COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Retired Judge Smith∗

Argued at Salem, Virginia 

CATHY DENISE SAUNDERS 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 1606-02-3 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. Concluding the 

evidence was not offered for the truth of the assertion 

contained in it but was sufficient to prove larceny, we affirm 

the conviction. 

 ∗

 Retired Judge Charles H. Smith, Jr., took part in the 

consideration of this case by designation pursuant to Code 

§ 17.1-400. 

∗∗ 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." She 

crossed the street to a motel but returned about five minutes 

later with a different black bag. The manager alerted the store 

clerk to watch the defendant. 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. She 

accused the defendant of taking the corned beef and asked to 

look in the defendant's bag. The defendant refused, bent out of 

view, and put something down. 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 

street. 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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another." 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 

stolen items." 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. 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. She maintains 

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). "The 

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 

items. 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 

hearsay. As the answer was proffered, the witness indicated 

that the response was not verbal but a gesture. The defendant 

objected, "Because it goes right to the truth of the matter 

asserted," and the court overruled that objection because it was 

a gesture. 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 

and stated: "It's a non-hearsay matter. It shows the officer's 

state of mind, where he went." It overruled the motion to 

strike, and when the defendant offered no evidence, found her 

guilty. 

The gesture was nonverbal hearsay if it was introduced to 

prove the assertion contained in it: that the items thrown were 

stolen. 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 

both." Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 

155, 157 (1981) (statement not hearsay because admitted for 

non-hearsay purpose). 

 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 

(1998). The defendant entered the store with an empty bag and 

 1

 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. She returned a few minutes later with 

another black bag. Suspecting the defendant had taken cans of 

corned beef, the clerk asked if she could look in her bag. The 

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 

fact." 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 

petit larceny. Accordingly, we affirm the conviction. 

Affirmed.

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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) 

(citation omitted). 

 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 

by another. 

Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d 829, 832 

(1958). 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. Coureas v. 

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." Doe v. 

Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984) (citation 

omitted). 

 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. 

[JUDGE]: Be received to show what he did 

next. 

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. 

[PROSECUTOR]: That's not hearsay, Your 

Honor. 

[JUDGE]: Well, if he told him where he 

threw the -- you said, I asked him where did 

you throw the stolen items. 

* * * * * * * 

Q: 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 

that's hearsay. 

[JUDGE]: Why is pointing hearsay? 

[DEFENSE ATTORNEY]: Because it goes right 

to the truth of the matter asserted. 

[JUDGE]: Overruled. Didn't say it, he 

pointed. 
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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 

be hearsay. 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 

murder. 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 

781. 

 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 

foundation. 

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 

items." 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 

charged crime). 

 In convicting Saunders, the trial judge made the following 

findings that establish he accepted the assertive nature of the 

evidence: 

[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. I 
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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. The 

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 

present case: 

 [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 

committed. 
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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 

misplaced. 

 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 

its contents. 

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. Scearce v. 

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 

trial.