James Earl Brown v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
JAMES EARL BROWN
MEMORANDUM OPINION * BY
v. Record No. 2439-00-1 JUDGE ROBERT J. HUMPHREYS
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Earl Brown appeals his convictions, after a bench
trial, of two counts of grand larceny, two counts of breaking and
entering with intent to commit larceny, abduction, and use of a
firearm in the commission of a felony. 1 Brown contends that the
trial court erred in admitting a statement of Jeff Green as an
adoptive admission, and in failing to grant his motion to strike
the Commonwealth's evidence as insufficient as a matter of law.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Brown was also charged with robbery and use of a firearm
in the commission of robbery. However, the trial court
dismissed these charges on the motion of Brown, finding the
evidence insufficient to support them.
The evidence presented at trial established that on April
15, 1999, at about 1:30 p.m., Dennis Emerson returned to his
home and saw a blue Ford parked in his yard. He did not see
anyone in the car or at his front door, so he walked to the back
of his home, where he found a young man standing on his deck.
The young man saw Emerson and asked if "Joe Eldridge" lived
there. Emerson replied that he did not. The two then walked
toward the front of the house.
As Emerson approached his garage, he looked toward his
house again and saw another young man walk out of the back door,
with a gun in his right hand. Emerson then turned to the first
young man and saw that he also had a gun, which he was pointing
in Emerson's face. He told Emerson to "Go back," to the deck
and threatened to kill Emerson if he had seen the license plate
number on his Ford. The man then told Emerson to get down on
the ground and said, "Don't you move for five minutes." When
the two men left, Emerson went into his house and called the
police.
Emerson found that his house had been "completely
ransacked." The men had tried to open Emerson's safe by
shooting at it. There were bullets and shell casings on the
floor. The men had taken a five-gallon water cooler containing
about $800 worth of coins, a handgun, a hunting knife and a
watch.
- 2 -
Around 2:30 p.m. to 3:00 p.m. that same day, Douglas Hines
returned to his home, near Route 17, to find that his home had
also been burglarized. Several items, including a semiautomatic
Browning 9-mm pistol had been taken.
Late that afternoon, Kimberly Harper received a page from
Jeffrey Green. Green asked Harper to drive him and Brown to
Green's mother's car, which he claimed had broken down. Harper
picked up Green and Brown at a convenience store near Saluda and
took them to a diner on Route 17. The trip took about five
minutes. Green sat in the passenger seat, and Brown sat in the
back. Green told Harper, "they had robbed a man and that he had
held him at gunpoint," "and put him on the ground." Brown said
nothing. Harper described Brown as "look[ing] like he was in
shock." Green and Harper then drove Green's mother's car to
Green's home. Brown followed, driving Harper's car.
At trial, a firearms and toolmark expert testified that the
cartridges and jackets found at Emerson's house had come from
the 9-mm that had been stolen from Hines' home. Brown
stipulated that he had been in possession of that gun on April
16, 1999, the day after the burglaries. However, Emerson
testified that Brown was not the young man who had held him at
gunpoint and was unable to identify Brown as the second
intruder. He testified, "I got enough a [sic] look at him to
know that he was white. He was young. He was slender built.
But to really identify him, no."
- 3 -
Brown objected to the admission of the statement made by
Green to Harper, alleging that the statement was hearsay. The
trial court overruled Brown's objection, finding that the
statement constituted an adoptive admission on the part of
Brown, an exception to the hearsay rule.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). "As a general rule, when a statement that tends to
incriminate one accused of committing a crime is made in the
presence and hearing of the accused and such statement is not
denied, contradicted, or objected to by him, both the statement
and the fact of the accused's failure to deny the statement are
admissible in a criminal proceeding against the accused."
Strohecker v. Commonwealth, 23 Va. App. 242, 252, 475 S.E.2d
844, 849 (1996).
For the adoptive admission exception to
apply, a direct accusation is not essential.
Under the adoptive admission exception to
the rule against hearsay, a declarant's
accusatory or incriminating statements are
not admitted to prove the truth of matters
asserted. Such statements are admissible
because they lay the foundation to show that
the defendant acquiesced or admitted to the
statement. An adoptive admission avoids the
confrontation problem because the words of
the hearsay become the words of the
defendant. While the hearsay statement
merely lays the foundation, the conduct of
the accused, by remaining silent and failing
- 4 -
to deny it, is admissible as substantive
evidence to prove the accused's acquiescence
in its truth.
Id. at 254, 475 S.E.2d at 850 (citations omitted).
"The Virginia test regarding the use of adoptive admissions
as an exception to the rule against hearsay is whether [persons]
similarly situated would have felt themselves called upon to
deny the statements affecting them in the event they did not
intend to express acquiescence by their failure to do so."
Knick v. Commonwealth, 15 Va. App. 103, 106, 421 S.E.2d 479, 481
(1992) (citation omitted).
In ruling on the admissibility of adoptive
admissions:
the courts have evolved a variety of
safeguarding requirements against misuse, of
which the following are illustrative. (1)
The statement must have been heard by the
party claimed to have acquiesced. (2) It
must have been understood by him. (3) The
subject matter must have been within his
knowledge. (4) Physical or emotional
impediment to responding must not be
present. (5) The personal makeup of the
speaker . . . may be such as to make it
reasonable to expect denial. (6) Probably
most important of all, the statement itself
must be such as would, if untrue, call for a
denial under the circumstances. . . . The
essential inquiry in each case is whether a
reasonable person would have denied under
the circumstances, with answers not lending
themselves readily to mechanical
formulations.
Id. at 106-07, 421 S.E.2d at 481 (footnote omitted).
Here, although Harper, a layperson, testified that Brown
appeared to be in shock, we do not find it unreasonable for the
- 5 -
trial court to have inferred that Brown heard and understood the
subject matter of the statement. In fact, the Commonwealth
demonstrated that Brown was able to operate and drive Harper's
car, within at most, five minutes of the statement having been
made. Thus, we do not find it unreasonable for the trial court
to have inferred that Brown was under no physical or emotional
impediment which would have kept him from either hearing,
understanding, and/or responding to the statement. We therefore
hold that it was reasonable for the trial court to conclude that
the statement, if untrue, was such that it would have called for
a denial by a reasonable person under the circumstances.
Brown next challenges the sufficiency of the evidence,
alleging that the trial judge erred in refusing to grant his
motion to strike. "Where the sufficiency of the evidence is
challenged on appeal, that evidence must be construed in the
light most favorable to the Commonwealth, giving it all
reasonable inferences fairly deducible therefrom." Norman v.
Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 44, 45 (1986)
(citation omitted). "In so doing, we must discard the evidence
of the accused in conflict with that of the Commonwealth, and
regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences that may be drawn
therefrom." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373
S.E.2d 164, 165 (1988) (citations omitted). Further,
circumstantial evidence is sufficient to support a conviction,
- 6 -
provided it excludes every reasonable hypothesis of innocence.
See Tucker v. Commonwealth, 18 Va. App. 141, 143, 442 S.E.2d
419, 420 (1994).
It is well settled that, "[t]he unexplained possession of
recently stolen goods permits the fact finder to infer that the
possessor is the thief." Archer v. Commonwealth, 26 Va. App. 1,
13, 492 S.E.2d 826, 832 (1997). In fact, we have held that the
inference derived from evidence of recent possession of stolen
property may be enough, by itself, to support a conviction of
larceny. See Bright v. Commonwealth, 4 Va. App. 248, 251, 356
S.E.2d 443, 444 (1987). Accordingly, when considered in
conjunction with Brown's adoptive admission of the statement
made by Green, we do not find that the trial court was plainly
wrong in finding the circumstantial evidence sufficient to
support Brown's convictions for grand larceny, breaking and
entering, abduction and use of a firearm in the commission of a
felony.
Affirmed.
- 7 -