                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia


MELVIN NATHANIEL HATCHER
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0317-09-2                                    JUDGE ROBERT P. FRANK
                                                                  FEBRUARY 23, 2010
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                                Leslie M. Osborn, Judge

                 Andrew J. Adams, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Jennifer C. Williamson, Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Melvin Nathaniel Hatcher, appellant, was convicted, in a bench trial, of grand larceny, in

violation of Code § 18.2-95. On appeal, he challenges the sufficiency of the evidence only as to

the value of the item stolen, contending the evidence did not prove the item stolen was valued at

$200 or more. He also asserts the trial court erred in admitting the testimony of two witnesses as

to the value. For the reasons stated, we affirm the trial court.

                                          BACKGROUND

       M.B. owned a pressure washer that he had inherited from his recently deceased

grandfather. When he received it, the washer was “brand new” and was still in the original box.

M.B. had only used the washer for a couple of hours prior to the theft. He had damaged the

washer’s hose but repaired the damage with an insert and “C” clamps. M.B. testified that the

washer was still new and “worked fine.”

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        When M.B. was asked the value, appellant objected because the Commonwealth had not

laid a foundation to establish the source of M.B.’s knowledge.

        M.B. testified he worked in construction and had previously used pressure washers. He

was familiar with the value of a pressure washer. He then testified, without objection, that the

value of the stolen washer was “well over $200.” Additionally, M.B. later testified that given his

line of work, he regularly looked at and priced all types of tools at Home Depot.

        Sometime in late June 2007, M.B. determined the power washer had been stolen from

outside his residence.

        S.H., a clerk at a pawnshop in Chase City, testified that on June 22, 2007 appellant and

another male entered her store with a pressure washer to pawn. She characterized the washer as

essentially brand new, perhaps a month old. It had “never been used once, if that.” S.H. did

notice the damaged hose but indicated the washer worked “just fine.”

        When the Commonwealth asked S.H. how she would arrive at a value, appellant objected

on relevancy and hearsay grounds, contending any value based on outside research would be

hearsay. The trial court allowed S.H.’s testimony.

        S.H. then testified she searched the internet through Home Depot and Shopzilla 1 to

determine a price range. S.H. determined the value of the pressure washer to be about $260 and

pursuant to company policy, offered appellant $70, which represented approximately one-quarter

of its value.

        The trial court was satisfied that the value of the stolen item was at least $200 and found

appellant guilty of grand larceny.

        This appeal followed.


        1
         Shopzilla is an online shopping network. It delivers search results for products and
services offered by third-party merchants, including descriptions and prices. See
www.shopzilla.com (last visited January 25, 2010).
                                               -2-
                                            ANALYSIS

       On appeal, appellant contends the trial court erred in allowing the testimony of M.B., the

owner, and S.H., the pawnshop clerk, as to value. Appellant also challenges the sufficiency of

the evidence, maintaining the evidence did not prove that the value of the pressure washer was

$200 or greater.

       “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). Furthermore, when

considering a challenge that the evidence presented at trial is insufficient, we “presume the

judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly

wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002).

       Appellant contends that only expert testimony was admissible in order to establish the

value of the stolen pressure washer. However, appellant did not make this argument at trial.

Under Rule 5A:18, “no ruling of the trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds therefor at the time of the ruling.”

Thus, this argument is waived and we will not consider it.

       Appellant further argues the victim’s testimony was inadmissible, because M.B. had no

knowledge of value as he did not buy the washer and only knew the value from using similar

equipment and shopping at Home Depot. Therefore, he concludes the victim’s testimony was

irrelevant and thus inadmissible.

       This argument is waived as well. Appellant objected to the victim’s initial testimony,

arguing there was no foundation as to the source of the victim’s knowledge. Thereafter, the




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Commonwealth laid a proper foundation, and the testimony was admitted. Appellant made no

further objection.

       Appellant further contends the trial court erred in admitting the valuation testimony of the

pawnshop clerk because she was not qualified as an expert witness. However, appellant made no

objection at the time the clerk testified as to the value of the pressure washer. “To be timely, an

objection to the admissibility of evidence must be made when the occasion arises – that is, when

the evidence is offered, the statement made or the rulings given.” Harward v. Commonwealth, 5

Va. App. 468, 473, 364 S.E.2d 511, 513 (1988). Appellant’s failure to object to the testimony at

the time it was offered violates the contemporaneous objection rule contained in Rule 5A:18.

               The primary purpose of requiring timely and specific objections is
               to allow the trial court an opportunity to rule intelligently on the
               issues presented, thereby avoiding unnecessary appeals and
               reversals. A specific, contemporaneous objection also provides the
               opposing party an opportunity to address an issue at a time when
               the course of the proceedings may be altered in response to the
               problem presented. If a party fails to make a timely objection, the
               objection is waived for purposes of appeal.

Shelton v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007) (citations omitted).

       Therefore, under Rule 5A:18, appellant’s objection was waived and his argument

regarding the necessity of expert testimony is defaulted.

       Appellant further argues the clerk’s testimony of value was based on inadmissible

hearsay, where she relied on information obtained from her online research, i.e. information

obtained from third parties, when the original source was not admitted into evidence. Assuming

without deciding that the trial court erred in allowing this testimony, such error is harmless,

because the victim’s testimony established the requisite value.

       In Kotteakos v. United States, 328 U.S. 750 (1946), the Supreme Court adopted the test

to be applied in determining if nonconstitutional error is harmless. The test is as follows:



                                                -4-
               If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but very 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.

Id. at 764-65 (citation omitted).

       Applying the Kotteakos harmless error test, we can say, “with fair assurance, after

pondering all that happened without stripping the erroneous action from the whole,” that it

plainly appears appellant had a fair trial. Id. at 765. The verdict was not affected by the clerk’s

testimony, because the victim had already established the requisite value. Therefore, we hold

that any error is harmless.

       Finally, appellant challenges the sufficiency of the evidence, as to value only. He does

not dispute he was the perpetrator.

       “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, 9-10, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). “[W]e presume the judgment of the trial court to be

correct,” Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and “will not set it

aside unless it is plainly wrong or without evidence to support it,” Dodge v. Dodge, 2 Va. App.

238, 242, 343 S.E.2d 363, 365 (1986).

       When considering a challenge that the evidence presented at trial is insufficient, we

“presume the judgment of the trial court to be correct” and reverse only if the trial court’s

decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of

the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

                                                -5-
“Instead, the relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Id.

        To convict appellant of grand larceny, the Commonwealth was required to prove the

property he unlawfully took was valued at $200 or more. Code § 18.2-95(ii). The relevant value

is the “current value” of the stolen items, Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d

792, 792 (1981) (per curiam), “measured as of the time of the theft,” Parker v. Commonwealth,

254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).

        M.B. testified he had inherited the Coleman pressure washer from his grandfather, it was

“brand new,” and he “took it out of the box [himself].” He also stated he had used the pressure

washer for only a couple of hours and he had to repair a hose on it, but that it worked fine

thereafter and “was still brand new.” M.B. testified he was familiar with the value of pressure

washers because he was in construction work and “sometimes you pressure wash houses and

stuff,” and he had “been around that kind of stuff.” M.B. also testified he frequently looked at

and priced tools at Home Depot. Based on his experience, the victim estimated the pressure

washer was worth “well over $200.”

        The victim was the owner of the property and was thus competent to state his opinion

concerning the value of the pressure washer. See Walls v. Commonwealth, 248 Va. 480, 482,

450 S.E.2d 363, 364 (1994). Any argument that the victim lacked knowledge of the value went

to the weight that the trial court gave the victim’s testimony and not its admissibility. See Kern

v. Commonwealth, 2 Va. App. 84, 86, 341 S.E.2d 397, 399 (1986).

                                                  -6-
       The trial court accepted the value evidence from the victim. “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).

                                         CONCLUSION

       The testimony of the victim was sufficient to prove beyond a reasonable doubt that the

value of the stolen pressure washer was at least $200 and that appellant was guilty of grand

larceny. We therefore affirm the judgment of the trial court.

                                                                                        Affirmed.




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