Michael J. Cartier v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
MICHAEL J. CARTIER
MEMORANDUM OPINION * BY
v. Record No. 1987-95-2 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 15, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ESSEX COUNTY
Joseph E. Spruill, Jr., Judge
Gordon A. Wilkins (Wilkins, Davison & Emery,
on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Michael J. Cartier was convicted of grand larceny and
burglary on April 18, 1995. Code §§ 18.2-91 and 18.2-95.
Cartier contends the Commonwealth failed to prove beyond a
reasonable doubt that he committed burglary and larceny. Finding
the evidence sufficient to support the verdicts, we affirm the
convictions.
Viewed in the light most favorable to the Commonwealth, the
party prevailing below, Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975), the evidence proved that on
August 13, 1994, at 4:10 a.m., State Trooper Don Llewellyn
spotted a station wagon speeding and weaving on Route 64 in the
City of Chesapeake. After Llewellyn turned on his lights and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
siren, the vehicle continued for several miles before it came to
a stop. The occupants of the vehicle were identified as Michael
Cartier, Kevin McIntyre, and Paul Tracey, the owner of the
vehicle. Cartier was driving the vehicle.
Llewellyn noticed that the vehicle contained a large
quantity of items, including rifles, bows, arrows, small radios,
and cassette players. He also noticed that the wires on some
stereo speakers were frayed and looked as if they had been
ripped. In the right-front floorboard of the vehicle were a pair
of bolt cutters and a screwdriver. Cartier had a pair of
binoculars around his neck.
Llewellyn spoke with Cartier and arrested him for driving
under the influence. Llewellyn testified that while he tried to
question Cartier, Tracey told Cartier to "keep his . . . mouth
shut, . . . they couldn't prove anything." Cartier said nothing
about the property in the vehicle. Llewellyn then questioned
Tracey about the property. Tracey indicated that the items in
the vehicle were his and that he had retrieved them from a
trailer in Tappahannock where he had lived with his
ex-girlfriend.
On August 14, 1994, John Green reported the burglary of his
trailer located in Essex County. Green who lived in the City of
Richmond stayed in the trailer only on weekends. His daughter
lived in the trailer with her current boyfriend. Green testified
that Tracey and his daughter had dated about 2-4 years prior to
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the incident. Green had no knowledge that Tracey ever lived in
the trailer with his daughter. Green had never met Cartier.
Green checked his trailer the week before August 14 and
found nothing amiss. When he arrived at the trailer on August
14, he noticed that the door was unlocked. He saw that furniture
was overturned, holes had been knocked in the walls, and property
was missing. Neither Green's daughter nor her boyfriend were
there when Green arrived. At trial, Green identified items found
in the vehicle as either his or his daughter's property that was
missing from the trailer. Green testified that he had never
given anyone permission to take or sell the items.
Appellant claims this evidence did not prove he possessed
the property without the owner's consent or that he intended to
permanently deprive the owner of the property. We disagree. The
evidence proved that a week prior to Cartier's arrest, Green
locked his trailer. Green testified that someone had broken into
the trailer and stolen numerous items belonging to him and his
daughter. Green testified that he never consented to the taking
of the property.
Tracey, who was present in the vehicle with Cartier told the
trooper:
[T]he property in the vehicle was his and
. . . that he had just come from Tappahannock
where he had retrieved these items from a
trailer, and . . . that he had lived in this
trailer with a girl or woman who was
currently living there.
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Based on Green's testimony that the items found in the vehicle
driven by Cartier were his, the trial judge obviously chose to
disbelieve Tracey's statement and concluded the property was
taken without Green's consent.
Upon determining that the vehicle contained recently stolen
goods, the trial judge could properly assume that the persons in
exclusive possession of the goods were the thieves. Best v.
Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). See
Carter v. Commonwealth, 209 Va. 317, 323, 163 S.E.2d 589, 594
(1968), cert. denied, 354 U.S. 991 (1969)(a person can be in
exclusive possession of property even though he jointly possesses
it with others). Cartier argues that this presumption does not
apply to him because the Commonwealth did not prove that he
possessed the items found in the vehicle.
The trooper testified that upon pulling over the vehicle
driven by Cartier, he observed "a great deal of property in the
vehicle. "It stretched from the front seat all the way back--
This is a station wagon--all the way to the rear tailgate." He
stated that the binoculars were around Cartier's neck. Where an
individual is driving a car filled with recently stolen stereo
equipment, rifles and music cassettes and has binoculars around
his neck, the evidence is legally sufficient to support the
finding that he possesses the property. This case does not
involve property hidden under a car seat. See Hancock v.
Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995)(appellant
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did not constructively possess a gun found underneath the car
seat in front of him and no other evidence connected him to the
gun). Rather, the vehicle was loaded with property in plain view
of any occupant or any person looking into the vehicle.
Cartier's knowing possession is further supported by his refusal
to stop the vehicle when the trooper activated his lights.
In accepting the presumption that an individual in
possession of stolen goods is a thief and rejecting Tracey's
statement as incredible, the trial judge correctly found Cartier
guilty of larceny. Although Cartier argues that the evidence
supports a finding that he received the goods in good faith,
Cartier had the burden of proving this claim once the
Commonwealth establishes a prima facie case of larceny. Hope v.
Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990).
He presented no evidence supporting his good faith possession of
the property.
Cartier also attacks his conviction for burglary based on
the Commonwealth's failure to prove an unlawful entry in the
nighttime. The Commonwealth indicted and tried Cartier for
"unlawfully and feloniously, enter[ing] in the nighttime the
dwelling house of John Otis Green with the intent to commit
larceny." Code § 18.2-91. Green testified that he found his
trailer ransacked and its door unlocked. This testimony,
combined with Tracey's testimony that he had obtained the items
from a trailer in Tappahannock, provided sufficient evidence for
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the trial judge to find that an unlawful entry occurred.
All of the evidence supports the trial judge's conclusion
that the entry occurred in the nighttime. The officer stopped
the vehicle at 4:00 a.m., and Tracey stated that "he had just
come from Tappahannock where he had retrieved [the property in
the car]." The fact finder has the duty to draw inferences from
circumstantial evidence and to determine the weight to be
ascribed to such evidence. Schneider v. Commonwealth, 230 Va.
379, 382, 337 S.E.2d 325, 329 (1983). Where the evidence
establishes that Cartier committed larceny, and a codefendant
admits, at 4:00 a.m., to having just driven from Tappahannock to
retrieve property, and the vehicle contains a large amount of
property stolen from a trailer, circumstantial evidence is
sufficient to prove beyond a reasonable doubt that Cartier
entered in the nighttime.
For these reasons, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
The evidence failed to prove beyond a reasonable doubt that
Michael J. Cartier stole the property or that he unlawfully
entered the trailer in the nighttime. Thus, I would reverse the
convictions. I dissent.
When Green returned to his trailer in Tappahannock and found
it unlocked and ransacked, he did not know who entered it or when
it was entered. He had last visited the trailer and seen the
property approximately a week prior to his discovery. During
that week, his daughter and her male friend lived in the trailer.
Green also testified that his daughter had dated Paul Tracey, a
codefendant, approximately two to four years prior to the trial.
Neither the daughter nor her male friend, the occupants of the
trailer, testified at trial.
At the time of his arrest, Paul Tracey told Officer
Llewellyn that the items in the vehicle belonged to him. He
claimed that he had formerly lived with a friend in a trailer in
Tappahannock and had retrieved the property from the trailer.
Based on these circumstances and the fact that Cartier was
driving a vehicle containing Green's property, the trial judge
found Cartier guilty of larceny and burglary.
Larceny is the wrongful taking of another's property without
his consent and with the intent to permanently deprive him of
possession. Bright v. Commonwealth, 4 Va. App. 248, 251, 356
S.E.2d 443, 444 (1987). "To prove common law larceny, the
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Commonwealth must show that the accused wrongfully acquired
possession of personal goods belonging to another." Payne v.
Commonwealth, 222 Va. 485, 488, 281 S.E.2d 873, 874 (1981). This
offense also requires proof of a trespassory taking. Tanner v.
Commonwealth, 55 Va. 635, 642 (1857).
The evidence in this case did not prove Cartier committed a
trespassory taking or that Cartier wrongfully acquired the
property. Although Cartier was driving the vehicle, Tracey, the
owner of the vehicle, was present. No evidence proved Cartier
possessed the property. Even if Tracey did take the property,
the evidence does not prove that Cartier assisted in the offense.
No evidence proved Cartier knew that Tracey did not own the
items in the vehicle.
The Commonwealth argues that the burglary conviction should
stand regardless of whether the evidence proved the offense
occurred "in the nighttime." I disagree. Even though breaking
and entering in the daytime constitutes a statutory offense, once
the Commonwealth indicted Cartier for "enter[ing] in the
nighttime," it had the obligation to prove the crime charged.
"'If the unnecessary word or words inserted in the indictment
describe, limit or qualify the words which it was necessary to
insert therein, then they are descriptive of the offense charged
in the indictment and cannot be rejected as surplusage. The
offense as charged must be proved.'" Hairston v. Commonwealth, 2
Va. App. 211, 214-15, 343 S.E.2d 355, 357 (1986)(quoting Mitchell
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v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).
The phrase "in the nighttime," modifies the entry. It
"describe[s], limit[s] [and] qualif[ies]" a necessary part of the
indictment, the physical act of entering. Id. Therefore, the
indictment required the Commonwealth to prove that the offense
occurred at night.
The Commonwealth also contends that the evidence proved the
burglary occurred "in the nighttime." I disagree. Every element
of an offense must be proved beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 364 (1970). The only relevant evidence
concerning time was testimony that the trooper stopped the
vehicle at 4:00 a.m. and that Tracey stated that he had just come
from Tappahannock and had retrieved the items from a trailer.
These two facts did not establish beyond a reasonable doubt that
the offense occurred at night. Tracey's statement that he had
"just come from Tappahannock" does not establish beyond a
reasonable doubt that he obtained the property at night.
Obviously, he may have loaded the property the previous day and
not left the county until that night. A nighttime entry is not
proved beyond a reasonable doubt simply by Tracey's statement
concerning the origin of his journey.
Without the testimony of the daughter and male friend, the
current occupants of the trailer, we can only speculate as to how
Tracey may have gained entry to the trailer. Simply because
Green found his door unlocked does not mean an unlawful entry
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occurred. His daughter may have left the door unlocked.
To convict Cartier, "'all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987)(citation omitted). The evidence at trial did not exclude
every reasonable hypothesis of innocence, and consequently, the
Commonwealth failed to prove larceny and burglary beyond a
reasonable doubt. Therefore, I dissent.
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