                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Beales and Retired Judge Clements*
Argued at Richmond, Virginia


HENRY GARFIELD HOLLIE
                                                              MEMORANDUM OPINION * * BY
v.     Record No. 1829-07-2                                   JUDGE RANDOLPH A. BEALES
                                                                  JANUARY 13, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                            Thomas N. Nance, Judge Designate

                 Jessica M. Bulos (Office of the Public Defender, on briefs), for
                 appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Henry Garfield Hollie (appellant) was found guilty by the trial court of grand larceny,

pursuant to Code § 18.2-95, and of credit card theft, pursuant to Code § 18.2-192(1)(a). On appeal,

he argues that the evidence was insufficient to prove beyond a reasonable doubt that he was the

perpetrator of these crimes. He also contends that the evidence was insufficient to prove the intent

element of credit card theft, an argument he concedes he did not present to the trial court. He asks

this Court to apply the ends of justice exception to Rule 5A:18 and, thus, to consider this argument.

We find that the evidence was sufficient to prove appellant committed these crimes, and we find the

ends of justice exception does not apply here.



       *
         Judge Clements participated in the hearing and decision of this case prior to the
effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to
Code § 17.1-400(D).
       **
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       At about 2:30 a.m. on January 28, 2007, Leslie Gray, a long-time acquaintance of

appellant, was at home asleep. She was awakened by a telephone call from appellant, who asked

her if he could stop by and pick up some of his things that were in Ms. Gray’s car. Although she

was sick and it was very early in the morning, Ms. Gray told appellant that he could come by and

get the items.

       When appellant arrived at her door, he had an acquaintance with him, who stayed outside

on the sidewalk. Ms. Gray gave her car key to appellant, who then went to retrieve the items.

He then came back to her door, returned the key, and asked if he could use her bathroom.

Ms. Gray agreed and let appellant into her home. She locked the door behind appellant and

immediately went upstairs to straighten up the bathroom before appellant could use it. Appellant

followed her up the stairs and waited outside the bathroom in the hall while she put the bathroom

in order. Appellant was out of Ms. Gray’s sight for approximately two to three minutes while

she was in the bathroom. When she was finished, appellant went into the bathroom, stayed there

a few minutes, and then left the house. Appellant’s friend never came into the home, according

to Ms. Gray.

       When Ms. Gray woke up later that Sunday morning, she did not notice anything amiss.

On Monday, however, she noticed that her purse, which sat on the end of her bed all weekend,

was no longer “secured,” and her wallet, which had been inside her purse, was missing. The

bedroom was down the hall from the bathroom that appellant had used early on Sunday morning.

The purse was visible from the hallway where appellant had waited while Ms. Gray straightened

up the bathroom.

       Ms. Gray had seen her wallet on the previous Friday when she paid a bill after work. She

began feeling ill on Friday, so she went straight home after paying the bill, put the purse on the

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edge of her bed, and left it there all weekend, as was her habit. The purse was closed and

buckled when she placed it there, and it was still buckled on Saturday night. She also

remembered seeing the items in her wallet late Saturday evening.

       Inside the missing wallet was an ATM card, various credit cards, a checkbook, $30 in

cash, and two Lowe’s merchandise cards worth $300 each. Ms. Gray cancelled all the credit

cards and closed the bank account early on Monday morning. She then tried to find appellant at

the Salvation Army, where he lived, but could not find him.

       No one other than Ms. Gray and appellant were in her home between Friday evening,

when she placed the purse on the bed, and Monday morning, when she discovered that the wallet

was missing.

       At trial, appellant argued that the evidence was insufficient to prove he was the person

who took the wallet. He did not argue that the evidence was insufficient to prove he intended to

steal or use the credit cards in Ms. Gray’s wallet, a possible element of credit card theft as

defined in Code § 18.2-192(1)(a). 1 The trial court found the evidence was sufficient, convicted

appellant of grand larceny and credit card theft, and sentenced him to six years, with two years

suspended, on each conviction.

                                           II. ANALYSIS

                                         A. Criminal Agent

       Although acknowledging that this Court must view the evidence produced at trial in the

light most favorable to the Commonwealth, see Ford v. Commonwealth, 28 Va. App. 249, 259, 503


       1
           Code § 18.2-192 defines credit card theft as when a person “takes, obtains or withholds
a credit card or credit card number from the person, possession, custody or control of another
without the cardholder’s consent” or when a person “who, with knowledge that it has been so
taken, obtained or withheld, receives the credit card or credit card number with intent to use it or
sell it, or to transfer it to a person other than the issuer or the cardholder.” As we find appellant’s
intent argument was not preserved, we do not address whether this statutory language defines
two separate offenses, one with a specific intent element and one without such an element.
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S.E.2d 803, 807 (1998), appellant contends that evidence was still insufficient to prove he was the

person who took Ms. Gray’s wallet. We disagree. Although no one observed appellant take the

wallet out of Ms. Gray’s purse, the Commonwealth presented sufficient circumstantial evidence to

prove appellant took the wallet.

        When the Commonwealth’s case is based on circumstantial evidence, the facts presented at

trial must exclude “every reasonable hypothesis of innocence which flows from the evidence.” Id.

However, “[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, there is no evidence that

anyone other than appellant could have taken the wallet.

        Ms. Gray testified that appellant was the only person, besides herself, to enter her home

between the time she placed the purse on the bed on Friday, when the wallet was in it, and Monday

morning, when she discovered the wallet was missing. When appellant entered the residence,

Ms. Gray locked the door behind him, so no one else could enter the home. No evidence in the

record suggests that anyone broke into Ms. Gray’s home. Ms. Gray did not leave her house during

that time, as she was sick, so she would have known if someone else had entered her home, gone

upstairs, entered her bedroom, and taken the wallet from the purse at the end of her bed. Therefore,

we find that the trial court did not err when it rejected appellant’s hypotheses of innocence and

found him guilty. See Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)

(noting that the issue on appeal, in cases involving convictions based on circumstantial evidence, “is

whether a reasonable [fact finder], upon consideration of all the evidence, could have rejected [a

defendant’s] theories in his defense and found him guilty . . .”). The evidence here was sufficient

for the trial court to find that appellant stole Ms. Gray’s wallet.




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                                B. Intent to Commit Credit Card Theft

        Appellant claims the Commonwealth did not prove that he took the credit cards “with [the]

intent to use [them] or sell” them, Code § 18.2-192(1)(a), so the evidence was insufficient to

convict him of credit card theft. He admits that he did not present this argument to the trial court

and concedes that he did not preserve this argument for appeal as required under Rule 5A:18.

However, appellant asks this Court to apply the ends of justice exception in Rule 5A:18, relying

upon the Supreme Court’s analysis in Jimenez v. Commonwealth, 241 Va. 244, 402 S.E.2d 678

(1991), where the Supreme Court found the ends of justice exception should apply. The

Commonwealth counters that Redman v. Commonwealth, 25 Va. App. 215, 487 S.E.2d 269 (1997),

in which this Court found the ends of justice exception did not apply, controls here. We agree with

the Commonwealth that Redman is more applicable, given the posture of this case, and, therefore,

we decline to apply the ends of justice exception here.

        In Jimenez, the jury instructions did not include “a material element of the offense charged.”

241 Va. at 251, 402 S.E.2d at 681. In that case, the definition of fraud required that the

Commonwealth prove a defendant had not returned the money advanced to him within fifteen days

after receiving written notice, sent certified mail, of a request to return the money. Id. at 247, 402

S.E.2d at 679. However, at Jimenez’s trial, the Commonwealth presented no evidence that the

victims ever sent a notice to Jimenez, and the jury instructions did not list this notice as one of the

elements of the crime. Id.

        This appeal presents our Court with a very different posture than the Supreme Court faced in

Jimenez. Here, a jury did not convict appellant, so jury instructions are not an issue here. Trial

courts are presumed to know the law and to follow it, Wilson v. Commonwealth, 23 Va. App. 318,

326, 477 S.E.2d 7, 10 (1996) (“[W]e assume that trial judges have knowledge of the

Commonwealth’s laws and properly apply those laws.”), so in this case we must presume that the

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trial court knew and considered all of the elements of credit card theft. Therefore, based on this

record, appellant was not “convicted of a non-offense,” as Jimenez was. Jimenez, 241 Va. at 251,

402 S.E.2d at 681.

        In addition, although in Jimenez the Commonwealth presented no evidence that a notice was

mailed, here the Commonwealth presented at least some circumstantial evidence that appellant

intended to use, sell, or transfer the credit cards. 2 The evidence here proved that appellant actually

took the wallet containing the cards and that those cards were never returned to Ms. Gray – both

facts that suggest appellant intended to take the cards and use, sell, or transfer them. 3 Therefore,

Jimenez is not applicable here.

        Conversely, in Redman, this Court addressed the exact argument that appellant raises here.

Redman argued in his appeal that the Commonwealth’s evidence was insufficient for the trial court

to convict him of being an accessory after the fact because the evidence failed to prove two

elements of this crime, but he failed to preserve these arguments at trial. 25 Va. App. at 219-20, 487

S.E.2d at 271-72. This Court found the ends of justice exception to Rule 5A:18 did not apply to

Redman’s appeal, explaining:

                In order to show that a miscarriage of justice has occurred, an
                appellant must demonstrate more than that the Commonwealth
                failed to prove an element of the offense. We will not invoke the
                exception if the record suggests that the Commonwealth merely
                inadvertently or unknowingly failed to adduce adequate proof of
                an element of the offense. In order to show that a miscarriage of
                justice has occurred, thereby invoking the ends of justice
                exception, the appellant must demonstrate that he or she was
                convicted for conduct that was not a criminal offense or the record

        2
         The Commonwealth does not argue on appeal that Code § 18.2-192(1)(a) defines two
types of credit card fraud, one without this specific intent requirement. As we find the issue was
not preserved, we do not consider this question here. See supra n.1.
        3
         We only note here that the record did contain some evidence relevant to this issue, unlike
the record in Jimenez. We do not comment on whether this evidence was sufficient to prove
beyond a reasonable doubt that appellant had the requisite intent to steal the credit cards.

                                                  -6-
                must affirmatively prove that an element of the offense did not
                occur.

Id. at 221-22, 487 S.E.2d at 272-73. This Court then distinguished Redman’s claim, which was

based only on the failure of the Commonwealth to prove an element of the crime, from Jimenez,

where the Supreme Court had applied the ends of justice exception to reach the merits of Jimenez’s

argument. Id. at 222, 487 S.E.2d at 273. This Court explained that Jimenez involved not only the

Commonwealth’s failure to present any evidence to prove an element of the crime, but also the

failure of the jury instructions to include an essential element when defining fraud for the jury. Id.

This Court then concluded that the ends of justice exception did not apply to Redman’s argument.

Id.

        We find Redman controls in this appeal. Appellant does not argue that the conduct for

which he was convicted was not a crime, and he does not contend that the record affirmatively

proved he lacked the requisite intent to commit the crime. Instead, he argues that the evidence was

insufficient to prove an element of the crime with which he was charged, basically the same

argument that Redman made, although in relation to a different statute. Therefore, we find that the

ends of justice exception to Rule 5A:18 does not apply here.

                                         III. CONCLUSION

        We find the evidence was sufficient to prove appellant perpetrated the crimes for which he

was convicted. We do not address appellant’s argument regarding the sufficiency of the evidence to

prove he intended to commit credit card theft, as this argument was not preserved pursuant to Rule

5A:18 and the ends of justice exception to that rule does not apply based on the record in this case.

Therefore, for the foregoing reasons, we affirm appellant’s convictions.

                                                                                              Affirmed.




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