Myler v. Commonwealth

1

DANNY MYLER v. COMMONWEALTH OF VIRGINIA

No. 1104-21-2

Court of Appeals of Virginia

October 18, 2022

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS T. J Hauler, Judge Designate

Todd M. Ritter (Hill & Rainey, on brief), for appellant.

Robin M. Nagel, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge O'Brien and Senior Judge Haley

MEMORANDUM OPINION ^[*]

JAMES W. HALEY, JR. JUDGE

A jury convicted appellant of petit larceny, third or subsequent offense. He asserts that the trial court erred by denying his motion in limine to exclude evidence from his "NCIC and/or VCIN criminal record where the Commonwealth did not have certified copies of [his] prior convictions for larceny." Appellant also challenges the sufficiency of the evidence supporting his conviction, asserting that it failed to prove he "took and carried away property with the intent to steal." For the following reasons, we affirm the trial court's judgment.

BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). On December 3, 2020, Sean Wade was working as a loss prevention officer at Walmart when he saw appellant place two televisions in his shopping cart.^[1] Wade followed appellant as he left the electronics department and walked to the front of the store. Appellant continued through the self-checkout area and approached the customer service desk. After speaking briefly with the customer service associate, appellant walked toward the store exit, again passing all of the checkout registers. Upon reaching the exit, appellant encountered an "asset protection host" who requested the purchase receipts for the televisions. Wade, who was standing immediately behind appellant, heard him tell the "asset protection host" that he had "just left customer service" and "tried to return them" unsuccessfully.

Wade confronted appellant and escorted him to the back of the store. Once they reached the asset protection office, Wade related his observations to appellant and asked him "why did he do it." Appellant answered that "he was trying to pay his rent." When Officer Brandon Cherry arrived at the store, dispatch informed Cherry that appellant had four prior larceny convictions in his "VCIN NCIC" record. Cherry asked appellant about the convictions, and appellant admitted that he "[had been] in trouble before . . . for larceny." Cherry arrested appellant and charged him with petit larceny, third or subsequent offense.

At trial, Cherry testified that dispatch obtained appellant's criminal history from his "VCIN NCIC." He explained that the "Virginia Criminal Information Network" consisted of "law enforcement sensitive data, criminal history eval[uation]s on a person, et cetera." Cherry agreed that he was "familiar with these printouts" and utilized them "almost every day" in his work. He identified appellant's VCIN record, stressing that he was familiar with "criminal histor[ies]" "from his training and experience dealing with [them]." Cherry testified that he knew that the criminal history presented to him belonged to appellant because it bore appellant's name and date of birth. He also confirmed that the four larceny convictions communicated to him by dispatch appeared on appellant's VCIN record: two larceny convictions in 1985 and two larceny convictions in 2005. The trial court admitted the VCIN report into evidence over appellant's objection.

At the conclusion of the evidence, appellant moved to strike the evidence, asserting that the Commonwealth had failed to prove that he had "tak[en] [the televisions] away out of the store" or that he possessed the intent to steal them. The trial court denied the motion, noting that a rational fact finder could determine an intent to steal from appellant's statement to the greeter that he had just attempted to return the televisions. The trial court instructed the jury that it could not consider appellant's prior larceny convictions in determining his guilt. The jury convicted appellant of petit larceny, third or subsequent offense, and sentenced him to twelve months in jail with six months suspended. This appeal followed.

ANALYSIS

A. Motion in Limine

Before trial, appellant filed a motion in limine seeking to prevent the Commonwealth from "present[ing] [his] National Crime Information Center (NCIC) report to prove [his] prior larceny convictions." In his motion, he asserted that he anticipated that the Commonwealth would offer his NCIC report "to prove his prior larceny convictions instead of certified copies of his previous convictions." Appellant maintained that the report constituted inadmissible hearsay. He also argued that the Commonwealth had no witnesses to establish the "trustworthiness" of the report.

The Commonwealth filed a written response stating appellant had argued "only certified copies of final conviction orders c[ould] be used to prove prior larceny convictions" and that the NCIC report was inadmissible hearsay.^[2] The Commonwealth stressed that appellant's "prior larceny convictions [we]re misdemeanor offenses . . . finalized in Petersburg General District Court on September 12, 2005[,] [and that] [t]he General District Court Clerk . . . ha[d] confirmed that those records [had been] destroyed" in accordance with Code § 16.1-69.55, a statute authorizing the destruction of records after ten years. The Commonwealth asserted that it could prove appellant's prior convictions through any competent evidence. It stressed that NCIC reports were reliable because Code § 19.2-390 requires the clerks of circuit courts to report dispositions of criminal offenses, including misdemeanors punishable by incarceration in jail. The Commonwealth asserted that the NCIC records were admissible under either the hearsay exception for public records or the hearsay exception for business records.

Following a hearing, the trial court ruled that "the issue here goes to the weight to be afforded to the NCIC or VCIN document as opposed to admissibility." It concluded that certified copies of appellant's prior convictions were not required to establish predicate larceny offenses under Code § 18.2-104 and that the VCIN and NCIC reports constituted "relevant, trustworthy, and competent" proof of the convictions. Accordingly, the trial court denied appellant's motion without expressly addressing appellant's hearsay objection.

On the day of trial, appellant renewed his motion. Appellant stressed that the Commonwealth had no witnesses present who could testify to the criminal history information entered into the NCIC system or that "the records in the NCIC report were routinely used and relied upon by the state police in the regular course of business." The trial court again denied appellant's motion, noting that "the issue goes to the weight . . ., not the admissibility."

On appeal, appellant contends that the trial court erred by denying his motion for three reasons. He asserts that "the NCIC/VCIN print-out . . . was inadmissible hearsay[,] . . . not properly authenticated, [and] violated [his] right to confrontation." Appellant maintains that no hearsay exception justified the admission of "the document."

"Decisions regarding the admissibility of evidence 'lie within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion.'" Blankenship v. Commonwealth, 69 Va.App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va.App. 461, 465 (2006)). "This standard, if nothing else, means that the trial judge's 'ruling will not be reversed simply because an appellate court disagrees.'" Thomas v. Commonwealth, 44 Va.App. 741, 753 (quoting Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754 (1982)), adopted upon reh 'g en banc, 45 Va.App. 811 (2005). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Turner v. Commonwealth, 65 Va.App. 312, 327 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). "A trial court . . . 'by definition abuses its discretion when it makes an error of law.'" Robinson v. Commonwealth, 68 Va.App. 602, 606 (2018) (quoting Dean v. Commonwealth, 61 Va.App. 209, 213 (2012)). Thus, "evidentiary issues presenting a 'question of law' are 'reviewed de novo by this Court.'" Abney v. Commonwealth, 51 Va.App. 337, 345 (2008) (quoting Michels, 47 Va.App. at 465).

1. Confrontation Clause

Appellant cites Crawford v. Washington, 541 U.S. 36 (2004), for the principle that testimonial evidence is inadmissible unless a defendant has been afforded the opportunity for confrontation and cross-examination. He asserts that he was unable "to cross-examine any witness with personal knowledge of the alleged convictions, nor . . . any witness with a knowledge of the particular process by which such criminal convictions ultimately make it into a NCIC/VCIN record." Nothing in the record demonstrates, however, that appellant argued below that admission of the NCIC/VCIN report violated his Confrontation Clause rights.^[3] Although he invoked the Sixth Amendment in his motion, he focused on whether the NCIC/VCIN report demonstrated that he was represented by counsel in connection with his prior larceny convictions. Appellant did not refer to the Confrontation Clause.

"No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the...