Opinion
Record No. 1806-91-2
March 30, 1993
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY THOMAS V. WARREN, JUDGE
John B. Chappell, for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Barrow, Moon and Elder
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Having been convicted of obtaining money by false pretenses, the defendant appeals, contending that the trial court erred in admitting certain testimony and letters into evidence. We hold that the testimony from an investigator concerning similar incidents by the defendant was admissible for the limited purpose for which it was admitted by the trial court hearing the case without a jury. We also hold that we cannot address any error relating to the admission of the letters because they were not admitted into evidence and are not a part of our record on appeal.
At trial, the Commonwealth sought to introduce evidence that an investigator with the Department of Consumer Affairs had contacted the defendant about complaints from other out-of-state customers who had paid for goods never delivered. The defendant objected on the grounds that the testimony was hearsay and, later, added that the evidence would be "hopelessly prejudicial." The trial court limited the testimony to what the investigator told the defendant, saying that it was probative of the defendant's intent and to show that the defendant had been put on notice of the problems he was having with other customers. Later, at the conclusion of the evidence, it became apparent that the defendant's knowledge of the other problems had a bearing on the ultimate outcome of the case. The trial court, in explaining why it found the defendant guilty, did not rely on this evidence.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible. See Claud v. Commonwealth, 217 Va. 794, 796-97, 232 S.E.2d 790, 792 (1977); Ingram v. Commonwealth, 1 Va. App. 335, 338, 338 S.E.2d 657, 658 (1986). However, the testimony the defendant complains of, although an out-of-court statement, was not offered to prove the truth of the matter asserted but merely to prove that it was asserted. The evidence was, therefore, offered only to prove notice to the defendant of those matters. The trial court admitted the testimony for that limited purpose. A "trial judge is presumed to disregard prejudicial or inadmissible evidence, and this presumption will control in the absence of clear evidence to the contrary." Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc). Because this matter was tried without a jury, we presume that the trial court considered the evidence only for the limited purpose for which it was admitted. We conclude that the admission of this testimony was not error.
Finally, the two letters objected to by the defendant, which were sent to him from the Department of Consumer Affairs, were not marked as exhibits and were not made a part of this record. The defendant had "primary responsibility" of ensuring that a complete record was furnished to this Court so that the errors he assigned could be properly decided. Twardy v. Twardy, 14 Va. App. 651, 654, 419 S.E.2d 848, 850 (1992) (en banc). Because we do not have a record upon which to consider the error the defendant assigns, we are unable to hold that the trial court erred in admitting these documents.
For these reasons, the judgment of conviction is affirmed.
Affirmed.