Michael Wilkerson v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
MICHAEL WILKERSON
MEMORANDUM OPINION * BY
v. Record No. 1286-98-1 JUDGE RUDOLPH BUMGARDNER, III
JUNE 8, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
(Robert E. O'Neill; Office of the Public
Defender, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
Michael Wilkerson appeals his conviction after a bench
trial of two counts of petit larceny, third offense. The
defendant challenges the sufficiency of the evidence.
Concluding that the evidence was sufficient to sustain the
convictions, we affirm.
On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). In
so doing, we must discard the evidence of the accused in
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
conflict with that of the Commonwealth. See Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988).
A Franklin County detective was patrolling on August 13,
1997 at 6:30 p.m., a clear and sunny day. He passed the
defendant, who was riding a bicycle and carrying a grocery bag
that “looked to be somewhat heavy.” The detective made eye
contact with the defendant as they passed and continued to watch
the defendant in his rearview mirror. The defendant turned
twice to look back at the detective. When the detective turned
the corner, the defendant dropped the grocery bag into the ditch
at the side of the road. He “leaned down, came to a stop on the
bicycle, laid the item down and he was looking back towards [the
detective] and he . . . proceeded to go forward again.” The
defendant then continued down the road toward the Winn Dixie
store.
The detective turned and went back, following the defendant
whom he again passed in the Winn Dixie parking lot. The
defendant spent two or three minutes at a pay phone. He then
left the parking lot headed away from the detective and the
discarded grocery bag. The detective got out of his car and
walked back toward the grocery bag. As he did, the defendant
was “peddling pretty fast.” The detective retrieved the bag,
which was a plastic Winn Dixie grocery bag, got back in his car,
and caught up with the defendant, who had gotten about a quarter
mile away.
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As the detective approached, the defendant pulled over and
got off his bicycle. The detective asked him why he had dropped
the bag full of steaks in the ditch. The defendant denied
knowing what he was talking about, denied the steaks were his,
and denied ever having seen them. The detective opened the bag
while he talked with the defendant. It contained four packages
of Winn Dixie steaks and two packages of Super Fresh steaks but
no receipt from either store. The steaks were cold but not
frozen. The detective arrested the defendant when he denied
that the steaks were his. At no point did the defendant claim
the steaks.
Both the Super Fresh and Winn Dixie grocery stores were
located in the area, and the managers of both identified the
packages of steaks as coming from their particular stores. The
detective obtained from both stores cash register tapes showing
all sales made within an hour and a half of the detective first
seeing the defendant. Neither tape showed a sale of the steaks,
and no cashier had seen anyone fitting the description of the
defendant.
The defendant argues that the evidence is insufficient to
prove larceny because it did not show when or how the steaks
were removed from the store. He contends that the
Commonwealth’s case is comprised solely of the fact that the
defendant was in possession of the steaks, but they could have
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been displayed and sold earlier than the period accounted for by
the store receipts.
"[L]arceny is the taking and carrying away of the goods and
chattels of another with intent to deprive the owner of the
possession thereof permanently." Lund v. Commonwealth, 217 Va.
688, 691, 232 S.E.2d 745, 748 (1977). Evidence of possession of
recently stolen goods “is prima facie evidence of guilt.”
Hackney v. Commonwealth, 26 Va. App. 159, 164, 493 S.E.2d 679,
681 (1997). When this possession is unexplained or falsely
explained, the fact finder may infer that the person in
possession of the stolen goods was the thief. See Montgomery v.
Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980).
“The inference derived from evidence of recent possession of
stolen property may be enough, by itself, to support a
conviction of larceny.” Hackney, 26 Va. App. at 168-69, 493
S.E.2d at 681 (citing Bright v. Commonwealth, 4 Va. App. 248,
251, 356 S.E.2d 443, 444 (1987)).
The detective saw the defendant in possession of property.
The defendant discarded the bag in a ditch when he first saw the
law enforcement officer and quickly rode away. When the
detective confronted the defendant, he denied throwing the bag
away or ever seeing the steaks. The bag was full of steaks but
no receipts. The steaks were still cold on a sunny day, in the
middle of August, in Franklin County. The managers could
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identify the steaks as coming from their stores, but no receipt
recorded their sale and no cashier recognized the defendant.
This evidence permitted the inference that the defendant
possessed recently stolen goods and that permitted the inference
that he was the thief. The inferences to be drawn from the
evidence are solely within the province of the fact finder. See
LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316
(1950). We will not substitute our judgment for that of the
fact finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). The trial court's judgment will not be
disturbed on appeal unless plainly wrong or without evidence to
support it. See Commonwealth v. Jenkins, 255 Va. 516, 520, 499
S.E.2d 263, 265 (1998). The credibility of the witnesses and
the weight to be accorded their testimony are matters solely for
the fact finder who can accept or reject the testimony in whole
or in part. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528,
351 S.E.2d 598, 601 (1986). Further, the fact finder is
entitled to disbelieve the self-serving testimony of the accused
and to conclude that the accused is lying to conceal his guilt.
See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95,
98 (1987) (en banc).
For the foregoing reasons, we affirm the convictions.
Affirmed.
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