Clifford Wheeler v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Humphreys, Felton and Senior Judge Annunziata∗
Argued at Alexandria, Virginia
CLIFFORD WHEELER
OPINION BY
v. 	Record No. 2241-03-4 	JUDGE ROSEMARIE ANNUNZIATA
JANUARY 11, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Mark J. Yeager for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Clifford Wheeler was convicted on one count of possession of heroin in violation of Code
§ 18.2-250 1 and one count of possession of stolen stock certificates with a value in excess of
$200 in violation of Code §§ 18.2-108, 18.2-95. Wheeler contends on appeal that stock
certificates have no intrinsic value and, therefore, that he was wrongfully convicted of possessing
stolen property with a value in excess of $200. Finding no error, we affirm.
I. Background
Applying established principles of appellate review, we review the evidence and all
reasonable inferences that may be drawn from the evidence in the light most favorable to the
Commonwealth as the party prevailing below. Garcia v. Commonwealth, 40 Va. App. 184, 189,
∗ Judge Annunziata participated in the hearing and decision of this case prior to the
effective date of her retirement on December 31, 2004 and thereafter by her designation as a
senior judge pursuant to Code § 17.1-401.
1 Wheeler’s conviction on this charge is not challenged in this appeal.

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578 S.E.2d 97, 99 (2003). So viewed, the record establishes that Wheeler was found in
possession of stolen stock certificates on September 22, 2000. They were original stock
certificates owned by Abbas Bashir-Elahi. Bashir-Elahi testified at trial that the certificates,
establishing his ownership of 700 shares of stock, had a value of approximately $21,000 on the
date of the theft, August 29, 2000, and that he would seek to receive that amount in any sale of
the certificates. The value of the stock certificates was admitted without objection.
Wheeler was convicted as charged. This appeal followed.
II. Analysis
Wheeler contends that he was erroneously convicted because stock certificates have no
intrinsic value. Wheeler acknowledges that he failed to raise this issue in the court below.
Under Rule 5A:18, his claim is, therefore, defaulted. Wheeler contends, however, that we should
apply the “ends of justice” exception to Rule 5A:18 because he would be the victim of a
miscarriage of justice if his conviction were allowed to stand. 	We disagree.
The ends of justice exception to Rule 5A:18 is narrow and
is to be used sparingly. Michaels v. Commonwealth, 32 Va. App.
601, 608, 529 S.E.2d 822, 826 (2000). Application of the ends of
justice exception requires proof of an error that was “clear,
substantial and material.” Brown v. Commonwealth, 8 Va. App.
126, 132, 380 S.E.2d 8, 11 (1989). “The record ‘must
affirmatively show that a miscarriage of justice has occurred, not
that a miscarriage might have occurred.’” Akers v.
Commonwealth, 31 Va. App. 521, 528 n.2, 525 S.E.2d 13, 16 n.2
(2000) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221,
487 S.E.2d 269, 272 (1997)).
Copeland v. Commonwealth, 42 Va. App. 424, 442, 592 S.E.2d 391, 399 (2004). “In order to
show that a miscarriage of justice has occurred, an appellant must demonstrate more than that the
Commonwealth failed to prove an element of the offense.” Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272-73 (1997). Rather, the “appellant must demonstrate that
he or she was convicted for conduct that was not a criminal offense or the record must

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affirmatively prove that an element of the offense did not occur.” Id. at 222, 487 S.E.2d at 273.
Therefore, “[i]n examining a case for miscarriage of justice, we do not simply review the
sufficiency of the evidence under the usual standard, but instead determine whether the record
contains affirmative evidence of innocence or lack of a criminal offense.” Lewis v.
Commonwealth, 43 Va. App. 126, 134, 596 S.E.2d 542, 546 (2004).
First, we are not persuaded by Wheeler’s contention that he suffered a miscarriage of
justice because stock certificates, as a matter of law, have no intrinsic value. In a case involving
the unlawful conversion of stock certificates deposited at a bank as security for a $12,500
promissory note, the United States Supreme Court stated:
Stock certificates are a peculiar kind of property. Although not
negotiable paper, strictly speaking, they are the basis of
commercial transactions large and small, and are frequently sold in
open market as negotiable securities are. In Bank v. Lanier, [78
U.S. 369, 377,] 11 Wall. 369, 377, 378 [(1871)], this court said:
“Stock certificates of all kinds have been constructed in a way to
invite the confidence of business men, so that they have become
the basis of commercial transactions in all the large cities of the
country, and are sold in open market the same as other securities.
Although neither in form or character negotiable paper, they
approximate to it as nearly as practicable. . . . Whoever in good
faith buys the stock, and produces to the corporation the
certificates, regularly assigned, with power to transfer, is entitled to
have the stock transferred to him.”
These principles are well known to business men and are
constantly acted upon by them.
Nat’l Safe Deposit, Sav. & Trust Co. v. Hibbs, 229 U.S. 391, 394-95 (1913). Guided by the
reasoning set forth in Hibbs, we conclude as a matter of law that stock certificates can have
significant value and are readily transferable on “the open market the same as other securities.”
Second, the record does not affirmatively show that a miscarriage of justice occurred. To
the contrary, the record affirmatively shows that the Commonwealth established the value of the
stock certificates at approximately $21,000. It is well established that “[t]he opinion testimony

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of the owner of the stolen item generally is competent and admissible on the issue of the value of
that property.” Parker v. Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997). Thus,
the trial court had credible evidence from which it could rationally conclude that the stock
certificates had a value in excess of $200, satisfying the requirements of Code §§ 18.2-108
and 18.2-95 for conviction of grand larceny by receipt of stolen goods.
Finally, this Court’s decision in Owolabi v. Commonwealth, 16 Va. App. 78, 428 S.E.2d
14 (1993), has no bearing on our determination that stock certificates can have significant value.
In Owolabi, the defendant was charged with and convicted of grand larceny for fraudulently
obtaining credit cards with lines of credit in excess of $200. Id. at 79, 428 S.E.2d at 14-15. We
reversed the conviction because the Commonwealth presented no evidence of the value of the
credit cards. Id. at 80, 428 S.E.2d at 15. Here, the evidence at trial established that the stock
certificates had a value in excess of $200. Thus, Owolabi is inapposite.
For the reasons stated, we affirm Wheeler’s conviction.
Affirmed.