                               COURT OF APPEALS OF VIRGINIA


Present: Judges Haley, Alston and Senior Judge Clements
Argued at Alexandria, Virginia


JAMES ANTHONY DENNIS
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2257-09-4                                JUDGE JEAN HARRISON CLEMENTS
                                                                  SEPTEMBER 21, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Jan L. Brodie, Judge

                 Neal Goldberg, Assistant Public Defender (Jason T. Britt, Assistant
                 Public Defender; Teresa E. McGarrity, Senior Assistant Public
                 Defender; Office of the Public Defender, on briefs), for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       James Anthony Dennis appeals his conviction for grand larceny in violation of Code

§ 18.2-95. On appeal, Dennis contends (1) the trial court erred in permitting a Commonwealth’s

witness to testify about the contents of an electronic record viewed on a computer screen and

(2) there was insufficient evidence to prove he had the requisite larcenous intent. Assuming without

deciding the trial court erred in allowing the witness testimony, we find the error harmless. We

also find there was sufficient evidence to sustain appellant’s larceny conviction. Therefore, we

affirm his conviction.

       As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.

                                               BACKGROUND

          The Commonwealth charged appellant with grand larceny for failing to return money he

obtained after depositing a check that was subsequently returned unpaid.

          On July 21, 2008, the grand jury indicted appellant for grand larceny in violation of Code

18.2-95, charging that “[o]n or about the 23rd day of November, 2007,” he “did feloniously take,

steal and carry away good [sic] and lawful currency . . . belonging to BB&T Bank, valued in

excess of $200.00.”

          At the beginning of his jury trial, appellant alleged a discovery violation relating to

copies of computer screen printouts the Commonwealth intended to introduce into evidence.

Appellant contended he did not receive printed documents showing the status of his BB&T

account on Friday, December 12, 2008, until four days before trial. The Commonwealth

acknowledged the late disclosure, and added that if it does not use the computer printouts, it

intended to use “the witness[’]s testimonial [sic] about what she read off the screen as provided

through the Lee v. Commonwealth, 28 Va. App. 571, 507 S.E.2d 629 (1998),] case.” The

Commonwealth said the information was intended “to show that the bank account did not get in

the money that was supposed to come from the checks [sic] that Mr. Dennis deposited. It’s to

show that the bank never got the money, but they paid out the money. Obviously, to show they

had a loss.”

          The trial court found the Commonwealth violated discovery, granted appellant’s motion

in limine, and refused to allow the Commonwealth to introduce the printouts of the computer

screen.




                                                   -2-
        Appellant then objected to admitting at trial any hearsay testimony from the

Commonwealth’s witness about data she saw on the computer screen and argued such testimony

would not fit within the business records exception. The trial court ruled “that will be subject to

objection as the case goes on.” The Commonwealth indicated it would rely on the holding in

Lee, and appellant argued that the Virginia Supreme Court’s decision in Decipher, Inc. v. iTribe,

Inc., 262 Va. 588, 533 S.E.2d 718 (2001), should control. The trial court withheld ruling at that

time.

                                     EVIDENCE AT TRIAL

        “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

        So viewed, the evidence proved that on November 20, 2007, appellant opened a checking

account at BB&T bank by depositing a cashier’s check made out to him for $9,990 from Lincoln

County Bank in Wisconsin and listing the remitter as “C.J. Moore.” On November 23, 2007,

appellant presented and the bank cashed two $300 counter checks from appellant’s account made

payable to “Cash.” Appellant handwrote his name and address on the top of each of the two

checks. On one $300 check he wrote his name as “James Anthony Dennis” with an address of

“104 Hollady Ave., Gordonsville, VA 22942.” On the other $300 check, appellant listed his

name as “James A. Dennis, Jr.” with an address at “7475 Little River Trnpk, Apt. 202,

Annandale, VA 22003.”

        On November 24, 2007, appellant presented a third counter check from his newly created

account for $7,000. This check listed “James A. Dennis, Jr.” as the account holder with an

address at “7475 Little River Trnpk, Apt. 202, Annandale, VA 22003.”

                                               -3-
       Peter Follansbee, a “city executive” at BB&T, telephoned appellant on November 30,

2007 about “a check [for $9,990] that was returned on his account, and [advised him] that there

were funds used on that account.” Follansbee advised appellant the bank intended “to collect the

funds on that, the amount that was owed to the bank.” Appellant and Follansbee scheduled a

meeting for December 3, 2007 to discuss the matter, but appellant never showed.

       Postal Inspector Hunter Hutchins arrested appellant on March 20, 2008, Mirandized him,

and obtained a statement. Appellant told Hutchins he “received the check from what he termed a

business partner whom he had met on Yahoo, that he was to deposit the check into the bank

account, withdraw the funds, and send those funds to his business partner, keeping ten percent

for himself.” Appellant told Hutchins that “at the time he received the check, he did not know

that it was not a good check, that he had opened a bank account, that he did deposit the check,

and that he did withdraw the funds.” Continuing, Hutchins testified that

               [appellant] stated to me that he was subsequently contacted by
               BB&T, informed that the check was no good, and that they had
               asked him to come in and discuss it or set up a payment plan,
               something of that nature.

       Appellant said “he was too busy to do that, and that when he realized that he was being

scammed, he decided to keep the money for himself.” He told Hutchins that he received

approximately $10,000 from that check and that he had used the money on bills and shopping.

       BB&T bank fraud investigator Ghysliane (Gigi) Frio testified that she investigates losses

suffered by the bank and has unfettered access to the bank’s computer records. Frio explained

that the bank no longer keeps checks that are deposited. Instead, “[e]verything is sent to our item

processing centers, there are two processing centers, and they are photographed [microfiched]

and stored internally on servers, process servers.” Within three days, paper checks are

“destroyed.”



                                               -4-
         Frio identified the three withdrawal checks. When the Commonwealth asked Frio if she

knew the balance in the checking account, appellant objected on the basis of hearsay. Appellant

argued that the Commonwealth was attempting to get into evidence that which the trial court

precluded based on the discovery violation, namely, the contents of the computer screen

printouts reflecting appellant’s account status, and such testimony “constitute[s] hearsay” and

“runs afoul of the best evidence rule.”

         The Commonwealth responded as follows:

                         The testimony that is being offered in this [Frio’s]
                testimony is not information that can be produced in the sense of a
                document. It doesn’t fall under the standard 3A:11 category as it
                goes to the nature of the offense, the fact that there’s no larceny,
                it’s in the indictment that he noticed that this is an amount missing
                out of a bank account.

                       That’s why we’re here, that’s why there’s been an
                indictment and it goes back to - - it’s in the indictment.

                       Furthermore, what [Frio’s] going to testify to is a computer
                record. I don’t understand how it can be provided other than me
                giving him a computer and access to their account.

                        Your Honor, what she’s going to testify to isn’t exactly a
                printout. They don’t keep paper records, Your Honor. They keep
                records through computer screen [sic], that’s why the Lee case is
                good law is [sic] because they have to be able to testify to records
                kept in a computer.

                       So I’m not really sure what [defense counsel] thinks that
                we could produce for him.

         Appellant argued he has “yet to see a computer” screen printout and questioned why the

contents of a computer screen cannot be printed and provided. The following exchange took

place:

                THE COURT: Well, see, to me a computer record is a document.
                If she’s going to testify as to what she looked at to determine
                whether or not there was a deposit, then she’s looking at a record
                that could have been printed out.


                                                -5-
               MS. SYLVESTER [Prosecutor]: I understand what Your Honor is
               saying, but my concern is that many things are kept through
               computer records that aren’t kept in ways that - - information is not
               kept solely in ways that are printed out. We create ways
               sometimes of displaying them in a printout form. But she can
               testify to anything she knows within that volume of records.
               Anything she has looked at she can testify to.

       The trial court asked the prosecutor if she intended to enter any documents into evidence,

and she replied, “No, just for testimony about what she saw from the computer.” The trial court

replied, “So then that switches us thinking ahead to the hearsay.” In response, the

Commonwealth stated its “position on that is that Lee gets it past hearsay because it’s something

that she read off of a computer screen and the Lee case allows for her to either read it off a

computer screen or bring a document if one exists.”

       The trial court ruled that “we get past the hearsay [objection] with Lee.” It also overruled

the best evidence objection.

                          ADMISSIBILITY OF FRIO’S TESTIMONY

       Relying on the Virginia Supreme Court’s decision in Decipher, appellant argues on

appeal that Frio’s testimony concerning what she learned about appellant’s account after viewing

the computer screen was inadmissible hearsay. In the alternative, appellant contends that

admission of Frios’s testimony violated the best evidence rule.

       The Commonwealth contends that Frio’s testimony was properly admitted because it was

not hearsay, and if it was hearsay, it was properly admitted under the business records exception

to the hearsay rule pursuant to this Court’s holding in Lee. Furthermore, the Commonwealth

contends, even if the trial court erred, any error was harmless.

       Assuming without deciding the trial court erred when it failed to sustain appellant’s

objections, we hold the error was harmless.




                                                -6-
       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 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)). 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) (quoting Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d 442, 444-45

(1993)).

       In her hearsay testimony, Frio discussed the March 2008 status of the BB&T checking

account appellant opened on November 20, 2007 with the $9,990 check. Specifically, she

determined that the $9,990 check had come into appellant’s account, there were withdrawals of

money for the two $300 checks and the $7,000 check, and appellant’s account had a negative

balance.

       That testimony, however, was merely cumulative and corroborative of other evidence.

Follansbee advised appellant on November 30, 2007 that the cashier’s check had been returned

unpaid, and explained that the bank expected appellant to repay the money he received from

checks cashed from that account. Despite agreeing to meet with Follansbee, appellant failed to

show or otherwise act on the deficit in his account. Moreover, appellant told Hutchins that after

learning that the cashier’s check was not valid, he was too busy to meet with the bank to set up a

repayment plan, and instead kept the money and used it for his personal needs.



                                                -7-
       Thus, even without Frio’s limited testimony about what she observed on the computer

screen, the evidence established that appellant deposited a check that was returned, appellant was

aware the check had been returned, he did nothing to reimburse the bank, and his account

balance remained negative. Accordingly, any error in admitting the testimony was harmless.

                                          SUFFICIENCY

       Appellant contends there was insufficient evidence to support his conviction.

Specifically, he argues the evidence failed to prove he had the requisite “fraudulent intent” at the

time he obtained the money from the bank.

       Larceny is defined as the wrongful or fraudulent taking of personal property of some

intrinsic value, belonging to another, “without his permission and with the intent to permanently

deprive him of that property.” Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000).

“‘The intent with which property is taken determines the offense.’” Overstreet v.

Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 907-08 (1993) (quoting Slater v.

Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909, 911 (1942)).

               To prove that a defendant is guilty of larceny, the Commonwealth
               must present evidence that the defendant took the property with the
               intention to deprive the owner permanently of his possession of the
               goods. In determining intent, “the factfinder may consider the
               conduct of the person involved and all the circumstances revealed
               by the evidence.” Wynn v. Commonwealth, 5 Va. App. 283, 292,
               362 S.E.2d 193, 198 (1987). Indeed, “[t]he specific intent in the
               person’s mind may, and often must, be inferred from that person’s
               conduct and statements.” Martin v. Commonwealth, 13 Va. App.
               524, 527, 414 S.E.2d 401, 402 (1992).

Welch v. Commonwealth, 15 Va. App. 518, 524, 425 S.E.2d 101, 105 (1992).

       Appellant argues the Commonwealth failed to exclude “the reasonable hypothesis of

innocence” that he believed “the check he received over the Internet was good at the time he”

withdrew cash from the account.



                                                -8-
       “The statement that circumstantial evidence must exclude every reasonable theory of

innocence is simply another way of stating that the Commonwealth has the burden of proof

beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785

(2003). Furthermore, the question of “[w]hether the hypothesis of innocence is reasonable is

itself a ‘question of fact,’ subject to deferential appellate review.” James v. Commonwealth, 53

Va. App. 671, 681, 674 S.E.2d 571, 576 (2009). Thus, consideration of whether a reasonable

jury could have excluded a hypothesis of innocence as unreasonable is viewed in the light most

favorable to the Commonwealth. Hudson, 265 Va. at 514, 578 S.E.2d at 786. The simple fact

that a defendant offers an alternative theory does not mean the Commonwealth has failed to

prove guilt beyond a reasonable doubt. Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d

22, 27 (1964). While the jury may not arbitrarily choose a theory incriminating the defendant,

Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969), we may find a jury’s

decision to convict arbitrary only where no reasonable jury could reach that conclusion, Emerson

v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004).

       Appellant told Hutchins he received a $9,990 cashier’s check from someone he claimed

to be a business partner whom he met on the internet. The “business partner” directed appellant

to deposit the check in his own account and send the “business partner” the proceeds, less $990,

or 10%, which appellant was allowed to keep. Appellant opened a new checking account solely

for the purpose of depositing the check and, within days, cashed three checks on the newly

created account. In filling out the three counter checks, appellant used two different names and

addresses. Later, when contacted by Follansbee, appellant did not appear surprised there was a

problem with the cashier’s check, and he did not show for the meeting he promised to attend.

Instead, appellant ignored the bank representatives and decided to keep and use the money from

the spurious cashier’s check.

                                              -9-
        Based on all of the evidence, including appellant’s actions and statements, the jury could

conclude appellant acted with the intent to permanently deprive the bank of its money and find

his theory that he was an unknowing victim of a check “scam” unreasonable.

        The jury’s finding was not plainly contrary to the evidence. Accordingly, the judgment

of the trial court in this regard is affirmed.


                                                                                         Affirmed.




                                                 - 10 -
