Leroy Nathaniel Smith v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
LEROY NATHANIEL SMITH
MEMORANDUM OPINION * BY
v. Record No. 1976-98-3 JUDGE JAMES W. BENTON, JR.
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Albert L. Shaw for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M.
McKeaney, Assistant Attorney General, on
brief), for appellee.
A jury convicted Leroy Nathaniel Smith of six burglaries,
three grand larcenies, and three petit larcenies. Smith contends
the evidence was insufficient to prove he committed five of the
burglaries, two of the grand larcenies, and the three petit
larcenies. He does not contest one burglary and one grand larceny
conviction. For the reasons that follow, we affirm Smith's
convictions.
I.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). So viewed, the evidence established that
six homes were burglarized in Pittsylvania County between
November 25 and December 4, 1997. On November 25, 1997, the
home of Robert Lindsay and his daughter was burglarized. When
Lindsay returned home that afternoon, he saw narrow bicycle
tracks leading from the road through his gravel driveway and his
muddy yard to the carport. The door to his home had been pried
open with a tool. The burglar had taken coins, $220 in cash, a
high school class ring, four gold rings, and other jewelry.
During the trial, the Lindsays identified the class ring and the
four gold rings stolen from their home.
On December 1, 1997, Larry and Pamela Kincaid's home was
burglarized. The burglar pried open the carport door with a
tool and took jewelry, coins, a wallet with credit cards, and a
.38 Smith & Wesson handgun. During the trial, Pamela Kincaid
identified the handgun stolen from her home and testified that
three missing gold necklaces were each valued at one hundred
dollars.
Also on December 1, the home of Barry Carter was
burglarized. The burglar removed a radio and a camcorder valued
at $1,000. Smith does not contest the convictions for burglary
and grand larceny related to Carter's home.
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On December 3, 1997, the home of Evelyn Woodson was
burglarized. The burglar pried open the front door with a tool
and took coins, several two-dollar bills, a gold necklace, and a
.38 Smith & Wesson handgun valued at $294. During the trial,
Woodson's brother identified a photograph of the two-dollar bills
that were stolen and testified that he had earlier identified the
bills because of large creases caused by his folding of the bills.
Woodson also earlier identified the necklace the police recovered
and, at trial, identified a photograph of the necklace.
On December 4, 1997, the home of Joan Tarpley-Robinson was
burglarized. The burglar pried open the basement door with a tool
and took coins and a radio. Before trial, Tarpley-Robinson
identified the radio the police recovered and, during the trial,
she identified a photograph of the radio.
Also, on December 4, 1997, Kenneth and Lori Oakes' home was
burglarized. After prying open the front door with a tool, the
burglar took a 9mm Astra handgun, a holster and ammunition, all
valued at $400, six rings valued in excess of $1,000, a watch, and
some loose change. At trial, Kenneth Oakes identified the
handgun, clip, holster, ammunition, and a ring that were stolen
from his home and recovered by the police. Oakes' wife identified
the five rings that were stolen from their home and recovered by
the police.
On the afternoon of December 4, 1997, Major Gary Goodson and
Sergeant Donald Motley were patrolling an area of the county where
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several burglaries had occurred when they saw Smith carrying a
blue sack and walking a ten-speed bicycle. They informed Smith
that he matched the description of an individual involved in
several burglaries and asked him for identification. Smith
identified himself and allowed Goodson to look in his sack.
When Goodson opened it, he saw a pair of gloves, a screwdriver,
and a large number of coins.
Expressing a concern that people would see him talking with
the police, Smith asked if they could go to his residence. The
officers agreed and followed Smith to a nearby residential
trailer. As they arrived at the trailer, Deputy Paul Burke
pulled into the driveway. With Smith's consent, Motley and
Burke searched the residence. When the officers asked Smith in
what part of the trailer he lived, he told them the master
bedroom.
In the master bedroom, the officers found the camcorder
taken from the Carters' home, a ski mask, screwdriver, two ice
picks, a putty knife, a large assortment of coins, and coin
wrappers. The officers then arrested Smith and searched him.
During the search, the officers saw two watches and a ring but
did not confiscate them.
Motley searched the sack again and found the gold necklace
stolen from the Woodsons' residence, the radio stolen earlier
that day from the Tarpley-Robinsons' residence, and the 9mm
Astra handgun, clip, and ammunition stolen earlier that day from
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the Oakes' residence. In the bathroom, which Smith used while
the officers were in the trailer, Goodson recovered the .38
Smith & Wesson handgun stolen from the Kincaids' residence
hidden in a trash can.
At the county jail, Burke searched Smith and recovered from
his wallet the four two-dollar bills that had been taken from
the Woodsons' residence. Burke later searched the seat in the
rear of Burke's vehicle where Smith had been sitting and found
five of the six rings which had been taken from the Oakes'
residence. After his arrest, Smith was detained in the jail,
where he sold to an inmate one of the rings stolen from the
Oakes' residence. The police later recovered the ring from the
inmate.
Smith recorded a statement for the police and admitted
possessing the Kincaids' .38 Smith & Wesson handgun. Smith
stated that he had taken the gun on Sunday, November 30, 1997,
from some "crackheads."
Linda Goggins, who also occupied the trailer searched by
police, later summoned Burke to the trailer. When Burke arrived
at the trailer, Goggins gave him the class ring and the four
gold rings that had been stolen from the Lindsays' residence and
other jewelry. At trial, Goggins testified that she had never
seen the class ring and the four gold rings before she found
them in the master bedroom of the trailer. In addition,
Goggins' daughter testified that she had never seen the jewelry.
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Upon consideration of all the evidence, the jury convicted
Smith of six burglaries, three grand larcenies, and three petit
larcenies. On appeal, Smith does not contest the convictions
for the burglary and grand larceny at Carter's residence;
however, he contends the evidence is insufficient to prove the
other offenses.
II.
It is well established that "the unexplained possession of
recently stolen goods permits an inference of larceny by the
possessor." Bright v. Commonwealth, 4 Va. App. 248, 251, 356
S.E.2d 443, 444 (1987). Similarly, a prima facie case of
burglary is established by the following:
(1) proving that goods were stolen from a
house which was broken into; (2) justifying
the inference that both offenses were
committed at the same time, by the same
person, as part of the same criminal
enterprise; and (3) proving that the goods
were found soon thereafter in the possession
of the accused.
Id. Although "the unexplained possession of recently stolen
property creates a presumption of guilt, . . . possession must
be exclusive on the part of the accused." Leebrick v.
Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214 (1956).
"[T]he evidence must reveal that the accused was consciously
asserting at least a possessory interest in or exercising
dominion over the stolen property." Ferrell v. Commonwealth, 11
Va. App. 380, 388, 399 S.E.2d 614, 618 (1990); see also Nelson
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v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384, 386
(1991).
"Guilt of breaking and entering a building may be
established by circumstantial evidence; eyewitnesses are not
required." Hope v. Commonwealth, 10 Va. App. 381, 385, 392
S.E.2d 830, 833 (1990) (en banc) (citation omitted). Moreover,
if an accused is found in possession of recently stolen goods,
the trier of fact may infer guilt if the possession is not
explained credibly or if the possession is falsely denied. See
Carter v. Commonwealth, 209 Va. 317, 323-24, 163 S.E.2d 589, 594
(1968).
The testimony of the Commonwealth's witnesses proved that
someone broke into each residence and stole items. That proof
justified an inference by the fact finder that the offenses were
committed at the same time, by the same person, as part of the
same criminal enterprise. See Bright, 4 Va. App. at 251, 356
S.E.2d at 444.
(A)
Lindsay observed narrow bicycle tire tracks on his
property. When the police apprehended Smith, he had a bicycle
and was carrying recently stolen items. He also possessed tools
that could have been used to break into a house. Nine days
after the burglary at the Lindsays' residence, the Lindsays'
class ring and four gold rings were recovered from the master
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bedroom Smith said he occupied. Smith offered no explanation
for his possession of these items.
In order for the presumption to arise, the
possession must be exclusive, but "[o]ne can
be in exclusive possession of an item when
he jointly possesses it with another," as
long as "the accused was consciously
asserting at least a possessory interest in
the stolen property or was exercising
dominion over [it]."
Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832
(1997) (citation omitted).
Neither Goggins nor her daughter had ever seen the jewelry
before Goggins delivered it to police and did not know from
where it came. Under these circumstances, the fact finder could
infer beyond a reasonable doubt that Smith had exclusive
possession of the Lindsays' jewelry and exercised dominion over
it.
The combination of Smith's unexplained possession of the
items recently stolen from the Lindsays' home and the
circumstantial evidence could lead the fact finder to infer
beyond a reasonable doubt that Smith broke into the Lindsays'
home and stole the items. See Carter, 209 Va. at 323-24, 163
S.E.2d at 594. Therefore, the evidence was sufficient to prove
beyond a reasonable doubt that Smith was guilty of the burglary
of the Lindsays' home and the grand larceny of the items stolen
from their home.
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(B)
The Kincaids' handgun was recovered three days after the
burglary, hidden in a bathroom trash can in the trailer occupied
by Smith. When confronted with the gun, Smith admitted
possessing it, but indicated he had obtained it on Sunday,
November 30, 1997, from some "crackheads." The evidence proved,
however, that the burglary did not take place until Monday,
December 1, 1997. Based upon these inconsistencies, the fact
finder was entitled to reject Smith's explanation of his
possession of the gun. "The credibility of the witnesses and
the weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
Based on the combination of circumstantial evidence,
Smith's recent possession of the gun stolen from the Kincaids'
home, and his incredible explanation for that possession, the
fact finder could infer beyond a reasonable doubt that Smith
broke into the Kincaids' home and stole the gun. See Carter,
209 Va. at 323-24, 163 S.E.2d at 594. Therefore, the evidence
was sufficient to prove beyond a reasonable doubt that Smith was
guilty of the burglary of the Kincaids' home and the petit
larceny of the items stolen from their home.
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(C)
One day after the burglary, the police recovered the
Woodsons' necklace from Smith's sack and their two-dollar bills
from his wallet. "When an accused is found in possession of
goods of a type recently stolen, strict identity of the goods is
not required." Henderson v. Commonwealth, 215 Va. 811, 812-13,
213 S.E.2d 782, 783 (1975). All of the circumstances,
considered together, permitted the fact finder to infer that the
gold necklace found in Smith's sack and the two-dollar bills
found in his wallet were stolen from the Woodsons' home. The
fact finder was entitled to reject Smith's explanation for
possession of the two-dollar bills, see Sandoval, 20 Va. App. at
138, 455 S.E.2d at 732, and Smith provided no explanation for
his possession of the Woodsons' necklace.
Based upon circumstantial evidence and the incredible
evidence concerning Smith's recent possession of the Woodsons'
stolen items, the fact finder could infer beyond a reasonable
doubt that Smith broke into the Woodsons' home and stole the
property. See Carter, 209 Va. at 323-24, 163 S.E.2d at 594.
Therefore, the evidence was sufficient to prove beyond a
reasonable doubt that Smith was guilty of the burglary of the
Woodsons' home and the petit larceny of the items stolen from
the home.
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(D)
The police recovered the radio within hours of the burglary
of Tarpley-Robinson's home. It was in the sack that Smith was
carrying. Smith offered no explanation for his possession of
the radio. We find no merit to Smith's argument that the trial
judge should have granted his motion to strike the indictment
because the Commonwealth failed to amend the indictment to
reflect that property belonging to Tarpley-Robinson's daughter
was stolen. The Commonwealth's evidence proved that at least
thirty dollars worth of coins were stolen at the same time the
radio was stolen. The value of the radio was not relevant in
establishing the petit larceny; rather, the combination of
Smith's unexplained possession of it within hours after it was
stolen and other circumstantial evidence was sufficient to prove
he broke and entered the Tarpley-Robinsons' home and stole the
property. See Carter, 209 Va. at 323-24, 163 S.E.2d at 594.
Therefore, the evidence was sufficient to prove beyond a
reasonable doubt that Smith was guilty of the burglary of the
Tarpley-Robinsons' home and the petit larceny of property.
(E)
Within hours of the burglary, the police recovered the
Oakes' handgun from Smith's sack. The Oakes' jewelry was
recovered from the seat of the vehicle in which Smith was
transported to the jail after his arrest. Smith sold one of the
Oakes' rings to an inmate at the jail. The fact finder was
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entitled to reject Smith's explanation for his possession of the
Oakes' handgun, see Sandoval, 20 Va. App. at 138, 455 S.E.2d at
732, and Smith offered no explanation for his possession of the
Oakes' rings.
Based upon Smith's lack of a credible explanation for his
possession of the gun, his unexplained possession of the rings,
and the recency of the events, the fact finder could infer
beyond a reasonable doubt that Smith broke into the Oakes' home
and stole property, having a value in excess of $200. See
Carter, 209 Va. at 323-24, 163 S.E.2d at 594. Therefore, the
evidence was sufficient to prove beyond a reasonable doubt that
Smith was guilty of the burglary of the Oakes' home and the
grand larceny of the items stolen from their home.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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