Jack Roosevelt Gilbert v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
JACK ROOSEVELT GILBERT
MEMORANDUM OPINION * BY
v. Record No. 2128-01-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge Designate
Albert L. Shaw for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Jack Roosevelt Gilbert of
uttering a forged check (Code § 18.2-172) and two counts of
grand larceny (Code § 18.2-95). It acquitted him of forging the
check. He maintains the evidence is insufficient to prove
larceny of the check and the conviction of larceny is
inconsistent with the acquittal of forgery of that check.
Finding no error, we affirm.
We view the evidence and all reasonable inferences
therefrom in the light most favorable to the Commonwealth.
Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d 312, 313
(1998). On December 5, 2000, Marty Mattox wrote a check for
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
$308 payable to Grace D. Adams, his insurance agent. He put the
check in an envelope addressed to the agent and posted it in his
mailbox at the entrance to his trailer park. The payor bank
received the check December 6, 2000.
The defendant cashed the check at the Riverside Minute
Market. The clerk, who cashed the check, had known the
defendant all her life. Before he left the store, the defendant
gave her $20. The defendant had rented Mattox's trailer but
moved out about a month before the incident. The defendant
continued to receive mail at the trailer. At trial, the
defendant denied stealing the check, signing it, cashing it, or
even having it at Riverside Market.
"[T]he 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).
The victim wrote the check payable to his insurance agent and
posted it at his mailbox. That same day, the defendant cashed
the check. The defendant denied having the check or cashing it
and suggested the possibility that his girlfriend stole it.
The trial court was not required to believe the defendant's
story. Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d
352, 353 (1980). Absent a credible, exculpatory explanation for
his possession of the stolen check, the trial judge permissibly
inferred that the defendant committed the larceny. The evidence
is sufficient to support the conviction.
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The defendant contends the conviction of larceny is
factually inconsistent with his acquittal of forgery. He did
not raise this objection at trial. Accordingly, we will not
consider the issue. Rule 5A:18.
Concluding the trial court did not err, we affirm the
conviction.
Affirmed.
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