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Gilliam v. Commonwealth

Court of Appeals of Virginia

December 3, 2013

ALFRED GILLIAM, JR.
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge.

J. Barry McCracken, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Alston, McCullough and Senior Judge Clements Argued at Chesapeake, Virginia

MEMORANDUM OPINION [*]

ROSSIE D. ALSTON, JR. JUDGE

Alfred Gilliam, Jr. (appellant) appeals his convictions for burglary in violation of Code § 18.2-91, possession of burglarious tools in violation of Code § 18.2-94, petit larceny third or subsequent offense, in violation of Code §§ 18.2-96 and -104, and damage of property over $1, 000 in violation of Code § 18.2-137. On appeal, appellant alleges that the trial court "erred in admitting hearsay testimony as to the cost of repairs to correct damage to the house, such testimony being offered for the truth of the assertion and not being otherwise admissible under any recognized exception to the hearsay rule." We hold that the testimony as to the cost of repairs to correct the damage to the house was inadmissible hearsay and therefore, we reverse appellant's conviction for damage of property over $1, 000 in violation of Code § 18.2-137 and remand to the trial court for a new trial on misdemeanor property damage, should the Commonwealth be so advised.

I. Background[1]

Gene Gillespie was the caretaker of the subject property located at 1742 Willow Drive in Norfolk, Virginia in 2012 ("the property"). Gillespie went by the property, owned by Norfolk Collegiate School, as part of his regular daily routine. On February 7, 2012, Gillespie visited the property and did not notice anything out of the ordinary or missing. There were no repairs being done to the house at the time and therefore no tools or workers were on the premises. On February 8, 2012, a concerned neighbor called the police to report an apparent burglary at the property. Officers Apollo Lopez and Michael Evens responded to the scene and called for backup. Officer John Torres, a K-9 unit officer also responded. When the officers entered the property they found appellant standing on top of a toilet in one of the bathrooms. The officers then observed a bag of tools and copper and saw that the hot water heater had been removed. The officers arrested appellant at that time. After appellant's arrest, Norfolk detective Kevin Barnes arrived at the property and went through the house. Detective Barnes noted that the front door had been kicked in, the hot water heater had been removed, and observed two bags filled with various tools, copper piping, and some clothing in the house.

A grand jury indicted appellant for burglary in violation of Code § 18.2-91, possession of burglarious tools in violation of Code § 18.2-94, grand larceny in violation of Code § 18.2-95, petit larceny, third or subsequent offense, in violation of Code §§ 18.2-96 and -104, and damage of property over $1, 000 in violation of Code § 18.2-137. A bench trial commenced on May 2, 2012, during which the Commonwealth called Gillespie to testify to the cost of repairs to the property. On direct examination, Gillespie testified that the cost of repairs to the property was $3, 000; however he did not then testify how he knew the costs of those repairs. When questioned further on cross-examination, Gillespie testified as follows:

Q You didn't over see it yourself. Someone else did?
A The repairs?
Q Right.
A I get calls of what repairs need to be done, but the management ...

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