                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


JAMES EARL BROWN
                                            MEMORANDUM OPINION * BY
v.   Record No. 2439-00-1                  JUDGE ROBERT J. HUMPHREYS
                                                 JUNE 12, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                    William H. Shaw, III, Judge

          Charles E. Haden for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     James Earl Brown appeals his convictions, after a bench

trial, of two counts of grand larceny, two counts of breaking and

entering with intent to commit larceny, abduction, and use of a

firearm in the commission of a felony. 1   Brown contends that the

trial court erred in admitting a statement of Jeff Green as an

adoptive admission, and in failing to grant his motion to strike

the Commonwealth's evidence as insufficient as a matter of law.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Brown was also charged with robbery and use of a firearm
in the commission of robbery. However, the trial court
dismissed these charges on the motion of Brown, finding the
evidence insufficient to support them.
     The evidence presented at trial established that on April

15, 1999, at about 1:30 p.m., Dennis Emerson returned to his

home and saw a blue Ford parked in his yard.    He did not see

anyone in the car or at his front door, so he walked to the back

of his home, where he found a young man standing on his deck.

The young man saw Emerson and asked if "Joe Eldridge" lived

there.    Emerson replied that he did not.   The two then walked

toward the front of the house.

     As Emerson approached his garage, he looked toward his

house again and saw another young man walk out of the back door,

with a gun in his right hand.    Emerson then turned to the first

young man and saw that he also had a gun, which he was pointing

in Emerson's face.    He told Emerson to "Go back," to the deck

and threatened to kill Emerson if he had seen the license plate

number on his Ford.   The man then told Emerson to get down on

the ground and said, "Don't you move for five minutes."     When

the two men left, Emerson went into his house and called the

police.

     Emerson found that his house had been "completely

ransacked."   The men had tried to open Emerson's safe by

shooting at it.   There were bullets and shell casings on the

floor.    The men had taken a five-gallon water cooler containing

about $800 worth of coins, a handgun, a hunting knife and a

watch.



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        Around 2:30 p.m. to 3:00 p.m. that same day, Douglas Hines

returned to his home, near Route 17, to find that his home had

also been burglarized.    Several items, including a semiautomatic

Browning 9-mm pistol had been taken.

        Late that afternoon, Kimberly Harper received a page from

Jeffrey Green.    Green asked Harper to drive him and Brown to

Green's mother's car, which he claimed had broken down.     Harper

picked up Green and Brown at a convenience store near Saluda and

took them to a diner on Route 17.    The trip took about five

minutes.    Green sat in the passenger seat, and Brown sat in the

back.    Green told Harper, "they had robbed a man and that he had

held him at gunpoint," "and put him on the ground."      Brown said

nothing.    Harper described Brown as "look[ing] like he was in

shock."    Green and Harper then drove Green's mother's car to

Green's home.    Brown followed, driving Harper's car.

        At trial, a firearms and toolmark expert testified that the

cartridges and jackets found at Emerson's house had come from

the 9-mm that had been stolen from Hines' home.    Brown

stipulated that he had been in possession of that gun on April

16, 1999, the day after the burglaries.    However, Emerson

testified that Brown was not the young man who had held him at

gunpoint and was unable to identify Brown as the second

intruder.    He testified, "I got enough a [sic] look at him to

know that he was white.    He was young.   He was slender built.

But to really identify him, no."

                                 - 3 -
     Brown objected to the admission of the statement made by

Green to Harper, alleging that the statement was hearsay.    The

trial court overruled Brown's objection, finding that the

statement constituted an adoptive admission on the part of

Brown, an exception to the hearsay rule.

     "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).   "As a general rule, when a statement that tends to

incriminate one accused of committing a crime is made in the

presence and hearing of the accused and such statement is not

denied, contradicted, or objected to by him, both the statement

and the fact of the accused's failure to deny the statement are

admissible in a criminal proceeding against the accused."

Strohecker v. Commonwealth, 23 Va. App. 242, 252, 475 S.E.2d

844, 849 (1996).

           For the adoptive admission exception to
           apply, a direct accusation is not essential.
           Under the adoptive admission exception to
           the rule against hearsay, a declarant's
           accusatory or incriminating statements are
           not admitted to prove the truth of matters
           asserted. Such statements are admissible
           because they lay the foundation to show that
           the defendant acquiesced or admitted to the
           statement. An adoptive admission avoids the
           confrontation problem because the words of
           the hearsay become the words of the
           defendant. While the hearsay statement
           merely lays the foundation, the conduct of
           the accused, by remaining silent and failing

                               - 4 -
          to deny it, is admissible as substantive
          evidence to prove the accused's acquiescence
          in its truth.

Id. at 254, 475 S.E.2d at 850 (citations omitted).

     "The Virginia test regarding the use of adoptive admissions

as an exception to the rule against hearsay is whether [persons]

similarly situated would have felt themselves called upon to

deny the statements affecting them in the event they did not

intend to express acquiescence by their failure to do so."

Knick v. Commonwealth, 15 Va. App. 103, 106, 421 S.E.2d 479, 481

(1992) (citation omitted).

          In ruling on the admissibility of adoptive
          admissions:

          the courts have evolved a variety of
          safeguarding requirements against misuse, of
          which the following are illustrative. (1)
          The statement must have been heard by the
          party claimed to have acquiesced. (2) It
          must have been understood by him. (3) The
          subject matter must have been within his
          knowledge. (4) Physical or emotional
          impediment to responding must not be
          present. (5) The personal makeup of the
          speaker . . . may be such as to make it
          reasonable to expect denial. (6) Probably
          most important of all, the statement itself
          must be such as would, if untrue, call for a
          denial under the circumstances. . . . The
          essential inquiry in each case is whether a
          reasonable person would have denied under
          the circumstances, with answers not lending
          themselves readily to mechanical
          formulations.

Id. at 106-07, 421 S.E.2d at 481 (footnote omitted).

     Here, although Harper, a layperson, testified that Brown

appeared to be in shock, we do not find it unreasonable for the

                              - 5 -
trial court to have inferred that Brown heard and understood the

subject matter of the statement.    In fact, the Commonwealth

demonstrated that Brown was able to operate and drive Harper's

car, within at most, five minutes of the statement having been

made.    Thus, we do not find it unreasonable for the trial court

to have inferred that Brown was under no physical or emotional

impediment which would have kept him from either hearing,

understanding, and/or responding to the statement.    We therefore

hold that it was reasonable for the trial court to conclude that

the statement, if untrue, was such that it would have called for

a denial by a reasonable person under the circumstances.

        Brown next challenges the sufficiency of the evidence,

alleging that the trial judge erred in refusing to grant his

motion to strike.    "Where the sufficiency of the evidence is

challenged on appeal, that evidence must be construed in the

light most favorable to the Commonwealth, giving it all

reasonable inferences fairly deducible therefrom."     Norman v.

Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986)

(citation omitted).    "In so doing, we must discard the evidence

of the accused in conflict with that of the Commonwealth, and

regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences that may be drawn

therefrom."     Cirios v. Commonwealth, 7 Va. App. 292, 295, 373

S.E.2d 164, 165 (1988) (citations omitted).    Further,

circumstantial evidence is sufficient to support a conviction,

                                 - 6 -
provided it excludes every reasonable hypothesis of innocence.

See Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d

419, 420 (1994).

     It is well settled that, "[t]he unexplained possession of

recently stolen goods permits the fact finder to infer that the

possessor is the thief."    Archer v. Commonwealth, 26 Va. App. 1,

13, 492 S.E.2d 826, 832 (1997).   In fact, we have held that the

inference derived from evidence of recent possession of stolen

property may be enough, by itself, to support a conviction of

larceny.   See Bright v. Commonwealth, 4 Va. App. 248, 251, 356

S.E.2d 443, 444 (1987).    Accordingly, when considered in

conjunction with Brown's adoptive admission of the statement

made by Green, we do not find that the trial court was plainly

wrong in finding the circumstantial evidence sufficient to

support Brown's convictions for grand larceny, breaking and

entering, abduction and use of a firearm in the commission of a

felony.

                                                             Affirmed.




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