COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Haley and Senior Judge Annunziata 

Argued at Alexandria, Virginia 

CHRISTOPHER LEE BENTLEY 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1804-03-4 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 16, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Michael P. McWeeny, Judge 

 Dawn M. Butorac, Senior Assistant Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Josephine F. Whalen, Assistant Attorney General (Jerry W. 

Kilgore, Attorney General, on brief), for appellee. 

 Christopher Bentley contends on appeal that the trial court committed reversible error in 

admitting into evidence a personally recorded compact disc (CD) containing on its face a 

handwritten list of musical groups. He also claims the Commonwealth’s “circumstantial evidence 

was not sufficient to establish beyond a reasonable doubt that [he] committed the larceny of the 

property of Mr. Markos and Ms. Monks.” For the reasons that follow, we disagree and affirm the 

trial court. 

I. Background 

The Commonwealth indicted Bentley on four counts of burglary and four counts of grand 

larceny. Specifically, he was charged with: burglarizing Tim Young’s house on November 18, 

2002, and stealing his property; burglarizing George Markos’s house on November 25, 2002, and 

stealing his property; burglarizing JoAnn Monks’s house on or about December 4 or December 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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5, 2002, and stealing her property; and burglarizing Evelyn Merritt’s house on December 5, 

2002, and stealing her property. A jury found Bentley guilty of burglarizing Merritt’s house, 

stealing her property, stealing Markos’s property, and stealing Monks’s property. It acquitted 

him of the three other burglaries and of stealing Young’s property. This appeal concerns the 

larceny of property from Markos and Monks. 

The Theft of Markos’s Acura

Reviewed in the light most favorable to the Commonwealth, the party prevailing below, 

Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003), the evidence 

established that Fairfax County Police Officer James Urie responded to Stonepath Circle in 

Centreville on November 25, 2002, after a resident found a pile of property sitting in a grassy 

area next to a townhouse. Urie found a driver’s license in the pile and contacted George Markos, 

who lived in the townhouse complex with his fiancée. 

Markos identified property in the pile belonging to him, his fiancée, and his fiancée’s 

daughter. Markos then realized that his 1996 Acura was missing from the parking lot. He 

testified that he “always leaves [his cell phone] in the front . . . of the car between the seats 

because [he] do[es]n’t have any need for it any other place but in the car in case of an 

emergency.” Police recovered Markos’ car a few weeks later. His cell phone and CDs were 

missing, and, although Markos did not smoke, the “car was full of cigarettes.” Markos also 

found an unfamiliar CD in his car’s CD player, which he provided to police. Markos reviewed 

his cellular phone bill for the period following the theft of his car and identified several 

telephone calls that were placed from his cellular phone with which he was not familiar and 

which he denied making. 

Shortly after midnight on December 3, 2002, police found Markos’s stolen Acura parked 

in the Red Roof Inn parking lot. Located next door to the Red Roof Inn is the Brookside Motel. 
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Officer P.M. McCurry testified that officers “set up” surveillance around the car and investigated 

whether any guests at the Red Roof Inn claimed the car. Unable to locate anyone at the Red 

Roof Inn with an Acura, McCurry made inquiries to guests at the Brookside Motel. Bentley and 

his girlfriend, Fanta Jackson, were in Room 5. Bentley “seemed hesitant to speak to” the officers 

and immediately “took out a cigarette and lit it.” 

Officer M.P. Goodley participated in the surveillance of the Acura. He processed and 

searched it after surveillance terminated. He noticed “the ashtray was full of cigarette butts and 

ashes, which Mr. Markos stated that wasn’t his.” Ultimately, Goodley released the Acura to 

Markos. 

Detective Michael Motafches obtained a record of telephone calls made by Bentley from 

the detention center after his arrest. He compared the records from the detention center with 

Markos’s cellular telephone records and found six different numbers that were on both phone 

records. Motafches testified that “forty-five phone calls made from [Markos’s] cell phone . . . 

matched [one of those six] numbers [on] the jail [telephone record].” Moreover, Bentley placed 

eight hundred twenty-five calls from jail to one of the six different numbers contained on 

Markos’s phone record. On cross-examination, Motafches said he “learned Bentley’s name as a 

suspect through contacting some of the numbers called on [Markos’s] cell phone” after it was 

stolen. 

The Theft of Monks’s Palm Pilot

Around 9:30 a.m. on December 5, 2002, a police officer telephoned Evelyn Merritt and 

advised her that her car had been involved in a hit-and-run accident. Merritt checked her garage 

and discovered her garage door was open and her 1993 green Honda Accord was gone. She 

testified that her car was in the garage the preceding night, that she left the garage door open a 

few inches so her cat could come inside, and that she left the keys and the remote control for the 
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alarm inside the car. The garage is attached to the house. After the police contacted Merritt, she 

and her husband went to Reston to identify her car. Merritt found “a pair of yellowish gloves in 

the back seat which were not [hers]” and a “palm pilot” on the front seat which was not hers. 

Helena Villareal is the on-site manager of Glendale Condominiums. Between 7:00 a.m. 

and 7:30 a.m. on December 5, 2002, Villareal was outside 2332 Freetown Court in the Glendale 

complex when she saw Merritt’s green Honda pull out of a parking space, “hit [a] white 

Chevrolet and keep going.” The man driving the Honda wore a gray sweatshirt, and his hair was 

loose. Villareal, who was twenty feet away, viewed the Honda’s license plate number. Fifteen 

to twenty minutes later, she again saw the green Honda parked on the other end of the property 

in another visitor lot. Villareal saw Bentley get out, use the alarm to lock it and proceed up the 

sidewalk. After he walked away from the car, Villareal checked the license number and noticed 

it was the same car involved in the hit and run. Villareal said she was familiar with Bentley 

because “he’s on the property all the time.” Moreover, Bentley looked at Villareal as he exited 

the Honda and proceeded to 2322 Freetown Court, where his girlfriend, Fanta Jackson, and her 

father live. Villareal walked to the door of Jackson’s residence and noticed the footprints went 

up to the door. After the police were contacted, officers brought Bentley outside, and Villareal 

identified him. Villareal testified she had “[n]o doubt” Bentley was the man she saw exit 

Merritt’s Honda. Although Villareal did not see the driver that hit the Chevrolet, she testified 

that Bentley wore a gray sweatshirt similar to the one she saw the driver wearing earlier. 

Officer Chris Lehmann testified that Bentley wore “blue jeans and a grey sweat shirt.” 

He told Lehmann “he had been inside and wasn’t involved in any accident, and he wasn’t driving 

any car.” Lehmann asked Bentley to follow him outside to determine if Villareal could identify 

him. Shortly thereafter, Lehmann placed Bentley under arrest for grand larceny. 
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Officer Mark Simmons testified that Villareal positively identified Bentley as the person 

who had operated Merritt’s stolen Honda. Simmons inspected the interior of Merritt’s stolen 

Honda and recovered “a palm pilot” located on the front passenger seat. However, it did not 

belong to Merritt. 

On the morning of December 5, 2002, Joann Monks discovered that her key rack, purse, 

and tote bag were missing from her residence at 2450 Freetown Court. Monks explained that the 

“gate door that opens to the garage door onto the street was not closed,” and the door that leads 

from the garage to the kitchen was not locked. Monks testified that her purse contained her 

wallet, jewelry, cosmetic case, and palm pilot. Police found Monks’s palm pilot in Merritt’s 

Honda. 

Detective Motafches testified that the distance from Jackson’s residence to Monk’s 

residence was four-tenths of a mile. He also determined that Merritt’s residence was 

approximately twelve miles away from the residences of Jackson and Monks. 

ADMISSION INTO EVIDENCE OF COMPACT DISC 

A. Facts Relating to Admitting the Compact Disc

 Bentley contends the compact disc was inadmissible hearsay and, thus, improperly 

admitted. 

 During the Commonwealth’s case-in-chief, Markos testified that he found a CD in his 

car’s CD player after police returned it to him. He provided it to police. The CD was not a 

factory-recorded CD, but was individually recorded, or burned, and contained a handwritten list 

of musical groups on its face, one name being the Northeast Groovers. 

Jackson testified at trial that the police came to her house around 9:00 a.m. on December 

5, 2002, and spoke with her and Bentley. Jackson stated that Bentley arrived at her home around 

10:45 p.m. on December 4, 2002, and remained there until the police arrived the next morning. 
 -6-

Jackson testified that Bentley’s “hair was braided” at the time. When asked how she and Bentley 

got to the Brookside Motel on December 3, 2002, Jackson said they took a train. 

During cross-examination by the Commonwealth, Jackson identified the “Northeast 

Groovers” as “a go-go band.” Although Jackson had heard that band, she testified that she 

“do[es]n’t listen to go-go.” The Commonwealth then asked if Bentley “listen[s] to the Northeast 

Groovers,” to which Jackson replied, “He may, but he don’t listen to it around me. He respects 

me. I don’t listen to it.”1

In the Commonwealth’s case on rebuttal, Officer Goodley identified the CD he received 

from Markos. When the Commonwealth moved to admit the CD into evidence, the following 

colloquy transpired: 

MS. BUTORAC [Defense Counsel]: The item is a CD that was 

taken from [Markos’s] car. On it is written Northeast Groovers 

and some other things that I don’t remember right now, but it’s 

handwritten. It’s not as if that’s the CD that came from the 

company and that’s what’s stamped on the CD. It’s written. It’s 

hearsay what’s on it. It’s hearsay what’s written on it. 

 There’s nothing to - - I mean it’s for the truth because 

Mr. Fitzpatrick [the prosecutor] cross examined Ms. Jackson on 

that particular name and it’s hearsay because it’s for the truth of 

what it says, that that’s a record of what that CD is. 

 1

 Viewing Jackson’s testimony in the light most favorable to the Commonwealth, as we 

must, we conclude the trier of fact did not have to accept Jackson’s testimony that they took a 

train to the motel, nor did it have to accept her equivocal response that he “may” listen to the 

Northeast Groovers. Rather, it could properly have concluded, obversely, that Jackson lied about 

arriving by train and resolved her equivocal answer to whether Bentley listened to the Northeast 

Groovers against him. “The credibility of the witnesses and the weight accorded the evidence 

are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is 

presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). 

The trier of fact is not required to believe all aspects of a witness’ statement or testimony. 

Rather, it may reject that which it finds implausible, and accept other parts that it finds 

believable. Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973). 

Furthermore, a defendant’s exculpatory evidence may be treated, by inference, as an attempt to 

conceal guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 

(2001); Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). 
 -7-

MR. FITZPATRICK: Two points, Your Honor. One, it’s for 

impeachment purposes of Ms. Jackson. She stated that she - - she 

was unequivocal, “I didn’t go to the Brookside or the Red Roof Inn 

in a car.” She said that she recognizes that name and that she - - 

that [when] Chris Bentley listens to it, “I tell him to turn it off.” 

 I think that rebuts it. I think that’s a circumstance that 

places her in the car as well with him. Furthermore, Your Honor, I 

would offer that the CD itself comes in. That’s the condition of it. 

I don’t think the Commonwealth - - if it were to offer a 

manufacturer-made CD is not required to bring someone here from 

Warner Brothers or whatever one of the other companies are to 

say, “We imprinted that on there.” 

 I mean it’s a fact. It’s a verbal fact. It’s not - - it’s not an 

out of court assertion that the hearsay rule is meant to protect. It’s 

a factual thing that is on the CD. 

 Bentley’s attorney reiterated, “[i]t’s hearsay. It’s an out of court statement for the truth of 

the matter asserted that that’s what’s on the CD.” In addition, defense counsel argued that the 

CD “doesn’t have anything to do with impeaching [Jackson’s] testimony because there’s nothing 

to impeach. She said she’s familiar with the music and that Chris [Bentley] may listen to it, but 

they weren’t doing it that day.” 

 The trial court “overrule[d] the [hearsay] objection” and admitted the CD. 

B. Discussion and Analysis

“The admissibility of evidence is within the broad discretion of the trial court, and a 

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 

 “Hearsay evidence is testimony in court, or written 

evidence, of a statement made out of court, the statement being 

offered as an assertion to show the truth of matters asserted therein, 

and thus resting for its value upon the credibility of the 

out-of-court asserter.” 

Donahue v. Commonwealth, 225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983) (quoting 

Stevenson v. Commonwealth, 218 Va. 462, 464-65, 237 S.E.2d 779, 781 (1977) (citing 
 -8-

McCormick on Evidence § 246, at 584 (2d ed. 1972))). See also Taylor v. Commonwealth, 28 

Va. App. 1, 9-10, 502 S.E.2d 113, 117 (1998) (en banc) (citation omitted) (reiterating similar 

definition). 

We hold that the handwritten CD label does not constitute hearsay because it was not 

offered “‘as an assertion to show the truth of the matters asserted therein’” and does not rest “‘for 

its value upon the credibility of the out-of-court asserter.’” Donahue, 225 Va. at 151-52, 300 

S.E.2d at 771 (citations omitted). Rather, the CD was offered into evidence as an additional 

circumstance from which the jury could infer that Bentley had been in the car where the CD was 

found. See Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d 823, 826 (1985) (holding 

that a minor female’s statement that sex is “‘dirty, nasty, and it hurt’” was admissible because it 

was not offered to prove that sex is, indeed, “dirty and nasty,” but rather because it served “as 

circumstantial evidence tending to establish the probability” that the defendant raped the girl 

(emphasis added)); see also, United States v. Day, 591 F.2d 861, 883-84 (D.C. Cir. 1978) (noting 

that “neutral” statements offered to show association and not the truth of the matters asserted are 

not hearsay); United States v. Snow, 517 F.2d 441, 443-45 (9th Cir. 1975) (holding that a piece 

of tape found on a gun case bearing the defendant’s name was not hearsay and was properly 

admitted as circumstantial evidence to show that defendant knowingly possessed the 

unregistered weapon); United States v. Ellis, 461 F.2d 962, 970 (2nd Cir. 1972) (holding that a 

driver’s license containing a co-conspirator’s name was not hearsay because it was not offered to 

prove the truth of the matter asserted, i.e. that the driver’s license was accurate and valid as to the 

codefendant; rather, the driver’s license was offered “as circumstantial evidence to show that 

[the codefendant] was the owner of the address book and the coat in which the . . . license [was] 

found” (emphasis added)). Whether the CD, in truth, contained music by the “Northeast 

Groovers” is of no moment. The CD title is probative, circumstantial evidence from which an 
 -9-

inference may be properly drawn that Bentley was in the car. See Horne v. Milgrim, 226 Va. 

133, 139, 306 S.E.2d 893, 896 (1983) (“Any fact, however remote, that tends to establish the 

probability or improbability of a fact in issue is admissible.”). Thus, the evidentiary value of the 

words written on the CD is not a function of who wrote them or whether they are accurate or 

true. See Taylor, 28 Va. App. at 9-10, 502 S.E.2d at 117. Stated differently, it mattered not 

whether the CD, in fact, was a recording of the Northeast Groovers; its label reflecting music that 

Bentley listened to circumstantially provided an evidentiary link to Bentley’s presence in the car, 

irrespective of the truth of the matter asserted. Markos avowed that the CD did not belong to 

him; therefore, the fact finder was permitted to infer that appellant placed a CD labeled Northeast 

Groovers in the car from which he stole Markos’s cellular phone. 

Given the conclusion that the CD and the words “Northeast Groovers” are not hearsay 

and the broad discretion we afford the trial court in evidentiary matters, we affirm the trial 

court’s decision to allow the CD into evidence. See United States v. Anello, 765 F.2d 253, 261 

(1st Cir. 1985).2

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTIONS FOR 

THE THEFT OF MARKOS’S CAR AND THE PALM PILOT 

A. Standard of Review

 When the sufficiency of the evidence is challenged on appeal, the appellate court reviews 

the evidence that tends to support the conviction and upholds the conviction unless it is plainly 

 2

 The record does not make clear whether the challenged evidence was, arguably, 

improperly admitted for its impeachment value or properly admitted, as we hold here, as 

circumstantial evidence tending to prove that Bentley drove the stolen vehicle to the motel. The 

distinction is not material to the result under “the time-honored principle of evidence law that, in 

general, if evidence is admissible for any purpose, it is admissible.” Hanson v. Commonwealth, 

14 Va. App. 173, 183, 416 S.E.2d 14, 20 (1992); see also Rosenberg v. Mason, 157 Va. 215, 

236, 160 S.E. 190, 197 (1931) (noting “cardinal rule of evidence that evidence relevant and 

material for one purpose is not rendered inadmissible for that purpose by the fact that it is 

inadmissible for some other purpose”); Gonzales v. Commonwealth, 45 Va. App. 375, 388 n.5, 
 - 10 -

wrong or lacks evidentiary support. Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 

263, 265 (1998). “If there is evidence to support the convictions, the reviewing court is not 

permitted to substitute its own judgment, even if its opinion might differ from the conclusions 

reached by the finder of fact at the trial.” Id. at 520, 499 S.E.2d at 265. 

It is well established that “once the crime is established, the unexplained possession of 

recently stolen goods permits an inference of larceny by the possessor.” Bright v. 

Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987). For the larceny inference to 

arise, the Commonwealth must prove that the accused was in exclusive possession of the 

recently stolen property. Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). 

“This inference from the recent, unexplained, possession of stolen property may, by itself, 

support a conviction of larceny.” Montague v. Commonwealth, 40 Va. App. 430, 437, 579 

S.E.2d 667, 670 (2003) (citing Bright, 4 Va. App. at 251, 356 S.E.2d at 444). 

B. Discussion and Analysis

Monks’s Palm Pilot 

 Bentley contends he “did not have knowing and intentional possession of the palm pilot 

found in” Merritt’s stolen car. He argues its presence in Merritt’s car failed to sufficiently link 

him to the stolen item. Alternatively, he contends, “it was not [him] driving the car, he was 

instead inside the apartment building all night as Ms. Jackson testified and Ms. Villareal was 

mistaken in her identification.” 

 We first note that Bentley’s contention that he never drove Merritt’s car is not at issue on 

this appeal. The jury convicted him of larceny of Merritt’s car based, in part, on the eyewitness 

testimony of Villareal. Although Bentley raised that issue by petition, a panel of this Court 

 

611 S.E.2d 616, 622 n.5 (2005) (en banc) (McClanahan, J., dissenting) (citing cases holding 

same). 
 - 11 -

denied the petition for appeal challenging the larceny conviction of Merritt’s car. Therefore, for 

purposes of this appeal, his guilt for stealing Merritt’s car was conclusively established. 

Officer Simmons was the first officer to inspect and search Merritt’s recovered car. He 

found Monks’s palm pilot in plain view on the front seat of Merritt’s car, the car which Bentley 

stole. Moreover, Monks’s palm pilot was stolen about the same time Merritt’s car was stolen, 

and both were recovered a short time after they were stolen. Monks lives only four-tenths of a 

mile from Jackson’s residence, where Merritt’s car was recovered. The evidence showed that 

Bentley was the only person in the car from the time Villareal saw him exit it to the time 

Simmons searched it and discovered the palm pilot. The fact finder determined beyond a 

reasonable doubt that Bentley exercised dominion and control over and stole Merritt’s car. 

Given those facts, the jury was permitted to infer that Bentley also exercised exclusive 

possession over the palm pilot on the front seat. The Commonwealth’s evidence was competent, 

was not inherently incredible and was sufficient to prove beyond a reasonable doubt that Bentley 

stole Monks’s palm pilot. 

The Acura 

 Police found Markos’s Acura eight days after it was stolen in a parking lot adjacent to the 

Brookside Motel. 

 Bentley and his girlfriend, Fanta Jackson, were found in a motel room immediately 

adjacent to the area where the stolen car was recovered; officers at the motel noticed Bentley 

smoking cigarettes, and the car’s ashtray was full of cigarette butts and ashes although Markos 

never smoked in it; Markos’s cellular telephone was stolen along with the car; and finally, 

Markos’s cellular phone was used, starting on the same day it was stolen with the car, to make 

forty-five calls to six numbers with which Markos was unfamiliar, the first of which was to 
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Jackson. Jail records showed that Bentley called those same six numbers more than eight 

hundred times over a three-month period while he was incarcerated. 

Moreover, the jury was not required to believe Fanta Jackson’s testimony that she and 

Bentley took a train to the motel. “The credibility of the witnesses and the weight accorded the 

evidence are matters solely for the fact finder who has the opportunity to see and hear that 

evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 

730, 732 (1995). 

The Commonwealth presented credible, competent, and sufficient evidence to support the 

convictions; therefore, we cannot say those determinations were plainly wrong. Accordingly, we 

affirm Bentley’s convictions. 

 Affirmed.
 - 13 -

Benton, J., concurring and dissenting. 

 I agree that the evidence was sufficient to prove Christopher Bentley was guilty of 

larceny of JoAnn Monks’s palm pilot. I dissent, however, from the holding concerning the other 

larceny conviction. I would hold that the writing on the compact disc was hearsay and that the 

trial judge erred in permitting the evidence. Because the error was not harmless, I would reverse 

Bentley’s conviction for larceny of George Markos’s car and remand for a new trial. 

I. 

 In the Commonwealth’s case-in-chief, Officer Goodley testified that he watched the 

stolen car for several hours to see if the thief would return to it. When no one approached the 

car, Officer Goodley released the stolen car to George Markos, the owner. He did not describe 

the car’s contents or any other contacts with Markos. 

 Markos testified that when the police returned his car his compact discs were gone and a 

compact disc that did not belong to him was in the car. He testified that he gave that compact 

disc to the police. The prosecutor did not ask him to identify the compact disc and did not offer 

the compact disc in evidence during Markos’s testimony or at any time during the 

Commonwealth’s case-in-chief. 

 When Fanta Jackson testified in the defense case, the prosecutor asked the following 

questions on cross-examination: 

Q. Do you and Mr. Bentley in your relationship . . . listen to 

music? 

A. Do we listen to music? 

Q. Yes. 

A. Yeah, we listen to music. 

Q. Who are the Northeast Groovers? 

A. Who are the Northeast Groovers? 
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Q. Yes. 

A. It’s a go-go band. 

Q. Where are they from? 

A. I would hope Northeast. 

Q. You’ve listened to them before? 

A. I’ve heard of them. I don’t listen to go-go. 

Q. But you know who the Northeast Groovers are? 

A. Yeah. They play them on the radio. 

Q. You don’t listen to it -- sometimes does . . . Chris Bentley, your 

boyfriend, does he listen to the Northeast Groovers? 

A. He may, but he don’t listen to it around me. We respect each 

other. I don’t listen to it. 

Q. So if it were in the car and he would turn it on, what would you 

tell him to do? 

A. If we was in a car? 

Q. Yes. 

A. I wouldn’t tell him to do nothing. If we was in a car, I 

probably would change the station, but he wouldn’t do it. 

Q. But you are familiar with that? 

A. With what? 

Q. With the Northeast Groovers? 

A. Yeah. 

 As a witness in the Commonwealth’s case-in-rebuttal, Officer Goodley testified for the 

prosecutor about the compact disc and the handwritten words on its label: 

Q. . . . [W]hat is that item and what does it say on it? 

[Bentley’s attorney]: Objection, Your Honor. Whatever that thing 

says on it would be hearsay. 

THE COURT: Let’s first identify it and we’ll go from there. 
 - 15 -

Q. Do you recognize that item? 

A. Yes, I do. 

Q. Where did you receive -- from whom did you receive that 

item? 

A. I received this from Mr. Markos, from the vehicle that was 

reported stolen at his residence. 

 The prosecutor argued that the evidence was offered for the following purpose: 

Two points, Your Honor. One, it’s for impeachment purposes of 

Ms. Jackson. She stated that she -- she was unequivocal, “I didn’t 

go to the Brookside or the Red Roof Inn in a car.” She said that 

she recognizes that name and that she -- that Chris Bentley listens 

to it, “I tell him to turn it off.” 

 I think that rebuts it. I think that’s a circumstance that places her 

in the car as well with him. Furthermore, Your Honor, I would 

offer that the CD itself comes in. That’s the condition of it. I 

don’t think the Commonwealth -- if it were to offer a 

manufacturer-made CD is not required to bring someone here from 

Warner Brothers or whatever one of the other companies are to 

say, “We imprinted that on there.” 

 I mean it’s a fact. It’s a verbal fact. It’s not -- it’s not an out of 

court assertion which the hearsay rule is meant to protect. It’s a 

factual thing that is on a CD. 

 The trial judge overruled the objection and permitted Officer Goodley to testify as 

follows: 

Q. What is Commonwealth’s [Exhibit] 15? What is that item? 

A. It’s a portable CD. 

Q. What is stated there on the CD? 

A. It states Northeast Groovers, Icebox, and it has a date of May 

13th of the year 2000. 

Q. Have you listened to this? 

A. Yes, I have. 

Q. What is on there? 

A. Go-go music. 
 - 16 -

On cross-examination, the officer conceded “I was just going on what -- I don’t know if its 

actually the Northeast Groovers . . . playing on there. I’m not familiar with go-go music.” 

 “‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of 

court, the statement being offered as an assertion to show the truth of matters asserted therein, 

and thus resting for its value upon the credibility of the out-of-court asserter.’” Donahue v.

Commonwealth, 225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983) (citation omitted). See also

Jenkins v. Commonwealth, 254 Va. 333, 339-40, 492 S.E.2d 131, 134 (1997). 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). “Statements otherwise objectionable as hearsay are not rendered 

admissible because they have been reduced to writing.” Williams v. Morris, Administratrix, 200 

Va. 413, 417, 105 S.E.2d 829, 832 (1958). 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). 

 At trial, the prosecutor contended the evidence was offered for impeachment of Jackson. 

The majority now asserts a proposition the Commonwealth has never argued -- that Bentley’s 

attorney should have objected to the evidence on relevance grounds. The hearsay objection, 

however, was the appropriate objection when, as here, the prosecutor proffered that he was 

seeking to impeach Jackson’s testimony. Jackson had testified she never listened to the 

Northeast Groovers and Bentley never listened to the group in her presence, if ever he listened to 

the group at all. Thus, the evidence’s value as impeachment was non-existent unless it tended to 

establish that the compact disc was in fact a recording by the Northeast Groovers. 
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 The inquiry whether an out-of-court declaration is hearsay first asks what the statement is 

offered to prove. Donahue, 225 Va. at 151-52, 300 S.E.2d at 771; Stevenson v. Commonwealth, 

218 Va. 462, 465-66, 237 S.E.2d 779, 781 (1977); Hanson v. Commonwealth, 14 Va. App. 173, 

187, 416 S.E.2d 14, 20 (1992). In this case, accepting the prosecutor’s statement of purpose, the 

evidence necessarily was offered for the truth of the writing. The prosecutor sought to have the 

jury accept as true that the compact disc contained music by the Northeast Groovers because he 

wanted the jury to believe Jackson lied during her cross-examination. Thus, the only possible 

relevance of introducing the writing was to prove the truth of the writing’s declaration, that “this 

is the music of the Northeast Groovers.” In this case, it was exactly as though a person had said 

out of court, “This compact disc contains the music of the Northeast Groovers,” and that 

statement were introduced in court. This is the very definition of hearsay. Furthermore, that this 

was the reason to introduce the writing was abundantly obvious because no other evidence 

proved what was recorded on the compact disc. “When the only possible relevance of an 

out-of-court statement is directed to the truth of the matters stated by a declarant, the subject 

matter is classic hearsay even though the proponent of such evidence seeks to clothe such 

hearsay under a nonhearsay label.” Keen v. State, 775 So. 2d 263, 274 (Fla. 2000). 

 Indeed, the prosecutor also offered Officer Goodley’s testimony on rebuttal to prove the 

truth of the writing: that the compact disc was a recording by the Northeast Groovers, as written 

on the label, and that it was “go-go” music. He testified that he listened to the compact disc and 

that it contained “[g]o-go music.” Thus, the testimony of the Commonwealth’s witness belies 

the assertion that the evidence was simply to prove “a verbal fact.” We would adopt a fiction to 

conclude this testimony was offered to prove a “verbal fact” and not the content of the compact 

disc. I would hold that the Commonwealth used the words “Northeast Groovers” written to the 

compact disc to show the truth of the matter asserted: that the compact disc was a recording of 
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the Northeast Groovers, a go-go band. Thus, the trial judge erred by admitting this hearsay 

evidence. 

II. 

 The Commonwealth contends that even if the trial judge erred in admitting the evidence, 

the error was harmless. I disagree. 

When the erroneous admission of evidence is not of constitutional dimension, the 

standard for reviewing whether the record establishes harm to the accused is as follows: 

“If, when all is said and done, the conviction is sure that the error 

did not influence the jury, or had but slight effect, the verdict and 

the judgment should stand . . . . But if one cannot say, with fair 

assurance, after pondering all that happened without stripping the 

erroneous action from the whole, that the judgment was not 

substantially swayed by the error, it is impossible to conclude that 

substantial rights were not affected. . . . If so, or if one is left in 

grave doubt, the conviction cannot stand.” 

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting Kotteakos v.

United States, 328 U.S. 750, 764-65 (1946)). “[T]he principle of Kotteakos [means] that when 

an error’s natural effect is to prejudice substantial rights and the court is in grave doubt about the 

harmlessness of that error, the error must be treated as if it had a ‘substantial and injurious effect’ 

on the verdict.” O’Neal v. McAninch, 513 U.S. 432, 444 (1995) (quoting Kotteakos, 328 U.S. at 

764-65, 776)). Indeed, the Supreme Court of Virginia has held that “error will be presumed to be 

prejudicial unless it plainly appears that it could not have affected the result.” Caldwell v.

Commonwealth, 221 Va. 291, 296, 269 S.E.2d 811, 814 (1980). 

 When, as in this case, a trial error has been shown on direct appeal from a conviction, the 

government bears the burden of proving harmlessness under this standard. See O’Neal, 513 U.S. 

at 437. The Commonwealth has not met this burden because its proof that Bentley stole 

Markos’s car rested upon linking Bentley to each of three pieces of circumstantial evidence: 

cigarettes in the car, telephone calls from Markos’s telephone, which was found in the car, and a 
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compact disc in the car. Individually, these pieces of evidence lacked the strength to prove 

beyond a reasonable doubt the inference of guilt the prosecutor sought to establish. Only by 

putting them together could the prosecutor create the three-legged stool upon which the 

Commonwealth’s theory of guilt rested. Significantly, the evidence concerning the compact disc 

was the strongest of the three factors and was essential to the Commonwealth’s proof. 

 The prosecutor relied upon speculation and conjecture to suggest the cigarettes 

established Bentley had been inside Markos’s car. The evidence merely proved the ashtray in 

Markos’s car “was full of cigarette butts and ashes.” No evidence connected those cigarette butts 

or ashes to Bentley. Although the evidence proved Bentley smoked, no evidence proved either 

that he smoked the brand of cigarettes found in the car or that he had smoked in the car. Simply 

put, the evidence was not sufficient to take the connection “‘out of the realm of mere conjecture, 

or speculation, and into the realm of legitimate inference.’” Atrium Unit Owners Assoc. v. King, 

266 Va. 288, 294, 585 S.E.2d 545, 548 (2003) (citation omitted). Without more, this evidence 

merely established that one or more of the many smokers in the universe was in the car. 

 The evidence concerning the calls from Markos’s cellular telephone was not as illusory, 

but it also required the jury to speculate that Bentley had been inside the car. The testimony 

established that calls were made from Markos’s telephone to a telephone in the residence 

occupied by Fanta Jackson and her father. The record does not indicate who made those 

telephone calls and certainly fails to exclude Jackson, her father, or any of their friends as the 

caller. Furthermore, the record fails to identify the persons or places called for any of the other 

five telephone numbers that were common to the list of numbers called from Markos’s telephone 

and by Bentley while he was in the jail. In short, the evidence merely proved that whoever used 

Markos’s telephone called persons or places that were known to Bentley. Thus, the persons who 

could have made the calls from Markos’s telephone include Bentley, Jackson, her father, and the 
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friends and acquaintances of Bentley, Jackson, and Jackson’s father. To suppose that this 

evidence connected only Bentley to the car “would be to engage in speculation and conjecture.” 

Wright v. Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977). 

 The final support for this three-legged stool of inferences the prosecutor relied upon to 

prove guilt is the hearsay evidence. The written statement “Northeast Groovers” was 

inadmissible to prove the truth of the assertion that the disc was of the “Northeast Groovers” 

music. It was admitted for that evidentiary purpose, however, and used for that purpose. 

Although no evidence proved, except by innuendo, that the compact disc belonged to Bentley, 

the trial judge permitted the prosecutor to establish in his rebuttal case, under the guise of 

impeachment, that the disc found in Markos’s car was a recording made by the “Northeast 

Groovers.” When earlier cross-examined by the prosecutor, Jackson acknowledged that she 

knew that the Northeast Groovers was a “go-go band” and that the band’s music is “play[ed] . . . 

on the radio.” She testified, however, that she did not “listen to go-go” music, that Bentley 

“may” have listened to the Northeast Groovers, but that he never did so in her presence. On 

rebuttal an officer testified that it was “go-go” music but that he did not know if it was the 

Northeast Groovers. 

 The error in admitting the evidence was exacerbated by the prosecutor’s use of the 

evidence and mischaracterization of Jackson’s testimony when he argued to the jury as follows: 

I was unclear from her testimony as to whether or not [Jackson] 

said she went to the Brookside Motel by herself via the trains with 

Mr. Bentley or if they were apart. I’ll let you decide that from 

your collective recollection. 

 However, I asked her, “Are you familiar with the Northeast 

Groovers?” 

 “Yes, I am.” It’s a go-go band and she associated it with 

Mr. Bentley. She said, “Chris listened to that stuff, but I don’t 

listen to it. When it’s on I tell him to turn it off.” 
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 Then you had Officer Goodley in my rebuttal case offered 

it into evidence. What was found in Mr. Markos’ car? A CD, 

Northeast Groovers. I would offer to you in that love that Fanta 

Jackson has for her boyfriend, I would suggest to you perhaps they 

arrived there together in that vehicle. Perhaps they arrived 

separately and Mr. Bentley drove there, but that car is there. 

 Even if we assume the mischaracterization was unintentional, and the prosecutor believed 

he had impeached Jackson’s testimony (the record clearly shows Jackson did not testify that 

Bentley listened to the Northeast Groovers), the prosecutor’s argument to the jury surely is that 

the disc contained music by the Northeast Groovers. Absent the use of this hearsay evidence, the 

stool that supported the chain of inferences that led the jury to convict would have collapsed. No 

evidence, other than the hearsay when combined with the prosecutor’s mischaracterization of 

Jackson’s testimony, established that Bentley even knew who the Northeast Groovers were, 

much less that he owned one of their compact discs. Jackson never testified she had personal 

knowledge that Bentley ever listened to the Northeast Groovers. 

This is not a case, as posited by the Commonwealth, of overwhelming evidence of guilt. 

Furthermore, it is important to note, as the United States Supreme Court has observed, that an 

“emphasis and perhaps overemphasis, upon the [concept] of ‘overwhelming evidence,’” has the 

effect of clouding the relevant question “‘whether there is a reasonable possibility that the 

evidence complained of might have contributed to the conviction.’” Chapman v. California, 386 

U.S. 18, 23 (1967) (footnote and citations omitted). In other words, the principle is well 

established that a harmless error analysis is entirely distinct from a sufficiency of the evidence 

analysis. “The inquiry cannot be merely whether there was enough to support the result, apart 

from the phase affected by the error. It is rather, even so, whether the error itself had substantial 

influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos, 328 

U.S. at 765. Consistent with these principles, the Supreme Court of Virginia has held that even 

if “the other evidence amply supports the . . . verdicts, [error is not harmless when] the disputed 
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[evidence] may well have affected the . . . decision.” Cartera v. Commonwealth, 219 Va. 516, 

519, 248 S.E.2d 784, 786 (1978). See also Hooker v. Commonwealth, 14 Va. App. 454, 458, 

418 S.E.2d 343, 345 (1992) (holding that “a harmless error analysis . . . [is not] simply a 

sufficiency of the evidence analysis”). 

Because the inadmissible evidence was so profoundly a part of the Commonwealth’s 

theory of prosecution (that Bentley had been in the car), I would hold that there exists a 

reasonable possibility it contributed to the verdict. For these reasons, I would reverse the 

conviction for larceny of the car and remand for a new trial.