                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia


ROBERT MICHAEL BABER
                                            MEMORANDUM OPINION * BY
v.      Record No. 2832-01-2       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                    David F. Berry, Judge Designate

             Norman Lamson for appellant.

             Amy L. Marshall, Assistant Attorney General
             (Jerry W. Kilgore, Attorney General, on
             brief), for appellee.


        The trial judge convicted Robert Michael Baber of grand

larceny.    Baber contends his conviction must be reversed because

the trial judge erred by admitting hearsay evidence.       We hold that

the judge erred by admitting the evidence but that the error was

harmless.

                                   I.

        The evidence proved that Robert Michael Baber purchased a

toolbox in a Sears department store on the evening of January 12,

2001.    Chad Bush, a sales employee in the hardware area, testified

that he gave Baber a receipt for the toolbox and put a piece of

"Sears tape" on the toolbox to indicate it had been purchased.      He


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
also testified that he did not sell Baber a generator or any item

other than the toolbox.    When asked whether he sold a generator

that day, Bush testified, "[n]ot that I recall."    He further

testified that Baber was with another man when he sold him the

toolbox.

     Ricky Thompson, another sales employee, saw Baber in the

hardware area and later saw him walking out of the store next to a

man who was pushing a cart.   Thompson noticed that a "Companion"

generator, model "5250," was in the cart.    He stopped the men

outside of the store entrance and asked if they had a receipt for

the generator.   Thompson testified Baber replied that his wife had

the receipt and that she was somewhere in the mall.    He said one

of the two men then pointed to the generator and "said there's a

receipt right there," referring to a receipt that was attached to

the generator with a piece of tape.     Thompson inspected the

receipt, noticed it was not for the generator, which was valued at

$629.99, and told the men the receipt was for a $9.99 toolbox.

Baber told Thompson the employee who sold him the toolbox also

sold him the generator.   Recognizing the identification number of

the sales employee on the receipt, Thompson said he could check

with the employee.   Baber and the other man walked away with the

generator in the cart.

     Thompson conferred with Kenneth Kirby, the assistant manager,

who was close by.    Kirby testified he had observed Thompson and

the men from a distance and noticed the generator, which was out

                                - 2 -
of its box and was marked "Companion 5250Y."   When Kirby learned

that the receipt was not for the generator, he and Thompson went

to speak with Bush, the employee whose identification number was

on the sales receipt.   Kirby also asked other sales employees

whether they had sold a generator within the last hour.   He and

Thompson then entered the generator's "part number" into a

computer that is connected to all cash registers in the store.

Over Baber's hearsay objection, Kirby and Thompson testified that

the computer screen showed that no generators had been sold that

day.   Kirby also testified that the computer system was never

known to be inaccurate.   Neither Kirby nor Thompson caused the

computer to print the information displayed on the computer

screen.

       Kirby testified that he then went to the parking lot where he

saw Baber walking next to a man who was pushing the cart.    When he

reached them, Baber and the man were loading the generator in the

trunk of a car.   Kirby noticed other people around the car,

including a woman who was later identified as Baber's wife.    When

Kirby asked Baber for a receipt, Baber cursed and told him his

employee had the receipt.   Kirby returned to the store and called

the police.   The evidence also proved that several days later,

Bush found a toolbox "down by the generators."

       At the conclusion of the evidence, the judge convicted Baber

of grand larceny.



                                - 3 -
                               II.

     Baber contends the trial judge erred when he admitted into

evidence the testimony of Thompson and Kirby concerning the

information displayed on the computer screen.    He argues that the

testimony about the information was hearsay, that the business

records exception is not applicable because the Commonwealth did

not enter into evidence the printed information displayed on the

computer screen, and that the testimony involves an "absence of a

business record," which is an exception to the hearsay rule that

Virginia has not yet recognized.    The Commonwealth asserts that

the issue is moot, the evidence was not hearsay, and the evidence

was admissible as a business record exception to the hearsay rule.

                                   A.

     "Hearsay evidence is defined as a spoken or written

out-of-court declaration or nonverbal assertion offered in court

to prove the truth of the matter asserted therein."   Arnold v.

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987).

The rule is well established "that hearsay evidence is

inadmissible unless it falls within one of the recognized

exceptions to the hearsay rule and that the party attempting to

introduce a hearsay statement has the burden of showing the

statement falls within one of the exceptions."    Robinson v.

Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77 (1999)

(citations omitted).



                              - 4 -
     The Supreme Court has addressed the matter of computer

records and hearsay.

             In determining the admissibility of
          computer records, when the argument has been
          advanced that they are inadmissible hearsay,
          we have employed the traditional business
          records exception to the hearsay rule.

             "Under the modern Shopbook Rule, adopted
          in Virginia, verified regular entries may be
          admitted into evidence without requiring
          proof from the regular observers or record
          keepers," generally limiting admission of
          such evidence to "facts or events within the
          personal knowledge of the recorder."
          However, this principle does not necessarily
          exclude all entries made by persons without
          personal knowledge of the facts recorded; in
          many cases, practical necessity requires the
          admission of written factual evidence that
          has a circumstantial guarantee of
          trustworthiness.

             "The trustworthiness or reliability of
          the records is guaranteed by the regularity
          of their preparation and the fact that the
          records are relied upon in the transaction
          of business by the person or entities for
          which they are kept." "Admission of such
          evidence is conditioned, therefore, on proof
          that the document comes from the proper
          custodian and that it is a record kept in
          the ordinary course of business made
          contemporaneously with the event by persons
          having the duty to keep a true record."

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

457, 449 S.E.2d 782, 785-86 (1994) (citations omitted and

emphasis added).

                                B.

     Thompson and Kirby testified that they read the computer

display and learned from it that no generators had been sold.

                              - 5 -
The Commonwealth contends Tatum v. Commonwealth, 17 Va. App.

585, 440 S.E.2d 133 (1994), and Penny v. Commonwealth, 6

Va. App. 494, 370 S.E.2d 314 (1988), hold that this testimony is

not hearsay.   The Commonwealth asserts that, as in those cases,

neither witness' testimony concerned an "out-of-court

declarant's veracity or perceptions."    We disagree.

     In Tatum, we specifically held that, "[i]n this case, there

is no 'out-of-court asserter,' because the caller ID display is

based on computer generated information and not simply the

repetition of prior recorded human input or observation."    17

Va. App. at 588, 440 S.E.2d at 135.     Likewise, in Penny, we

noted that the telephone "call trap" generated a number that was

not based on any data entered by a human.    6 Va. App. at 498,

370 S.E.2d at 317.   The evidence in this case proved, however,

that the information displayed on the computer screen was in

part a function of data entered into the system by various sales

associates.    Thus, we hold that the testimony of both witnesses

was merely a recitation of information shown by the computer's

display of inventory data, which was based on input by various

individuals.   This evidence constitutes hearsay unless within a

recognized exception.

                                 C.

     The Commonwealth contends that the testimony of the

witnesses established that the computerized inventory is a

record prepared and relied upon in the regular course of

                                - 6 -
business.   The Commonwealth correctly notes that the Supreme

Court has held that computer records, when properly proved, may

be admissible under the business records exception.     See Kettler

& Scott, 248 Va. at 457, 449 S.E.2d at 785-86.

     In the present case, however, the Commonwealth did not

produce either a printout of the computer screen data or an

actual record.   Instead, Thompson and Kirby merely recited the

information they said they observed on the computer screen.

Relying on Lee v. Commonwealth, 28 Va. App. 571, 507 S.E.2d 629

(1998), the Commonwealth argues that we approved this method of

proof when we held that "[a] person who can verify that the

business records are authentic can present the evidence by

testifying about what he saw displayed or by presenting a

printed copy of the display.   Either form is admissible as a

business records exception to the hearsay rule."    Id. at 577,

507 S.E.2d at 632 (emphasis added).

     We are constrained, however, to follow the Supreme Court's

more recent decision in Decipher, Inc. v. iTribe, Inc., 262 Va.

588, 533 S.E.2d 718 (2001), which is contrary to Lee.

Discussing the business records exception to the hearsay rule,

the Court held that "[g]enerally, the hearsay rule precludes a

witness from quoting from, or summarizing the contents of, even

admissible records until they have been received in evidence."

Id. at 595, 533 S.E.2d at 722.    This holding is consistent with

the Court's holding in Kettler & Scott that conditions

                                 - 7 -
"admission of written factual evidence that has a circumstantial

guarantee of trustworthiness" upon "proof that the document

comes from the proper custodian and that it is a record kept in

the ordinary course of business."       248 Va. at 457, 449 S.E.2d at

785-86 (emphasis added).   In short, business records are

admitted as an exception to the hearsay rule because they are

regularly prepared and have a guarantee of trustworthiness and

reliability.   Id. at 457, 449 S.E.2d at 786.

     The evidence proved that the computerized inventory

tracking system can produce a printed document.      Here, however,

the Commonwealth sought to rely upon the memory of both

witnesses to deliver the content of the records.      The evidence

does not establish that the trustworthiness and reliability of

the evidence can be guaranteed through a recitation of the

witnesses' observation of the displayed data.      Therefore, we

hold that the trial judge erred when he did not sustain Baber's

hearsay objections.

     Because we hold the trial judge erred in admitting the

hearsay evidence, we need not decide Baber's further contention

that Virginia law does not recognize an "absence of business

entries exception" to the hearsay rule.

                                   D.

     The Commonwealth also contends the hearsay issue is moot

because the trial judge "never used the challenged evidence to

convict [Baber]."   We disagree.

                               - 8 -
     In ruling the evidence admissible, the trial judge

necessarily found it was relevant.     See Ward v. Commonwealth,

264 Va. 648, 654, 570 S.E.2d 827, 831 (2002).    Furthermore, the

trial judge's comment that the computer information was

"material" and "add[ed] something to corroborate" negates the

Commonwealth's suggestion that the issue is moot.

                               III.

     The Commonwealth contends that even if the trial judge

erred, the conviction nevertheless should be affirmed because

the error was harmless.   We agree.

     The test for non-constitutional harmless error is as

follows:

              "If, when all is said and done, the
           conviction is sure that the error did not
           influence the jury, or had but 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 on grave doubt, the
           conviction cannot stand."

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32

(2001) (citation ommitted).   An error is harmless if "other

evidence of guilt is 'so overwhelming and the error so

insignificant by comparison that the error could not have

affected the verdict.'"   McLean v. Commonwealth, 32 Va. App.

200, 211, 527 S.E.2d 443, 448 (2000) (citation omitted).

                               - 9 -
     Even without the computer information, the evidence proved

larceny.   Bush gave Baber a receipt for the purchase of the

toolbox and placed Sears tape on the toolbox as proof of

payment.   Later, when Thompson saw Baber and another man leaving

the store with the generator and asked for the receipt, neither

man had the receipt for the generator.   Attached to the

generator was the Sears tape and a receipt for a toolbox.    No

evidence proved the men then had the toolbox.   Days later, Bush

found a toolbox sitting near the generators.

     Baber's guilt is further established by the inconsistencies

in his statements.   When Thompson asked for a receipt, Baber

said his wife had the receipt.    Later, when Kirby asked for the

receipt in the presence of Baber's wife, Baber said a Sears

employee had it.   Finally, although Baber told Thompson that he

bought the generator from the same person who sold him the

toolbox, Bush testified he sold Baber the toolbox but never sold

Baber a generator.   Based on the evidence, and absent any

exculpatory evidence, the trial judge was free to conclude Baber

was lying about these events.    See Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).   Indeed, the

trial judge specifically noted that he considered Baber's

actions to be "a deliberate and very ingenious method of

misleading."   The trial judge explained that his decision relied

on the "misleading receipt, an inapplicable receipt . . .



                                - 10 -
wrongly placed on the wrong goods.    That couldn't have gotten

there any other way."

     Nothing indicates that the computer evidence significantly

influenced the trial judge's decision.   "[W]e can say, 'with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole,' that it plainly

appears that [Baber] has had a fair trial and the verdict and

judgment were not substantially affected by . . . [the error]."

Clay, 262 Va. at 261, 546 S.E.2d at 732.    Thus, the error was

harmless.

     Accordingly, we affirm the conviction.

                                                    Affirmed.




                             - 11 -
Benton, J., concurring, in part, and dissenting, in part.

     I concur in Parts I and II of the majority opinion.

Because I would hold that the error was not harmless, I dissent

from Part III.

     The Supreme Court of Virginia has "adopt[ed] the Kotteakos

[v. United States, 328 U.S. 750 (1946),] harmless-error test"

for measuring error under Code § 8.01-678.     Clay v.

Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001).

Applying that test, the United States Supreme Court recently

held that "the principle of Kotteakos [means] that when an

error's natural effect is to prejudice substantial rights and

the court is in grave doubt about the harmlessness of that

error, the error must be treated as if it had a 'substantial and

injurious effect' on the verdict."     O'Neal v. McAninch, 513 U.S.

432, 444 (1995) (citing Kotteakos, 328 U.S. at 764-65, 776).

Moreover, when a trial error has been shown on direct appeal

from a conviction, the government bears the burden of proving

harmlessness under this standard.    See O'Neal, 513 U.S. at 437.

Indeed, the Supreme Court of Virginia has held that "error will

be presumed to be prejudicial unless it plainly appears that it

could not have affected the result."     Caldwell v. Commonwealth,

221 Va. 291, 296, 269 S.E.2d 811, 814 (1980).

     It is important to note, as the United States Supreme Court

has observed, that an "emphasis and perhaps overemphasis, upon

the [concept] of 'overwhelming evidence,'" has the effect of

                             - 12 -
clouding the relevant question "'whether there is a reasonable

possibility that the evidence complained of might have

contributed to the conviction.'"     Chapman v. California, 386

U.S. 18, 23 (1967) (footnote and citations omitted).    Indeed,

the principle is well established that a harmless error analysis

is entirely distinct from a sufficiency of the evidence

analysis.    "The inquiry cannot be merely whether there was

enough to support the result, apart from the phase affected by

the error.    It is rather, even so, whether the error itself had

substantial influence.    If so, or if one is left in grave doubt,

the conviction cannot stand."     Kotteakos, 328 U.S. at 765.

Consistent with these principles, the Supreme Court of Virginia

has held that even if "the other evidence amply supports the

. . . verdicts, [error is not harmless when] the disputed

[evidence] may well have affected the . . . decision."     Cartera

v. Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).

See also Hooker v. Commonwealth, 14 Va. App. 454, 458, 418

S.E.2d 343, 345 (1992) (holding that "a harmless error analysis

. . . [is not] simply a sufficiency of the evidence analysis").

        The evidence in this case established that any sales

employee in the store had the authority to sell any item in the

store.    The Commonwealth sought to exclude the possibility that

another sales employee sold Baber the generator by proving

through the computerized inventory system no generators were

sold.    When admitting the evidence in the record, the trial

                                - 13 -
judge noted that the witnesses' testimony about the computer

display was "material" and "verifies the fact that there was no

receipt according to the computer."    Furthermore, in announcing

his decision, the trial judge expressly noted that the computer

information was "just adding something to corroborate" the

Commonwealth's evidence.   The judge's comment that the evidence

was "not essential" does not render it harmless.

     Although other evidence in the record might support the

verdict, "[o]ther evidence of a disputed fact, standing alone,

does not establish that an error is harmless."     Hooker, 14

Va. App. at 458, 418 S.E.2d at 345.    "'[A] fair trial on the

merits and substantial justice' are not achieved if an error at

trial has affected the verdict."    Lavinder v. Commonwealth, 12

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (quoting Code

§ 8.01-678).   The Commonwealth bore the burden of proving Baber

did not purchase the generator.    A significant aspect of that

proof was reliance on evidence that none of the sales employees

of the store sold the generator.   The Commonwealth used the

testimony of Kirby and Thompson to establish that Sears'

computerized records indicated no generator sales had occurred.

Because this proof was offered to establish a fact not otherwise

proved, it is "highly probable that the error had substantial

and injurious effect or influence in determining the . . .

verdict."   Kotteakos, 328 U.S. at 776.



                              - 14 -
     For these reasons, I would hold that the error was not

harmless, and I would reverse the conviction and remand for a

new trial.




                             - 15 -
