COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Agee and Senior Judge Overton 

Argued at Alexandria, Virginia 

ERIC KEYS 

 MEMORANDUM OPINION* BY 

v. Record No. 0136-01-4 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 12, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Robert W. Gookin for appellant. 

 Susan M. Harris, Assistant Attorney General 

(Randolph A. Beales, Attorney General, on 

brief), for appellee. 

 Eric Keys was convicted by a jury of conspiracy to commit 

grand larceny, in violation of Code § 18.2-22, and of four counts 

of grand larceny, in violation of Code § 18.2-95. On appeal, he 

contends that the trial court erred in failing to conduct a Weimer

hearing to determine whether the Commonwealth's cross-examination 

of a character witness was proper. See Weimer v. Commonwealth, 5 

Va. App. 47, 54-55, 360 S.E.2d 381, 384-85 (1987). Because he did 

not raise the Weimer hearing issue at trial, Keys is barred by 

Rule 5A:18 from asserting that issue on appeal. We affirm the 

judgment of the trial court. 

 

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

designated for publication.
I. BACKGROUND

A. OFFENSES

 Eric Keys sold upscale shoes at Nordstrom's department 

store at Pentagon City Mall until leaving on September 8, 1998, 

to work at Saks Fifth Avenue. Together with two co-workers, Ian 

Davis and Michael Coates, Keys fraudulently extracted money from 

Nordstrom's, using false merchandise returns and check cards. A 

check card is a declining balance debit card that is tied to a 

checking account. A return using a check card "looks like a 

credit which is a deposit or reversal" to the account. 

 Keys provided Davis and Coates account number information 

and expiration dates relating to bank accounts belonging to 

Keys, LeAndrew C. Randolph, and David Page, Jr. With this 

information, Keys, Davis, and Coates created false return 

transactions. They obtained SKU numbers, department class, and 

price information from merchandise price tags on the sales 

floor. When no one was watching, they entered this merchandise 

information into cash registers and keyed the merchandise as 

returns. When a return transaction was complete, a hard and 

soft copy of the transaction was generated. The hard copy was 

placed in the return bin of the cash register and the soft copy 

was kept by whoever had entered the transaction. 

 A security videotape taken on August 24, 1998, showed Keys 

at a cash register with no customer or merchandise present. He 

manually entered a price, department, and credit card number. 

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He did not imprint a credit card nor did he have a customer sign 

a return slip. He then placed a return slip in the cash 

register and put the soft copy in his pocket. 

 Coates received one third of the money he stole by making 

such false returns. Davis received half of the amounts he 

stole. The rest went to Keys. At Keys' direction after he left 

Nordstrom's, Davis and Coates continued to key false merchandise 

returns. 

B. TRIAL

 A grand jury indicted Keys for conspiracy to commit grand 

larceny, in violation of Code § 18.2-22 and four counts of grand 

larceny, in violation of Code § 18.2-95. During his jury trial, 

Keys did not testify, but called two character witnesses, one of 

whom was his sister, Rhea Flanders. 

 Flanders testified that Keys was thoughtful and had done 

very well at Nordstrom's. She further testified, "I think it is 

important for the jury to know how he took his job and his 

responsibilities very seriously. And that's very important in 

this case, because they talked about his employment and his 

record of employment." Continuing, Flanders said that Keys went 

to Saks to pursue other opportunities and because he thought 

that he had done all he could do. 

 The trial court sustained the Commonwealth's hearsay 

objection and warned defense counsel: "Mr. Stafford [Keys' 

attorney], you're opening up an area on rebuttal. I hope you 

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are aware of that." Mr. Stafford continued questioning 

Flanders, and she explained that Keys was much involved with his 

family, particularly with their mother while she was ill "during 

the last four years" and with helping her and her husband. 

 Prior to cross-examination, the Commonwealth requested a 

sidebar. The following colloquy ensued: 

MR. LYNCH [PROSECUTOR]: Your Honor, Mr. 

Stafford has put on evidence of his client's 

good character. 

THE COURT: It sure sounds like it to me. 

MR. LYNCH: He said he's punctual. He said 

that he took his job seriously. The 

implication is that he takes his job so 

seriously he wouldn't steal. And she said 

he's a good person and cares about his 

family. 

Before I ask her if she knows anything about 

his previous convictions for fraud, I just 

wanted to clear it through you. 

THE COURT: Haven't you put his character in 

issue? 

MR. STAFFORD [KEYS' ATTORNEY]: No, I have 

not. 

THE COURT: Well, tell me why not. Tell me 

why that does not go to character. 

MR. STAFFORD: Simple, Your Honor. We are 

talking about how busy he is. 

THE COURT: What is character? 

MR. STAFFORD: Character is whether you have 

a good character for telling the truth -- 

THE COURT: No. No. No. No. 

MR. STAFFORD: Character is -- 

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THE COURT: You're talking about -- don't 

get it confused with truth and veracity. 

Reputation for truth and veracity is not the 

same thing as character. 

And you have put his character in issue. I 

warned you about that, and you persisted. I 

think you opened it up. 

Character is what you are. Reputation is 

what people think you are. And there is a 

difference. 

You've established one witness's reputation 

for truth and veracity correctly. But then 

you've gone and put his character in issue. 

MR. STAFFORD: I don't think that I have put 

his character in issue. 

THE COURT: Your exception is noted for the 

record. 

(Emphasis in original.) 

 The Commonwealth cross-examined Flanders about her 

knowledge of Keys' prior convictions of offenses involving 

fraud. Keys objected regarding the lack of specificity in the 

questions. His objection was sustained. He objected to a 

question on the ground that it was not "pertinent." The trial 

court admonished the Commonwealth to be "specific." The 

Commonwealth rephrased the question more specifically. Keys 

lodged no further objection. At no point did Keys request the 

hearing specified in Weimer. At no point did he challenge the 

accuracy of the events as to which the Commonwealth 

cross-examined Flanders. Keys was convicted on all counts. He 

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was subsequently sentenced to a total term of twenty years in 

prison. 

II. ANALYSIS

 On appeal, Keys contends that the trial court erred in 

failing to conduct a Weimer hearing. In Weimer, the Commonwealth 

sought to cross-examine a witness, who had testified to the 

defendant's good character, concerning her knowledge of earlier 

occasions of the defendant's misconduct. The defendant objected, 

asserting the inaccuracy of the cross-examination. We held that 

under those circumstances, to avoid the opening of "'a veritable 

Pandora's box of irresponsible gossip, innuendo, and smear,'" the 

trial court "should conduct a preliminary inquiry out of the 

presence of the jury in order to satisfy himself: 

1. that there is no question as to the fact 

of the subject matter of the rumor, that is, 

of the previous arrest, conviction, or other 

pertinent misconduct of the defendant; 

2. that a reasonable likelihood exists that 

the previous arrest, conviction or other 

pertinent misconduct would have been bruited 

about the neighborhood or community prior to 

the alleged commission of the offense on 

trial; 

3. that neither the event or conduct nor 

the rumor concerning it occurred at a time 

too remote from the present offense; 

4. that the earlier event or misconduct and 

the rumor concerned the specific trait 

involved in the offense for which the 

accused is on trial; and 

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5. that the examination will be conducted 

in the proper form, that is: "Have you 

heard," etc., not "Do you know," etc. 

And if the conclusion is reached to allow 

the interrogation, the jury should be 

informed of its exact purpose. 

Weimer, 5 Va. App. at 54-55, 360 S.E.2d at 381, 384-85 

(citations omitted). 

 Rule 5A:18 provides, in relevant part: 

[n]o ruling of the trial court . . . will be 

considered as a basis for reversal unless 

the objection was stated together with the 

grounds therefor at the time of the ruling, 

except for good cause shown or to enable the 

Court of Appeals to attain the ends of 

justice. 

 Keys neither challenged the accuracy of the 

cross-examination nor requested a Weimer hearing. He objected 

only to the lack of specificity in the questions regarding the 

prior convictions. Thus, he failed to preserve this issue for 

appeal. Rule 5A:18. The evidence reflects no miscarriage of 

justice or other good cause justifying an exception to the 

operation of the rule. 

 The judgment of the trial court is affirmed. 

 Affirmed.

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