COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith ∗
Argued at Salem, Virginia
CATHY DENISE SAUNDERS
Record No. 1606-02-3
MEMORANDUM OPINION ∗∗ BY
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.
evidence was not offered for the truth of the assertion
contained in it but was sufficient to prove larceny, we affirm
Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
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."
crossed the street to a motel but returned about five minutes
later with a different black bag.
clerk to watch the defendant.
The manager alerted the store
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.
accused the defendant of taking the corned beef and asked to
look in the defendant's bag.
view, and put something down.
The defendant refused, bent out of
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
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
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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
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.
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.
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).
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,
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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
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
As the answer was proffered, the witness indicated
that the response was not verbal but a gesture.
objected, "Because it goes right to the truth of the matter
asserted," and the court overruled that objection because it was
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
"It's a non-hearsay matter.
state of mind, where he went."
It shows the officer's
It overruled the motion to
strike, and when the defendant offered no evidence, found her
The gesture was nonverbal hearsay if it was introduced to
prove the assertion contained in it:
that the items thrown were
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."
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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
Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d
155, 157 (1981) (statement not hearsay because admitted for
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
The defendant entered the store with an empty bag and
This argument overlooks the evidence that the defendant
took a newspaper without paying for it as she left the store for
the second time.
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left with a full one.
another black bag.
She returned a few minutes later with
Suspecting the defendant had taken cans of
corned beef, the clerk asked if she could look in her bag.
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
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
Accordingly, we affirm the conviction.
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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)
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
Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832
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.
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."
Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984) (citation
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.
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[DEFENSE ATTORNEY]: Well, Your Honor, now
I'm going to object to that.
Be received to show what he did
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.
That's not hearsay, Your
[JUDGE]: Well, if he told him where he
threw the -- you said, I asked him where did
you throw the stolen items.
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
Why is pointing hearsay?
[DEFENSE ATTORNEY]: Because it goes right
to the truth of the matter asserted.
Didn't say it, he
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The trial judge's ruling clearly indicates he overruled the
objection because he believed that the act of pointing could not
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
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
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
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tests conducted thereon was without proper
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
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
In convicting Saunders, the trial judge made the following
findings that establish he accepted the assertive nature of the
[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.
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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.
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
[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
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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
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
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.
Commonwealth, 38 Va. App. 98, 105, 561 S.E.2d 777, 781 (2002).
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Accordingly, I would reverse the conviction and remand for a new
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