COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

HERMAN CEFUS NEWMAN 

 MEMORANDUM OPINION* BY 

v. Record No. 2483-97-4 JUDGE CHARLES H. DUFF 

 OCTOBER 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

Carleton Penn, Judge Designate 

 S. Jane Chittom (Elwood E. Sanders, Jr.; 

Public Defender Commission, on briefs), for 

appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Herman Cefus Newman was convicted in a bench trial of grand 

larceny. On appeal, he contends that the trial court erred by 

admitting into evidence a prior out-of-court identification of 

Newman by a witness where the witness, at trial, testified that 

the thief was not in the courtroom. We conclude that any error 

committed by the trial court was harmless. Therefore, we affirm 

the conviction. 

 I. 

 "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). 

 

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

designated for publication. 
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 So viewed, the evidence proved that Steven Owens saw a man 

remove tools from Franklin Kirby's garage on January 15, 1996. 

Although Owens positively identified Newman as the thief from a 

photographic display, he could not so identify him at trial. 

 Leroy Johnson, David Drone, and George Parsley also 

testified for the Commonwealth. Their testimony established that 

Newman borrowed a car belonging to Johnson's fiancee on January 

15, 1996. Johnson's stepson accompanied Newman. Upon returning 

with the car, Newman told Johnson that they had "some stuff to 

take to sell." Newman, Johnson, and another man then retrieved 

tools from a nearby ditch. Newman and Johnson sold the tools1

 to 

Drone. Parsley, a clerk at a local market, cashed Drone's check 

for Johnson and Newman. Johnson received $10 from the sale of 

the tools, and Newman received the balance. 

 II. 

 In finding Newman guilty of grand larceny, the trial judge 

acknowledged that Owens failed to identify Newman in court 

although Owens had identified him from the photographic display. 

 The judge then stated: "The Court may disregard that and find 

that the Defendant is a principal in the second degree, 

therefore, guilty of grand larceny. The evidence shows that he 

 

 1The tools included an impact power wrench, an electric 

drill, a three-quarter impact wrench, a floor jack, a battery 

charger, a portable air tank, an electric sander, and small hand 

tools. Kirby valued these tools at $685. Johnson testified that 

he and Newman sold "some ratchets and air guns and some loose 

tools" to Drone. Drone paid $120 for the tools. 
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was conjointly in possession of the stolen goods . . . ." 

(Emphasis added.). 

 For purposes of this appeal, we will assume, without 

deciding, that the trial court erred in admitting the evidence of 

Owens's out-of-court identification. That error, however, was 

harmless. 

 In Virginia, non-constitutional error is 

harmless "when 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." Code § 8.01-678 (emphasis added). 

"[A] fair trial on the merits and substantial 

justice" are not achieved if an error at 

trial has affected the verdict. 

Consequently, under Code § 8.01-678, a 

criminal conviction must be reversed unless 

"it plainly appears from the record and the 

evidence given at the trial that" the error 

did not affect the verdict. 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. 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 

911 (1991) (en banc). 

 The trial judge's statements make clear that, even without 

considering the evidence of Owens's out-of-court identification, 

he determined that Newman was guilty as a principal in the second 

degree. The evidence supports that determination. 

 It is well settled that "anyone who knows that personal 

property is stolen and assists in its transportation or 

disposition is guilty of larceny." Moehring v. Commonwealth, 223 
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Va. 564, 568, 290 S.E.2d 891, 892 (1982). Owens saw a man remove 

the tools from Kirby's garage. Later that day, Newman told 

Johnson that they had "some stuff to take to sell." Newman and 

Johnson retrieved the tools from a ditch, and sold them to Drone, 

with Newman receiving the bulk of the proceeds. This evidence, 

viewed in the light most favorable to the Commonwealth with all 

reasonable inferences flowing therefrom, was sufficient to prove 

beyond a reasonable doubt that Newman, at a minimum, knew the 

tools were stolen and assisted in their transportation and 

disposition. 

 Newman, attacking Johnson's credibility, argues that in the 

absence of evidence of Owens's out-of-court identification, no 

credible evidence supports his guilt. We disagree. The trial 

judge believed Johnson's testimony. "The weight which should be 

given to evidence and whether the testimony of a witness is 

credible are questions which the fact finder must decide." 

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 

601 (1986). Johnson's testimony was competent and was not 

inherently incredible. Moreover, his testimony was corroborated 

in part by the testimony of Drone and Parsley. 

 Accordingly, even in the absence of Owens's identification 

evidence, the evidence was sufficient to prove beyond a 

reasonable doubt that Newman was guilty of grand larceny. Thus, 

any error committed by the trial court was harmless. 

 Affirmed.