    The trial court "ha[d] no

doubt" the letter existed and indicated its only question

concerned the letter's precise contents.   Under these

circumstances, the evidence, viewed in the light most favorable

to the Commonwealth, supports the trial court's implicit

finding, by a reasonable certainty, that the letter existed and

was material but that it was unavailable for admission into

evidence at trial.   Therefore, the trial court did not abuse its

discretion in admitting into evidence testimony about the

existence and contents of the letter.




insufficient to prove unavailability, she contended the letter
was inadmissible under the best evidence rule. As discussed in
the text, the best evidence rule encompasses the issue of
unavailability. Further, the trial court heard evidence and
argument from the Commonwealth on the issue of unavailability,
and implicitly ruled the letter was unavailable, thereby
satisfying the purpose of Rule 5A:18. See, e.g., Morris v.
Comm. Dep't of Soc. Servs., 13 Va. App. 77, 84 n.2, 408 S.E.2d
588, 592 n.2 (1991).


                               - 3 -
                                 B.

                     SUFFICIENCY OF THE EVIDENCE

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.    See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).   Any element of a crime may be proved by

circumstantial evidence, see, e.g., Servis v. Commonwealth, 6

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the

evidence as a whole "is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt," Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

     Appellant was convicted for grand larceny and statutory

burglary.    "Larceny is the wrongful taking of goods of another

without the owner's consent and with the intention to

permanently deprive the owner of possession of the goods.    Once

the crime of larceny is established, the unexplained possession

of recently stolen goods permits an inference of larceny by the

possessor."    Bright v. Commonwealth, 4 Va. App. 248, 251, 356

S.E.2d 443, 444 (1987).   Possession must be exclusive but may

also be joint.    See Moehring v. Commonwealth, 223 Va. 564, 568,

290 S.E.2d 891, 893 (1982).   If the value of the goods taken

equals or exceeds $200, the crime is grand larceny.     See Code

§ 18.2-95.



                                - 4 -
     Statutory burglary requires proof that appellant broke and

entered the dwelling house of McFadden and Stone with the intent

to commit larceny therein.   See Code §§ 18.2-90, -91.     "The

Commonwealth can establish a prima facie case that appellant

broke and entered by (1) proving that goods were stolen from a

house which was broken into; (2) justifying the inference that

both offenses were committed at the same time, by the same

person, as part of the same criminal enterprise; and (3) proving

that the goods were found soon thereafter in the possession of

the accused."   Bright, 4 Va. App. at 251, 356 S.E.2d at 444.

     The evidence, both direct and circumstantial, is sufficient

to support appellant's convictions.    As to the larceny

conviction, ample evidence establishes that the boom box and TV

were stolen and that appellant was the criminal agent.     The

victims left their home locked and gave no one permission to

enter it.   When they returned home, they found a window open, a

screen missing, and the rear door unlocked.   Their boom box and

television set, which had a combined value of at least $450,

were missing.   One of the victims testified that appellant wrote

"I'm sorry for taking . . . the boom box and the TV."      The other

victim testified that appellant's letter apologized for

"breaking in[to] [their] house."   Although the court questioned

precisely what was in the letter appellant wrote to the victims,

it concluded the letter existed.   Either version of the letter

implicated appellant and showed her knowledge of the crimes.

                               - 5 -
Further, appellant told Deputy Farris "that she was going to

return" the items, and in fact she did so through her

stepmother, demonstrating both her knowledge of the crimes and

her possession of the property.   The trial court was entitled to

reject appellant's statement to Deputy Farris that she did not

take the items.

     Appellant also had the means and opportunity to commit the

larceny.   See Lew v. Commonwealth, 20 Va. App. 353, 358, 457

S.E.2d 392, 394-95 (1995).   She resided next door to the

victims' home and was present when the victims told her

stepmother they would be out of town.    Thus, the only hypothesis

flowing from the evidence was that appellant exercised dominion

and control over the property, even though such exercise may

have been joint, and permitted application of the presumption

that appellant, either alone or with an accomplice, stole the

boom box and TV.

     This same evidence also established appellant's guilt for

statutory burglary.   "The victim[s] testified that the stolen

items were seen in the house shortly before it was left

unoccupied and the breaking was discovered, and were found

missing shortly thereafter, thus justifying the inference that

the burglary and the larceny were committed at the same time as

part of the same criminal enterprise."    Bright, 4 Va. App. at

252, 356 S.E.2d at 445.   The contents of the letter showed

appellant's knowledge of the crimes.    Further, appellant said

                               - 6 -
that she "was going to return" the boom box and TV and did so

through her stepmother, showing that she was in recent

possession of the fruits of the burglary.    See id.

            Under Virginia law, upon proof of a breaking
            and entering and a theft of goods, and if
            the evidence warrants an inference that the
            breaking and entering and the theft were
            committed at the same time by the same
            person and as part of the same transaction,
            "the exclusive possession of the stolen
            goods shortly thereafter, unexplained or
            falsely denied, has the same efficiency to
            give rise to an inference that the possessor
            is guilty of the breaking and entering as to
            an inference that he is guilty of larceny."

Cannady v. Commonwealth, 210 Va. 533, 535, 172 S.E.2d 780, 781

(1970) (quoting Sullivan v. Commonwealth, 210 Va. 201, 203, 169

S.E.2d 577, 579 (1969)).

     For these reasons, we hold the trial court did not abuse

its discretion in admitting testimony about the existence and

contents of the letter.    We also hold the evidence was

sufficient to establish that the victims' residence was

burglarized and that appellant was the criminal agent, thereby

supporting her convictions for grand larceny and statutory

burglary.

                                                           Affirmed.




                                - 7 -
