                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Retired Judge Smith ∗
Argued at Salem, Virginia


CATHY DENISE SAUNDERS
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1606-02-3              JUDGE RUDOLPH BUMGARDNER, III
                                                JULY 8, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF AMHERST COUNTY
                     J. Michael Gamble, Judge

          Jennifer R. Tuggle (J. Thompson Shrader &
          Associates, P.C., on briefs), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Jerry W. Kilgore, Attorney
          General, on brief), for appellee.


     The trial court convicted Cathy Denise Saunders after a

bench trial of petit larceny, third offense.    She maintains the

trial court erred in admitting nonverbal hearsay evidence and

the evidence was insufficient to convict.    Concluding the

evidence was not offered for the truth of the assertion

contained in it but was sufficient to prove larceny, we affirm

the conviction.




     ∗
       Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The defendant entered a convenience store with a "flat"

black bag and left a few minutes later with the bag "full."     She

crossed the street to a motel but returned about five minutes

later with a different black bag.   The manager alerted the store

clerk to watch the defendant.   The clerk had recently restocked

the shelves and realized the shelves were "messed up" and two

cans of corned beef hash and a jar of jelly were missing.    She

accused the defendant of taking the corned beef and asked to

look in the defendant's bag.    The defendant refused, bent out of

view, and put something down.   As she left the store, the

defendant exhibited an empty bag to the manager, but then took a

newspaper without paying for it.    The clerk found two cans of

corned beef hash on the floor in the aisle where the defendant

had bent out of view.

     Deputy Travis Dooms responded to the store, obtained a

description of the defendant, and went to the motel across the

street.   The deputy learned the defendant was renting a room at

the back of the motel on the upper level.   The deputy arrived at

the motel room only twenty-one minutes after the defendant

entered the convenience store the first time.   As the deputy

approached the defendant's room, the defendant's son was outside

but the door was open.   The defendant appeared at the door.

After the deputy asked her to retrieve the stolen merchandise,

she began "taking things from one bag and putting them in



                                - 2 -
another."   She took one of the bags and accompanied the deputy

to his patrol car where she revealed that the bag was empty.

     At that time, the deputy received a radio report that a man

was throwing something from the motel balcony.    The deputy ran

to the back of the motel, saw the defendant's son standing there

"look[ing] very nervous," and asked him where "he threw the

stolen items."   The son responded by pointing in the direction

of a wooded area about 15 yards away.    The deputy retrieved a

second black bag that contained grocery items valued at $46.73,

including the jar of jelly missing from the store.    The store

manager and clerk identified the items in the bag as having been

taken from the store without payment.

     The defendant contends the court erred in allowing the

deputy to testify that the defendant's son gestured toward the

woods when asked where he threw the stolen items.    She maintains

the gesture was inadmissible hearsay.

     "Hearsay is an out-of-court statement offered to prove the

truth of the matter asserted."     Garcia v. Commonwealth, 21

Va. App. 445, 450, 464 S.E.2d 563, 565 (1995) (en banc).     "The

hearsay rule does not . . . exclude evidence of a statement

offered for the mere purpose of explaining the conduct of the

person to whom it was made."     Weeks v. Commonwealth, 248 Va.

460, 477, 450 S.E.2d 379, 390 (1994) (statement that defendant

"did, in fact, shoot the trooper," explains officer's conduct in

arresting defendant); Fuller v. Commonwealth, 201 Va. 724, 729,

                                 - 3 -
113 S.E.2d 667, 670 (1960) (statement admissible to explain

officer's warrantless arrest).

     The Commonwealth introduced the gesture to explain why the

deputy went to the precise location where he found the stolen

items.    As the Commonwealth's attorney initially posed the

question to the witness, it anticipated that the son's response

would be verbal, and the defendant objected to it as calling for

hearsay.   As the answer was proffered, the witness indicated

that the response was not verbal but a gesture.    The defendant

objected, "Because it goes right to the truth of the matter

asserted," and the court overruled that objection because it was

a gesture.    Later, during the motion to strike at the end of the

Commonwealth's case-in-chief, the defendant renewed her

objection to the evidence.   The trial court clarified its ruling

and stated:   "It's a non-hearsay matter.   It shows the officer's

state of mind, where he went."    It overruled the motion to

strike, and when the defendant offered no evidence, found her

guilty.

     The gesture was nonverbal hearsay if it was introduced to

prove the assertion contained in it:     that the items thrown were

stolen.    The gesture was not hearsay if it was introduced to

explain the deputy's actions.    The trial court admitted the

evidence for its non-hearsay purpose and clearly stated that

purpose, "it shows what the officer did next."



                                 - 4 -
     The evidence had an admissible use and an inadmissible use.

The trial judge correctly recognized its proper use and did not

err in admitting it for that purpose.    "A judge, unlike a juror,

is uniquely suited by training, experience and judicial

discipline to disregard potentially prejudicial comments and to

separate, during the mental process of adjudication, the

admissible from the inadmissible, even though he has heard

both."    Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d

155, 157 (1981) (statement not hearsay because admitted for

non-hearsay purpose).

     The defendant maintains the evidence was insufficient to

prove petit larceny because no one saw her take anything from

the store. 1   Circumstantial evidence "'is as competent and is

entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.'"    Hollins v. Commonwealth, 19 Va. App.

223, 229, 450 S.E.2d 397, 400 (1994) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

     We view the evidence and the reasonable inferences

therefrom in the light most favorable to the Commonwealth.

Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313

(1998).   The defendant entered the store with an empty bag and


     1
       This argument overlooks the evidence that the defendant
took a newspaper without paying for it as she left the store for
the second time.


                                - 5 -
left with a full one.   She returned a few minutes later with

another black bag.   Suspecting the defendant had taken cans of

corned beef, the clerk asked if she could look in her bag.    The

defendant refused, crouched out of view, put something down, and

left the store.   Where the defendant had crouched out of view,

the clerk found two misplaced cans of corned beef hash and

discovered a jar of jelly was missing.   Within a short time, the

deputy saw the defendant with two black bags in her motel room.

After learning something had been thrown from the motel balcony,

the deputy discovered a black bag containing items taken from

the store without payment.

     "The inferences to be drawn from proven facts, so long as

they are reasonable, are within the province of the trier of

fact."   Hancock v. Commonwealth, 12 Va. App. 774, 782, 407

S.E.2d 301, 306 (1991).   The facts proven and the reasonable

inferences drawn from them were sufficient to prove beyond a

reasonable doubt that the defendant was guilty of third offense

petit larceny.    Accordingly, we affirm the conviction.

                                                           Affirmed.




                                - 6 -
Benton, J., dissenting.

     "[H]earsay . . . [is] 'that species of testimony given by a

witness who relates, not what he knows personally, but what

others have told him, or what he has heard said by others.'"

Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953)

(citation omitted).

               Hearsay evidence has been defined as
            evidence which derives its value, not solely
            from the credit to be given the witness on
            the stand, but in part from the veracity and
            competency of some other person. It is
            primarily testimony which consists in a
            narration by one person of matters told him
            by another.

Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832

(1958).   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).

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).

     During the police officer's testimony in response to the

prosecutor's questions, the following incidents occurred:

            A: . . . . We received a call from our
            dispatch center saying that -- an anonymous
            call, saying that somebody was on the back
            deck of the Madison Motel.
                               - 7 -
[DEFENSE ATTORNEY]: Well, Your Honor, now
I'm going to object to that.

[JUDGE]:   Be received to show what he did
next.

Q: All right, based on the dispatch that
you got, what did you do?

A: I immediately ran back around to the
back of the Madison Motel, around in the
area of room 110.

Q: And what, if anything, did you see when
you got to that area?

A: Michael Saunders was standing out back
at the deck, looked very nervous. I asked
him where he threw the -- threw the stolen
items. He told me immediately --

[DEFENSE ATTORNEY]: I object to the
hearsay, Your Honor.

[PROSECUTOR]:   That's not hearsay, Your
Honor.

[JUDGE]: Well, if he told him where he
threw the -- you said, I asked him where did
you throw the stolen items.

*     *     *     *       *     *     *

Q:   What was the answer?

A: The answer -- he -- he told me actually
where -- he actually pointed it to me. It
was within view of the balcony. It was in
the woods. We retrieved the items. They
were in another black bag, which I assume --

[DEFENSE ATTORNEY]:     Your Honor, I think
that's hearsay.

[JUDGE]:   Why is pointing hearsay?

[DEFENSE ATTORNEY]: Because it goes right
to the truth of the matter asserted.

[JUDGE]:   Overruled.   Didn't say it, he
pointed.
                      - 8 -
       The trial judge's ruling clearly indicates he overruled the

objection because he believed that the act of pointing could not

be hearsay.   The Supreme Court's decision in Stevenson v.

Commonwealth, 218 Va. 462, 237 S.E.2d 779 (1977), demonstrates

the error of the ruling.   The record in Stevenson indicated a

police officer asked Stevenson's wife to give him the clothes

worn by Stevenson when he returned home a few days after a

murder.   He was permitted to testify that Stevenson's wife

presented him with a shirt.    Id. at 464, 237 S.E.2d at 781.

Reversing the conviction, the Court held that "[n]onverbal

conduct of a person intended by him as an assertion and offered

in evidence to prove the truth of the matter asserted falls

within the ban on hearsay evidence."    Id. at 465, 237 S.E.2d at

781.

       The Court specifically addressed the nature of the

assertion in the following passage:

            [T]he act by Mrs. Stevenson came in response
            to the question of the officer as to what
            the defendant was wearing when he returned
            home from Ashland as well as the officer's
            request to obtain that clothing. Thus, the
            conduct of Mrs. Stevenson was intended as a
            nonverbal assertion for the purpose of
            showing that the shirt not only belonged to
            Stevenson but was in fact worn by him on the
            day of the crime. Moreover, it formed the
            basis of the Commonwealth's argument that he
            was wearing the shirt at the time the crime
            was committed. Accordingly, the officer's
            testimony relating to the shirt was
            inadmissible as violative of the hearsay
            rule, and the introduction into evidence of
            the shirt and the result of the scientific
                               - 9 -
            tests conducted thereon was without proper
            foundation.

Id. at 465-66, 237 S.E.2d at 781-82.

     As in Stevenson, the officer in the present case testified

about a nonverbal assertion made by Saunders's son, who was

asked by the officer to identify where he had thrown "the stolen

items."   Thus, the officer's testimony impermissibly detailed

facts related to him out of court by Saunders's son, including

statements made by the officer to Saunders's son.      The act of

pointing was in response to the officer's inquiry about both

where the man threw the items and the identification of the

items as "stolen."   This evidence formed the basis of the

Commonwealth's hypothesis that the items came from the room

where Saunders had been, that Saunders stole them, and that

Saunders's son discarded the items knowing Saunders stole them.

See 218 Va. at    465-66, 237 S.E.2d at 782 (noting that the

nonverbal assertion was intended to link the accused to the

charged crime).

     In convicting Saunders, the trial judge made the following

findings that establish he accepted the assertive nature of the

evidence:

            [T]hen [the officer] gets a call, goes --
            walks around back and stuff is off the
            balcony on the back side and the son that
            took the police to the room is there on the
            balcony and points to it.

               All the -- and all this happened in a
            looks like about a thirty minute period.    I
                               - 10 -
          mean all the circumstances point right to
          stealing the items.

The trial judge drew these impermissible inferences because, as

in Stevenson, the police officer was allowed to testify about an

assertive action made out-of-court by a person in response to

the officer's incriminating inquiry.

     Merely saying the evidence had a non-hearsay purpose is not

sufficient to meet the Commonwealth's burden of proof.    The

officer's conduct had no bearing on any issue except proving

Saunders's son obtained the "stolen items" from the room and

threw them off the balcony.   As in Stevenson, the officer's

conduct was irrelevant to any issue the judge was required to

determine and it was used for an impermissible purpose.

     Ruling hearsay evidence inadmissible in Donahue v.

Commonwealth, 225 Va. 145, 300 S.E.2d 768 (1983), the Supreme

Court addressed a deficiency similar to the one existing in the

present case:

             [Appellant] submits that the
          Commonwealth's [evidence] suffers the same
          infirmities found in Stevenson. There, we
          held that the hearsay rule excluded the
          non-verbal act of the defendant's wife in
          giving a police officer a particular shirt
          in response to his inquiry as to what the
          defendant was wearing on the day of the
          crime. We reasoned that the Commonwealth
          had used the wife's conduct to show the
          truth of the matter asserted: that the
          shirt belonged to and was worn by the
          defendant at the time the crime was
          committed.


                              - 11 -
             The Attorney General relies upon Fuller
          v. Commonwealth, 201 Va. 724, 113 S.E.2d 667
          (1960), where we held that the hearsay rule
          does not operate to exclude evidence of a
          statement that is offered, not for the
          purpose of showing the guilt or innocence of
          the accused, but merely to explain the
          conduct of the person to whom it was made.
          We think the Attorney General's reliance is
          misplaced.

             In Fuller, the Commonwealth introduced a
          statement the victim made to the police
          concerning an assault made upon him by the
          defendant. The Commonwealth's purpose was
          to demonstrate that the police had
          reasonable ground to believe that a felony
          had been committed and to explain why the
          defendant was arrested without a warrant.
          But here, despite assurances to the
          contrary, the note was introduced and used
          by the Commonwealth to prove the truth of
          its contents.

Donahue, 225 Va. at 152, 300 S.E.2d at 771-72.

     Indeed, as clearly manifest in the trial judge's ruling in

the present case, the hearsay evidence was admitted under the

misapprehension that "pointing" was not an act that implicates

the hearsay rule.   In addition, the judge's findings at the

conclusion of the evidence undisputably establish the evidence

was admitted and used to prove the truth of the assertions.

     For these reasons, I would hold the trial judge erred in

admitting the hearsay evidence.   Because the record demonstrates

that evidence was used as a substantial basis to support the

verdict of conviction, it was not harmless.   Scearce v.

Commonwealth, 38 Va. App. 98, 105, 561 S.E.2d 777, 781 (2002).


                              - 12 -
Accordingly, I would reverse the conviction and remand for a new

trial.




                             - 13 -
