COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and 

 Bumgardner 

Argued at Alexandria, Virginia 

CARRIE CLARKE COLLEY 

 MEMORANDUM OPINION* BY 

v. Record No. 0675-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Carleton Penn, Judge Designate 

 Elwood Earl Sanders, Jr., Director 

Capital/Appellate Services (Laura A. Cook, 

Assistant Public Defender; Public Defender 

Commission, on briefs), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Richard Cullen, Attorney General; 

Leah A. Darron, Assistant Attorney General, 

on brief), for appellee. 

 Carrie Clarke Colley (appellant) was tried without a jury in 

the Circuit Court of Fauquier County on two felony charges: 

grand larceny and credit card theft in violation of Code 

§ 18.2-192. She was convicted of petit larceny and the felony 

credit card theft offense and sentenced to serve one year and 

nine months in prison on the credit card conviction and 60 days 

in jail on the larceny, all but five months and 29 days 

suspended. 

 On appeal, appellant contends that the trial court abused 

its discretion by admitting into evidence a credit card 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

transaction record and carbon copies of two of the actual 

transaction receipts, claiming the business records foundation 

for their admissibility was not properly laid. She also contends 

the evidence was not sufficient to support the convictions. 

 After a night of drinking, Cheryl Frazier (Cheryl) left her 

purse, containing her credit card, in appellant's car. Without 

authorization, appellant made several charges on Cheryl's credit 

card. After Cheryl contacted the credit card company, she 

learned that transactions had been made on the card. Cheryl's 

mother, Marianne Frazier (Marianne), who was the only other 

authorized user on the account, requested a summary of the 

transactions on the account from the credit card company and 

authorized the release of the summary to the police. 

 At trial, Cheryl and Marianne reviewed Commonwealth Exhibits 

1A-1D and testified they did not make the transactions listed for 

March 21, 1996 and that they did not give permission for anyone 

else to use the card. Exhibits 1C and 1D were computer printouts 

of the transactions on the account. The printout showed three 

charges and three declined charges because the credit card was 

over the charge limit. The investigating officer obtained carbon 

copies of two service station receipts listed on the transaction 

reports which were offered into evidence as Exhibit 1A and 

Exhibit 1B. The investigator's attempts to retrieve the original 

receipts from an out-of-state warehouse where they were stored 

were unsuccessful. The results of a handwriting analysis of 
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appellant's handwriting were "inconclusive." 

 The appellant objected to the introduction of Exhibits 1A-1D 

on the grounds that the exhibits were hearsay and that they had 

been prepared at the investigator's request rather than in the 

ordinary course of business. The court ruled that the 

prosecution had "shown a circumstantial guarantee of 

trustworthiness with respect to the four documents and receive[d] 

them into evidence." 

 I. 

Business Records Exception 

 Whether the computer records and receipts are admissible is 

a question governed by established rules governing the 

admissibility of hearsay. The Supreme Court of Virginia has 

employed the business records exception to the hearsay rule in 

assessing the admissibility of such documents. Fitzhugh v. 

Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995); 

see Kettler & Scott, Inc. v. Earth Tech Cos., 248 Va. 450, 457, 

449 S.E.2d 782, 785 (1994). Admission is conditioned upon proof 

that the record is kept by a proper custodian and that it is a 

record kept in the ordinary course of business made 

contemporaneously with the event by persons having a duty to keep 

a true record. Kettler & Scott, 248 Va. at 457, 449 S.E.2d at 

786 (citing Automatic Sprinkler Corp. v. Coley & Peterson, Inc., 

219 Va. 781, 793, 250 S.E.2d 765, 773 (1979)); Simpson v. 

Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984); Ford 
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Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457 

(1990); see 2 Charles E. Friend, The Law of Evidence in Virginia

135 (1993). 

 Assuming without deciding that the exhibits constitute 

hearsay, we find their admission to be harmless. Under the 

standard of harmlessness for non-constitutional error, 

 a criminal conviction must be reversed unless 

"it plainly appears from the record and the 

evidence given at 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) (quoting Code § 8.01-678). 

 Where the other evidence of guilt is overwhelming, and the 

content of the hearsay statement is clearly established by other 

evidence, admission of hearsay is harmless. McDonnough v. 

Commonwealth, 25 Va. App. 120, 132-33, 486 S.E.2d 570, 575-76 

(1997). The testimony of both Cheryl and Marianne Frazier, 

received without objection, established that the credit card was 

taken without their consent on the date in question. 

Circumstantial evidence established appellant's involvement with 

the "taking." The element of intent to use the card without the 

owner's authorization, was also established by their testimony as 

well as the admissions of the appellant herself that she used the 
 5 

card.1

 In the context of all the evidence, the computer records 

were of marginal evidentiary value, and their admission was 

harmless. Strohecker v. Commonwealth, 23 Va. App. 242, 253-54, 

475 S.E.2d 844, 850 (1996). 

 II. 

Sufficiency of the Evidence 

 Addressing the sufficiency of the evidence issue, we find 

appellant's contention that the evidence was in conflict and 

therefore insufficient to sustain her conviction beyond a 

reasonable doubt is without merit. Where the sufficiency of the 

evidence is challenged on appeal, this Court must consider all 

the evidence and any reasonable inferences fairly deducible from 

it in the light most favorable to the Commonwealth. Higginbotham 

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); 

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 

721 (1988). A trial court's judgment will not be disturbed on 

appeal unless it is plainly wrong or without evidence to support 

it. Stockton v. Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 

371, 385 (1984). In addition, the credibility of witnesses, and 

the weight assigned their testimony are matters exclusively 

 

 1Appellant contends that the admission of the exhibits was 

not harmless because the court relied on the documents to 

corroborate Cheryl's testimony that she would not have used the 

card because it was over the credit limit. This fact only went 

to establish the unauthorized use of the card, which was well 

established by other evidence. The court did not, as appellant 

argues, use this corroboration as evidence that Cheryl was 

generally a credible witness. 
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within the province of the trier of fact. Coppola v. 

Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979). The 

contention that inconsistencies in the testimony are sufficient 

to attenuate the evidence on the issue of appellant's guilt was 

addressed by this Court in Swanson v. Commonwealth, 8 Va. App. 

376, 379, 382 S.E.2d 258, 259 (1989): 

 When the law says that it is for the trier of 

fact to judge the credibility of a witness, 

the issue is not a matter of degree. So long 

as a witness deposes as to facts which, if 

true, are sufficient to maintain their 

verdict, then the fact that the witness' 

credit is impeached by contrary statements 

affects only the witness' credibility . . . 

[and] the weight and sufficiency of the 

testimony. If the trier of the facts sees 

fit to base the verdict upon that testimony 

there can be no relief in the appellate 

court. 

See also Singleton v. Commonwealth, 19 Va. App. 728, 735-36, 453 

S.E.2d 921, 926 (1995) (explaining that conflicts in the evidence 

do not undermine the sufficiency of the evidence unless the 

evidence is inherently incredible). 

 In this case, Cheryl testified that she placed her purse, 

containing $80, her wallet and her credit card, under the seat in 

appellant's car, locked the door and entered the hotel room with 

appellant. Upon awakening, appellant and her car were gone. 

Appellant admitted having Cheryl's purse and asked to meet 

half-way to return it. Marianne testified that appellant 

admitted to using the credit card and that she could not return 

the purse, but that she wished to make restitution for the loss 
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when she received her paycheck. The trier of fact was free to 

disbelieve appellant's denial of her involvement in the two 

offenses. See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 

S.E.2d 352, 353 (1980) (per curiam). The trial court credited 

the testimony of Cheryl and Marianne, whose evidence was 

sufficient to support the convictions beyond a reasonable doubt. 

 For the foregoing reasons, we affirm. 

 Affirmed.