                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


CHRISTOPHER LEE BENTLEY
                                                              MEMORANDUM OPINION* BY
v.      Record No. 1804-03-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                   AUGUST 16, 2005
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                 Michael P. McWeeny, Judge

                  Dawn M. Butorac, Senior Assistant Public Defender (Office of the
                  Public Defender, on brief), for appellant.

                  Josephine F. Whalen, Assistant Attorney General (Jerry W.
                  Kilgore, Attorney General, on brief), for appellee.


        Christopher Bentley contends on appeal that the trial court committed reversible error in

admitting into evidence a personally recorded compact disc (CD) containing on its face a

handwritten list of musical groups. He also claims the Commonwealth’s “circumstantial evidence

was not sufficient to establish beyond a reasonable doubt that [he] committed the larceny of the

property of Mr. Markos and Ms. Monks.” For the reasons that follow, we disagree and affirm the

trial court.

                                            I. Background

        The Commonwealth indicted Bentley on four counts of burglary and four counts of grand

larceny. Specifically, he was charged with: burglarizing Tim Young’s house on November 18,

2002, and stealing his property; burglarizing George Markos’s house on November 25, 2002, and

stealing his property; burglarizing JoAnn Monks’s house on or about December 4 or December


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
5, 2002, and stealing her property; and burglarizing Evelyn Merritt’s house on December 5,

2002, and stealing her property. A jury found Bentley guilty of burglarizing Merritt’s house,

stealing her property, stealing Markos’s property, and stealing Monks’s property. It acquitted

him of the three other burglaries and of stealing Young’s property. This appeal concerns the

larceny of property from Markos and Monks.

                                    The Theft of Markos’s Acura

        Reviewed in the light most favorable to the Commonwealth, the party prevailing below,

Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003), the evidence

established that Fairfax County Police Officer James Urie responded to Stonepath Circle in

Centreville on November 25, 2002, after a resident found a pile of property sitting in a grassy

area next to a townhouse. Urie found a driver’s license in the pile and contacted George Markos,

who lived in the townhouse complex with his fiancée.

        Markos identified property in the pile belonging to him, his fiancée, and his fiancée’s

daughter. Markos then realized that his 1996 Acura was missing from the parking lot. He

testified that he “always leaves [his cell phone] in the front . . . of the car between the seats

because [he] do[es]n’t have any need for it any other place but in the car in case of an

emergency.” Police recovered Markos’ car a few weeks later. His cell phone and CDs were

missing, and, although Markos did not smoke, the “car was full of cigarettes.” Markos also

found an unfamiliar CD in his car’s CD player, which he provided to police. Markos reviewed

his cellular phone bill for the period following the theft of his car and identified several

telephone calls that were placed from his cellular phone with which he was not familiar and

which he denied making.

        Shortly after midnight on December 3, 2002, police found Markos’s stolen Acura parked

in the Red Roof Inn parking lot. Located next door to the Red Roof Inn is the Brookside Motel.


                                                 -2-
Officer P.M. McCurry testified that officers “set up” surveillance around the car and investigated

whether any guests at the Red Roof Inn claimed the car. Unable to locate anyone at the Red

Roof Inn with an Acura, McCurry made inquiries to guests at the Brookside Motel. Bentley and

his girlfriend, Fanta Jackson, were in Room 5. Bentley “seemed hesitant to speak to” the officers

and immediately “took out a cigarette and lit it.”

          Officer M.P. Goodley participated in the surveillance of the Acura. He processed and

searched it after surveillance terminated. He noticed “the ashtray was full of cigarette butts and

ashes, which Mr. Markos stated that wasn’t his.” Ultimately, Goodley released the Acura to

Markos.

          Detective Michael Motafches obtained a record of telephone calls made by Bentley from

the detention center after his arrest. He compared the records from the detention center with

Markos’s cellular telephone records and found six different numbers that were on both phone

records. Motafches testified that “forty-five phone calls made from [Markos’s] cell phone . . .

matched [one of those six] numbers [on] the jail [telephone record].” Moreover, Bentley placed

eight hundred twenty-five calls from jail to one of the six different numbers contained on

Markos’s phone record. On cross-examination, Motafches said he “learned Bentley’s name as a

suspect through contacting some of the numbers called on [Markos’s] cell phone” after it was

stolen.

                                  The Theft of Monks’s Palm Pilot

          Around 9:30 a.m. on December 5, 2002, a police officer telephoned Evelyn Merritt and

advised her that her car had been involved in a hit-and-run accident. Merritt checked her garage

and discovered her garage door was open and her 1993 green Honda Accord was gone. She

testified that her car was in the garage the preceding night, that she left the garage door open a

few inches so her cat could come inside, and that she left the keys and the remote control for the


                                                -3-
alarm inside the car. The garage is attached to the house. After the police contacted Merritt, she

and her husband went to Reston to identify her car. Merritt found “a pair of yellowish gloves in

the back seat which were not [hers]” and a “palm pilot” on the front seat which was not hers.

       Helena Villareal is the on-site manager of Glendale Condominiums. Between 7:00 a.m.

and 7:30 a.m. on December 5, 2002, Villareal was outside 2332 Freetown Court in the Glendale

complex when she saw Merritt’s green Honda pull out of a parking space, “hit [a] white

Chevrolet and keep going.” The man driving the Honda wore a gray sweatshirt, and his hair was

loose. Villareal, who was twenty feet away, viewed the Honda’s license plate number. Fifteen

to twenty minutes later, she again saw the green Honda parked on the other end of the property

in another visitor lot. Villareal saw Bentley get out, use the alarm to lock it and proceed up the

sidewalk. After he walked away from the car, Villareal checked the license number and noticed

it was the same car involved in the hit and run. Villareal said she was familiar with Bentley

because “he’s on the property all the time.” Moreover, Bentley looked at Villareal as he exited

the Honda and proceeded to 2322 Freetown Court, where his girlfriend, Fanta Jackson, and her

father live. Villareal walked to the door of Jackson’s residence and noticed the footprints went

up to the door. After the police were contacted, officers brought Bentley outside, and Villareal

identified him. Villareal testified she had “[n]o doubt” Bentley was the man she saw exit

Merritt’s Honda. Although Villareal did not see the driver that hit the Chevrolet, she testified

that Bentley wore a gray sweatshirt similar to the one she saw the driver wearing earlier.

       Officer Chris Lehmann testified that Bentley wore “blue jeans and a grey sweat shirt.”

He told Lehmann “he had been inside and wasn’t involved in any accident, and he wasn’t driving

any car.” Lehmann asked Bentley to follow him outside to determine if Villareal could identify

him. Shortly thereafter, Lehmann placed Bentley under arrest for grand larceny.




                                                -4-
         Officer Mark Simmons testified that Villareal positively identified Bentley as the person

who had operated Merritt’s stolen Honda. Simmons inspected the interior of Merritt’s stolen

Honda and recovered “a palm pilot” located on the front passenger seat. However, it did not

belong to Merritt.

         On the morning of December 5, 2002, Joann Monks discovered that her key rack, purse,

and tote bag were missing from her residence at 2450 Freetown Court. Monks explained that the

“gate door that opens to the garage door onto the street was not closed,” and the door that leads

from the garage to the kitchen was not locked. Monks testified that her purse contained her

wallet, jewelry, cosmetic case, and palm pilot. Police found Monks’s palm pilot in Merritt’s

Honda.

         Detective Motafches testified that the distance from Jackson’s residence to Monk’s

residence was four-tenths of a mile. He also determined that Merritt’s residence was

approximately twelve miles away from the residences of Jackson and Monks.

                      ADMISSION INTO EVIDENCE OF COMPACT DISC

                         A. Facts Relating to Admitting the Compact Disc

         Bentley contends the compact disc was inadmissible hearsay and, thus, improperly

admitted.

         During the Commonwealth’s case-in-chief, Markos testified that he found a CD in his

car’s CD player after police returned it to him. He provided it to police. The CD was not a

factory-recorded CD, but was individually recorded, or burned, and contained a handwritten list

of musical groups on its face, one name being the Northeast Groovers.

         Jackson testified at trial that the police came to her house around 9:00 a.m. on December

5, 2002, and spoke with her and Bentley. Jackson stated that Bentley arrived at her home around

10:45 p.m. on December 4, 2002, and remained there until the police arrived the next morning.


                                                -5-
Jackson testified that Bentley’s “hair was braided” at the time. When asked how she and Bentley

got to the Brookside Motel on December 3, 2002, Jackson said they took a train.

        During cross-examination by the Commonwealth, Jackson identified the “Northeast

Groovers” as “a go-go band.” Although Jackson had heard that band, she testified that she

“do[es]n’t listen to go-go.” The Commonwealth then asked if Bentley “listen[s] to the Northeast

Groovers,” to which Jackson replied, “He may, but he don’t listen to it around me. He respects

me. I don’t listen to it.”1

        In the Commonwealth’s case on rebuttal, Officer Goodley identified the CD he received

from Markos. When the Commonwealth moved to admit the CD into evidence, the following

colloquy transpired:

                MS. BUTORAC [Defense Counsel]: The item is a CD that was
                taken from [Markos’s] car. On it is written Northeast Groovers
                and some other things that I don’t remember right now, but it’s
                handwritten. It’s not as if that’s the CD that came from the
                company and that’s what’s stamped on the CD. It’s written. It’s
                hearsay what’s on it. It’s hearsay what’s written on it.

                        There’s nothing to - - I mean it’s for the truth because
                Mr. Fitzpatrick [the prosecutor] cross examined Ms. Jackson on
                that particular name and it’s hearsay because it’s for the truth of
                what it says, that that’s a record of what that CD is.



        1
          Viewing Jackson’s testimony in the light most favorable to the Commonwealth, as we
must, we conclude the trier of fact did not have to accept Jackson’s testimony that they took a
train to the motel, nor did it have to accept her equivocal response that he “may” listen to the
Northeast Groovers. Rather, it could properly have concluded, obversely, that Jackson lied about
arriving by train and resolved her equivocal answer to whether Bentley listened to the Northeast
Groovers against him. “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).
The trier of fact is not required to believe all aspects of a witness’ statement or testimony.
Rather, it may reject that which it finds implausible, and accept other parts that it finds
believable. Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973).
Furthermore, a defendant’s exculpatory evidence may be treated, by inference, as an attempt to
conceal guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907
(2001); Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

                                                 -6-
               MR. FITZPATRICK: Two points, Your Honor. One, it’s for
               impeachment purposes of Ms. Jackson. She stated that she - - she
               was unequivocal, “I didn’t go to the Brookside or the Red Roof Inn
               in a car.” She said that she recognizes that name and that she - -
               that [when] Chris Bentley listens to it, “I tell him to turn it off.”

                       I think that rebuts it. I think that’s a circumstance that
               places her in the car as well with him. Furthermore, Your Honor, I
               would offer that the CD itself comes in. That’s the condition of it.
               I don’t think the Commonwealth - - if it were to offer a
               manufacturer-made CD is not required to bring someone here from
               Warner Brothers or whatever one of the other companies are to
               say, “We imprinted that on there.”

                       I mean it’s a fact. It’s a verbal fact. It’s not - - it’s not an
               out of court assertion that the hearsay rule is meant to protect. It’s
               a factual thing that is on the CD.

       Bentley’s attorney reiterated, “[i]t’s hearsay. It’s an out of court statement for the truth of

the matter asserted that that’s what’s on the CD.” In addition, defense counsel argued that the

CD “doesn’t have anything to do with impeaching [Jackson’s] testimony because there’s nothing

to impeach. She said she’s familiar with the music and that Chris [Bentley] may listen to it, but

they weren’t doing it that day.”

       The trial court “overrule[d] the [hearsay] objection” and admitted the CD.

                                    B. Discussion and Analysis

       “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).

                      “Hearsay evidence is testimony in court, or written
               evidence, of a statement made out of court, the statement being
               offered as an assertion to show the truth of matters asserted therein,
               and thus resting for its value upon the credibility of the
               out-of-court asserter.”

Donahue v. Commonwealth, 225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983) (quoting

Stevenson v. Commonwealth, 218 Va. 462, 464-65, 237 S.E.2d 779, 781 (1977) (citing



                                                 -7-
McCormick on Evidence § 246, at 584 (2d ed. 1972))). See also Taylor v. Commonwealth, 28

Va. App. 1, 9-10, 502 S.E.2d 113, 117 (1998) (en banc) (citation omitted) (reiterating similar

definition).

        We hold that the handwritten CD label does not constitute hearsay because it was not

offered “‘as an assertion to show the truth of the matters asserted therein’” and does not rest “‘for

its value upon the credibility of the out-of-court asserter.’” Donahue, 225 Va. at 151-52, 300

S.E.2d at 771 (citations omitted). Rather, the CD was offered into evidence as an additional

circumstance from which the jury could infer that Bentley had been in the car where the CD was

found. See Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 826 (1985) (holding

that a minor female’s statement that sex is “‘dirty, nasty, and it hurt’” was admissible because it

was not offered to prove that sex is, indeed, “dirty and nasty,” but rather because it served “as

circumstantial evidence tending to establish the probability” that the defendant raped the girl

(emphasis added)); see also, United States v. Day, 591 F.2d 861, 883-84 (D.C. Cir. 1978) (noting

that “neutral” statements offered to show association and not the truth of the matters asserted are

not hearsay); United States v. Snow, 517 F.2d 441, 443-45 (9th Cir. 1975) (holding that a piece

of tape found on a gun case bearing the defendant’s name was not hearsay and was properly

admitted as circumstantial evidence to show that defendant knowingly possessed the

unregistered weapon); United States v. Ellis, 461 F.2d 962, 970 (2nd Cir. 1972) (holding that a

driver’s license containing a co-conspirator’s name was not hearsay because it was not offered to

prove the truth of the matter asserted, i.e. that the driver’s license was accurate and valid as to the

codefendant; rather, the driver’s license was offered “as circumstantial evidence to show that

[the codefendant] was the owner of the address book and the coat in which the . . . license [was]

found” (emphasis added)). Whether the CD, in truth, contained music by the “Northeast

Groovers” is of no moment. The CD title is probative, circumstantial evidence from which an


                                                 -8-
inference may be properly drawn that Bentley was in the car. See Horne v. Milgrim, 226 Va.

133, 139, 306 S.E.2d 893, 896 (1983) (“Any fact, however remote, that tends to establish the

probability or improbability of a fact in issue is admissible.”). Thus, the evidentiary value of the

words written on the CD is not a function of who wrote them or whether they are accurate or

true. See Taylor, 28 Va. App. at 9-10, 502 S.E.2d at 117. Stated differently, it mattered not

whether the CD, in fact, was a recording of the Northeast Groovers; its label reflecting music that

Bentley listened to circumstantially provided an evidentiary link to Bentley’s presence in the car,

irrespective of the truth of the matter asserted. Markos avowed that the CD did not belong to

him; therefore, the fact finder was permitted to infer that appellant placed a CD labeled Northeast

Groovers in the car from which he stole Markos’s cellular phone.

       Given the conclusion that the CD and the words “Northeast Groovers” are not hearsay

and the broad discretion we afford the trial court in evidentiary matters, we affirm the trial

court’s decision to allow the CD into evidence. See United States v. Anello, 765 F.2d 253, 261

(1st Cir. 1985).2

       SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTIONS FOR
              THE THEFT OF MARKOS’S CAR AND THE PALM PILOT

                                      A. Standard of Review

       When the sufficiency of the evidence is challenged on appeal, the appellate court reviews

the evidence that tends to support the conviction and upholds the conviction unless it is plainly

       2
          The record does not make clear whether the challenged evidence was, arguably,
improperly admitted for its impeachment value or properly admitted, as we hold here, as
circumstantial evidence tending to prove that Bentley drove the stolen vehicle to the motel. The
distinction is not material to the result under “the time-honored principle of evidence law that, in
general, if evidence is admissible for any purpose, it is admissible.” Hanson v. Commonwealth,
14 Va. App. 173, 183, 416 S.E.2d 14, 20 (1992); see also Rosenberg v. Mason, 157 Va. 215,
236, 160 S.E. 190, 197 (1931) (noting “cardinal rule of evidence that evidence relevant and
material for one purpose is not rendered inadmissible for that purpose by the fact that it is
inadmissible for some other purpose”); Gonzales v. Commonwealth, 45 Va. App. 375, 388 n.5,


                                                -9-
wrong or lacks evidentiary support. Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d

263, 265 (1998). “If there is evidence to support the convictions, the reviewing court is not

permitted to substitute its own judgment, even if its opinion might differ from the conclusions

reached by the finder of fact at the trial.” Id. at 520, 499 S.E.2d at 265.

       It is well established that “once the crime 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). For the larceny inference to

arise, the Commonwealth must prove that the accused was in exclusive possession of the

recently stolen property. Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981).

“This inference from the recent, unexplained, possession of stolen property may, by itself,

support a conviction of larceny.” Montague v. Commonwealth, 40 Va. App. 430, 437, 579

S.E.2d 667, 670 (2003) (citing Bright, 4 Va. App. at 251, 356 S.E.2d at 444).

                                    B. Discussion and Analysis

                                        Monks’s Palm Pilot

       Bentley contends he “did not have knowing and intentional possession of the palm pilot

found in” Merritt’s stolen car. He argues its presence in Merritt’s car failed to sufficiently link

him to the stolen item. Alternatively, he contends, “it was not [him] driving the car, he was

instead inside the apartment building all night as Ms. Jackson testified and Ms. Villareal was

mistaken in her identification.”

       We first note that Bentley’s contention that he never drove Merritt’s car is not at issue on

this appeal. The jury convicted him of larceny of Merritt’s car based, in part, on the eyewitness

testimony of Villareal. Although Bentley raised that issue by petition, a panel of this Court


611 S.E.2d 616, 622 n.5 (2005) (en banc) (McClanahan, J., dissenting) (citing cases holding
same).


                                                - 10 -
denied the petition for appeal challenging the larceny conviction of Merritt’s car. Therefore, for

purposes of this appeal, his guilt for stealing Merritt’s car was conclusively established.

       Officer Simmons was the first officer to inspect and search Merritt’s recovered car. He

found Monks’s palm pilot in plain view on the front seat of Merritt’s car, the car which Bentley

stole. Moreover, Monks’s palm pilot was stolen about the same time Merritt’s car was stolen,

and both were recovered a short time after they were stolen. Monks lives only four-tenths of a

mile from Jackson’s residence, where Merritt’s car was recovered. The evidence showed that

Bentley was the only person in the car from the time Villareal saw him exit it to the time

Simmons searched it and discovered the palm pilot. The fact finder determined beyond a

reasonable doubt that Bentley exercised dominion and control over and stole Merritt’s car.

Given those facts, the jury was permitted to infer that Bentley also exercised exclusive

possession over the palm pilot on the front seat. The Commonwealth’s evidence was competent,

was not inherently incredible and was sufficient to prove beyond a reasonable doubt that Bentley

stole Monks’s palm pilot.

                                             The Acura

       Police found Markos’s Acura eight days after it was stolen in a parking lot adjacent to the

Brookside Motel.

       Bentley and his girlfriend, Fanta Jackson, were found in a motel room immediately

adjacent to the area where the stolen car was recovered; officers at the motel noticed Bentley

smoking cigarettes, and the car’s ashtray was full of cigarette butts and ashes although Markos

never smoked in it; Markos’s cellular telephone was stolen along with the car; and finally,

Markos’s cellular phone was used, starting on the same day it was stolen with the car, to make

forty-five calls to six numbers with which Markos was unfamiliar, the first of which was to




                                               - 11 -
Jackson. Jail records showed that Bentley called those same six numbers more than eight

hundred times over a three-month period while he was incarcerated.

       Moreover, the jury was not required to believe Fanta Jackson’s testimony that she and

Bentley took a train to the motel. “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).

       The Commonwealth presented credible, competent, and sufficient evidence to support the

convictions; therefore, we cannot say those determinations were plainly wrong. Accordingly, we

affirm Bentley’s convictions.

                                                                            Affirmed.




                                               - 12 -
Benton, J., concurring and dissenting.

       I agree that the evidence was sufficient to prove Christopher Bentley was guilty of

larceny of JoAnn Monks’s palm pilot. I dissent, however, from the holding concerning the other

larceny conviction. I would hold that the writing on the compact disc was hearsay and that the

trial judge erred in permitting the evidence. Because the error was not harmless, I would reverse

Bentley’s conviction for larceny of George Markos’s car and remand for a new trial.

                                                I.

       In the Commonwealth’s case-in-chief, Officer Goodley testified that he watched the

stolen car for several hours to see if the thief would return to it. When no one approached the

car, Officer Goodley released the stolen car to George Markos, the owner. He did not describe

the car’s contents or any other contacts with Markos.

       Markos testified that when the police returned his car his compact discs were gone and a

compact disc that did not belong to him was in the car. He testified that he gave that compact

disc to the police. The prosecutor did not ask him to identify the compact disc and did not offer

the compact disc in evidence during Markos’s testimony or at any time during the

Commonwealth’s case-in-chief.

       When Fanta Jackson testified in the defense case, the prosecutor asked the following

questions on cross-examination:

               Q. Do you and Mr. Bentley in your relationship . . . listen to
               music?

               A. Do we listen to music?

               Q. Yes.

               A. Yeah, we listen to music.

               Q. Who are the Northeast Groovers?

               A. Who are the Northeast Groovers?


                                              - 13 -
              Q. Yes.

              A. It’s a go-go band.

              Q. Where are they from?

              A. I would hope Northeast.

              Q. You’ve listened to them before?

              A. I’ve heard of them. I don’t listen to go-go.

              Q. But you know who the Northeast Groovers are?

              A. Yeah. They play them on the radio.

              Q. You don’t listen to it -- sometimes does . . . Chris Bentley, your
              boyfriend, does he listen to the Northeast Groovers?

              A. He may, but he don’t listen to it around me. We respect each
              other. I don’t listen to it.

              Q. So if it were in the car and he would turn it on, what would you
              tell him to do?

              A. If we was in a car?

              Q. Yes.

              A. I wouldn’t tell him to do nothing. If we was in a car, I
              probably would change the station, but he wouldn’t do it.

              Q. But you are familiar with that?

              A. With what?

              Q. With the Northeast Groovers?

              A. Yeah.

       As a witness in the Commonwealth’s case-in-rebuttal, Officer Goodley testified for the

prosecutor about the compact disc and the handwritten words on its label:

              Q. . . . [W]hat is that item and what does it say on it?

              [Bentley’s attorney]: Objection, Your Honor. Whatever that thing
              says on it would be hearsay.

              THE COURT: Let’s first identify it and we’ll go from there.


                                              - 14 -
              Q. Do you recognize that item?

              A. Yes, I do.

              Q. Where did you receive -- from whom did you receive that
              item?

              A. I received this from Mr. Markos, from the vehicle that was
              reported stolen at his residence.

       The prosecutor argued that the evidence was offered for the following purpose:

              Two points, Your Honor. One, it’s for impeachment purposes of
              Ms. Jackson. She stated that she -- she was unequivocal, “I didn’t
              go to the Brookside or the Red Roof Inn in a car.” She said that
              she recognizes that name and that she -- that Chris Bentley listens
              to it, “I tell him to turn it off.”

                I think that rebuts it. I think that’s a circumstance that places her
              in the car as well with him. Furthermore, Your Honor, I would
              offer that the CD itself comes in. That’s the condition of it. I
              don’t think the Commonwealth -- if it were to offer a
              manufacturer-made CD is not required to bring someone here from
              Warner Brothers or whatever one of the other companies are to
              say, “We imprinted that on there.”

                I mean it’s a fact. It’s a verbal fact. It’s not -- it’s not an out of
              court assertion which the hearsay rule is meant to protect. It’s a
              factual thing that is on a CD.

       The trial judge overruled the objection and permitted Officer Goodley to testify as

follows:

              Q. What is Commonwealth’s [Exhibit] 15? What is that item?

              A. It’s a portable CD.

              Q. What is stated there on the CD?

              A. It states Northeast Groovers, Icebox, and it has a date of May
              13th of the year 2000.

              Q. Have you listened to this?

              A. Yes, I have.

              Q. What is on there?

              A. Go-go music.

                                                - 15 -
On cross-examination, the officer conceded “I was just going on what -- I don’t know if its

actually the Northeast Groovers . . . playing on there. I’m not familiar with go-go music.”

       “‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of

court, the statement being offered as an assertion to show the truth of matters asserted therein,

and thus resting for its value upon the credibility of the out-of-court asserter.’” Donahue v.

Commonwealth, 225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983) (citation omitted). See also

Jenkins v. Commonwealth, 254 Va. 333, 339-40, 492 S.E.2d 131, 134 (1997). The principle is

well established that hearsay evidence is incompetent and inadmissible unless it falls within one

of the recognized exceptions to the hearsay rule. Coureas v. AllState Ins. Co., 198 Va. 77, 83, 92

S.E.2d 378, 383 (1956). “Statements otherwise objectionable as hearsay are not rendered

admissible because they have been reduced to writing.” Williams v. Morris, Administratrix, 200

Va. 413, 417, 105 S.E.2d 829, 832 (1958). Moreover, “[o]ne seeking to have hearsay

declarations of a witness admitted as an exception to the general rule must clearly show that they

are within the exception.” Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984)

(citation omitted).

       At trial, the prosecutor contended the evidence was offered for impeachment of Jackson.

The majority now asserts a proposition the Commonwealth has never argued -- that Bentley’s

attorney should have objected to the evidence on relevance grounds. The hearsay objection,

however, was the appropriate objection when, as here, the prosecutor proffered that he was

seeking to impeach Jackson’s testimony. Jackson had testified she never listened to the

Northeast Groovers and Bentley never listened to the group in her presence, if ever he listened to

the group at all. Thus, the evidence’s value as impeachment was non-existent unless it tended to

establish that the compact disc was in fact a recording by the Northeast Groovers.




                                               - 16 -
       The inquiry whether an out-of-court declaration is hearsay first asks what the statement is

offered to prove. Donahue, 225 Va. at 151-52, 300 S.E.2d at 771; Stevenson v. Commonwealth,

218 Va. 462, 465-66, 237 S.E.2d 779, 781 (1977); Hanson v. Commonwealth, 14 Va. App. 173,

187, 416 S.E.2d 14, 20 (1992). In this case, accepting the prosecutor’s statement of purpose, the

evidence necessarily was offered for the truth of the writing. The prosecutor sought to have the

jury accept as true that the compact disc contained music by the Northeast Groovers because he

wanted the jury to believe Jackson lied during her cross-examination. Thus, the only possible

relevance of introducing the writing was to prove the truth of the writing’s declaration, that “this

is the music of the Northeast Groovers.” In this case, it was exactly as though a person had said

out of court, “This compact disc contains the music of the Northeast Groovers,” and that

statement were introduced in court. This is the very definition of hearsay. Furthermore, that this

was the reason to introduce the writing was abundantly obvious because no other evidence

proved what was recorded on the compact disc. “When the only possible relevance of an

out-of-court statement is directed to the truth of the matters stated by a declarant, the subject

matter is classic hearsay even though the proponent of such evidence seeks to clothe such

hearsay under a nonhearsay label.” Keen v. State, 775 So. 2d 263, 274 (Fla. 2000).

       Indeed, the prosecutor also offered Officer Goodley’s testimony on rebuttal to prove the

truth of the writing: that the compact disc was a recording by the Northeast Groovers, as written

on the label, and that it was “go-go” music. He testified that he listened to the compact disc and

that it contained “[g]o-go music.” Thus, the testimony of the Commonwealth’s witness belies

the assertion that the evidence was simply to prove “a verbal fact.” We would adopt a fiction to

conclude this testimony was offered to prove a “verbal fact” and not the content of the compact

disc. I would hold that the Commonwealth used the words “Northeast Groovers” written to the

compact disc to show the truth of the matter asserted: that the compact disc was a recording of


                                                - 17 -
the Northeast Groovers, a go-go band. Thus, the trial judge erred by admitting this hearsay

evidence.

                                                  II.

       The Commonwealth contends that even if the trial judge erred in admitting the evidence,

the error was harmless. I disagree.

       When the erroneous admission of evidence is not of constitutional dimension, the

standard for reviewing whether the record establishes harm to the accused 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 in
               grave doubt, the conviction cannot stand.”

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)). “[T]he 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) (quoting Kotteakos, 328 U.S. at

764-65, 776)). 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).

       When, as in this case, 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. The Commonwealth has not met this burden because its proof that Bentley stole

Markos’s car rested upon linking Bentley to each of three pieces of circumstantial evidence:

cigarettes in the car, telephone calls from Markos’s telephone, which was found in the car, and a

                                                - 18 -
compact disc in the car. Individually, these pieces of evidence lacked the strength to prove

beyond a reasonable doubt the inference of guilt the prosecutor sought to establish. Only by

putting them together could the prosecutor create the three-legged stool upon which the

Commonwealth’s theory of guilt rested. Significantly, the evidence concerning the compact disc

was the strongest of the three factors and was essential to the Commonwealth’s proof.

       The prosecutor relied upon speculation and conjecture to suggest the cigarettes

established Bentley had been inside Markos’s car. The evidence merely proved the ashtray in

Markos’s car “was full of cigarette butts and ashes.” No evidence connected those cigarette butts

or ashes to Bentley. Although the evidence proved Bentley smoked, no evidence proved either

that he smoked the brand of cigarettes found in the car or that he had smoked in the car. Simply

put, the evidence was not sufficient to take the connection “‘out of the realm of mere conjecture,

or speculation, and into the realm of legitimate inference.’” Atrium Unit Owners Assoc. v. King,

266 Va. 288, 294, 585 S.E.2d 545, 548 (2003) (citation omitted). Without more, this evidence

merely established that one or more of the many smokers in the universe was in the car.

       The evidence concerning the calls from Markos’s cellular telephone was not as illusory,

but it also required the jury to speculate that Bentley had been inside the car. The testimony

established that calls were made from Markos’s telephone to a telephone in the residence

occupied by Fanta Jackson and her father. The record does not indicate who made those

telephone calls and certainly fails to exclude Jackson, her father, or any of their friends as the

caller. Furthermore, the record fails to identify the persons or places called for any of the other

five telephone numbers that were common to the list of numbers called from Markos’s telephone

and by Bentley while he was in the jail. In short, the evidence merely proved that whoever used

Markos’s telephone called persons or places that were known to Bentley. Thus, the persons who

could have made the calls from Markos’s telephone include Bentley, Jackson, her father, and the


                                                - 19 -
friends and acquaintances of Bentley, Jackson, and Jackson’s father. To suppose that this

evidence connected only Bentley to the car “would be to engage in speculation and conjecture.”

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977).

       The final support for this three-legged stool of inferences the prosecutor relied upon to

prove guilt is the hearsay evidence. The written statement “Northeast Groovers” was

inadmissible to prove the truth of the assertion that the disc was of the “Northeast Groovers”

music. It was admitted for that evidentiary purpose, however, and used for that purpose.

Although no evidence proved, except by innuendo, that the compact disc belonged to Bentley,

the trial judge permitted the prosecutor to establish in his rebuttal case, under the guise of

impeachment, that the disc found in Markos’s car was a recording made by the “Northeast

Groovers.” When earlier cross-examined by the prosecutor, Jackson acknowledged that she

knew that the Northeast Groovers was a “go-go band” and that the band’s music is “play[ed] . . .

on the radio.” She testified, however, that she did not “listen to go-go” music, that Bentley

“may” have listened to the Northeast Groovers, but that he never did so in her presence. On

rebuttal an officer testified that it was “go-go” music but that he did not know if it was the

Northeast Groovers.

       The error in admitting the evidence was exacerbated by the prosecutor’s use of the

evidence and mischaracterization of Jackson’s testimony when he argued to the jury as follows:

               I was unclear from her testimony as to whether or not [Jackson]
               said she went to the Brookside Motel by herself via the trains with
               Mr. Bentley or if they were apart. I’ll let you decide that from
               your collective recollection.

                     However, I asked her, “Are you familiar with the Northeast
               Groovers?”

                        “Yes, I am.” It’s a go-go band and she associated it with
               Mr. Bentley. She said, “Chris listened to that stuff, but I don’t
               listen to it. When it’s on I tell him to turn it off.”



                                                - 20 -
                        Then you had Officer Goodley in my rebuttal case offered
               it into evidence. What was found in Mr. Markos’ car? A CD,
               Northeast Groovers. I would offer to you in that love that Fanta
               Jackson has for her boyfriend, I would suggest to you perhaps they
               arrived there together in that vehicle. Perhaps they arrived
               separately and Mr. Bentley drove there, but that car is there.

       Even if we assume the mischaracterization was unintentional, and the prosecutor believed

he had impeached Jackson’s testimony (the record clearly shows Jackson did not testify that

Bentley listened to the Northeast Groovers), the prosecutor’s argument to the jury surely is that

the disc contained music by the Northeast Groovers. Absent the use of this hearsay evidence, the

stool that supported the chain of inferences that led the jury to convict would have collapsed. No

evidence, other than the hearsay when combined with the prosecutor’s mischaracterization of

Jackson’s testimony, established that Bentley even knew who the Northeast Groovers were,

much less that he owned one of their compact discs. Jackson never testified she had personal

knowledge that Bentley ever listened to the Northeast Groovers.

       This is not a case, as posited by the Commonwealth, of overwhelming evidence of guilt.

Furthermore, 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 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). In other words, 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

                                                - 21 -
[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”).

       Because the inadmissible evidence was so profoundly a part of the Commonwealth’s

theory of prosecution (that Bentley had been in the car), I would hold that there exists a

reasonable possibility it contributed to the verdict. For these reasons, I would reverse the

conviction for larceny of the car and remand for a new trial.




                                               - 22 -
