Chang He Zhen v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
CHANG HE ZHEN
MEMORANDUM OPINION * BY
v. Record No. 2470-97-4 JUDGE NELSON T. OVERTON
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Herman M. Sawyer, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Chang He Zhen (defendant) appeals his convictions for credit
card number fraud, in violation of Code § 18.2-195, credit card
forgery, in violation of Code § 18.2-193, and credit card theft,
in violation of Code § 18.2-192. He contends the trial court
erroneously admitted evidence of (1) pictures of fifty blank
credit cards and (2) information that the United States Secret
Service helped identify the cards and were investigating them.
Because we hold that admitting these facts into evidence was not
reversible error, we affirm.
The parties are fully conversant with the record in the case
and because this memorandum opinion carries no precedental value,
no recitation of the facts is necessary.
"The admissibility of evidence is within the broad
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
Evidence is relevant and initially admissible "if it has any
logical tendency, however slight, to establish a fact at issue in
the case." Taylor v. Commonwealth, 21 Va. App. 557, 563, 466
S.E.2d 118, 121 (1996).
Defendant fraudulently obtained goods with a credit card
bearing his name and a stolen number. In order to show that such
a card could exist, the prosecution needed to prove that blank
cards, cards which do not yet bear numbers but can be
manufactured to bear a stolen number, were possessed by
defendant. Because the cards helped establish the means by which
the fraud was perpetrated, information about them was relevant
and admissible.
Defendant claims the pictures of the cards were inadmissible
because they were evidence of other crimes. He cites the rule of
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970), which is as follows:
The general rule is well established that in
a criminal prosecution, proof which shows or
tends to show that the accused is guilty of
the commission of other crimes and offenses
at other times, even though they are of the
same nature as the one charged in the
indictment, is incompetent and inadmissible
for the purpose of showing the commission of
the particular crime charged. It is also
well established that evidence of other
offenses should be excluded if offered merely
for the purpose of showing that the accused
was likely to commit the crime charged in the
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indictment.
While defendant has stated the rule, he fails to persuade us the
blank cards are governed by it. The cards were offered by the
prosecution to show that defendant committed the crime for which
he was being tried, not "other crimes and offenses at other
times." Id. If these cards were used in past, previously
unconnected crimes, defendant himself is the only one alleging
it. Accordingly, the trial court did not err by admitting
pictures of the cards into evidence.
Defendant also claims that statements made by Officer
Campbell regarding his use of Secret Service facilities were
inadmissible. Officer Campbell made two separate statements
regarding the Secret Service. The first was that he used a
Secret Service "decoder" to read the "mag strips" on the backs of
the cards and a Secret Service camera to photograph them. This
was done so that he could identify the cards and discover what
numbers were encoded, if any.
When a picture has "been properly authenticated by a
qualified witness as a correct representation and reproduction of
the object which it portrayed, its admission in evidence [is]
unobjectionable." State Farm Ins. Co. v. Futrell, 209 Va. 266,
271, 163 S.E.2d 181, 185 (1968) (citing Lawson v. Darter, 157 Va.
284, 160 S.E. 74 (1931)). Officer Campbell was simply describing
the course of investigation and his basis for authenticating the
pictures of the blank credit cards. His testimony on this point
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was necessary for admission of the cards, and it was not error to
accept it.
The second statement made by Officer Campbell was that
"[t]hese credit cards were also being sought after by the Secret
Service in an investigation . . . ." While defendant objected to
the statement, the trial court admitted it into evidence. This
was error. The fact that another law enforcement agency was
concurrently investigating a crime did not "establish a fact at
issue in the case." Taylor, 21 Va. App. at 563, 466 S.E.2d at
121. It was, therefore, irrelevant.
Admission of the statement was not, however, reversible
error. "In Virginia, non-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) (quoting Code § 8.01-678)).
We must reverse a criminal conviction 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 the verdict if we can determine,
without usurping the jury's fact finding
function, that, had the error not occurred,
the verdict would have been the same.
Weller v. Commonwealth, 16 Va. App. 886, 896, 434 S.E.2d 330, 337
(1993) (internal quotations and citations omitted).
The prosecution's evidence against this defendant was
overwhelming. Numerous credit cards and drivers' licenses were
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found with defendant's possessions. Some of these bore his
picture but other names. Others bore different names but his
signature. He was identified by the store owner as the purchaser
of the fraudulently obtained goods, and those goods were found in
a truck he had recently occupied. We cannot conclude that
Officer Campbell's statement regarding the Secret Service
investigation would have had any effect whatsoever on the outcome
of defendant's trial. Therefore, the error was harmless.
Because evidence regarding the credit cards was admissible
and Officer Campbell's testimony was, at worst, harmless, we hold
that there was no reversible error committed in the trial court.
Accordingly, defendant's convictions are affirmed.
Affirmed.
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