Jason N. Creamer v. Commonwealth of Virginia
767 S.E.2d 226
Va. Ct. App.2015Background
- Jason Creamer rented a fully furnished house from Edward Moore under a rent-to-own lease that allowed Creamer to keep furnishings only if he purchased the home; Creamer did not buy the house.
- Moore moved out of state; when he began eviction proceedings in Feb 2012 he found the house largely emptied and reported missing furnishings valued over $2,000.
- Creamer admitted to a sheriff’s officer that he had taken the items but claimed they were "given to him;" Moore and his wife said furnishings were allowed only upon purchase.
- Richard Davis, a friend who had been living in the garage, was charged as a co-defendant; the Commonwealth’s case led to Davis’s motion to strike being granted and he was excused as a defendant but remained in the courtroom.
- During Creamer’s case, Creamer sought to call Davis as a witness; the trial court excluded Davis’s testimony after a brief mid-trial proffer by Creamer; Creamer later made a more detailed post-trial proffer solely to preserve the record for appeal.
- The trial court convicted Creamer of grand larceny; on appeal he argued (1) improper exclusion of Davis, (2) trial court’s refusal to accept the post-trial proffer, and (3) insufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of co-defendant Davis as a witness | Creamer: Davis should be allowed to testify about his actions, statements, and knowledge relevant to ownership/consent | Commonwealth: Davis was present during Commonwealth's case (not sequestered), Creamer cannot use him to impeach Commonwealth witnesses, and proffered testimony was irrelevant | Court: No abuse of discretion — Creamer’s contemporaneous proffer was too vague to show relevance, so exclusion was proper |
| Timeliness/consideration of post-trial proffer | Creamer: Post-trial proffer was made to complete the appellate record and should be considered | Commonwealth: Post-trial proffer was untimely and cannot be used to justify admission mid-trial | Court: Even assuming error in refusing the post-trial proffer for appellate record, any error was harmless; appellate review must be limited to contemporaneous proffers (Shifflett) |
| Sufficiency of the evidence for grand larceny | Creamer: He had Moore’s permission to keep the furnishings (no criminal intent) | Commonwealth: Credible testimony showed permission was conditional on purchase and Creamer admitted taking items | Court: Evidence sufficient — trial court credited Moore and officer; intent and lack of consent proved |
| Failure to preserve/exclusion of other witness (John Lynch) | Creamer: Trial court erred excluding Lynch proffer | Commonwealth: Creamer did not assign error to the exclusion on appeal | Court: Not addressed on the merits; any error harmless or not preserved |
Key Cases Cited
- Beck v. Commonwealth, 253 Va. 373 (Va. 1997) (admissibility of evidence is within trial court's discretion)
- Shifflett v. Commonwealth, 257 Va. 34 (Va. 1999) (post-trial proffers cannot be used to overturn mid-trial admissibility rulings)
- Neal v. Commonwealth, 15 Va. App. 416 (Va. Ct. App. 1992) (burden on proponent to meet foundational requirements and make adequate proffers)
- Carter v. Commonwealth, 280 Va. 100 (Va. 2010) (standard for reviewing sufficiency of the evidence)
- Albert v. Albert, 38 Va. App. 284 (Va. Ct. App. 2002) (proffers must give trial court a fair opportunity to resolve issues and provide an adequate appellate record)