COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

TIMOTHY BARRON JEFFERSON 

v. Record No. 0830-94-2 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA NOVEMBER 7, 1995 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 Edward A. Mann for appellant. 

 Michael T. Judge, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 Timothy Barron Jefferson was convicted in a jury trial of 

credit card theft, Code § 18.2-192, and credit card fraud, 

Code § 18.2-195. Jefferson contends that the trial court erred 

by admitting into evidence the victim's bank credit card 

statement and a letter from the bank to the victim containing the 

personal identification number (PIN) for the credit card. 

Specifically, he argues that the documents are hearsay and do not 

fall within the business records exception. We agree and reverse 

the convictions. 

 In mid-August of 1993, Elgin Myers experienced an 

interruption in mail service after someone filed a change of 

address form with the Blackstone Post Office listing Myers' new 

address as post office box 614 in Blackstone. Myers' mailing 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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address was Route 2, Box 200, Blackstone, Virginia. Kelley 

Rooney, a postal clerk in Blackstone, testified that the 

defendant, Timothy Barron Jefferson, had rented post office box 

614 for approximately two years. Myers testified that he did not 

complete the change of address form and had no intention of 

changing his mailing address. 

 In late September of 1993, Myers received a letter from 

Signet Bank providing him a personal identification number (PIN) 

for Signet Bank Gold MasterCard. The letter was postmarked 

September 24, 1993, and, although delivered by the post office to 

Myers at Route 2, Box 200, it was addressed to "Elgin Myer, POB 

614, Main Street, Blackstone." Myers testified that his Signet 

Bank credit card had expired at the end of August 1993, but that 

he had not received in the mail his new card, as he customarily 

did. 

 Soon after receiving the PIN letter, Myers received a 

monthly credit card statement from Signet Bank that was also 

addressed to him at post office box 614 in Blackstone. The 

statement showed a transaction with "Entrepreneur Group" in the 

amount of $257.75. Myers testified that he did not order items 

from Entrepreneur Group. 

 The trial court admitted the PIN letter and the credit card 

statement into evidence over Jefferson's objection. 

 An extrajudicial statement or writing that is offered "to 

prove the truth of its content" is hearsay. Hanson v. 
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Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992). 

Hearsay is inadmissible unless it falls within "one of the many 

established exceptions to the general prohibition against 

admitting" it. Id.

 The Commonwealth contends, relying upon Walters v. 

Littleton, 223 Va. 446, 450, 290 S.E.2d 839, 841 (1982), that 

both the credit card statement and the PIN letter were offered 

for the non-hearsay purpose of proving that the victim, Elgin 

Myers, had received them. Alternatively, the Commonwealth argues 

that they were admissible under the business records exception to 

the hearsay rule. 

 The Commonwealth's reliance on Walters v. Littleton is 

misplaced. In Walters, the Supreme Court held that the trial 

court erred in refusing to admit medical bills because they were 

not hearsay. Id. at 450-51, 290 S.E.2d at 841. The Court stated 

that the bills' "probative value in showing Walters' damages did 

not depend upon an out-of-court assertion, but upon Walters' 

assertion, based on an adequate foundation, that he received them 

for the services provided him." Id. at 450, 290 S.E.2d at 841 

(footnote omitted). In the present case, however, proof that 

Myers received the statement was irrelevant without proof of the 

facts contained in the statement and PIN letter. The credit card 

statement was offered to prove that someone had made charges on 

Myers' credit card to "Entrepreneur Group," and that the amount 

of the charge was $257.75. Proof of these facts was not only 
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material, but essential to prove the elements of credit card 

theft and credit card fraud. Accordingly, the bank statement and 

PIN letter were offered to prove facts contained in them and, 

therefore, were inadmissible hearsay unless they fell within one 

of the exceptions to the hearsay rule. 

 Virginia follows the modern business records exception. 

Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100, 106 (1975). 

 The business records exception allows the introduction "into 

evidence of verified regular entries without requiring proof from 

the original observers or record keepers." Id. The party 

seeking to introduce the record must provide a "circumstantial 

guarantee of its trustworthiness," either by offering the 

testimony of the employee who received or prepared the record or 

a superior who can testify that the company regularly prepares 

and relies on these records in the transaction of its business. 

See "Automatic" Sprinkler Corp. of Am. v. Coley & Petersen, Inc., 

219 Va. 781, 792-93, 250 S.E.2d 765, 773 (1979). 

 The Commonwealth did not introduce testimony from a Signet 

Bank employee who received or prepared the statement of charges 

or from a superior who could verify that the bank regularly 

prepares these statements and sends PIN notices in its regular 

course of business. Evidence from the person who prepared the 

records or from a person who can verify the procedure for 

creating the record or document provides an indicia of 

trustworthiness and reliability that is the hallmark for 
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admitting hearsay under the business records exception. See Ford 

Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457 (1990) 

(stating that "[t]he entry must be verified by testimony of the 

[employee who received the entry], or of a superior who testifies 

to the regular course of business") (emphasis added). The credit 

card statement and PIN letter that Myers received did not come 

within the business records exception, and, therefore, the trial 

court erred by admitting it. Accordingly, we decide whether the 

error is harmless. 

 "[N]on-constitutional error is harmless '[w]hen it plainly 

appears from the record and the evidence given at the trial that 

the parties have had a fair trial on the merits and substantial 

justice has been reached.'" Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc); see also

Code § 8.01-678. "'[A] fair trial on the merits and substantial 

justice' are not achieved if an error at trial has affected the 

verdict." Lavinder, 12 Va. App. at 1005, 407 S.E.2d at 911. "An 

error does not affect a verdict if a reviewing court can 

conclude, without usurping the jury's fact finding function, 

that, had the error not occurred, the verdict would have been the 

same." Id.

 Proof that someone other than Myers charged over $200 on his 

credit card to Entrepreneur Group was not only material, but was 

essential to prove the fraudulent use of Myers' credit card and 

the amount charged to the card. The bank statement was the only 
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proof that someone had made a fraudulent charge. Moreover, the 

information in the statement, including the address, along with 

the books from Entrepreneur Group found in the defendant's 

possession, tended to prove that the defendant made the charge. 

On this record, the bank statement was essential to prove several 

elements of the offenses; therefore, the inadmissible hearsay 

necessarily affected the verdict. 

 We reverse the defendant's convictions and remand this case 

for a new trial if the Commonwealth be so advised. 

Reversed and remanded.