Matthew Dean Wyatt v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
MATTHEW DEAN WYATT
MEMORANDUM OPINION * BY
v. Record No. 0553-97-3 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 4, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
B. A. Davis, III, Judge
(Mary E. Harkins, on brief), for appellant.
Appellant submitting on brief.
(Richard Cullen, Attorney General; Michael T.
Judge, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
The defendant was charged with breaking and entering and
grand larceny of the Barry M. Dudley, Sr. and James Allen Mills,
Jr. homes. The defendant argues that there was insufficient
evidence to link the defendant to the crimes. Finding that the
evidence does establish the criminal agency of the defendant, we
affirm.
Where 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 fairly
deducible from it. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). This Court does not
substitute its judgment in determining the facts for that of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fact finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). Unless that finding is plainly wrong, or
without evidence to support it, it shall not be disturbed on
appeal. Code § 8.01-680; George v. Commonwealth, 242 Va. 264,
278, 411 S.E.2d 12, 20 (1991).
Barry Dudley, Sr. returned home July 7, 1996 after being
away seven to eight days. His house had been broken and entered
and the gun safe damaged. Several rifles, pistols, and shotguns
had been stolen from his house. The same day, James Allen Mills,
Jr. returned home between 4:00 and 5:00 p.m. and learned that his
house had been broken into and guns, a knife set, and other items
were taken. Both parties recovered at least one stolen gun from
Tommy Dent.
John Wilson testified that sometime in July 1996 the
defendant and Amy Phillippi came to his home, arriving in a black
vehicle, with five guns and Mills' knife set to sell. The
defendant brought the weapons into Wilson's house. Phillippi was
the defendant's girlfriend and was the daughter of victim James
Allen Mills, Jr. Wilson bought the guns and knife set. When
asked whether he paid any money or anything over to Wyatt, Wilson
responded "I think it was drugs, probably; she (Phillippi) got
the money and drugs."
Wilson also testified that the defendant only came into his
house once. Wilson had observed the defendant in the car on
numerous occasions when Phillippi came to his house to sell
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weapons. The defendant admitted being inside Wilson's home at
least four times when he purchased drugs for cash. Phillippi
also admitted being there with the defendant. Later in his
testimony, Wilson said that the defendant sold him only one gun,
but Phillippi had sold him others. Wilson said he could not
identify the specific gun he purchased from the defendant.
Todd Smith identified Mills' knife set and Dudley's shotgun
as two items Wilson had given him to sell. Smith sold these
items to Dent. The sheriff's department returned a rifle and
knife set to Mills. Dent called Dudley and asked him to come
over. Dent told Dudley he would return a shotgun to him if he
could identify it. Dent returned the shotgun to Dudley.
The defendant testified that he was dating Phillippi, but he
denied breaking in either home. He admitted selling a gun to
Wilson but said that he had traded for it. He said he got the
gun he sold from Lee Doss and he traded it for $40 with someone
named Freeman Muse. He admitted going to Wilson's home several
times. When he went to Wilson's he went only to buy drugs. He
was not aware that Phillippi had ever gone there without him. He
was usually with her when she went there but would not let her go
in a place like that. He denied that she sold guns and said
Wilson was lying when he said she had.
Phillippi testified she went to Wilson's home to buy drugs,
but did not take any guns. She did not know anything about the
charges. She testified that she and the defendant were camping
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July 4-7, during which time the crimes could have occurred, and
she was always with the defendant then. He did not break in
either place, and she was not aware of him selling or pawning a
gun. At first, Phillippi said she was in the car when the
defendant brought his gun to Wilson's to sell. She later stated
that she was not there on the same occasion but knew about it
because he had told her. Both Phillippi and the defendant were
doing drugs but neither was working. She had two children to
support.
Presented with material conflicts in evidence, we find that
the trial court was entitled to believe Wilson and disbelieve the
defendant and Phillippi. The trial court, sitting as the trier
of fact, was entitled to assess which witnesses were credible and
the weight to be given the testimony; on appeal the trial court's
factual findings are entitled the same weight as a jury's
verdict. See Lane v. Lane, 184 Va. 603, 611, 35 S.E.2d 749, 752
(1945).
The trial judge found Wilson was credible and based upon his
testimony found that Phillippi and the defendant were acting
together in the break-ins and in the sale of the stolen articles.
He convicted the defendant of both charges of breaking and
entering and grand larceny.
The evidence establishes that both homes were
broken into and goods were taken from both.
It shows that immediately after the
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burglaries, the defendant and Phillippi sold
various guns to Wilson. At least the knife
set stolen from the Mills home and one
shotgun stolen from the Dudley home were
traced through Wilson to the defendant and
Phillippi. Although Wilson testified that he
only bought one gun directly from the
defendant, he also testified that on the
other occasions that he bought guns from
Phillippi, the defendant had brought the guns
there and waited for Phillippi in the car.
At another time in his testimony, he said he
bought five guns and the knives from them,
including both the defendant and Phillippi in
the reference. It is for the trial court to
sort out the truth from the conflicting
testimony. The Commonwealth can establish
a prima facie case that a defendant broke and
entered by (1) proving that goods have been
stolen from a house into which someone has
broken and entered; (2) justifying the
inference that both offenses were committed
at the same time, by the same person, as a
part of the same criminal enterprise; and (3)
proving that these goods were found soon
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thereafter in the possession of the
defendant.
Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24
(1979).
[T]he rule in Virginia is that when the
Commonwealth's evidence proves a breaking and
entering and a theft of goods and justifies
an inference that both offenses were
committed at the same time by the same person
as a part of the same criminal enterprise, if
the evidence proves further that the goods
stolen were found soon thereafter in the
possession of the accused, the Commonwealth
has made a prima facie case that the accused
broke and entered. At that point, although
the ultimate burden of proof remains with the
Commonwealth, the burden of going forward
with the evidence shifts to the accused. If
the accused fails to go forward with evidence
in justification of possession, his failure
is an inculpatory circumstance which,
considered with the circumstance of
possession, is sufficient to support a
conviction of breaking and entering. If the
accused elects to go forward with the
evidence, he bears the burden of proving the
truth of his evidence in justification of
possession, and if he fails, his failure is
another such inculpatory circumstance.
Brown v. Commonwealth, 213 Va. 748, 749-50, 195 S.E.2d 703, 705
(1973).
This case turned on the credibility of the witnesses. The
defense argued that the Commonwealth's witnesses were not worthy
of belief. However, the judge specifically ruled that they were
credible. The evidence taken in the light most favorable to the
Commonwealth shows that the homes were broken and entered. The
defendant and his girlfriend were in possession of the items
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taken and were selling them. The evidence clearly shows they
were acting together and their dominion and control over the
stolen property was joint.
The trial court was able to observe the witness' demeanor
and evaluate their credibility. The court was entitled to
conclude based on all the evidence that the defendant's testimony
was incredible. Thus the court was entitled to infer that the
defendant lied to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).
Finding that there is sufficient evidence to support the
trial court's decision, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
In a criminal case, where the quantum of proof must be
beyond a reasonable doubt, the imperative to secure convictions
free of speculation, surmise, and conjecture is constitutionally
based. See In re Winship, 397 U.S. 358, 364 (1970). Thus, it is
well established in Virginia that "mere opportunity to commit an
offense raises only 'the suspicion that the defendant may have
been the guilty agent; and suspicion is never enough to sustain a
conviction.'" Christian v. Commonwealth, 221 Va. 1078, 1082, 277
S.E.2d 205, 208 (1981) (quoting Simmons v. Commonwealth, 208 Va.
778, 783, 160 S.E.2d 569, 573 (1968)).
Where the Commonwealth, in a criminal
case, undertakes to prove the guilt of the
accused by circumstantial evidence, as it did
in the present case, not only must it prove
the circumstances, but it must overcome the
presumption of innocence and establish his
guilt beyond a reasonable doubt. All
necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. It is not sufficient that the
evidence create a suspicion of guilt, however
strong, or even a probability of guilt, but
must exclude every reasonable hypothesis save
that of guilt. To accomplish that the chain
of circumstances must be unbroken and the
evidence as a whole must be sufficient to
satisfy the guarded judgment that both the
corpus delicti and the criminal agency of the
accused have been proved to the exclusion of
any other reasonable hypothesis and to a
moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The evidence proved that in July 1996, someone broke and
entered the Dudley residence and stole numerous guns and other
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items. That same month, someone broke and entered the Mills
residence and stole several guns, a stereo system, several pieces
of jewelry, some chainsaws, a set of knives, and numerous other
items. One of the shotguns was later returned to Dudley by Tommy
Dent, who had purchased the shotgun from Todd Smith. Tommy Dent
also returned a 410 shotgun to Mills.
The Commonwealth sought to prove Wyatt's participation in
the burglary through the testimony of John T. Wilson, a convicted
felon who purchased the stolen items from Mills' daughter, Amy
Phillippi. Wilson's testimony clearly established that he
purchased stolen goods from Mills' daughter. He testified that
he purchased weapons and knives from "Amy [Phillippi] and Todd,
this guy."
Wilson's testimony proved, however, that he only bought one
gun from Wyatt. Wilson testified that Mills' daughter and Wyatt
came to Wilson's residence and "brought some guns there for
[Wilson] to purchase." Wyatt "may have come in once; most of the
time [Amy] came in" alone while Wyatt "was outside . . . in the
car." Wilson stated that he talked to Wyatt "[o]n one occasion
. . . [a]bout a price for the gun." Wilson further elaborated as
follows concerning the gun he purchased from Wyatt:
Q Okay; are there any items that you
purchased specifically from [Wyatt]? I mean,
in other words, you said he only came in once
or so. Did he actually bring any of the
items in himself?
A Yes, the gun.
Q And which one was that?
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A I am not for sure exactly. It was a rifle
or shotgun; one or the other.
Q It could have been a shotgun or a rifle?
A It could have been either one of them,
but, you know, I am not positive.
Q Was that the only item that he
specifically sold to you?
A Yes, and the rest of them Amy sold.
In convicting Wyatt, the trial judge stated that the
evidence proved "[Wyatt] had a shotgun that came from . . .
Dudley's home." Nothing in the record supports that finding.
Wilson could not identify whether Wyatt had a rifle or a shotgun
and could not testify that the gun was one of the stolen guns.
"Whenever the evidence leaves indifferent which of several
hypotheses is true, or merely establishes only some finite
probability in favor of one hypothesis, such evidence does not
amount to proof of guilt beyond a reasonable doubt." Sutphin v.
Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985).
Thus, where the evidence "'is equally susceptible of two
interpretations one of which is consistent with the innocence of
the accused, [the trier of fact] cannot arbitrarily adopt that
interpretation which incriminates'" the accused. Harrell v.
Commonwealth, 11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990)
(quoting Corbet v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d
251, 253 (1969)). Wilson could not identify the rifle or shotgun
that Wyatt sold to him. Thus, the evidence failed to prove that
the gun he purchased from Wyatt was stolen from either residence.
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Wilson's testimony linking the defendant to the identified
stolen property was woefully ambiguous. He could only recall
Wyatt entering his residence once to sell a gun that he could not
identify. He testified that on all other occasions, Wyatt
remained outside in the car. Wilson's testimony failed to link
Wyatt to possession of any of the stolen items because Wilson's
testimony was so imprecise and equivocal regarding Wilson's
presence in the residence when Mills' daughter sold the stolen
items. That testimony cannot support a finding that Wyatt
possessed the stolen items.
The most that can be said with reasonable certainty is that
Wyatt sat in the car while Mills' daughter entered Wilson's
residence and sold stolen property, including property that came
from her father's residence. Wyatt's presence in the car outside
while Mills' daughter sold the items to Wilson does not establish
beyond a reasonable doubt that Wyatt possessed the stolen
property or broke and entered the residences. See Hall v.
Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905 (1983) (mere
presence is not proof beyond a reasonable doubt of participation
in a crime).
For these reasons, I would reverse the conviction.
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