                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


ABDULLAHI ABDIRIZAK ISSAK
                                         MEMORANDUM OPINION * BY
v.   Record No. 1853-02-4                 JUDGE LARRY G. ELDER
                                              JUNE 17, 2003
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       John E. Kloch, Judge

          Paul E. Pepper, Senior Assistant Public
          Defender, for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Abdullahi Abdirizak Issak (appellant) appeals from his

convictions for credit card theft and burglary.     On appeal, he

contends that the trial court erroneously (1) admitted a

MasterCard receipt for the purchase of jewelry when the victim

testified that her missing credit card was a Visa; (2) convicted

him on an indictment charging theft of a Visa card when the

evidence proved the theft involved a MasterCard; and (3)

convicted him of burglary when the evidence failed to prove

either that a burglary occurred or that he was in possession of

any of the property taken in the alleged burglary.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     Because the Commonwealth joins in appellant's request for

reversal of the conviction for credit card theft, we reverse and

dismiss that count of the indictment without reaching the merits

of that assignment of error.    We hold that admission of the

jewelry receipt was not error and that the evidence was

sufficient to support appellant's burglary conviction.    Thus, we

affirm the burglary conviction, reverse the credit card theft

conviction, and dismiss Count II of the indictment.

                                  I.

                               ANALYSIS

                                  A.

       ADMISSIBILITY OF CREDIT CARD RECEIPT FROM L'ARTESAN

     Appellant contends that Commonwealth's Exhibit 1, a credit

card receipt for jewelry from L'Artesan, was erroneously

admitted because it was irrelevant.

     "Evidence is admissible if it is both relevant and

material."   Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,

361 S.E.2d 436, 441 (1987).    "Evidence is material if it relates

to a matter properly at issue" and "'relevant if it tends to

establish the proposition for which it is offered.'"     Id.

(quoting Charles E. Friend, The Law of Evidence in Virginia

§ 134 (2d ed. 1983)).   "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



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discretion."    Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988).

     Here, proof that appellant possessed and used the victim's

Citibank credit card was probative of whether he was guilty of

burglary and credit card theft.    The Commonwealth's evidence

established that appellant used a credit card to make the

purchase memorialized by Commonwealth's Exhibit 1, the L'Artesan

receipt.   The victim testified that her Citibank credit card was

a Visa, whereas other evidence established that the credit card

used to make the L'Artesan purchase was a MasterCard.     However,

the victim also testified that the L'Artesan receipt bore the

same credit card number that appeared on her Citibank credit

card records.   Thus, the trial court did not abuse its

discretion in admitting the exhibit and holding "[t]he rest goes

to weight, not admissibility."

     In any event, the admission of the L'Artesan receipt, if

error, was harmless.    An error is harmless where the erroneously

admitted evidence is merely cumulative of other, properly

admitted evidence.     Freeman v. Commonwealth, 223 Va. 301, 316,

288 S.E.2d 461, 469 (1982).    Here, the Commonwealth offered the

disputed L'Artesan receipt to prove that appellant used a credit

card bearing the same number as the victim's missing Citibank

credit card within hours of when the victim last had the card in

her possession in her apartment.    However, Commonwealth's



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Exhibit 3, a credit card receipt from Footlocker, constituted

independent proof of this same fact.

     Appellant initially objected to the victim's identification

of Exhibit 3 as bearing her credit card number on the ground

that she lacked independent knowledge of the number and merely

based her identification on records she had received from the

credit card company.    However, the trial court overruled this

objection, and when the Commonwealth later sought to admit

Exhibit 3 after the merchant had identified it and testified

that it involved a MasterCard purchase, appellant posed no

further objection.   Thus, appellant never claimed Exhibit 3 was

inadmissible because of conflicting evidence regarding whether

the card was a Visa or a MasterCard, and, on appeal, it posed no

objection whatever to the admission of Exhibit 3.     Further, as

to Exhibit 3, the victim provided even stronger testimony than

she had as to Exhibit 1, stating that she had "compare[d] the

[credit card] number . . . on [Commonwealth's Exhibit 3] with

[her] records of her Citibank Visa account" and that "[t]hey are

the same account."     (Emphasis added).   Thus, for purposes of our

harmless error analysis, Commonwealth's Exhibit 3 was "properly

admitted evidence" that rendered harmless any error caused by

the admission of Exhibit 1.




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                                 B.

       VARIANCE BETWEEN ALLEGATION IN INDICTMENT AND PROOF

     On appeal, the Commonwealth consents to reversal and

dismissal of appellant's conviction for credit card theft under

Count II of the indictment.   Upon consideration of appellee's

confession of error, we grant the request for reversal of the

conviction and dismissal of this count of the indictment without

consideration of the merits of this assignment of error.

                                 C.

              SUFFICIENCY OF EVIDENCE TO PROVE BURGLARY

     On appeal of a criminal case, we view the evidence in the

light most favorable to the Commonwealth, granting to that

evidence all reasonable inferences deducible therefrom.     See,

e.g., Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975).   Appellant's conviction for burglary pursuant

to Code § 18.2-91 required proof that he broke and entered the

victim's residence with the intent to commit larceny therein.

"Once [a] [larceny] 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); see also Castle v. Commonwealth, 196 Va.

222, 226-27, 83 S.E.2d 360, 363 (1954).

     In proving the elements of a crime, "[c]ircumstantial

evidence is as competent and is entitled to as much weight as

direct evidence, provided it is sufficiently convincing to

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exclude every reasonable hypothesis except that of guilt."

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983).   "[T]he Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant."     Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

     Here, the only reasonable hypotheses flowing from the

circumstantial evidence, viewed in the light most favorable to

the Commonwealth, established both (1) that a breaking and

entering and larceny occurred and (2) that appellant possessed

one of the credit cards taken in that burglary within hours of

the break-in, thereby permitting application of the inference

that he was the thief.

     Despite appellant's claim that the victim "was not sure

when she last saw her credit cards," the victim testified, "I

had been out to the store earlier that day and I know [the

credit cards] were in my possession before I went to work" on

the afternoon of December 4, 2001.     The victim testified that

she left the cards and some cash in her room--in her wallet and

her purse.   The doors and windows to the apartment were closed

when she left.   When the victim returned from work in the early

morning hours of December 5, 2001, she found a "big," "man

sized" "utility" glove on her bed and noticed that her bedroom

door was closed more than usual.   No one other than the victim

and her roommate had had permission to be in the apartment

                               - 6 -
during that period of time.   Although the victim and her

roommate saw no signs that any of the doors or windows had been

forced open, the roommate said the back door may have been

unlocked.    Later on December 5, 2001, the victim discovered that

her money and two of her credit cards, including her Citibank

credit card, were gone.   The roommate testified that she did not

take or use the victim's credit cards or money.     Thus, the only

reasonable hypothesis flowing from this evidence is that the

disappearance of the credit cards and money resulted from a

breaking and entering and larceny.      The absence of any

eyewitnesses does not preclude a finding that these things

occurred.

     The evidence also establishes that appellant possessed the

victim's stolen Citibank credit card within hours of the

break-in.    The assistant manager at Footlocker identified

appellant as the person who presented the MasterCard credit card

used in the transaction memorialized by Commonwealth's Exhibit

3, which took place shortly after 9:00 p.m. on December 4, 2001.

The victim testified that the Footlocker receipt bore the same

credit card number as her Citibank credit card.     It is true that

the victim originally testified her Citibank credit card was a

Visa card.   However, when the victim was asked if she had had

the chance "to compare the [credit card] number . . . on

[Commonwealth's Exhibit 3] with [her] records of her Citibank

Visa account," she responded that she had and that "[t]hey are

                                - 7 -
the same account."   (Emphasis added).   The victim also said that

she did not "make any of [the] charges" reflected on the

Footlocker receipt and had not authorized anyone else to make

those charges.   The only reasonable hypothesis flowing from this

evidence is that appellant made the Footlocker purchase using

the victim's Citibank credit card, proving that appellant had

possession of that credit card within hours of the burglary.

     Thus, the evidence was sufficient to support appellant's

conviction for burglary.

                                II.

     For these reasons, we reverse appellant's conviction for

credit card theft, dismiss Count II of the indictment, and

affirm appellant's conviction for burglary.

                                                   Affirmed in part
                                                   and reversed and
                                                 dismissed in part.




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