Dennis Wayne Toney v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
DENNIS WAYNE TONEY
MEMORANDUM OPINION * BY
v. Record No. 1802-97-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
F. Ward Harkrader, Jr., Judge
Norman Hunter Lamson for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dennis Wayne Toney appeals his conviction of grand larceny.
He contends that the trial court erred in not suppressing
evidence obtained during a search of his residence. He argues
that (1) his consent was not voluntary, (2) if it was voluntary,
the officers exceeded the scope of his consent, and (3) the
evidence was insufficient to convict. Finding no error, we
affirm the conviction.
B&S Fireworks had $1,500 of fireworks stolen from its store
in Albemarle County on June 25 or 26, 1996. All fireworks owned
by B&S were packaged in boxes marked with the identification
number "418-E74." This was a unique number assigned to B&S by
its distributor. The store identified the types and quantities
of fireworks stolen.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On June 30, 1996, a police officer saw the defendant with
boxes of fireworks on a folding table outside his trailer. The
defendant told the officer that he bought the fireworks in
Manassas from a guy in an ice-cream-type truck. The defendant
said he was planning to sell them at a yard sale. The officer
did not investigate further because he received a priority call
and left.
The next day, Assistant Fire Marshall Bruce Crow was
inspecting fireworks stands. He noticed Ronald Morris, a
codefendant in this case, unloading fireworks from a pickup truck
in front of the defendant's trailer. The fireworks were in large
boxes bearing the distinctive logo of McDonald's restaurants.
Morris told Crow that he was selling the fireworks for the
defendant's brother, James. Morris did not know whether they had
a license to sell fireworks, but he was sure James had a business
license. Crow determined that neither had a license and issued a
citation for conducting business without one. He also determined
that the defendant owned the pickup truck.
Crow received a message to meet Detective Donald Byers, who
was investigating the fireworks theft. They met at the trailer
park and were joined by a uniformed officer. Crow noticed that
the fireworks were no longer in the defendant's truck. Crow
asked a woman to ask Morris to come outside. The three officers
waited outside the fence, while she went inside the trailer. The
defendant rather than Morris came outside, and Crow again asked
- 2 -
for Morris. When Morris appeared, Crow asked where the fireworks
were.
When Crow asked Morris about the fireworks, the defendant
asked why he wanted to know about them. Crow responded that he
needed to check if they were "illegal." In response, the
defendant told the officers to "come on," opened the gate for
them, and waved them to follow him into the trailer. Before
entering, Crow again asked the defendant for permission to enter.
The defendant responded, "sure, come on in," and they all
entered the trailer.
The boxes of fireworks were neatly stacked in the corner of
the living room. Estimates of the number varied between four or
five and six to nine boxes. The boxes did not have proper
Department of Transportation markings, and all but one were large
shipping boxes with McDonald's restaurant markings.
After everyone was inside, the defendant took a box of
fireworks, opened it, and invited inspection. He took other
boxes, scattered them on the floor, and opened them for
inspection. He told Crow that he was legal and that Crow would
not find anything illegal. Crow began examining the fireworks in
the boxes that the defendant had opened. When he finished
inspecting those, he started pulling down others. Detective
Byers sat on the sofa and took notes.
The testimony of the several witnesses conflicts about the
role Detective Byers played during the examination of the boxes.
- 3 -
Byers denied turning and examining any boxes except the one box
marked with the distributor's number. Crow and the defendant
said that Byers did turn the boxes around. Regardless, Byers did
identify one box of fireworks still packaged in the distributor's
container and carrying the number "418-E74." He knew that was
the unique number assigned to B&S Fireworks by its distributor.
When he found that box, Byers announced that he was seizing all
fireworks because he believed they were stolen. The defendant
became hostile and ordered all three officers to leave. The
officers took all the fireworks, despite the defendant's
objection.
Throughout the inspection, the officers and the defendant
talked. When asked where he had purchased the fireworks, the
defendant told Byers that he had purchased them from a white
bread-type truck. Morris and the defendant said they had no
receipt for the fireworks, but insisted they bought the fireworks
lawfully with cash and owned them jointly. Neither suggested
that James Toney was involved, though Morris had previously
identified him as the owner. Morris said they bought the
fireworks in Greene County and each paid $200. The next day when
the defendants came to the police station to demand an inventory,
they said they purchased the items in Ruckersville, which is in
Greene County.
A court's denial of a motion to suppress will not be
disturbed on appeal unless, considering the evidence in the light
- 4 -
most favorable to the Commonwealth, the ruling is plainly wrong
or lacks evidence to support it. See Fore v. Commonwealth, 220
Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017(1980). The Commonwealth has the burden of proving voluntariness
of the defendant's consent, Lowe v. Commonwealth, 218 Va. 670,
678, 239 S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930(1978), but need not show that the defendant was aware of a right
to refuse. See Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973). Whether consent is freely given is a question of fact to
be determined from a totality of the circumstances. See id.;
Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481
(1989), cert. denied, 495 U.S. 905 (1990). The trial court's
determination of voluntariness must be accepted on appeal unless
clearly erroneous. See Stamper v. Commonwealth, 220 Va. 260,
268, 257 S.E.2d 808, 814 (1979), cert. denied, 445 U.S. 972(1980).
The defendant contends that the officers deceived him about
their reason for searching and that vitiated the consent he gave.
If consent is induced by fraud, trickery or misrepresentation,
then evidence discovered shall be suppressed. See Gouled v.
United States, 255 U.S. 298, 305-06 (1921); United States v.
Tweel, 550 F.2d 297, 299 (5th Cir. 1977) (officers' knowing
deception revokes consent given). However, the defendant's claim
of deception alone does not invalidate his consent, it is just
one of many factors to consider. See Schneckloth, 412 U.S. at
- 5 -
227.
When the officers arrived at the trailer, the defendant
asked why they were asking about the fireworks. When Crow told
him they wanted to check if they were "illegal," the defendant
said, "come on" and waived them into the trailer. The defendant
extended the invitation to enter before any officer made a
request to do so. Crow stopped before entering, again asked the
defendant if they had permission to go inside, and he again
consented. The defendant gave the officers permission to enter,
and he voluntarily opened the boxes of fireworks for them to see.
The officer's statement of purpose, to see if the fireworks were
"illegal," was not false, and they did not mislead by not
elaborating on their purpose. At most, not elaborating might be
considered silence, but silence is not fraud or misrepresentation
unless "'there is a legal or moral duty to speak or where an
inquiry left unanswered would be intentionally misleading.'"
Commonwealth v. E.A. Clore Sons, Inc., 222 Va. 543, 548, 281
S.E.2d 901, 904 (1981) (quoting United States v. Robson, 477 F.2d
13, 18 (9th Cir. 1973)). See United States v. Prudden, 424 F.2d
1021, 1033 (5th Cir.), cert. denied, 400 U.S. 831 (1970). The
trial court did not make a finding that Byers had intentionally
deceived the defendant or had misrepresented his purpose in
conducting the search.
Next, the defendant contends that he limited his consent to
an examination of the fireworks by Crow. The defendant contends
- 6 -
that the seizure was unlawful because the boxes were not readily
identifiable as contraband, and Byers discovered the
identification number by improperly moving the boxes. Further,
he asserts that finding the one box with an identification number
did not give the officers cause to confiscate all the boxes.
These arguments are not sound.
The scope of consent given is determined by whether it is
objectively reasonable for an officer to search where he did.
See Florida v. Jimeno, 500 U.S. 248, 251 (1991); Bynum v.
Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996).
The defendant did not limit the scope of the search and passively
acquiesced as to both who was searching and their conduct. See
Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860,
863 (1992).
The officers reasonably interpreted the defendant's
invitation to enter and to inspect as extending to all three of
them. The defendant could reasonably expect that the officers
would discover that the fireworks were stolen if the police
inspected them to see if they were "illegal." The defendant
displayed the boxes and opened them for inspection. The
defendant did not limit the scope of the search or who could
search. Byers reasonably believed that he had permission to
inspect the fireworks and the boxes containing them. The
defendant did not object to the actions of any officer present
until Byers announced that he was confiscating the boxes. The
- 7 -
trial court found that the defendant knowingly and voluntarily
consented to the officers' entry to inspect the fireworks. We
find no error.
Finally the defendant asserts that the evidence was
insufficient to prove the fireworks found in his trailer were the
ones stolen. He argues the evidence failed to prove (1) that the
items taken from his trailer were the same ones taken from the
fireworks store, (2) that the defendant took the fireworks, and
(3) that the value of the fireworks taken was more than $200.
When an appellant challenges the sufficiency of the evidence, the
evidence must be viewed in the light most favorable to the
Commonwealth, granting it all reasonable inferences deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). A verdict will not be disturbed
unless plainly wrong or unsupported by the evidence. See
Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385,
cert. denied, 469 U.S. 873 (1984).
The evidence was sufficient to prove that the items stolen
were those found in the defendant's trailer. "When an accused is
found in possession of goods of a type recently stolen, strict
proof of identity of the goods is not required." Henderson v.
Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975).
While no one could identify precisely the stolen fireworks as the
ones found, those found in the defendant's trailer matched the
types that the owner reported and identified as stolen.
- 8 -
Fireworks are not normally packaged in fast-food restaurant boxes
as they were when found in the defendant's home. Though B&S
Fireworks operated other stores, and the identification number
applied to their inventory, only the store in Albemarle County
had been burglarized.
The box with the owner's number linked precisely a part of
the fireworks found to those stolen. That link permits the trier
of fact to infer that all fireworks found in the defendant's
trailer were stolen. "It is immaterial that the quantity of
goods possessed was less than the quantity stolen and charged in
the indictment, for the fact-finder '" . . . may infer the
stealing of the whole from the possession of part."'" Henderson
v. Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975)
(quoting Johnson v. Commonwealth, 141 Va. 452, 456, 126 S.E. 5, 7
(1925)).
If a defendant 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, 163 S.E.2d 589 (1968), cert.
denied, 394 U.S. 991 (1969). The trial court stated that the
defendant was "inconsistently innovative" in explaining to the
police where he got the fireworks and that "his credibility [was]
diminished to the point of being inconsequential." The defendant
did not testify at trial. All of his contradictory statements
permit the reasonable conclusion that the fireworks in the
- 9 -
defendant's possession were those stolen from the fireworks
store.
The evidence is clear that the value of the items stolen
exceeded $200 because the trier of fact may infer stealing of the
whole from possession of a part. See id. The owners testified
that the wholesale value of the fireworks stolen was $1,500.
During the inspection, Morris said that both he and the defendant
paid $200 in cash for the fireworks.
We conclude that the evidence is sufficient to convict.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
- 10 -