COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Fe lton and Senior Judge Annunziata ∗ Argued at Alexandria, Virginia

CLIFFORD WHEELER OPINION BY v. Record No. 2241-03-4 JUDGE ROSEMARIE ANNUNZIATA JANUARY 11, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Randy I. Bellows, Judge Mark J. Yeager for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Clifford Wheeler was convicted on one count of possession of heroin in violation of Code § 18.2-250 1 and one count of possession of stolen stoc k certificates with a value in excess of $200 in violation of Code §§ 18.2-108, 18.2-95. Wheeler contends on appeal that stock certificates have no intrinsic valu e and, therefore, that he was wrongfully convicted of possessing stolen property with a va lue in excess of $200. Finding no error, we affirm. I. Background Applying established principles of appella te review, we review the evidence and all reasonable inferences that may be drawn from th e evidence in the light most favorable to the Commonwealth as the party prevaili ng below. Garcia v. Commonwealth , 40 Va. App. 184, 189,

∗ Judge Annunziata participated in the hear ing and decision of this case prior to the effective date of her retirement on Decembe r 31, 2004 and thereafter by her designation as a senior judge pursuant to Code § 17.1-401.

1 Wheeler’s conviction on this charge is not chal lenged in this appeal.- 2 - 578 S.E.2d 97, 99 (2003). So viewed, the record establishes that Wheeler was found in possession of stolen stock certificates on Sept ember 22, 2000. They were original stock certificates owned by Abbas Bashir-Elahi. Bashir-Elahi testified at trial that the certificates, establishing his ownership of 700 shares of stock, had a valu e of approximately $21,000 on the date of the theft, August 29, 2000, and that he woul d seek to receive that amount in any sale of the certificates. The value of the stock certificates was admitted without objection. Wheeler was convicted as ch arged. This appeal followed. II. Analysis Wheeler contends that he was erroneously c onvicted because stock ce rtificates have no intrinsic value. Wheeler acknowledg es that he failed to raise th is issue in the court below. Under Rule 5A:18, his claim is, therefore, defaul ted. Wheeler contends, however, that we should apply the “ends of justice” exception to Rule 5A:18 because he would be the victim of a miscarriage of justice if hi s conviction were allowed to stand. We disagree. The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingl y. Michaels v. Commonwealth , 32 Va. App. 601, 608, 529 S.E.2d 822, 826 (2000). Application of the ends of justice exception requires proof of an error that was “clear, substantial and material .” Brown v. Commonwealth , 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). “The record ‘must affirmatively show that a miscarri age of justice ha s occurred, not that a miscarriage might have occurred.’” Akers v. Commonwealth , 31 Va. App. 521, 528 n.2, 525 S.E.2d 13, 16 n.2 (2000) (quoting Redm an v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)). Copeland v. Commonwealth , 42 Va. App. 424, 442, 592 S.E.2d 391, 399 (2004). “In order to show that a miscarriage of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense.” Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272-73 (1997). Rath er, the “appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must- 3 - affirmatively prove that an element of the offense did not occur.” Id. at 222, 487 S.E.2d at 273. Therefore, “[i]n examining a case for miscarriag e of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense.” Lewis v. Commonwealth , 43 Va. App. 126, 134, 596 S.E.2d 542, 546 (2004). First, we are not persuaded by Wheeler’s co ntention that he suffered a miscarriage of justice because stock certificates, as a matter of law, have no intrinsic value. In a case involving the unlawful conversion of stoc k certificates deposited at a bank as security for a $12,500 promissory note, the United States Supreme Court stated: Stock certificates are a peculiar kind of property. Although not negotiable paper, strictly sp eaking, they are the basis of commercial transactions large and sm all, and are frequently sold in open market as negotiable securi ties are. In Bank v. Lanier , [78 U.S. 369, 377,] 11 Wall. 369, 377, 378 [(1871)], this court said: “Stock certificates of all kinds ha ve been constructed in a way to invite the confidence of business men, so that they have become the basis of commercial transactions in all the large cities of the country, and are sold in open market the same as other securities. Although neither in form or char acter negotiable paper, they approximate to it as nearly as pr acticable. . . . Whoever in good faith buys the stock, and produces to the corporation the certificates, regularly assigned, with power to transfer, is entitled to have the stock transferred to him.” These principles are well known to business men and are constantly acted upon by them. Nat’l Safe Deposit, Sav. & Trust Co. v. Hibbs , 229 U.S. 391, 394-95 (1913). Guided by the reasoning set forth in Hibbs , we conclude as a matter of law that stock certificates can have significant value and are readily transferable on “the open market the same as other securities.” Second, the record does not affirmatively show that a miscarriage of justice occurred. To the contrary, the record affirma tively shows that the Commonwealth established the value of the stock certificates at approximately $21,000. It is well established that “[t]he opinion testimony- 4 - of the owner of the stolen item generally is comp etent and admissible on the issue of the value of that property.” Parker v. Commonwealth , 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997). Thus, the trial court had credible evidence from which it could rationally conclude that the stock certificates had a value in excess of $200, sa tisfying the requirements of Code §§ 18.2-108 and 18.2-95 for conviction of grand la rceny by receipt of stolen goods. Finally, this Court’s deci sion in Owolabi v. Commonwealth , 16 Va. App. 78, 428 S.E.2d 14 (1993), has no bearing on our determination that st ock certificates can have significant value. In Owolabi , the defendant was charged with and convi cted of grand larceny for fraudulently obtaining credit cards with lines of credit in excess of $200. Id. at 79, 428 S.E.2d at 14-15. We reversed the conviction because the Commonwealth presented no evidence of the value of the credit cards. Id. at 80, 428 S.E.2d at 15. Here, the eviden ce at trial establis hed that the stock certificates had a value in excess of $200. Thus, Owolabi is inapposite. For the reasons stated, we affirm Wheeler’s conviction. Affirmed.