COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Salem, Virginia 

TINA RENEE ROSSER 

 MEMORANDUM OPINION* BY 

v. Record No. 2862-99-3 JUDGE LARRY G. ELDER 

 NOVEMBER 28, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 George W. Nolley for appellant. 

 Robert H. Anderson, III, Senior Assistant 

Attorney General (Mark L. Earley, Attorney 

General, on brief), for appellee. 

 

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

designated for publication.

 Tina Renee Rosser (appellant) appeals from her bench trial 

convictions for statutory burglary and grand larceny. On 

appeal, she contends the trial court erroneously (1) admitted 

testimony about the existence and contents of a letter allegedly 

written by her; and (2) held the evidence was sufficient to 

support her convictions. We hold that the trial court did not 

abuse its discretion in admitting testimony about the letter's 

contents and that the evidence was sufficient to support both 

convictions. Therefore, we affirm. 
A. 

ADMISSIBILITY OF TESTIMONY ABOUT CONTENTS OF LETTER 

 The best evidence rule requires that, "when the terms of a 

writing or document are material, the original must be produced 

unless it be shown that the original is unavailable, in which 

case secondary evidence may be introduced to prove the facts." 

Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d 176, 

179 (1991). "Generally, the sufficiency of the evidence 

relating to unavailability of the writing is a preliminary 

question addressed to the sound discretion of the trial court." 

Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 

885 (1993). If a dispute develops over whether the original 

writing ever existed, "the conflicting evidence . . . must be 

presented . . . [and the issue] resolved as a matter of 

fact. . . . The test of unavailability is proof with reasonable 

certainty." Id. at 379-80, 429 S.E.2d at 885. If the trier of 

fact concludes with reasonable certainty that the document 

existed and that it is unavailable for admission at trial, 

testimony about its contents is admissible, and any remaining 

disputes center on the weight to be given the evidence, not its 

admissibility.1 See, e.g., Foley v. Commonwealth, 8 Va. App. 

149, 164-65, 379 S.E.2d 915, 924 (1989). 

 1

 We reject the Commonwealth's contention that appellant 

failed properly to preserve for appeal her objection to the 

admission of testimony about the contents of the letter. 

Although appellant did not specifically argue the evidence was 

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 Here, McFadden and Stone both testified to their receipt 

from appellant's stepmother of a letter written by appellant. 

They also indicated that the letter had been misplaced or thrown 

out and that they had been unable to find it despite 

"[t]urn[ing] the[ir] house upside down." Both McFadden and 

Stone agreed the letter was from appellant and indicated 

appellant's knowledge of the theft. The trial court "ha[d] no 

doubt" the letter existed and indicated its only question 

concerned the letter's precise contents. Under these 

circumstances, the evidence, viewed in the light most favorable 

to the Commonwealth, supports the trial court's implicit 

finding, by a reasonable certainty, that the letter existed and 

was material but that it was unavailable for admission into 

evidence at trial. Therefore, the trial court did not abuse its 

discretion in admitting into evidence testimony about the 

existence and contents of the letter. 

 

insufficient to prove unavailability, she contended the letter 

was inadmissible under the best evidence rule. As discussed in 

the text, the best evidence rule encompasses the issue of 

unavailability. Further, the trial court heard evidence and 

argument from the Commonwealth on the issue of unavailability, 

and implicitly ruled the letter was unavailable, thereby 

satisfying the purpose of Rule 5A:18. See, e.g., Morris v. 

Comm. Dep't of Soc. Servs., 13 Va. App. 77, 84 n.2, 408 S.E.2d 

588, 592 n.2 (1991). 

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B. 

SUFFICIENCY OF THE EVIDENCE 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). Any element of a crime may be proved by 

circumstantial evidence, see, e.g., Servis v. Commonwealth, 6 

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the 

evidence as a whole "is sufficiently convincing to exclude every 

reasonable hypothesis except that of guilt," Coleman v. 

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

 Appellant was convicted for grand larceny and statutory 

burglary. "Larceny is the wrongful taking of goods of another 

without the owner's consent and with the intention to 

permanently deprive the owner of possession of the goods. Once 

the crime of larceny 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). Possession must be exclusive but may 

also be joint. See Moehring v. Commonwealth, 223 Va. 564, 568, 

290 S.E.2d 891, 893 (1982). If the value of the goods taken 

equals or exceeds $200, the crime is grand larceny. See Code 

§ 18.2-95. 

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 Statutory burglary requires proof that appellant broke and 

entered the dwelling house of McFadden and Stone with the intent 

to commit larceny therein. See Code §§ 18.2-90, -91. "The 

Commonwealth can establish a prima facie case that appellant 

broke and entered by (1) proving that goods were stolen from a 

house which was broken into; (2) justifying the inference that 

both offenses were committed at the same time, by the same 

person, as part of the same criminal enterprise; and (3) proving 

that the goods were found soon thereafter in the possession of 

the accused." Bright, 4 Va. App. at 251, 356 S.E.2d at 444. 

 The evidence, both direct and circumstantial, is sufficient 

to support appellant's convictions. As to the larceny 

conviction, ample evidence establishes that the boom box and TV 

were stolen and that appellant was the criminal agent. The 

victims left their home locked and gave no one permission to 

enter it. When they returned home, they found a window open, a 

screen missing, and the rear door unlocked. Their boom box and 

television set, which had a combined value of at least $450, 

were missing. One of the victims testified that appellant wrote 

"I'm sorry for taking . . . the boom box and the TV." The other 

victim testified that appellant's letter apologized for 

"breaking in[to] [their] house." Although the court questioned 

precisely what was in the letter appellant wrote to the victims, 

it concluded the letter existed. Either version of the letter 

implicated appellant and showed her knowledge of the crimes. 

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Further, appellant told Deputy Farris "that she was going to 

return" the items, and in fact she did so through her 

stepmother, demonstrating both her knowledge of the crimes and 

her possession of the property. The trial court was entitled to 

reject appellant's statement to Deputy Farris that she did not 

take the items. 

 Appellant also had the means and opportunity to commit the 

larceny. See Lew v. Commonwealth, 20 Va. App. 353, 358, 457 

S.E.2d 392, 394-95 (1995). She resided next door to the 

victims' home and was present when the victims told her 

stepmother they would be out of town. Thus, the only hypothesis 

flowing from the evidence was that appellant exercised dominion 

and control over the property, even though such exercise may 

have been joint, and permitted application of the presumption 

that appellant, either alone or with an accomplice, stole the 

boom box and TV. 

 This same evidence also established appellant's guilt for 

statutory burglary. "The victim[s] testified that the stolen 

items were seen in the house shortly before it was left 

unoccupied and the breaking was discovered, and were found 

missing shortly thereafter, thus justifying the inference that 

the burglary and the larceny were committed at the same time as 

part of the same criminal enterprise." Bright, 4 Va. App. at 

252, 356 S.E.2d at 445. The contents of the letter showed 

appellant's knowledge of the crimes. Further, appellant said 

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that she "was going to return" the boom box and TV and did so 

through her stepmother, showing that she was in recent 

possession of the fruits of the burglary. See id.

Under Virginia law, upon proof of a breaking 

and entering and a theft of goods, and if 

the evidence warrants an inference that the 

breaking and entering and the theft were 

committed at the same time by the same 

person and as part of the same transaction, 

"the exclusive possession of the stolen 

goods shortly thereafter, unexplained or 

falsely denied, has the same efficiency to 

give rise to an inference that the possessor 

is guilty of the breaking and entering as to 

an inference that he is guilty of larceny." 

Cannady v. Commonwealth, 210 Va. 533, 535, 172 S.E.2d 780, 781 

(1970) (quoting Sullivan v. Commonwealth, 210 Va. 201, 203, 169 

S.E.2d 577, 579 (1969)). 

 For these reasons, we hold the trial court did not abuse 

its discretion in admitting testimony about the existence and 

contents of the letter. We also hold the evidence was 

sufficient to establish that the victims' residence was 

burglarized and that appellant was the criminal agent, thereby 

supporting her convictions for grand larceny and statutory 

burglary. 

Affirmed.

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