COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

JOHNNY LUNDY 

 MEMORANDUM OPINION* BY 

v. Record No. 3194-96-1 JUDGE WILLIAM H. HODGES 

 NOVEMBER 25, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Thomas L. Watkins, Deputy Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Johnny Lundy, appellant, was convicted of grand larceny. 

On appeal, appellant asserts that the trial court erred in 

admitting a document into evidence. Appellant also argues that 

the evidence was insufficient to prove that he committed grand 

larceny. For the following reasons, we affirm appellant's 

conviction. 

Facts

 On November 3, 1995, at about 3:00 or 4:00 p.m., power tools 

were stolen from the victim's van. The stolen tools consisted of 

a Makita table saw, a Roybi chop saw, a Hitachi chop saw, two 

Craftsman routers, a Roll Air air compressor, four Makita drills, 

and two Pass Load nail guns. 

 

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

designated for publication. 
 2 

 

 Jeffrey Knight testified that, at about 5:00 or 6:00 p.m., 

on November 3, 1995, appellant asked Knight to sell some tools to 

a pawn broker for him. Knight had never met appellant before 

this incident. Knight accompanied appellant to Gene Daniels' 

auction house where they pawned five or six "electric" items, 

including "some drills" and a "hand planer." 

 The Commonwealth showed Knight Commonwealth's Exhibit 1, a 

document containing a "Gene Daniels" logo, the number "5467," 

"Page 1," and dated "11-3-95." Knight testified that Exhibit 1 

contained a list of the items that appellant asked him to pawn 

and that it contained Knight's signature. Knight could not 

identify Commonwealth's Exhibit 3, a document containing the same 

"Gene Daniels" logo, "Page 2," a list of power tools, and the 

partial handwritten number "5_67."1

 Gene Daniels, the owner of an auction house, testified that 

he purchased some tools from Knight and appellant on November 3, 

1995. Daniels testified that Exhibit 1 contained both his 

handwriting and the handwriting of one of his employees, but he 

could not identify which employee. Daniels also testified that 

Exhibit 3 contained handwriting from "the same person" who wrote 

Exhibit 1 and that the exhibits "go together" because Exhibit 1 

"says continued on Page 2."2

 Daniels stated, "Each document is 

 1Exhibit 3, as submitted in the record for appeal, has a 

hole punched through the handwritten number, so that the number 

"5_67" appears on the exhibit. 

 2Exhibit 1 actually says "Content on Page 2" near the bottom 

of the document. 
 3 

numbered; and 5467, if you go to the next page, we write that at 

the top of the page." Included in the listing on the two 

exhibits were the same type of tools described by the victim and 

made by the same manufacturers. 

 Daniels also testified that he had previously purchased 

tools from appellant which the police had confiscated from 

Daniels concerning another case. A few days to a week before 

November 3, 1995, Daniels advised appellant that he would not 

purchase tools from him until that matter was "straightened out." 

Admissibility of Exhibit 3

 At his trial, appellant objected to the admissibility of 

Exhibit 3, arguing that Daniels could not identify the 

handwriting on the document and that there was never "any 

identification of [Exhibit 3] being related to the first page 

[Exhibit 1]." The trial judge overruled appellant's objection 

and admitted Exhibit 3 into evidence. 

 In his brief, appellant argues that Exhibit 3 contained 

hearsay and that the Commonwealth failed to qualify the document 

under the business records exception to the hearsay rule. 

However, at trial, appellant did not make a hearsay objection or 

make a business records argument to the trial court concerning 

the admissibility of Exhibit 3. The Court of Appeals will not 

consider an argument on appeal which was not presented to the 

trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 

405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Therefore, Rule 
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5A:18 bars our consideration of these arguments on appeal. 

Moreover, the record does not reflect any reason to invoke the 

good cause or ends of justice exceptions to Rule 5A:18. 

 Appellant also argues that Exhibit 3 was not admissible 

because it was not properly identified by Daniels, the auction 

house owner. "Before any writing may be introduced into 

evidence, it must be authenticated, 'which is the providing of an 

evidentiary basis sufficient for the trier of fact to conclude 

that the writing came from the source claimed.'" Ragland v. 

Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675, 679 (1993) 

(citation omitted). "Authentication is merely the process of 

showing that a document is genuine and that it is what its 

proponent claims it to be." Owens v. Commonwealth, 10 Va. App. 

309, 311, 391 S.E.2d 605, 607 (1990). 

 Concerning the authenticity of Exhibit 3, the Commonwealth 

presented direct evidence as to the origin and execution of the 

document and testimony as to the genuineness of the handwriting 

on the document. See Jackson v. Commonwealth, 13 Va. App. 599, 

602, 413 S.E.2d 662, 665 (1992). Daniels, the owner of the 

auction house, testified that he recognized Exhibit 1 and that 

the document contained both his own handwriting and the 

handwriting of one of his employees. "'If direct testimony of 

the authorship of a writing . . . is given, this is sufficient 

authentication . . . . The writing . . . comes in, if not 

otherwise objectionable.'" Id. at 603, 413 S.E.2d at 665 
 5 

(citation omitted). Daniels also stated that Exhibits 1 and 3 

"go together"; that it was the practice at his business to 

continue onto another page when listing numerous items; that they 

would write the ticket number from the first page onto the second 

page when needed; and that Exhibit 3 had the same number, "5467," 

as Exhibit 1. He testified that Exhibit 1 indicated that the 

document was continued onto a page two and that the items listed 

were the items brought into the store by appellant and Knight on 

November 3, 1995. Thus, the evidence established that Exhibit 3 

was "'what its proponent claims it to be.'" Id. (citation 

omitted). 

 Further, Exhibit 1 was authenticated by Knight's testimony 

that Exhibit 1 contained a list of the items that he and 

appellant sold to Daniels. It also contained Knight's signature. 

 "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). 

From Daniels' testimony, and from the fact that both exhibits 

appear to contain the same handwriting, the two documents were 

sufficiently linked so that the authenticity of Exhibit 3 was 

established. Cf. Washington v. Commonwealth, 228 Va. 535, 550, 

323 S.E.2d 577, 587 (1984) ("If the exhibit has a unique 

characteristic by which it may be identified and distinguished 

with reasonable certainty from others of its kind, identification 
 6 

by that characteristic is sufficient proof of authenticity."). 

Therefore, the trial court did not err in admitting Exhibit 3 

into evidence. 

Sufficiency of the Evidence 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 Appellant contends that, because only "some" of the items 

connected with him were similar to items taken from the victim, 

the evidence was insufficient to find that he was in exclusive 

possession of recently stolen property and was, therefore, guilty 

of the theft of the property. However, "[w]hen an accused is 

found in possession of goods of a type recently stolen, strict 

identity of the goods is not required." Henderson v. 

Commonwealth, 215 Va. 811, 812-13, 213 S.E.2d 782, 783 (1975). 

 "'It is not necessary that the identity of 

stolen property should be invariably 

established by positive evidence. In many 

such cases identification is impracticable, 

and yet the circumstances may render it 

impossible to doubt the identity of the 

property, or to account for the possession of 

it by the accused upon any reasonable 

hypothesis consistent with his innocence.'" 

Id. at 813, 213 S.E.2d at 783 (citation omitted). 

 The evidence proved that appellant possessed certain power 

tools that were goods of the same distinctive types as those 

stolen from the victim and that appellant possessed this unique 
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combination of tools within two hours of the theft. Further, 

appellant approached a complete stranger to assist him in pawning 

the tools. Moreover, the owner of the auction house had advised 

appellant that he would not purchase tools from him because prior 

purchases were under police investigation. Considered together, 

these circumstances support an inference that the drill, nail 

gun, compressor, and two routers pawned by appellant and Knight 

were tools stolen from the victim. "It is immaterial that the 

quantity of goods possessed was less than the quantity stolen and 

charged in the indictment, for the fact-finder 'may infer the 

stealing of the whole from the possession of part.'" Id. at 813, 

213 S.E.2d at 784 (citation omitted). From the evidence of 

appellant's recent possession of the stolen items, the fact 

finder could also reasonably infer that appellant stole the 

items. See Bright v. Commonwealth, 4 Va. App. 248, 251, 356 

S.E.2d 443, 444 (1987). Therefore, the evidence was sufficient 

to prove beyond a reasonable doubt that appellant committed grand 

larceny. 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.
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Benton, J., concurring and dissenting. 

 I agree that the trial judge did not err in admitting 

Commonwealth's Exhibit 3 into evidence. I dissent, however, from 

that portion of the majority opinion holding that the evidence 

was sufficient to support the conviction. 

 "[W]here, as here, a conviction is based on circumstantial 

evidence, 'all necessary circumstances proved must be consistent 

with guilt and inconsistent with innocence and exclude every 

reasonable hypothesis of innocence.'" Garland v. Commonwealth, 

225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. 

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "It 

is not sufficient that the evidence create a suspicion of guilt, 

however strong, or even a probability of guilt, but must exclude 

every reasonable hypothesis save that of guilt." Webb v. 

Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). See

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 

(1981) ("Suspicion, however, no matter how strong, is 

insufficient to sustain a criminal conviction."). Thus, the 

evidence must "establish . . . guilt beyond a reasonable doubt." 

Webb, 204 Va. at 34, 129 S.E.2d at 29. Because the evidence in 

this case fails to prove beyond a reasonable doubt that Johnny 

Lundy possessed the items stolen from William Monroe, I would 

reverse the conviction. 

 Although, "possession of goods recently stolen is prima

facie evidence of guilt [of the crime of larceny]," Fout v. 
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Commonwealth, 199 Va. 184, 190-91, 98 S.E.2d 817, 821-22 (1957), 

the evidence must prove that the items were in fact stolen. 

Thus, the victim must identify in some way the items recovered as 

those that were stolen. In this case, the articles that were in 

Lundy's possession shortly after the theft were not sufficiently 

identified as the articles stolen from Monroe. 

 Where the articles are not sufficiently identified, the 

evidence is insufficient to convict the defendant of larceny. 

Barnett v. Commonwealth, 210 Va. 348, 349, 170 S.E.2d 760, 761 

(1969). In Barnett, the evidence proved that the defendant was 

in the vicinity of the victim's home on the day of the theft and 

that he was "in possession of articles meeting the general 

description of those stolen from [the victim]." Id. The 

Commonwealth introduced some of the stolen items at trial. 

"Although [the victim] took the stand, he did not identify any of 

those articles or even express an opinion whether they belonged 

to him. So the person who was in the best position to prove the 

Commonwealth's case or to acquit [the defendant] gave no 

testimony on this crucial issue." Id. Thus, the victim's 

unexplained failure to make an identification made the evidence 

insufficient to support the conviction. See also Griffith v. 

Commonwealth, 213 Va. 50, 51, 189 S.E.2d 366, 367 (1972) (holding 

that while the actions of the defendant "were suspicious," the 

evidence in total was not sufficient to prove beyond a reasonable 

doubt that the goods the defendant was seen carrying near the 
 10 

victim's apartment were the goods which had been stolen). 

 The majority relies on Henderson v. Commonwealth, 215 Va. 

811, 213 S.E.2d 782, (1975), where the Supreme Court of Virginia 

held that "when an accused is found in possession of goods of a 

type recently stolen, strict proof of identity of the goods is 

not required." 215 Va. at 813, 213 S.E.2d at 783. Relying on 

Kelly v. Commonwealth, 181 Va. 576, 26 S.E.2d 63 (1943), and 

Gravely v. Commonwealth, 86 Va. 396, 10 S.E. 431 (1889), the 

Court held that under the circumstances proved in Henderson, 

there was "no room for reasonable doubt" that the goods the 

defendant possessed were the goods stolen. 215 Va. at 813, 213 

S.E.2d at 783. However, the Supreme Court in Barnett

distinguished Kelly, 181 Va. at 578, 26 S.E.2d at 64 (involving 

larceny of clothing whose labels had been removed), and Gravely, 

86 Va. at 396, 10 S.E. at 432 (involving burglary of flour, meal, 

and eggs), because "[t]he stolen articles in those cases were not 

capable of specific identification." Barnett, 210 Va. at 349-50, 

170 S.E.2d at 761. 

 In this case, Monroe testified that several of his carpentry 

tools had been stolen from his van. Monroe listed the names and 

manufacturers of each of the tools stolen. These articles 

included a table saw, two chop saws, two routers, an air 

compressor, a finish nail gun, and four drills, two or which were 

cordless. 

 Jeffrey Knight testified that Lundy gave him fifteen dollars 
 11 

to pawn several items at the pawn shop because Lundy did not have 

identification with him. Knight testified that Lundy gave him 

five or six items to pawn, including some electric drills and a 

hand planer. At trial, Commonwealth's Exhibits 1 and 3 listed 

the items that had been purchased by the pawn shop. The list on 

Exhibit 1 included two rotary hammers, a power planer, a hammer 

drill, and two drills. Exhibit 3 listed a table saw, a miter 

saw, a drill, two routers, a plane, a circular saw, and an air 

compressor. The serial numbers and model numbers, as well as the 

manufacturers of the tools, were also listed. 

 Although some of the items pawned by Knight for Lundy were 

similar in a general description to some of the items Monroe 

testified were stolen from him, the evidence did not further 

identify the pawned tools as belonging to Monroe. These items 

were not such that they could not be specifically identified. 

Furthermore, "[t]here is no suggestion that [Monroe] could not 

have specifically identified any of the articles." Barnett, 210 

Va. at 349, 170 S.E.2d at 761. The Commonwealth did not produce 

the items, or pictures of the items, at trial for Monroe to 

identify. The Commonwealth did not match the serial numbers, 

model names, or model numbers of the items recovered with the 

items Monroe listed as missing. Monroe never identified the 

items listed on Exhibit 1 or 3 as his. Nowhere in the record 

were the tools identified as being the tools stolen from Monroe. 

 Under these facts, "there exists a serious void in the 
 12 

proof, filled only with the suspicion that the defendant may have 

been the guilty agent; and suspicion is never enough to sustain a 

conviction." Simmons v. Commonwealth, 208 Va. 778, 783, 160 

S.E.2d 569, 573 (1968). The evidence is insufficient to prove 

beyond a reasonable doubt that Lundy possessed items belonging to 

Monroe. Therefore, I dissent.