                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, McClanahan and Petty
Argued at Salem, Virginia


ROBERT ALLEN TACKETT
                                                                MEMORANDUM OPINION * BY
v.      Record No. 2835-07-3                                     JUDGE ROBERT P. FRANK
                                                                    DECEMBER 9, 2008
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                                   Michael L. Moore, Judge

                  Terrence Shea Cook (T. Shea Cook, P.C., on brief), for appellant.

                  Richard B. Smith, Special Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Robert Allen Tackett, appellant, was convicted, in a jury trial, of credit card theft in

violation of Code § 18.2-192, credit card fraud in violation of Code § 18.2-195.1, credit card forgery

in violation of Code § 18.2-193, and identity fraud in violation of Code § 18.2-186.3. On appeal,

appellant argues the trial court erred in admitting evidence of hearsay testimony. For the reasons

stated, we affirm the trial court.

                                           BACKGROUND

        “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, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987)).




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       After a night of heavy drinking with his newfound acquaintance, Gary, appellant stole

Gary’s wallet containing a driver’s license and an expired Lowe’s credit card. Shortly thereafter,

appellant attempted to use the Lowe’s card to buy lawn equipment, but the card was declined.

Appellant showed a Lowe’s employee Gary’s driver’s license, claiming it was his, and the Lowe’s

credit center reactivated the card. Appellant then purchased over $3,300 worth of merchandise in

four separate transactions that same evening.

       At trial, appellant called J.C. to testify on his behalf. She told the jury that appellant visited

her at her residence and offered to sell her a lawn mower that he had in his car. She purchased the

new, self-propelled push mower for $50. She wanted to verify that the mower was not stolen, so

she insisted on seeing the sales receipt. She testified that appellant produced a receipt, which he

obtained from a man sitting in appellant’s car who appellant referred to as “Gary.”

       In rebuttal, the Commonwealth recalled Detective Jeffrey Grizzell to testify that during his

investigation, J.C. had told him that appellant had brought the lawn mower to her house and asked

that she and her boyfriend keep it “until the cops cooled down.” Appellant objected to this

statement on the ground that it was hearsay. The trial court overruled the objection, explaining that

“prior inconsistent statements [are] admissible for impeachment purposes.”

       This appeal follows.

                                             ANALYSIS

       On appeal, appellant argues that the trial court erred in allowing Detective Grizzell’s

statements into evidence for purposes of impeaching J.C.’s credibility. Citing Hall v.

Commonwealth, 233 Va. 369, 355 S.E.2d 591 (1987), appellant argues on appeal that a witness

may be impeached by prior inconsistent statements only when a foundation is first laid by calling

the witness’ attention to the statement and questioning her about it before it is introduced. He

argues this was not done in this case, rendering Detective Grizzell’s statement inadmissible.

                                                  -2-
       While appellant correctly states the law, his question presented does not ask us whether

the testimony is inadmissible because a proper foundation had not been laid. Instead, appellant’s

narrowly worded question presented asks, “Did the Russell County Circuit Court err in

permitting the hearsay statements of [J.C.]?” Thus, we are limited to answering only that

question.

       Rule 5A:12(c) provides that “[o]nly questions presented in the petition for appeal will be

noticed by the Court of Appeals.” We decline to consider “an issue not expressly stated among

the ‘questions presented.’” Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39

n.4, 542 S.E.2d 785, 789 n.4 (2001); see also Lay v. Commonwealth, 50 Va. App. 330, 336 n.3,

649 S.E.2d 714, 716 n.3 (2007) (explaining that under Rule 5A:12(c) “[w]e . . . do not answer

[an] unasked question”). As no appeal was sought or granted on the issue of whether Detective

Grizzell’s testimony was inadmissible because a proper foundation had not been laid, “we may

not consider this issue on appeal” under Rule 5A:12(c). 1

       In Moore v. Commonwealth, ___ Va. ___, ___ S.E.2d ___ (Oct. 31, 2008), the Supreme

Court of Virginia found this Court erred in finding appellant did not satisfy the requirements of

Rule 5A:12(c). In that case, appellant argued that police did not have a reasonable articulable

suspicion to stop his vehicle, while his question presented asked whether the police had probable

cause to make the traffic stop. The Supreme Court acknowledged appellant’s reliance upon the

wrong legal standard, but stated, “Moore’s question presented left no doubt that a Fourth

Amendment violation was the subject of his appellate claim.” Id. at ___, ___ S.E.2d at ___.

Citing Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), the Court

concluded that an appeal should not be dismissed for violation of a non-jurisdictional rule


       1
         This Court awarded an appeal on the sole question of “Did the trial court err in allowing
hearsay statements of [J.C.] into evidence?”

                                               -3-
without considering “whether a party’s failure to adhere strictly to the rule’s requirements is

insignificant, or so substantial as to preclude the court’s addressing the merits of the case.” Id. at

___, ___ S.E.2d at ___.

          In Moore, appellant’s brief did not raise a new issue. The discrepancy between the

question presented and the legal arguments raised in the brief is only the application of the

correct legal standard. Here, the appellant’s argument on brief is totally unrelated to the question

presented. Appellant’s question presented addressed hearsay, yet his argument on brief

addresses a non-hearsay statement, i.e., prior inconsistent statement. We find that the issue of

whether the Commonwealth neglected to lay a proper foundation raised in appellant’s brief is

substantially different from the question presented, “Did the trial court err in allowing hearsay

statements of [J.C.] into evidence?” Unlike the circumstances in Moore, appellant’s violation of

Rule 5A:12(c) is “so substantial as to preclude the Court of Appeals from addressing the merits

of the case.” Id. Because appellant’s hearsay question differs significantly from his argument

concerning the failure to lay a proper foundation, we only address appellant’s hearsay argument

on appeal.

          Hearsay is “[a] statement other than one made by the declarant while testifying at

trial - offered in evidence to prove the truth of the matter asserted.” Black’s Law Dictionary 649

(5th ed. 1979). See also Brown v. Commonwealth, 25 Va. App. 171, 177, 487 S.E.2d 248, 251

(1997).

                          “Whether an extrajudicial statement is hearsay depends
                 upon the purpose for which it is offered and received into
                 evidence. If the statement is received to prove the truth [or falsity]
                 of its content, then it is hearsay and, in order to be admissible, must
                 come within one of the many established exceptions to the general
                 prohibition against admitting hearsay.”

Id. (quoting Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992));

see also Garcia v. Commonwealth, 21 Va. App. 445, 450, 464 S.E.2d 563, 565 (1995) (en banc)
                                                  -4-
(“A statement offered for any other purpose is not hearsay and is, therefore, governed by the

other rules of admissibility.”).

        “As a general rule, hearsay evidence is incompetent and inadmissible,” and “[t]he party

seeking to rely upon an exception to the hearsay rule has the burden of establishing

admissibility.” Neal v. Commonwealth, 15 Va. App. 416, 421, 425 S.E.2d 521, 524 (1992).

The Commonwealth did not offer the statement for the truth of its content. As appellant argues

on brief, the Commonwealth offered the statement not for the truth, but for the purpose of

impeaching J.C.’s credibility. See Groggins v. Commonwealth, 34 Va. App. 19, 24, 537 S.E.2d

605, 607 (2000) (“A witness’ prior inconsistent statement is admissible to impeach trial

testimony but is not admissible to prove the truth of the matter asserted. If the prior statement is

offered to prove the truth of the statement uttered, it is hearsay.”). Indeed, the trial court

recognized that the statement was not hearsay by responding to appellant’s objection that “prior

inconsistent statements [are] admissible for impeachment purposes.”2 Thus, we find no error in the

trial court’s ruling.

        Accordingly, appellant’s convictions are affirmed.

                                                                                              Affirmed.




        2
         We note that the trial court instructed the jury that it could only consider prior
inconsistent statements for purposes of credibility.
                                                 -5-
