COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Malveaux Argued at Salem, Virginia

LATOYA DENISE JEFFERSON MEMORANDUM OPINION * BY v. Record No . 0638-17-3 JUDGE MAR Y BENNETT MALVEAUX MARCH 20, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Stacey W. Moreau, Judge Carlos A. Hutcherson (Hutcher son Law, PLC, on brief), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (M ark R. Herring, Attorney General, on brief), for appellee.
Latoya Denise Jefferson (“appella nt”) was convicted of two cou nts of felony welfare fraud, in violation of Code § 63.2- 522. On appeal, she argues the trial court erred by: (1) not permitting her to complete her cross-examination of a witness; (2) denying her motion to strike because the evidence was insufficient to prove she received ove rpayments of $200 or more; and (3) admitting certain evidence during the sentencing phase of h er trial. For the reasons that follow, we affirm appellant’s convictions.
I. BACKGROUND “In accordance with familiar principles of appellate review, th e facts [are] stated in the light most favorable to the Commo nwealth, the prevailing party at trial.” Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Appellant’s Benefits Applica tions and Benefits Received During 2015 and 2016, appellant share d a household with her fiv e children and her boyfriend. Appellant received be nefits through the Supplementa l Nutrition Assistance Program (“SNAP”) and fuel assistance thr ough the Pittsylvania County De partment of Social Services (“DSS”). In February 2015, appellant comple ted a renewal application in order to continue receiving SNAP benefits. The appl ication required appellant to disclose her household income, including “money from all jobs,” whether “full time, part time, seasonal, temporary, [or] self-employment.” Appellant di sclosed her income from Citi Tre nds and her boyfriend’s income from Capps Shoes. Appellant did no t disclose her income from ajob with Frito-Lay that she had held since November 2014. Sharon Stephens, an eligibility w orker with DSS, testified thatshe processed the renewal application and telephoned appell ant to review the document wit h her. Appellant did not disclose any employment beyond wha t she had reported in the app lication. Stephens used the information from the applicati on and the telephone interview to determine the amount of appellant’s SNAP benefits. In September 2015, appellant was req uired to submit an interim report noting any changes to the information provide d in her renewal application. In completing the report, appellant indicated there had b een no changes in her household employment or employment income since filing the renewal application in February. In November 2015, appellant complete d a fuel assistance applica tion which required her to list all sources of household income and provide the names o f all employers. As in her renewal application, appellantdisclosed only Citi Trends and C apps Shoes as employers and sources of employment income.- 3 - Appellant completed another ren ewal application for SNAP benefi ts in February 2016. 1 She disclosed household income from Citi Trends and Capps Shoes and answered “no” when asked whether anyone in her hous ehold had been fired or laid of f, quit a job, or reduced their work hours since she ap plied for benefits. Sharon Stephens of DSS received t he renewal app lication, ran a check for additional income, and discovered that appe llant had held an unreported jo b since 2014. Stephens telephoned appellant to review the application with her and ask ed appellant about the undisclosed employment. Appellant told Stephens she was no lon ger working at that job. A human resources coordinator for F rito-Lay later testified that appellant had worked for the company from November 2014 until February 2016. Dawn Hankins, DSS’s fraud inves tigator, met with appellant and reviewed with her the 2015 and 2016 renewal applications, the September 2015 interim report, and the November 2015 fuel assistance application. D uring the meeting, appellant ack nowledged reading and understanding the language in t he 2015 renewal application whic h said she could be breaking the law by providing false, incomplet e, or incorrect information. Appellant told Hankins she “might have had a part-time job” tha t started around December 2014, bu t did not report it in February 2015 because she had not known how long she would be working at Frito-Lay. Appellant also told Hankins she did not think she had to report her Frito-Lay income because it did not exceed the income limits for SNAP bene fits. When Hankins asked appell ant about her 2016 renewal application, and whether appell ant had had any employment or in come beyond what she disclosed in that document, appell ant replied that she was not working at the additional job when she completed the application. When Hankins pointed out that t he application asked whether

1 Appellant dated the renew al application February 28, 2015, but later told DSS’s fraud investigator that she must have s tated the year incorrectly bec ause “we had just changed over from one year to the next.” DSS date-stamped the application a s received on March 1, 2016.- 4 - anyone in the household had been l aid off or fired, quit a job, or gone on reduced hours, appellant stated that she “di dn’t know she had to put the job t here.” Hankins told appellant she had failed to disclose her additi onal employment income in the fuel assistance application, and appellant agreed. Hankins testified that the more income appellant had earned, th e fewer benefits she would have been entitled to recei ve. She explained that a qual ifying applicant receives some deductions from their gross monthly income, and their monthly b enefits are then based on that adjusted gross income. Among t he deductions appellant qualifie d for were a standard deduction based on the size of her househol d, as well as shelter and util ity deductions. Hankins testified that appellant also received a 20% earned income deduction from the reported income from Citi Trends and Capps Shoes. She also explained that, as per DSS po licy, unreported income is not eligible for the 20% earned inc ome deduction—“[y]ou don’t get a nything off the top of that [income].” Using appellant’s disclosed income and her pay records from Fri to-Lay, Hankins calculated the amount of benefits overpaid to appellant month b y month and on a cumulative basis. Hankins calculated that appellant received a total over payment of SNAP benefits in the amount of $3,417 and a total fuel as sistance overpayment of $37 .14. 2 During the period covered by appellant’s first indictme nt, from March 1 to August 31, 201 5, appellant received $1,900 in SNAP overpayments. During the period covered by appellant’s se cond indictment, from September 1, 2015 to February 29, 2016, appellant received $1,5 17 in SNAP overpayments.

2 As noted below, Hankins testifi ed at sentencing that an error occurred in the calculation of SNAP benefits due to appellan t in March 2015. When Hankins corrected the error, appellant’s total SNAP benef its overpayment increased by $18, f rom $3,399 to $3,417.- 5 - Cross-Examination and Motion to Strike During cross-examination, counsel f or appellant asked Hankins w hat the impact on appellant’s benefits payments w ould have been if appellant had reported her income from Frito-Lay. Hankins replied that if appellant had reported thos e earnings, they would have been added to the earnings from Citi Trends and Capps Shoes to calcu late appellant’s gross household income. Appellant would have rec eived deductions from that gro ss amount, but because appellant would have had more r eported income, the amount of he r benefits would have decreased. When counsel asked, “[ b]ut that number would have b een the number that she would have been entitled to,” the Co mmonwealth objected, arguing that appellant’s question assumed facts not in evidence and had a lready been testified about. Th e trial court sustained the objection, stating that “it’s . . . not relevant as to what we’ re here on today. . . . The allegation is she failed to report it. You’re trying to say[,] well, if she had, her benefits would have been reduced but only because of twenty percent. It’s irrelevant. It doesn’t matter.” When counsel for appellant asked whether the t rial court was stating that th e amount of the benefits overpayment was irrelevant, the court clarified that it was not . However, the court reiterated that “[i]t’s a hypothetical that doesn’t mean anything. . . . [T]he evidence is that if you don’t report [income] then when they reca lculate it, you do not get the [20% earned income] benefit. . . . It’s a hypothetical that’s irrelevant.” At the close of the Commonwealth ’s case, appellant moved to str ike, arguing that the evidence did not establish that the value of the benefits she i mproperly received was $200 or more. The trial court denied the motion. Appellant was convic ted of two counts of felony welfare fraud, in viol ation of Code § 63.2-522.- 6 - Evidence at Sentencing At the sentencing hearing, Hankins testified that while reviewi ng her calculations, she discovered there had been an error in calculating appellant’s M arch 2015 SNAP benefits and overpayment. She stated that app ellant was eligible to receive a housing deduction that month as well as an adjustment for chil d support received and that neith er the deduction nor the adjustment had been applied. Bas ed upon a recalculation that t ook those matters into account, Hankins stated that appellant’s total overpayment for SNAP bene fits increased by $18. The amount of appellant’s fuel assistance overpayment remained unch anged. Appellant did not objec t to Hankins’ te stimony, but did object to the Commonwealth’s introduction of a one-page documen t she had prepared which summ arized that testimony. The trial court admitted the document over appellant’s objection. Appellant timely appeal ed her convictions.
II. ANALYSIS A. Cross-Examination Appellant argues the trial cour t erred when it did not allow he r to finish cross-examining Hankins about the amount of bene fits she would have received ha d she reported her Frito-Lay income. This curtailment of her cross-examination, appellant c ontends, violated her rights under the Confrontation Clause of the Sixth Amendment. “[W]e review a trial court’s d ecision to admit or exclude testi mony using an abuse of discretion standard.” Jin v. Commonwealth, 67 Va. App. 294, 30 8, 795 S.E.2d 918, 925 (2017) (quoting Commonwealth v. Proffitt, 292 Va. 626, 634, 792 S.E.2d 3, 6 (2016)). “Cross-examination of prosecution witnesses ‘is “fundamental to the truth-finding process and is an absolute right guaranteed to a n accused by the [C]onfrontati on [C]lause of the Sixth Amendment.”’” Id. (quoting May nard v. Commonwealth, 11 Va. App . 437, 444, 399 S.E.2d- 7 - 635, 639 (1990) ( en banc )). However, “‘while the liberti es of the cross-examiner are v ery great,’ they are not unlimited.” Sc ott v. Commonwealth, 18 Va. App. 69 2, 694, 446 S.E.2d 619, 620 (1994) (quoting Barnard v. Commonwealth, 134 Va. 613, 622, 114 S.E. 563, 565 (1922)). “Indeed, the Supreme Court has held that ‘trial judges retain w ide latitude insofar as the Confrontation Clause is concerne d to impose reasonable limits o n . . . cross-examination.’” James v. Commonwealth, 254 Va. 95, 98, 487 S.E.2d 205, 207 (199 7) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Such reasonable limits maybe “based on concerns about, among other things, harassment, pr ejudice, confusion of the iss ues, . . . or interr ogation that is repetitive or only marginally r elevant.” Jin, 67 Va. App. at 3 08-09, 795 S.E.2d at 925 (quoting Van Arsdall, 475 U.S. at 679). “The test establishing relevanc e is not whether the proposed evidence conclusively proves a fact, but whether it has any ten dency to establish a fact at issue.” Holsapple v. Comm onwealth, 39 Va. App. 522, 537, 574 S.E.2d 756 , 763 (2003) ( en banc ) (quoting Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988)). See also Va. R. Evid. 2:401 (“‘Relevant evi dence’ means evidence having any tendency to make the existence of any fact in issue mo re probable or less probable than it would be without the evidence.”). Appellant’s argument is wit hout merit. Any testimony by Hankin s about what appellant’s benefits would have been had she disclosed the inco me would have been purely hypothetical, and thus irrelevant , since no evidence indicated appellant did disclose that income. Further, the evidence at trial was that, as per DSS policy, app ellant was not entitled to a 20% earned income deduction from undisc losed income. Consequently, any testimony by Hankins about the effects of applying that deduction to that income wou ld not have had any tendency to establish the fact in issue, name ly, how much app ellant receive d in benefits overpayments. Because appellant’s question on cro ss-examination was irrelevan t, we conclude that the trial- 8 - court imposed a reasonable limit when it disallowed that questi on and that doing so did not rise to the level of a violation of a ppellant’s Sixth Amendment righ t to confrontation. Accordingly, the trial court did not abuse its discretion by disallowing app ellant’s question on cross-examination. B. Sufficiency Appellant argues the trial cour t erred in denying her motion to strike, because the evidence was insufficient to prov e that she rece ived overpaymen ts of $200 or more, and thus that her offenses were felonies rathe r than misdemeanors. She maint ains that the method DSS used to calculate her overpayments was improper and did not provide the trier of factwith sufficient information to reasonably determ ine the overpayment amounts. When considering a challenge to t he sufficiency of evidence on appeal, “we review the evidence in the light most favor able to the Commonwealth,” the prevailing party at trial, “granting to it all r easonable inferences f airly deducible ther efrom.” Sierra v. Commonwealth, 59 Va. App. 770, 774, 722 S.E.2d 656, 657 (2012) (quoting Arche r v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)). Further, the Court “discard[s] the evidence of the accused in conflict with that of the Commonwealth.” Johnson v. Commonwealth, 53 Va. App. 79, 99, 669 S.E.2d 368, 378 (2008) (quoting Parks v. Commonweal th, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). In conducting our inquiry, “the relev ant question is, after reviewing the evidence in the light most favor able to the [Commonwealth], whe ther any rational trier of fact could have found the essential elements of the crime beyond a r easonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010). “Thi s familiar standard gives full play to the responsibility of the trier of fact fairly to resol ve conflicts in the testimony, to weigh the evidence, and to draw reasonabl e inferences from basic fact s to ultimate facts.” Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (200 3) ( en banc ) (quoting- 9 - Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We do not “sub stitute our judgment for that of the trier of fact,” Wactor v. Commonwealth, 38 Va. App. 375, 38 0, 564 S.E.2d 160, 162 (2002), and “will reverse only where the trial court’s decision is ‘pla inly wrong or without evidence to support it,’” Calloway v. Commonwealth, 62 Va. App. 253, 261, 7 46 S.E.2d 72, 76 (2013) (quoting Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E. 2d 9, 12 (2004)). Code § 63.2-522 provides, in pertinen t part, that “[w]hoever ob tains . . . by means of a willful false statement or r epresentation, . . . public assista nce or benefits from other programs . . . to which he is not entitle d or who fails to comply with t he provisions of [Code] § 63.2-513 is guilty of larceny.” Code § 63.2-513 pr ovides that “[a]ny recip ient who knows or reasonably should know that [a] change in [financial] circumstances will m aterially affect his eligibility for assistance or the amount thereof and willfully fails” to notifyDSS of the change “is guilty of a violation of [Code] § 63.2-522.” 3 The evidence at trial, viewed in the light most favorable to th e Commonwealth and affording it all reasonable, deduc ible inferences, showed that appellant received benefits overpayments of $200 or more during each of the periods covered by her two indictments. DSS’s overpayment calculations r eflect excess SNAP benefits of $1,900 during the period covered by appellant’s first i ndictment, and $1,517 during the period covered by appellant’s second indictment. Further, DSS’ s fraud investig ator testified that while disclosed income is eligible to receive a 20% earne d income deduction for purposes of calculating SNAP benefits, undisclosed income is not eligi ble to receive that deduction. Thus, the evidence directly contradicts appellant’s argument that her undisclosed income sh ould have been treated as

3 Appellant does not challenge the sufficiency of the evidence t hat she made willful false statements or representations t o obtain benefits she was not en titled to, or that she failed to comply with the reporting r equirements of Code § 63.2-513. She challenges only whether, as charged in her indictments, the benefits she received in violat ion of Code § 63.2-522 amounted to $200 or more.- 10 - disclosed income for purposes of calculating her benefit overpa yments. Since a rational trier of fact could have found from the evid ence that appellant received welfare benefits overpayments worth $200 or more during each of the indictment periods, the t rial court’s denial of the motion to strike was neither plainly w rong nor without evidentiary sup port. 4 C. Evidence at Sentencing Lastly, appellant argues that the trial court erred when it adm itted, during the sentencing phase, evidence regarding a reca lculation of appellant’s benefi ts overpayments. “The admissibility of evidence is within the broad discretion o f the trial court, and a ruling will not be disturbed on a ppeal in the absence of an abu se of discretion.” Abdo v. Commonwealth, 64 Va. App. 468, 473, 769 S.E.2d 677, 679 (2015) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). Further, “[w]e ‘will not reverse a trial court for eviden tiary errors that were harmless to the ultimate result.’” Carter v.

4 Appellant advances several additi onal arguments with respect t o the sufficiency of the evidence. She first argues that since neither Code § 63.2-513 nor Code § 63.2-522 specifies whether the offense identifie d in Code § 63.2-522 c onstitutes p etit or grand larceny, and since penal statutes are to be construe d in the light most favorable to defendants, “the charge is limited to a petit larceny.” This argum ent is without merit. Where co nviction under a statute is made larceny, without differentiation a s to grand or petit, it must simply “be read in connection with Code §§ 18.2-95 and 18.2-96 to determin e the degree of larceny. ” Little v. Commonwealth, 59 Va. App. 725, 730, 722 S.E.2d 317, 319 (2012) (discussing larce ny in the context of a conviction for receiving stolen property, in violation of Code § 18.2-108( A), for which a defendant “shall be deemed guilty of larceny”). See also Foster v. Commonwealth, 4 4 Va. App. 574, 577-78, 606 S.E.2d 518, 519-20 (2004) (reviewin g the evolution of larceny a t common law and noting that “[t]he term ‘larceny’ includes both petit and grand grades of the offense”). Appellant further argues that a provision “similar” to Code § 6 3.2-522—Code § 18.2-186.2—“makes the actions [ a]ppellant is accused of . . . misdemeanor[s], without any regard to any amount of overpaid b enefits or assistance receive d.” This argument is without merit. Code § 18.2-186.2 criminalizes the use of false represe ntations or non-disclosures to obtain housing assistance program be nefits. As such, it is inapposite to the instant case. Appellant also argues that the e vidence at sentencing demonstra tes that the overpayment calculations were incorrect and t hat since the distinction betw een felony and misdemeanor convictions depends upon those ca lculations, the Commonwealth f ailed to prove felony offenses beyond a reasonable doubt. This ar gument is also without merit , since the evidence adduced at sentencing affected only the calcu lation of a single month’s SN AP benefits and overpayment and, in fact, increased the total a mount of SNAP overpayments appellant received by $18.- 11 - Commonwealth, 293 Va. 537, 544, 800 S.E.2d 498, 502 (2017) (quo ting Shifflett v. Commonwealth, 289 Va. 10, 12, 766 S.E.2d 906, 908 (2015)). “Un der the harmless error doctrine, if there was ‘a fair trial on the merits and substant ial justice has been reached, no judgment shall be arrested or reversed . . . for any . . . defe ct, imperfection, or omission in the record, or for any error committed on the trial.’” Id. at 545, 800 S.E.2d at 502 (quoting Shifflett, 289 Va. at 12, 766 S.E.2d at 908). See also Code § 8.01-678. “[W]e apply the standard for non-constitutional harmless error , which is that such error is harmless if we can be sure that it did not ‘influence the [trier of fact]’ or had only a ‘slight effec t.’” Carter, 293 Va. at 545, 800 S.E.2d at 502 (quoting Shifflett, 289 Va. at 12, 766 S.E.2d at 908). We first note that while appellan t assigns error to the trial c ourt for “admitting evidence during the sentencing phase[ ] regarding a recalculation of the alleged overpayment,” during sentencing, appellant objecte d only to the admission of the doc ument that summarized Hankins’ recalculations. Appellant did not ob ject to Hankins’ testimonyabout those recalculations. “In order to preserve an issue for appeal, ‘an objection must be ti mely made and the grounds stated with specificity.’” McDu ffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. C ommonwealth, 2 Va. App. 619, 621, 3 47 S.E.2d 167, 168 (1986)). “[A] litigant who opposes the admi ssion of certain evidence has a duty to explain, contemporaneously, why he contends such evidence should be excl uded in order to preserve and challenge that exclusion ruli ng on appeal.” Creamer v. Commonw ealth, 64 Va. App. 185, 195, 767 S.E.2d 226, 231 (2015). See also Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reve rsal unless an objection was stat ed with reasonable certainty at the time of the ruling, except fo r good cause shown or to enable th e Court of Appeals to attain the ends of justice.”). Because appe llant did not object to the ad mission of Hankins’ testimony, she has not preserved the admission of that testimony as an issue f or appellate review. Thus, we- 12 - concern ourselves only with appe llant’s timely objection to the admission of Hankins’ summary document. Assuming, without deciding, that the trial court erred in admit ting Hankins’ document during the sentencing phase, we conclude that any such error wa s harmless. Hankins testified, without objection, to all of the information contained in the d ocument. As the document was merely duplicitous of Hankins’ tes timonial evidence, its admiss ion could have had no more than a slight effect on the trial court as trier of fact.
III. CONCLUSION We hold that the trial court di d not abuse its discretion in curtailing cross-examination. Further, the trial court did not err in denying appellant’s mot ion to strike, as the Commonwealth produced sufficient evidence thatappellant’s benefit overpayme nts exceeded $200. Finally, any error in the admission of a docum ent during appellant’s sentenc ing hearing was harmless. Thus, we affirm the trial court’s j udgment finding appellant guilty o f two counts of felony welfare fraud, in violation of Code § 63.2-522. Affirmed.