COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey 

Argued at Richmond, Virginia 

ROBERT MICHAEL BABER 

 MEMORANDUM OPINION* BY 

v. Record No. 2832-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 APRIL 8, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

David F. Berry, Judge Designate 

 Norman Lamson for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 The trial judge convicted Robert Michael Baber of grand 

larceny. Baber contends his conviction must be reversed because 

the trial judge erred by admitting hearsay evidence. We hold that 

the judge erred by admitting the evidence but that the error was 

harmless. 

I. 

 The evidence proved that Robert Michael Baber purchased a 

toolbox in a Sears department store on the evening of January 12, 

2001. Chad Bush, a sales employee in the hardware area, testified 

that he gave Baber a receipt for the toolbox and put a piece of 

"Sears tape" on the toolbox to indicate it had been purchased. He 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
also testified that he did not sell Baber a generator or any item 

other than the toolbox. When asked whether he sold a generator 

that day, Bush testified, "[n]ot that I recall." He further 

testified that Baber was with another man when he sold him the 

toolbox. 

 Ricky Thompson, another sales employee, saw Baber in the 

hardware area and later saw him walking out of the store next to a 

man who was pushing a cart. Thompson noticed that a "Companion" 

generator, model "5250," was in the cart. He stopped the men 

outside of the store entrance and asked if they had a receipt for 

the generator. Thompson testified Baber replied that his wife had 

the receipt and that she was somewhere in the mall. He said one 

of the two men then pointed to the generator and "said there's a 

receipt right there," referring to a receipt that was attached to 

the generator with a piece of tape. Thompson inspected the 

receipt, noticed it was not for the generator, which was valued at 

$629.99, and told the men the receipt was for a $9.99 toolbox. 

Baber told Thompson the employee who sold him the toolbox also 

sold him the generator. Recognizing the identification number of 

the sales employee on the receipt, Thompson said he could check 

with the employee. Baber and the other man walked away with the 

generator in the cart. 

 Thompson conferred with Kenneth Kirby, the assistant manager, 

who was close by. Kirby testified he had observed Thompson and 

the men from a distance and noticed the generator, which was out 

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of its box and was marked "Companion 5250Y." When Kirby learned 

that the receipt was not for the generator, he and Thompson went 

to speak with Bush, the employee whose identification number was 

on the sales receipt. Kirby also asked other sales employees 

whether they had sold a generator within the last hour. He and 

Thompson then entered the generator's "part number" into a 

computer that is connected to all cash registers in the store. 

Over Baber's hearsay objection, Kirby and Thompson testified that 

the computer screen showed that no generators had been sold that 

day. Kirby also testified that the computer system was never 

known to be inaccurate. Neither Kirby nor Thompson caused the 

computer to print the information displayed on the computer 

screen. 

 Kirby testified that he then went to the parking lot where he 

saw Baber walking next to a man who was pushing the cart. When he 

reached them, Baber and the man were loading the generator in the 

trunk of a car. Kirby noticed other people around the car, 

including a woman who was later identified as Baber's wife. When 

Kirby asked Baber for a receipt, Baber cursed and told him his 

employee had the receipt. Kirby returned to the store and called 

the police. The evidence also proved that several days later, 

Bush found a toolbox "down by the generators." 

 At the conclusion of the evidence, the judge convicted Baber 

of grand larceny. 

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II. 

 Baber contends the trial judge erred when he admitted into 

evidence the testimony of Thompson and Kirby concerning the 

information displayed on the computer screen. He argues that the 

testimony about the information was hearsay, that the business 

records exception is not applicable because the Commonwealth did 

not enter into evidence the printed information displayed on the 

computer screen, and that the testimony involves an "absence of a 

business record," which is an exception to the hearsay rule that 

Virginia has not yet recognized. The Commonwealth asserts that 

the issue is moot, the evidence was not hearsay, and the evidence 

was admissible as a business record exception to the hearsay rule. 

A. 

 "Hearsay evidence is defined as a spoken or written 

out-of-court declaration or nonverbal assertion offered in court 

to prove the truth of the matter asserted therein." Arnold v. 

Commonwealth, 4 Va. App. 275, 279-80, 356 S.E.2d 847, 850 (1987). 

The rule is well established "that hearsay evidence is 

inadmissible unless it falls within one of the recognized 

exceptions to the hearsay rule and that the party attempting to 

introduce a hearsay statement has the burden of showing the 

statement falls within one of the exceptions." Robinson v. 

Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77 (1999) 

(citations omitted). 

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 The Supreme Court has addressed the matter of computer 

records and hearsay. 

 In determining the admissibility of 

computer records, when the argument has been 

advanced that they are inadmissible hearsay, 

we have employed the traditional business 

records exception to the hearsay rule. 

 "Under the modern Shopbook Rule, adopted 

in Virginia, verified regular entries may be 

admitted into evidence without requiring 

proof from the regular observers or record 

keepers," generally limiting admission of 

such evidence to "facts or events within the 

personal knowledge of the recorder." 

However, this principle does not necessarily 

exclude all entries made by persons without 

personal knowledge of the facts recorded; in 

many cases, practical necessity requires the 

admission of written factual evidence that 

has a circumstantial guarantee of 

trustworthiness. 

 "The trustworthiness or reliability of 

the records is guaranteed by the regularity 

of their preparation and the fact that the 

records are relied upon in the transaction 

of business by the person or entities for 

which they are kept." "Admission of such 

evidence is conditioned, therefore, on proof 

that the document comes from the proper 

custodian and that it is a record kept in 

the ordinary course of business made 

contemporaneously with the event by persons 

having the duty to keep a true record." 

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

457, 449 S.E.2d 782, 785-86 (1994) (citations omitted and 

emphasis added). 

B. 

 Thompson and Kirby testified that they read the computer 

display and learned from it that no generators had been sold. 

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The Commonwealth contends Tatum v. Commonwealth, 17 Va. App. 

585, 440 S.E.2d 133 (1994), and Penny v. Commonwealth, 6 

Va. App. 494, 370 S.E.2d 314 (1988), hold that this testimony is 

not hearsay. The Commonwealth asserts that, as in those cases, 

neither witness' testimony concerned an "out-of-court 

declarant's veracity or perceptions." We disagree. 

 In Tatum, we specifically held that, "[i]n this case, there 

is no 'out-of-court asserter,' because the caller ID display is 

based on computer generated information and not simply the 

repetition of prior recorded human input or observation." 17 

Va. App. at 588, 440 S.E.2d at 135. Likewise, in Penny, we 

noted that the telephone "call trap" generated a number that was 

not based on any data entered by a human. 6 Va. App. at 498, 

370 S.E.2d at 317. The evidence in this case proved, however, 

that the information displayed on the computer screen was in 

part a function of data entered into the system by various sales 

associates. Thus, we hold that the testimony of both witnesses 

was merely a recitation of information shown by the computer's 

display of inventory data, which was based on input by various 

individuals. This evidence constitutes hearsay unless within a 

recognized exception. 

C. 

 The Commonwealth contends that the testimony of the 

witnesses established that the computerized inventory is a 

record prepared and relied upon in the regular course of 

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business. The Commonwealth correctly notes that the Supreme 

Court has held that computer records, when properly proved, may 

be admissible under the business records exception. See Kettler 

& Scott, 248 Va. at 457, 449 S.E.2d at 785-86. 

 In the present case, however, the Commonwealth did not 

produce either a printout of the computer screen data or an 

actual record. Instead, Thompson and Kirby merely recited the 

information they said they observed on the computer screen. 

Relying on Lee v. Commonwealth, 28 Va. App. 571, 507 S.E.2d 629 

(1998), the Commonwealth argues that we approved this method of 

proof when we held that "[a] person who can verify that the 

business records are authentic can present the evidence by 

testifying about what he saw displayed or by presenting a 

printed copy of the display. Either form is admissible as a 

business records exception to the hearsay rule." Id. at 577, 

507 S.E.2d at 632 (emphasis added). 

 We are constrained, however, to follow the Supreme Court's 

more recent decision in Decipher, Inc. v. iTribe, Inc., 262 Va. 

588, 533 S.E.2d 718 (2001), which is contrary to Lee. 

Discussing the business records exception to the hearsay rule, 

the Court held that "[g]enerally, the hearsay rule precludes a 

witness from quoting from, or summarizing the contents of, even 

admissible records until they have been received in evidence." 

Id. at 595, 533 S.E.2d at 722. This holding is consistent with 

the Court's holding in Kettler & Scott that conditions 

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"admission of written factual evidence that has a circumstantial 

guarantee of trustworthiness" upon "proof that the document

comes from the proper custodian and that it is a record kept in 

the ordinary course of business." 248 Va. at 457, 449 S.E.2d at 

785-86 (emphasis added). In short, business records are 

admitted as an exception to the hearsay rule because they are 

regularly prepared and have a guarantee of trustworthiness and 

reliability. Id. at 457, 449 S.E.2d at 786. 

 The evidence proved that the computerized inventory 

tracking system can produce a printed document. Here, however, 

the Commonwealth sought to rely upon the memory of both 

witnesses to deliver the content of the records. The evidence 

does not establish that the trustworthiness and reliability of 

the evidence can be guaranteed through a recitation of the 

witnesses' observation of the displayed data. Therefore, we 

hold that the trial judge erred when he did not sustain Baber's 

hearsay objections. 

 Because we hold the trial judge erred in admitting the 

hearsay evidence, we need not decide Baber's further contention 

that Virginia law does not recognize an "absence of business 

entries exception" to the hearsay rule. 

D. 

 The Commonwealth also contends the hearsay issue is moot 

because the trial judge "never used the challenged evidence to 

convict [Baber]." We disagree. 

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 In ruling the evidence admissible, the trial judge 

necessarily found it was relevant. See Ward v. Commonwealth, 

264 Va. 648, 654, 570 S.E.2d 827, 831 (2002). Furthermore, the 

trial judge's comment that the computer information was 

"material" and "add[ed] something to corroborate" negates the 

Commonwealth's suggestion that the issue is moot. 

III. 

 The Commonwealth contends that even if the trial judge 

erred, the conviction nevertheless should be affirmed because 

the error was harmless. We agree. 

 The test for non-constitutional harmless error 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 on grave doubt, the 

conviction cannot stand." 

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 

(2001) (citation ommitted). An error is harmless if "other 

evidence of guilt is 'so overwhelming and the error so 

insignificant by comparison that the error could not have 

affected the verdict.'" McLean v. Commonwealth, 32 Va. App. 

200, 211, 527 S.E.2d 443, 448 (2000) (citation omitted). 

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 Even without the computer information, the evidence proved 

larceny. Bush gave Baber a receipt for the purchase of the 

toolbox and placed Sears tape on the toolbox as proof of 

payment. Later, when Thompson saw Baber and another man leaving 

the store with the generator and asked for the receipt, neither 

man had the receipt for the generator. Attached to the 

generator was the Sears tape and a receipt for a toolbox. No 

evidence proved the men then had the toolbox. Days later, Bush 

found a toolbox sitting near the generators. 

 Baber's guilt is further established by the inconsistencies 

in his statements. When Thompson asked for a receipt, Baber 

said his wife had the receipt. Later, when Kirby asked for the 

receipt in the presence of Baber's wife, Baber said a Sears 

employee had it. Finally, although Baber told Thompson that he 

bought the generator from the same person who sold him the 

toolbox, Bush testified he sold Baber the toolbox but never sold 

Baber a generator. Based on the evidence, and absent any 

exculpatory evidence, the trial judge was free to conclude Baber 

was lying about these events. See Marable v. Commonwealth, 27 

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Indeed, the 

trial judge specifically noted that he considered Baber's 

actions to be "a deliberate and very ingenious method of 

misleading." The trial judge explained that his decision relied 

on the "misleading receipt, an inapplicable receipt . . . 

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wrongly placed on the wrong goods. That couldn't have gotten 

there any other way." 

 Nothing indicates that the computer evidence significantly 

influenced the trial judge's decision. "[W]e can say, 'with 

fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole,' that it plainly 

appears that [Baber] has had a fair trial and the verdict and 

judgment were not substantially affected by . . . [the error]." 

Clay, 262 Va. at 261, 546 S.E.2d at 732. Thus, the error was 

harmless. 

 Accordingly, we affirm the conviction. 

 Affirmed. 

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Benton, J., concurring, in part, and dissenting, in part.

I concur in Parts I and II of the majority opinion. 

Because I would hold that the error was not harmless, I dissent 

from Part III. 

 The Supreme Court of Virginia has "adopt[ed] the Kotteakos 

[v. United States, 328 U.S. 750 (1946),] harmless-error test" 

for measuring error under Code § 8.01-678. Clay v. 

Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 732 (2001). 

Applying that test, the United States Supreme Court recently 

held that "the 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) (citing Kotteakos, 328 U.S. at 764-65, 776). 

Moreover, when 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. 

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). 

 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 

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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). Indeed, 

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 

[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"). 

 The evidence in this case established that any sales 

employee in the store had the authority to sell any item in the 

store. The Commonwealth sought to exclude the possibility that 

another sales employee sold Baber the generator by proving 

through the computerized inventory system no generators were 

sold. When admitting the evidence in the record, the trial 

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judge noted that the witnesses' testimony about the computer 

display was "material" and "verifies the fact that there was no 

receipt according to the computer." Furthermore, in announcing 

his decision, the trial judge expressly noted that the computer 

information was "just adding something to corroborate" the 

Commonwealth's evidence. The judge's comment that the evidence 

was "not essential" does not render it harmless. 

 Although other evidence in the record might support the 

verdict, "[o]ther evidence of a disputed fact, standing alone, 

does not establish that an error is harmless." Hooker, 14 

Va. App. at 458, 418 S.E.2d at 345. "'[A] fair trial on the 

merits and substantial justice' are not achieved if an error at 

trial has affected the verdict." Lavinder v. Commonwealth, 12 

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (quoting Code 

§ 8.01-678). The Commonwealth bore the burden of proving Baber 

did not purchase the generator. A significant aspect of that 

proof was reliance on evidence that none of the sales employees 

of the store sold the generator. The Commonwealth used the 

testimony of Kirby and Thompson to establish that Sears' 

computerized records indicated no generator sales had occurred. 

Because this proof was offered to establish a fact not otherwise 

proved, it is "highly probable that the error had substantial 

and injurious effect or influence in determining the . . . 

verdict." Kotteakos, 328 U.S. at 776. 

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 For these reasons, I would hold that the error was not 

harmless, and I would reverse the conviction and remand for a 

new trial. 

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