                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


ERIC KEYS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0136-01-4               JUDGE JERE M. H. WILLIS, JR.
                                               MARCH 12, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                   Benjamin N. A. Kendrick, Judge

            Robert W. Gookin for appellant.

            Susan M. Harris, Assistant Attorney General
            (Randolph A. Beales, Attorney General, on
            brief), for appellee.


     Eric Keys was convicted by a jury of conspiracy to commit

grand larceny, in violation of Code § 18.2-22, and of four counts

of grand larceny, in violation of Code § 18.2-95.    On appeal, he

contends that the trial court erred in failing to conduct a Weimer

hearing to determine whether the Commonwealth's cross-examination

of a character witness was proper.   See Weimer v. Commonwealth, 5

Va. App. 47, 54-55, 360 S.E.2d 381, 384-85 (1987).   Because he did

not raise the Weimer hearing issue at trial, Keys is barred by

Rule 5A:18 from asserting that issue on appeal.    We affirm the

judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                          I.    BACKGROUND

                           A.   OFFENSES

     Eric Keys sold upscale shoes at Nordstrom's department

store at Pentagon City Mall until leaving on September 8, 1998,

to work at Saks Fifth Avenue.    Together with two co-workers, Ian

Davis and Michael Coates, Keys fraudulently extracted money from

Nordstrom's, using false merchandise returns and check cards.     A

check card is a declining balance debit card that is tied to a

checking account.   A return using a check card "looks like a

credit which is a deposit or reversal" to the account.

     Keys provided Davis and Coates account number information

and expiration dates relating to bank accounts belonging to

Keys, LeAndrew C. Randolph, and David Page, Jr.    With this

information, Keys, Davis, and Coates created false return

transactions.   They obtained SKU numbers, department class, and

price information from merchandise price tags on the sales

floor.   When no one was watching, they entered this merchandise

information into cash registers and keyed the merchandise as

returns.   When a return transaction was complete, a hard and

soft copy of the transaction was generated.   The hard copy was

placed in the return bin of the cash register and the soft copy

was kept by whoever had entered the transaction.

     A security videotape taken on August 24, 1998, showed Keys

at a cash register with no customer or merchandise present.     He

manually entered a price, department, and credit card number.

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He did not imprint a credit card nor did he have a customer sign

a return slip.   He then placed a return slip in the cash

register and put the soft copy in his pocket.

     Coates received one third of the money he stole by making

such false returns.   Davis received half of the amounts he

stole.   The rest went to Keys.    At Keys' direction after he left

Nordstrom's, Davis and Coates continued to key false merchandise

returns.

                             B.     TRIAL

     A grand jury indicted Keys for conspiracy to commit grand

larceny, in violation of Code § 18.2-22 and four counts of grand

larceny, in violation of Code § 18.2-95.      During his jury trial,

Keys did not testify, but called two character witnesses, one of

whom was his sister, Rhea Flanders.

     Flanders testified that Keys was thoughtful and had done

very well at Nordstrom's.   She further testified, "I think it is

important for the jury to know how he took his job and his

responsibilities very seriously.     And that's very important in

this case, because they talked about his employment and his

record of employment."   Continuing, Flanders said that Keys went

to Saks to pursue other opportunities and because he thought

that he had done all he could do.

     The trial court sustained the Commonwealth's hearsay

objection and warned defense counsel:       "Mr. Stafford [Keys'

attorney], you're opening up an area on rebuttal.      I hope you

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are aware of that."     Mr. Stafford continued questioning

Flanders, and she explained that Keys was much involved with his

family, particularly with their mother while she was ill "during

the last four years" and with helping her and her husband.

     Prior to cross-examination, the Commonwealth requested a

sidebar.   The following colloquy ensued:

           MR. LYNCH [PROSECUTOR]: Your Honor, Mr.
           Stafford has put on evidence of his client's
           good character.

           THE COURT:    It sure sounds like it to me.

           MR. LYNCH: He said he's punctual. He said
           that he took his job seriously. The
           implication is that he takes his job so
           seriously he wouldn't steal. And she said
           he's a good person and cares about his
           family.

           Before I ask her if she knows anything about
           his previous convictions for fraud, I just
           wanted to clear it through you.

           THE COURT:    Haven't you put his character in
           issue?

           MR. STAFFORD [KEYS' ATTORNEY]:          No, I have
           not.

           THE COURT: Well, tell me why not.          Tell me
           why that does not go to character.

           MR. STAFFORD: Simple, Your Honor.          We are
           talking about how busy he is.

           THE COURT:    What is character?

           MR. STAFFORD: Character is whether you have
           a good character for telling the truth --

           THE COURT:    No.   No.    No.    No.

           MR. STAFFORD:    Character is --


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             THE COURT: You're talking about -- don't
             get it confused with truth and veracity.
             Reputation for truth and veracity is not the
             same thing as character.

             And you have put his character in issue. I
             warned you about that, and you persisted. I
             think you opened it up.

             Character is what you are.   Reputation is
             what people think you are.   And there is a
             difference.

             You've established one witness's reputation
             for truth and veracity correctly. But then
             you've gone and put his character in issue.

             MR. STAFFORD: I don't think that I have put
             his character in issue.

             THE COURT:   Your exception is noted for the
             record.

(Emphasis in original.)

     The Commonwealth cross-examined Flanders about her

knowledge of Keys' prior convictions of offenses involving

fraud.   Keys objected regarding the lack of specificity in the

questions.    His objection was sustained.   He objected to a

question on the ground that it was not "pertinent."        The trial

court admonished the Commonwealth to be "specific."        The

Commonwealth rephrased the question more specifically.       Keys

lodged no further objection.     At no point did Keys request the

hearing specified in Weimer.      At no point did he challenge the

accuracy of the events as to which the Commonwealth

cross-examined Flanders.     Keys was convicted on all counts.      He




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was subsequently sentenced to a total term of twenty years in

prison.

                          II.    ANALYSIS

     On appeal, Keys contends that the trial court erred in

failing to conduct a Weimer hearing.    In Weimer, the Commonwealth

sought to cross-examine a witness, who had testified to the

defendant's good character, concerning her knowledge of earlier

occasions of the defendant's misconduct.    The defendant objected,

asserting the inaccuracy of the cross-examination.   We held that

under those circumstances, to avoid the opening of "'a veritable

Pandora's box of irresponsible gossip, innuendo, and smear,'" the

trial court "should conduct a preliminary inquiry out of the

presence of the jury in order to satisfy himself:

          1. that there is no question as to the fact
          of the subject matter of the rumor, that is,
          of the previous arrest, conviction, or other
          pertinent misconduct of the defendant;

          2. that a reasonable likelihood exists that
          the previous arrest, conviction or other
          pertinent misconduct would have been bruited
          about the neighborhood or community prior to
          the alleged commission of the offense on
          trial;

          3. that neither the event or conduct nor
          the rumor concerning it occurred at a time
          too remote from the present offense;

          4. that the earlier event or misconduct and
          the rumor concerned the specific trait
          involved in the offense for which the
          accused is on trial; and




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           5. that the examination will be conducted
           in the proper form, that is: "Have you
           heard," etc., not "Do you know," etc.

           And if the conclusion is reached to allow
           the interrogation, the jury should be
           informed of its exact purpose.

Weimer, 5 Va. App. at 54-55, 360 S.E.2d at 381, 384-85

(citations omitted).

     Rule 5A:18 provides, in relevant part:

           [n]o ruling of the trial court . . . will be
           considered as a basis for reversal unless
           the objection was stated together with the
           grounds therefor at the time of the ruling,
           except for good cause shown or to enable the
           Court of Appeals to attain the ends of
           justice.

     Keys neither challenged the accuracy of the

cross-examination nor requested a Weimer hearing.      He objected

only to the lack of specificity in the questions regarding the

prior convictions.   Thus, he failed to preserve this issue for

appeal.   Rule 5A:18.   The evidence reflects no miscarriage of

justice or other good cause justifying an exception to the

operation of the rule.

     The judgment of the trial court is affirmed.

                                                           Affirmed.




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