                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and
     Bumgardner
Argued at Alexandria, Virginia


CARRIE CLARKE COLLEY
                                           MEMORANDUM OPINION * BY
v.   Record No. 0675-97-4                JUDGE ROSEMARIE ANNUNZIATA
                                             FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                     Carleton Penn, Judge Designate
             Elwood Earl Sanders, Jr., Director
             Capital/Appellate Services (Laura A. Cook,
             Assistant Public Defender; Public Defender
             Commission, on briefs), for appellant.

             Donald E. Jeffrey, III, Assistant Attorney
             General (Richard Cullen, Attorney General;
             Leah A. Darron, Assistant Attorney General,
             on brief), for appellee.



     Carrie Clarke Colley (appellant) was tried without a jury in

the Circuit Court of Fauquier County on two felony charges:

grand larceny and credit card theft in violation of Code

§ 18.2-192.    She was convicted of petit larceny and the felony

credit card theft offense and sentenced to serve one year and

nine months in prison on the credit card conviction and 60 days

in jail on the larceny, all but five months and 29 days

suspended.

     On appeal, appellant contends that the trial court abused

its discretion by admitting into evidence a credit card

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
transaction record and carbon copies of two of the actual

transaction receipts, claiming the business records foundation

for their admissibility was not properly laid.    She also contends

the evidence was not sufficient to support the convictions.

        After a night of drinking, Cheryl Frazier (Cheryl) left her

purse, containing her credit card, in appellant's car.    Without

authorization, appellant made several charges on Cheryl's credit

card.    After Cheryl contacted the credit card company, she

learned that transactions had been made on the card.    Cheryl's

mother, Marianne Frazier (Marianne), who was the only other

authorized user on the account, requested a summary of the

transactions on the account from the credit card company and

authorized the release of the summary to the police.
        At trial, Cheryl and Marianne reviewed Commonwealth Exhibits

1A-1D and testified they did not make the transactions listed for

March 21, 1996 and that they did not give permission for anyone

else to use the card.    Exhibits 1C and 1D were computer printouts

of the transactions on the account.    The printout showed three

charges and three declined charges because the credit card was

over the charge limit.    The investigating officer obtained carbon

copies of two service station receipts listed on the transaction

reports which were offered into evidence as Exhibit 1A and

Exhibit 1B.    The investigator's attempts to retrieve the original

receipts from an out-of-state warehouse where they were stored

were unsuccessful.    The results of a handwriting analysis of




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appellant's handwriting were "inconclusive."

     The appellant objected to the introduction of Exhibits 1A-1D

on the grounds that the exhibits were hearsay and that they had

been prepared at the investigator's request rather than in the

ordinary course of business.   The court ruled that the

prosecution had "shown a circumstantial guarantee of

trustworthiness with respect to the four documents and receive[d]

them into evidence."
                                 I.

                    Business Records Exception

     Whether the computer records and receipts are admissible is

a question governed by established rules governing the

admissibility of hearsay.   The Supreme Court of Virginia has

employed the business records exception to the hearsay rule in

assessing the admissibility of such documents.    Fitzhugh v.

Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995);

see Kettler & Scott, Inc. v. Earth Tech Cos., 248 Va. 450, 457,

449 S.E.2d 782, 785 (1994).    Admission is conditioned upon proof

that the record is kept by a proper custodian and that it is a

record kept in the ordinary course of business made

contemporaneously with the event by persons having a duty to keep

a true record.   Kettler & Scott, 248 Va. at 457, 449 S.E.2d at

786 (citing Automatic Sprinkler Corp. v. Coley & Peterson, Inc.,

219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)); Simpson v.
Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984); Ford




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Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457

(1990); see 2 Charles E. Friend, The Law of Evidence in Virginia

135 (1993).

     Assuming without deciding that the exhibits constitute

hearsay, we find their admission to be harmless.   Under the

standard of harmlessness for non-constitutional error,
          a criminal conviction must be reversed unless
          "it plainly appears from the record and the
          evidence given at trial" that the error did
          not affect the verdict. An error does not
          affect a verdict if a reviewing court can
          conclude, without usurping the jury's fact
          finding function, that, had the error not
          occurred, the verdict would have been the
          same.

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (quoting Code § 8.01-678).

     Where the other evidence of guilt is overwhelming, and the

content of the hearsay statement is clearly established by other

evidence, admission of hearsay is harmless.   McDonnough v.

Commonwealth, 25 Va. App. 120, 132-33, 486 S.E.2d 570, 575-76

(1997).   The testimony of both Cheryl and Marianne Frazier,

received without objection, established that the credit card was

taken without their consent on the date in question.

Circumstantial evidence established appellant's involvement with

the "taking."   The element of intent to use the card without the

owner's authorization, was also established by their testimony as

well as the admissions of the appellant herself that she used the




                                 4
card. 1   In the context of all the evidence, the computer records

were of marginal evidentiary value, and their admission was

harmless.     Strohecker v. Commonwealth, 23 Va. App. 242, 253-54,

475 S.E.2d 844, 850 (1996).

                                  II.

                      Sufficiency of the Evidence

      Addressing the sufficiency of the evidence issue, we find

appellant's contention that the evidence was in conflict and

therefore insufficient to sustain her conviction beyond a

reasonable doubt is without merit.      Where the sufficiency of the

evidence is challenged on appeal, this Court must consider all

the evidence and any reasonable inferences fairly deducible from

it in the light most favorable to the Commonwealth.      Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975);

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988).    A trial court's judgment will not be disturbed on

appeal unless it is plainly wrong or without evidence to support

it.   Stockton v. Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d

371, 385 (1984).    In addition, the credibility of witnesses, and

the weight assigned their testimony are matters exclusively

      1
      Appellant contends that the admission of the exhibits was
not harmless because the court relied on the documents to
corroborate Cheryl's testimony that she would not have used the
card because it was over the credit limit. This fact only went
to establish the unauthorized use of the card, which was well
established by other evidence. The court did not, as appellant
argues, use this corroboration as evidence that Cheryl was
generally a credible witness.




                                   5
within the province of the trier of fact.   Coppola v.

Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979).     The

contention that inconsistencies in the testimony are sufficient

to attenuate the evidence on the issue of appellant's guilt was

addressed by this Court in Swanson v. Commonwealth, 8 Va. App.

376, 379, 382 S.E.2d 258, 259 (1989):
          When the law says that it is for the trier of
          fact to judge the credibility of a witness,
          the issue is not a matter of degree. So long
          as a witness deposes as to facts which, if
          true, are sufficient to maintain their
          verdict, then the fact that the witness'
          credit is impeached by contrary statements
          affects only the witness' credibility . . .
          [and] the weight and sufficiency of the
          testimony. If the trier of the facts sees
          fit to base the verdict upon that testimony
          there can be no relief in the appellate
          court.

See also Singleton v. Commonwealth, 19 Va. App. 728, 735-36, 453

S.E.2d 921, 926 (1995) (explaining that conflicts in the evidence

do not undermine the sufficiency of the evidence unless the

evidence is inherently incredible).

     In this case, Cheryl testified that she placed her purse,

containing $80, her wallet and her credit card, under the seat in

appellant's car, locked the door and entered the hotel room with

appellant.   Upon awakening, appellant and her car were gone.

Appellant admitted having Cheryl's purse and asked to meet

half-way to return it.   Marianne testified that appellant

admitted to using the credit card and that she could not return

the purse, but that she wished to make restitution for the loss



                                 6
when she received her paycheck.   The trier of fact was free to

disbelieve appellant's denial of her involvement in the two

offenses.   See Montgomery v. Commonwealth, 221 Va. 188, 190, 269

S.E.2d 352, 353 (1980) (per curiam).   The trial court credited

the testimony of Cheryl and Marianne, whose evidence was

sufficient to support the convictions beyond a reasonable doubt.

     For the foregoing reasons, we affirm.

                                                        Affirmed.




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