Jeffrey Scott Blaney v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
JEFFREY SCOTT BLANEY
MEMORANDUM OPINION * BY
v. Record No. 2571-99-1 JUDGE JEAN HARRISON CLEMENTS
APRIL 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Carolyn V. Grady (Epperly, Follis & Schork,
P.C., on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant Jeffrey Scott Blaney was convicted in a jury trial
of statutory burglary, grand larceny, possession of burglary or
larceny tools, and solicitation to commit malicious bodily injury.
On appeal, he contends (1) the evidence was not sufficient to
sustain the convictions and (2) the trial court erred in denying
his motion to appoint new counsel or grant him a continuance of
trial so he could represent himself. For the reasons that follow,
we affirm appellant's convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts necessary to a
disposition of this appeal.
A. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). We may not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the factfinder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Blaney initially contends that the evidence was insufficient
to support his larceny and burglary convictions because there was
no evidence that he broke into the victims' home and stole
property. The evidence, he argues, merely showed that he was
later in possession of the stolen bicycle, which alone was not
sufficient to permit the jury to infer that he committed the
burglary. He also argues that even if such an inference was
permitted, his evidence was sufficient to rebut the inference of
larceny and burglary.
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"At common law, larceny is the taking and carrying away of
the goods and chattels of another with intent to deprive the owner
of the possession thereof, permanently." Lund v. Commonwealth,
217 Va. 688, 691, 232 S.E.2d 745, 748 (1977). Code § 18.2-95
provides that grand larceny includes "larceny not from the person
of another of goods and chattels of the value of $200.00 or more."
Furthermore, "the unexplained possession of recently stolen goods
permits an inference of larceny by the possessor." Bright, 4 Va.
App. at 251, 356 S.E.2d at 444. In other words, "'[p]ossession of
goods recently stolen is prima facie evidence of guilt of the
crime of larceny, and throws upon the accused the burden of
accounting for that possession.'" Hope v. Commonwealth, 10 Va.
App. 381, 385, 392 S.E.2d 830, 833 (1990) (en banc) (quoting Fout
v. Commonwealth, 199 Va. 184, 190, 98 S.E.2d 817, 821 (1957)).
For the larceny inference to arise, the Commonwealth must prove
that the accused was in exclusive possession of the recently
stolen property. Best v. Commonwealth, 222 Va. 387, 389, 282
S.E.2d 16, 17 (1981).
In a burglary prosecution, the Commonwealth can establish a
violation of Code § 18.2-91 by "(1) proving that goods were stolen
from a house which was broken into; (2) justifying the inference
that both offenses were committed at the same time, by the same
person, as part of the same criminal enterprise; and (3) proving
that the goods were found soon thereafter in the possession of the
accused." Bright, 4 Va. App. at 251, 356 S.E.2d at 444. The
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unexplained or falsely denied exclusive possession of stolen goods
shortly after the burglary "has the same efficiency to give rise
to an inference that the possessor is guilty of the breaking and
entering as to an inference that he is guilty of the larceny."
Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28
(1935).
To prove beyond a reasonable doubt that the possession of the
stolen property was exclusive, the Commonwealth's evidence must
show "that the accused was consciously asserting at least a
possessory interest in the stolen property or was exercising
dominion over the stolen property." Best, 222 Va. at 389, 282
S.E.2d at 17.
In this case, Blaney does not dispute on appeal that the
Commonwealth's evidence was sufficient to establish that the
victims' home was broken into without the permission of the
victims. Likewise, he does not dispute that the evidence was
sufficient to show that a larceny occurred as a result of the
break-in and that both offenses were committed at the same time,
by the same person, as part of the same criminal enterprise.
Rather, Blaney argues solely that his recent possession of the
stolen property was not sufficient evidence to show he committed
the burglary and larceny. The issue, then, is whether it was
proper for the jury to infer guilt from Blaney's recent possession
of the stolen property.
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Here, there is no direct evidence that links Blaney to the
burglary of the home and the larceny of the stolen property.
However, the evidence did establish that on October 30, 1996, the
home of Lori Irvin and Jon Rowe in Virginia Beach was broken into
between 12:05 p.m. and 12:15 p.m. A pair of pliers was outside on
the front porch before the break-in. When Jon Rowe discovered the
burglary, he found the glass in the front door broken out and
noticed that the pliers were lying just inside the door on the
floor amidst the broken glass. Jon Rowe also discovered that the
mountain bicycle of his father, Morris Rowe, was missing and
Irvin's room was ransacked. Nothing other than the bicycle was
taken.
A short time after 1:00 p.m., Morris Rowe received a call
from his son advising him of the burglary and that his bicycle had
been stolen. Suspecting that someone in one of the nearby
apartment complexes might have committed the crimes, Morris Rowe
took his camera and a gun and drove near Chapel Lake Apartments on
his way to his son's house. Mr. Rowe saw someone, whom he later
identified as Blaney, coming out of the woods pushing Mr. Rowe's
bicycle. The wooded area was approximately 150 feet from the
Irvin/Rowe residence. Blaney then jumped on the bicycle and rode
off. Mr. Rowe followed Blaney to a trash dumpster where Blaney's
car was parked. A teenage boy was in the passenger seat of the
car. Mr. Rowe parked his car diagonally behind Blaney's car.
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As Blaney was lifting the bicycle onto a bike rack on
Blaney's car, Morris Rowe told Blaney the bicycle was his. Blaney
approached Rowe, at which point Rowe picked up his gun and told
Blaney not to come any closer. Blaney then got back on the
bicycle and rode off through the Chapel Lake Apartments complex.
Rather than chase Blaney, Rowe repositioned his car directly
behind Blaney's car, blocking it in. Blaney's car was running and
Rowe noticed the boy move toward the driver's seat. Taking his
gun, Rowe got out of his car and walked to the driver's side door
of Blaney's car. He saw the teenager rummaging for what Mr. Rowe
suspected might be a weapon. Mr. Rowe put the barrel of the gun
to the teenager's head and told him to put his hands on the
steering wheel, which he did.
Blaney then returned, still riding Rowe's bicycle. He
screamed to the boy in the car, "run over him, ram him, run over
him, run over him." As the boy revved the engine, Blaney shouted,
"he won't shoot." Blaney then threw down the bicycle and started
toward Mr. Rowe. In response Mr. Rowe cocked his gun and pointed
it at Blaney. Blaney stopped, told Mr. Rowe he could have his
bicycle back, and added: "Just let me go. I didn't take anything
else. I didn't take anything else. If I did, you know, I'll make
it up to you. I'll give you the money. I'll give you anything.
Just let me go." Mr. Rowe told him to get the bicycle. Blaney
then took off his tee shirt, wiped the fingerprints off the
bicycle, and set the bicycle back down on the ground. Mr. Rowe
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got back in his car and backed it up. Blaney got in his car, and
the teenager and he drove off.
We find that this evidence established that Blaney was in
exclusive possession of Morris Rowe's stolen bicycle. Blaney
alone was exercising dominion over the stolen bicycle during his
confrontation with Mr. Rowe. Furthermore, this exclusive
possession, occurring approximately one to one and a half hours
after the commission of the crimes, was sufficiently recent to
establish a prima facie case of larceny and burglary and to
justify inferences by the jury that Blaney was the thief and
burglar who broke into the Irvin/Rowe home and stole Morris Rowe's
bicycle.
Blaney, however, argues that the evidence he presented was
sufficient to rebut the inferences in this case. Blaney, who had
been convicted of at least twelve felonies and one misdemeanor,
testified on his own behalf. He said that a young male, whose
name he did not know, called him and offered to sell him a
bicycle. He was to meet the caller "somewhere" on Laskin Road.
As he drove down Laskin Road, he saw a guy near a trash dumpster
with a bicycle. Blaney took the bicycle for a test ride "to see
if it was worth buying." When Morris Rowe confronted him, Blaney
negotiated with him because he was scared. At trial, Blaney
denied he stole the bicycle or that he ever told Morris Rowe that
he did. He explained that he wiped his fingerprints off the
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bicycle because he realized at that point that the bicycle was
probably stolen and he did not want to get involved.
Blaney's sister-in-law also testified on his behalf. She
stated that Blaney, who was living with her and her husband at the
time, received a telephone call that morning from a young male.
Soon thereafter, Blaney left saying he was going to buy a bicycle.
The trier of fact is not required to accept a party's
evidence in its entirety, but is free to believe or disbelieve in
part or in whole the testimony of any witness. Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Thus, the jury was not required to accept Blaney's testimony as to
why he had possession of the recently stolen bicycle.
Furthermore, the jury could reasonably conclude that Blaney's
statement to Morris Rowe, "I didn't take anything else," and his
conduct in fleeing the scene and wiping off the bicycle to remove
fingerprints implicated him as the burglar and thief. "In its
role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233,
235 (1998). We hold, therefore, that the evidence was sufficient
to prove beyond a reasonable doubt that Blaney committed the
subject burglary and larceny.
Blaney next contends that the evidence was insufficient to
support his conviction for possession of burglary or larceny
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tools. According to him, there was no evidence that a tool was
used in the break-in or that pliers are a tool of burglary or
larceny. Furthermore, he argues, the Commonwealth failed to prove
his intent to commit burglary.
To convict Blaney of a violation of Code § 18.2-94, the
Commonwealth was required to prove that he possessed "tools,
implements or outfit, with intent to commit burglary, robbery or
larceny." Mere possession of a tool alone is not prohibited, for
such "'may be, and usually are, designed and manufactured for
lawful purposes.' The gravamen of the offense arises from the
possessor's 'intent to use' these 'common, ordinary' objects for a
criminal purpose specified by statute, burglary, robbery, or
larceny." Moss v. Commonwealth, 29 Va. App. 1, 3, 509 S.E.2d 510,
511 (1999) (quoting Burnette v. Commonwealth, 194 Va. 785, 790, 75
S.E.2d 482, 486 (1953)).
Irvin and Jon Rowe testified that a pair of pliers was kept
outside on the front porch before the break-in. Jon Rowe found
them inside the house on the floor amidst the broken glass of the
front door after the break-in. In this case, the jury could
reasonably infer that the pliers were used by the possessor to
effect the breaking and entry. Likewise, the evidence being
sufficient to convict Blaney of burglary, it was also reasonable
for the jury to infer that the burglary was accomplished by Blaney
with the use of the pliers. We hold that this evidence was
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sufficient to prove beyond a reasonable doubt that Blaney was in
possession of burglary or larceny tools.
Finally, Blaney contends that the evidence was insufficient
to support his conviction for solicitation to commit malicious
bodily injury. Although Blaney denies the statements attributed
to him by Morris Rowe, he argues that any statements he made were
caused by fear resulting from the words and actions of Morris Rowe
while he had his gun drawn. Therefore, Blaney argues, the
evidence was insufficient to show that he intended to induce the
teenage boy to commit a crime. 1
Code § 18.2-29 makes it unlawful for any person to command,
entreat, or otherwise attempt to persuade another to commit a
felony. Morris Rowe testified that, when Blaney returned to the
scene, after having earlier fled, and saw Rowe pointing a gun at
the teenager, Blaney screamed to the boy, "run over him, ram
him, run over him, run over him," referring to the boy running
over or ramming Rowe with the car. Then, as the boy revved the
engine, Blaney shouted, "he won't shoot," referring to the gun
pointed at the boy's head by Rowe.
The jury, which had the opportunity to hear and observe the
witnesses on the stand and weigh the evidence accordingly, could
1
Blaney also argues on appeal that he acted in
self-defense. However, this argument was never presented to the
trial court. Thus, it was not properly preserved, and Rule
5A:18 bars our consideration of it on appeal. Furthermore, we
find no reason to invoke the "good cause" or "ends of justice"
exceptions.
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reasonably infer from the testimony of Morris Rowe, whom it
chose to believe, that Blaney intended to incite the boy to hit
Rowe with the car and thereby cause him serious injury. We
hold, therefore, that the evidence was sufficient to prove
beyond a reasonable doubt that Blaney solicited another to
commit malicious bodily injury.
B. MOTION FOR NEW COUNSEL OR CONTINUANCE OF TRIAL
In September 1998, Blaney was indicted on the charges of
which he was subsequently convicted. Blaney and his
court-appointed attorney appeared for trial with a jury on
August 2, 1999. In some of his answers on the "Not Guilty
Questionnaire," Blaney expressed dissatisfaction with his
attorney and represented that he was not ready for trial. He
requested that the court appoint a new attorney for him. The
trial court conducted a hearing of approximately forty-five
minutes. Blaney's motion for substitution of attorney was
denied. Thereafter Blaney asked for a continuance so that he
could represent himself. When the motion for a continuance was
denied by the trial court, Blaney withdrew his motion to
represent himself and proceeded to trial with his
court-appointed attorney. Blaney contends that the trial court
erred in denying his motions.
Whether an indigent defendant's court-appointed attorney
should be discharged is a matter that lies within the sound
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discretion of the trial court, and its ruling will not be
reversed on appeal unless it is plainly wrong. Kinard v.
Commonwealth, 16 Va. App. 524, 526, 431 S.E.2d 84, 85 (1993)
(citing with approval United States v. Gallop, 838 F.2d 105, 108
(4th Cir. 1988)). Furthermore, a defendant cannot have his
court-appointed attorney replaced unless he shows "good cause."
Id.
Likewise, "[w]hether to grant a continuance of a trial is a
matter that lies within the sound discretion of a trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994). "Absent a showing of prejudice to a
defendant by the denial of a continuance, an appellate court
will not find that a trial court abused its discretion." Id. at
509, 450 S.E.2d at 151.
The trial court chose not to believe or accept Blaney's
stated complaints and reasons for seeking a new attorney and a
continuance. Instead, the court made specific findings and
ruled that there was no good cause for replacing Blaney's
court-appointed attorney and that Blaney's motions, "at this
late hour," were for the purpose of delay. The court's rulings
were not plainly wrong. Moreover, Blaney made no showing that
he was prejudiced by the denial of a continuance.
We hold, therefore, that the trial court did not abuse its
discretion.
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Accordingly, we affirm appellant's convictions.
Affirmed.
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