Opinion
Record No. 1925-92-4
Decided: June 21, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Donald Hall Kent, Judge
Affirmed.
Steve Y. Yun (Ilryong Moon; Moon, Park Associates, on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton, and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On this appeal, Seung Jai Lim contends that his conviction should be reversed and that he is entitled to a new trial because the trial judge failed to rule timely on the statement of facts and objections to the statement as required by Rule 5A:8(d). For the reasons that follow, we affirm the conviction.
The record establishes that at a bench trial the trial judge convicted Lim of larceny by concealment of merchandise valued in excess of $200 in violation of Code Sec. 18.2-103. The trial judge sentenced Lim to ninety days in jail. See Code Sections 18.2-104 and 18.2-10(e). Lim's counsel timely filed a statement of facts. The Commonwealth filed its objections to the statement of facts. After those filings, the trial judge held a hearing concerning the statement of facts and objections. However, the trial judge did not enter an order approving the submitted statement of facts and did not otherwise prepare a statement of facts. See Rule 5A:8(d).
Lim appealed to this Court and raised several issues, including the trial judge's failure to sign the statement of facts in a timely manner. He asked that the conviction be vacated. This Court remanded the case to the trial judge for appropriate action as required by Rules 5A:8(c) (2) and (d). On remand, the trial judge gave notice to counsel that he intended to enter a statement of facts and attached to the notice a copy of the proposed statement of facts. Although Lim filed objections, the trial judge entered the statement of facts, entitled "corrected statement of facts," that was attached to the notice. Lim then filed a motion in this Court to set aside the corrected statement of facts. This Court granted this appeal with respect to the statement of facts issue.
Lim argues that because the trial judge said that he could not recall the facts of the case, the trial judge could not have properly entered the statement of facts. Upon a comparison of the statement that Lim proposed and the statement that the trial judge entered, we find no reversible error.
Lim first contends that the recitation in the statement that "[t]he Court requested that [Lim] order a transcript" is incorrect. Even if that statement is incorrect, that statement is immaterial to any issue that is to be reviewed on appeal. The error, if any, is clearly harmless.
Lim also argues (1) that the recitation "the sales price of the Sony Discman was $269.99" should have read "a brand new Sony Discman" sold for $269.99; and (2) that the statement of facts should have contained a recitation that "there was no testimony as to how much the customers would have to pay for display items."
The trial judge had specific and conflicting representations by Lim and the Commonwealth concerning the security guard's testimony and the fact that Lim objected to that testimony. The parties presented both sides of that issue, which was not a complicated matter to resolve. We conclude that the trial judge could have resolved that dispute and obtained factual completeness based on consideration of the statement of facts Lim initially filed and the Commonwealth's objections. In addition, we find no basis to support the assertion by Lim that the statement of facts, which recites the incidents of trial, is required to state which facts were not proved.
The trial judge on remand acted in accordance with this Court's directive to ensure that a written statement of facts was entered so as to satisfy the requirements of Rule 5A:8. When the trial judge prepared the proposed statement of facts, the trial judge had the benefit of Lim's earlier proposed statement of facts and the Commonwealth's objection to that statement. For the foregoing reasons, we conclude that the objections that Lim raised in the circuit court and now on appeal in response to the judge's corrected statement lack merit.
The record also reflects that a court reporter was present at the trial on the merits. However, the transcript was not ordered or prepared.
Therefore, we find no error and affirm the ruling.
Affirmed.