Herman Cefus Newman v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
HERMAN CEFUS NEWMAN MEMORANDUM OPINION* BY
v. 	Record No. 2483-97-4 	JUDGE CHARLES H. DUFF
OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
S. Jane Chittom (Elwood E. Sanders, Jr.;
Public Defender Commission, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Herman Cefus Newman was convicted in a bench trial of grand
larceny. 	On appeal, he contends that the trial court erred by
admitting into evidence a prior out-of-court identification of
Newman by a witness where the witness, at trial, testified that
the thief was not in the courtroom. 	We conclude that any error
committed by the trial court was harmless. 	Therefore, we affirm
the conviction.
I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." 	Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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So viewed, the evidence proved that Steven Owens saw a man
remove tools from Franklin Kirby's garage on January 15, 1996.
Although Owens positively identified Newman as the thief from a
photographic display, he could not so identify him at trial.
Leroy Johnson, David Drone, and George Parsley also
testified for the Commonwealth. 	Their testimony established that
Newman borrowed a car belonging to Johnson's fiancee on January
15, 1996. 	Johnson's stepson accompanied Newman. 	Upon returning
with the car, Newman told Johnson that they had "some stuff to
take to sell." 	Newman, Johnson, and another man then retrieved
tools from a nearby ditch. 	Newman and Johnson sold the tools1 to
Drone. 	Parsley, a clerk at a local market, cashed Drone's check
for Johnson and Newman. 	Johnson received $10 from the sale of
the tools, and Newman received the balance.
II.
In finding Newman guilty of grand larceny, the trial judge
acknowledged that Owens failed to identify Newman in court
although Owens had identified him from the photographic display.
The judge then stated: 	"The Court may disregard that and find
that the Defendant is a principal in the second degree,
therefore, guilty of grand larceny. 	The evidence shows that he
1The tools included an impact power wrench, an electric
drill, a three-quarter impact wrench, a floor jack, a battery
charger, a portable air tank, an electric sander, and small hand
tools. 	Kirby valued these tools at $685. 	Johnson testified that
he and Newman sold "some ratchets and air guns and some loose
tools" to Drone. 	Drone paid $120 for the tools.

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was conjointly in possession of the stolen goods . . . ."
(Emphasis added.).
For purposes of this appeal, we will assume, without
deciding, that the trial court erred in admitting the evidence of
Owens's out-of-court identification. 	That error, however, was
harmless. In Virginia, non-constitutional error is
harmless "when it plainly appears from the
record and the evidence given at the trial
that the parties have had a fair trial on the
merits and substantial justice has been
reached." 	Code § 8.01-678 (emphasis added).
"[A] fair trial on the merits and substantial
justice" are not achieved if an error at
trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"it plainly appears from the record and the
evidence given at the trial that" the error
did not affect the verdict. 	An error does
not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that, had the error not
occurred, the verdict would have been the
same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc).
The trial judge's statements make clear that, even without
considering the evidence of Owens's out-of-court identification,
he determined that Newman was guilty as a principal in the second
degree. 	The evidence supports that determination.
It is well settled that "anyone who knows that personal
property is stolen and assists in its transportation or
disposition is guilty of larceny." 	Moehring v. Commonwealth, 223

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Va. 564, 568, 290 S.E.2d 891, 892 (1982). 	Owens saw a man remove
the tools from Kirby's garage. 	Later that day, Newman told
Johnson that they had "some stuff to take to sell." 	Newman and
Johnson retrieved the tools from a ditch, and sold them to Drone,
with Newman receiving the bulk of the proceeds. 	This evidence,
viewed in the light most favorable to the Commonwealth with all
reasonable inferences flowing therefrom, was sufficient to prove
beyond a reasonable doubt that Newman, at a minimum, knew the
tools were stolen and assisted in their transportation and
disposition.
Newman, attacking Johnson's credibility, argues that in the
absence of evidence of Owens's out-of-court identification, no
credible evidence supports his guilt. 	We disagree. 	The trial
judge believed Johnson's testimony. 	"The weight which should be
given to evidence and whether the testimony of a witness is
credible are questions which the fact finder must decide."
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601 (1986). 	Johnson's testimony was competent and was not
inherently incredible. 	Moreover, his testimony was corroborated
in part by the testimony of Drone and Parsley.
Accordingly, even in the absence of Owens's identification
evidence, the evidence was sufficient to prove beyond a
reasonable doubt that Newman was guilty of grand larceny. 	Thus,
any error committed by the trial court was harmless.
Affirmed.