Alonzo Ellis Marshall, Jr. v. Commonwealth of Virginia ( 2021 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and AtLee
UNPUBLISHED
Argued by videoconference
ALONZO ELLIS MARSHALL, JR.
MEMORANDUM OPINION* BY
v. Record No. 0466-20-1 JUDGE RICHARD Y. ATLEE, JR.
MARCH 9, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Rufus A. Banks, Jr., Judge
Erik A. Mussoni, Assistant Public Defender (Lucille M. Wall,
Assistant Public Defender, on brief), for appellant.
Mason D. Williams, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Alonzo Ellis Marshall, Jr. appeals his convictions for attempted breaking and entering
and use of a firearm while attempting to break and enter. He argues that the evidence was
insufficient to sustain his convictions. Specifically, he argues that the evidence was insufficient
to prove he had an intent to commit larceny. We disagree and affirm his convictions.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)).
On December 21, 2018, Randy Culpepper was working as the store manager at a Dollar
Tree in Chesapeake, Virginia. Culpepper, along with two cashiers and Dottie Stevens, a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“recovery person” in charge of cleaning the store, were closing the store at the end of the night.
Shortly after locking the doors at 10:00 p.m., Culpepper heard someone trying to open the doors.
Culpepper testified that he saw a man wearing a backpack and black puffy jacket, later
identified as Marshall, grab the doors of the Dollar Tree with both hands and “forcibly” shake
them multiple times. Culpepper, then about fifteen feet away, told him the store was closed.
Marshall did not respond, but he did smirk at Culpepper in an “unsettling” manner. Culpepper
testified that it was not a normal reaction to being told the store was closed.
Marshall then walked past the storefront windows, moving from Culpepper’s left to his
right. As Marshall walked away, Culpepper could see through the windows that Marshall had a
black handgun in his left hand. Culpepper had moved about five to ten feet closer to the front of
the store. He saw the barrel of the gun, and Marshall’s hand on the grip. Marshall’s arm was
straight and pointed downward and out to the side, about twelve inches from his body.
Culpepper testified that he was able to see the gun for approximately three to four seconds.
Culpepper had not seen the gun when Marshall was shaking the doors, but he explained that his
attention was not on Marshall’s hands. Stevens observed Marshall shake the doors and walk off
to the side of the store, but she testified that she was not in a position to see anything in
Marshall’s hands.
Once past the storefront, Culpepper noticed that Marshall had stopped and turned, and it
appeared he had placed his back up against the wall. When he saw the handgun, Culpepper told
his associates to move to the back of the store. He informed them that they would not be leaving
until Marshall was gone. He then called the police, and they waited inside for about fifteen
minutes before the police arrived.
Officer Kenneth Smith, with the Chesapeake Police Department, responded to the call
less than a minute after receiving it. Officer Smith immediately noticed a man with a flowered
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backpack, who matched the description given, standing on the median separating the Dollar Tree
parking lot from the road. As Officer Smith approached, he noticed that Marshall appeared to be
loading the magazine of a firearm. Officer Smith identified himself, explained why he was
making contact, and told Marshall that he was going to conduct a pat down. Marshall told
Officer Smith that Smith was not going to search him or his backpack. Officer Smith testified at
trial that Marshall started to take a couple of steps back.
As Officer Smith moved to conduct the pat down, Marshall admitted he had a gun and
reached into his pocket, which led Officer Smith to draw his weapon. Marshall pulled out what
turned out to be a BB gun. Officer Smith ordered Marshall to drop the gun. After repeated
requests, Marshall dropped the gun.
Officer Smith informed Marshall that he was still going to do a pat down. Marshall
became angry and struggled with the officer. Officer Smith ultimately prevailed and placed
Marshall in handcuffs. When he was finally subdued, Marshall informed the officer that he also
had a weapon in his backpack. During the search, Officer Smith discovered a .380
semiautomatic handgun, with one round in the chamber and five rounds in the magazine.
At trial, Marshall testified in his own defense. He admitted that he walked past the Dollar
Tree on the way to his hotel that night, but he denied ever shaking the doors of the store. He also
denied that he smirked or saw the store manager. Marshall testified that he did not see the sign
stating the store hours, but he did know the store closed “at like 9:00 [or] 9:30.” He admitted
that he had a BB gun in his pocket and the gun in his backpack, but he denied ever having either
in his hand. Instead, he claimed that he was holding the BB gun magazine in his hand. Marshall
also denied that he fought with Officer Smith.
Marshall made a motion to strike the evidence. He argued that the evidence was
insufficient to establish that he had “an intent to break into the Dollar Tree with the intent to
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commit any kind of crime therein.” He then argued that if the trial court granted the motion on
the attempted breaking and entering, then it would have to grant the motion in regard to use of a
firearm “because that charge is part and parcel with the charge of attempted breaking and
entering.”
The trial court denied the motion. The trial court found Culpepper’s and Stevens’
testimony more credible than Marshall’s, noting Marshall’s outright denials should not be given
credence in light of Culpepper’s and Stevens’ unequivocal identification of Marshall and
description of his actions. Additionally, Marshall’s admission that he knew the store closed
around 9:00 or 9:30 p.m. was particularly relevant as it allowed the trial court to infer an
unlawful purpose when Marshall attempted to enter the store after 10:00 p.m. Given the
surrounding circumstances, the trial court found Marshall guilty of both charges. Marshall now
appeals to this Court.
II. ANALYSIS
A. Standard of Review
Marshall argues that the evidence is insufficient to support his convictions. “When the
sufficiency of the evidence is challenged on appeal, we must ‘“examine the evidence that
supports the conviction and allow the conviction to stand unless it is plainly wrong or without
evidence to support it.”’” Austin v. Commonwealth, 60 Va. App. 60, 65 (2012) (quoting
Commonwealth v. McNeal, 282 Va. 16, 20 (2011)). We review the evidence “in the light most
favorable to the Commonwealth, the prevailing party at trial,” Gerald, 295 Va. at 472, and we
determine whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt,” Reid v. Commonwealth, 65 Va. App. 745, 753 (2016) (quoting
Ervin v. Commonwealth, 57 Va. App. 495, 502 (2011)). “If there is evidence to support the
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conviction, we may not substitute our judgment, even if our conclusions of fact differ from the
conclusions reached by the fact-finder at trial.” Austin, 60 Va. App. at 65-66.
B. Attempted Break and Enter
Marshall argues that the evidence failed to prove that he had the intent to break into and
enter the Dollar Tree to commit a larceny. He also challenges the credibility of Culpepper’s and
Stevens’ testimony against him.
“An attempt . . . is an unfinished crime and is composed of two elements, the intent to
commit the crime and the doing of some direct act toward its consummation, but falling short of
the accomplishment of the ultimate design.” Velez-Suarez v. Commonwealth, 64 Va. App. 269,
277-78 (2015) (quoting Rodgers v. Commonwealth, 55 Va. App. 20, 24-25 (2009)). “The intent
required to be proven in an attempted crime is the specific intent in the person’s mind to commit
the particular crime for which the attempt is charged.” Cuffee v. Commonwealth, 61 Va. App.
353, 369 (2013) (quoting Wynn v. Commonwealth, 5 Va. App. 283, 292 (1987)).
“A defendant’s intent, due to its very nature, ‘may, and often must, be inferred from the
facts and circumstances in [the] particular case,’” Parham v. Commonwealth, 64 Va. App. 560,
566 (2015) (alteration in original) (quoting Ridley v. Commonwealth, 219 Va. 834, 836 (1979)),
“including a person’s conduct and statements,” Roberston v. Commonwealth, 31 Va. App. 814,
820 (2000). “Intent is a factual determination, and a trial court’s decision on the question of
intent is accorded great deference on appeal and will not be reversed unless clearly erroneous.”
Towler v. Commonwealth, 59 Va. App. 284, 297 (2011).
Marshall admitted at trial that he knew the Dollar Tree closed at 9:00 or 9:30 p.m. and
that it was after 10:00 p.m. when he was at the store. From this fact, the trial court found that if
Marshall “knew the store was closed, the [trial c]ourt could and does infer that he attempted an
unlawful entry from all the surrounding facts and circumstances on that date.” Our deference to
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the fact-finder “applies not only to the findings of fact, but also to any reasonable and justified
inferences the fact-finder may have drawn from the facts proved.” Turner v. Commonwealth, 65
Va. App. 312, 331 (2015) (quoting Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)).
Additionally, two witnesses, both of whom unequivocally identified Marshall, saw him
“forcibly” shake the locked doors with two hands multiple times. When the store manager
informed Marshall the store was closed, Marshall smirked in an unsettling way without replying.
Furthermore, he had a firearm in one hand and appeared to back up against the side of the
building after walking past the glass storefront. And as Officer Smith approached Marshall
when responding to the call only a minute after the call, he observed Marshall attempting to load
the magazine of a firearm. Given the trial court’s inference that Marshall attempted an unlawful
entry, his possession of a firearm, his unsettling response to being told the store was closed, and
his other actions, a rational trier of fact could conclude that Marshall intended to enter the store
to commit larceny.
Marshall challenges the evidence offered by Culpepper and Stevens, arguing that the
“credibility of the . . . witnesses was unreliable,” particularly the witnesses’ identification of
Marshall and whether Culpepper saw a firearm. “The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who has the opportunity to see and
hear that evidence as it is presented.” Commonwealth v. Perkins, 295 Va. 323, 328 (2018)
(quoting Elliott v. Commonwealth, 277 Va. 457, 462 (2009)). “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.” Flanagan v. Commonwealth, 58
Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10
(1998)). Here, the trial court made a specific finding that Culpepper’s and Stevens’ testimony
was more reliable than Marshall’s testimony. Both testified they were able to view Marshall
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through the window. Culpepper initially saw him from ten to fifteen feet away, and then, at
some point, he moved closer and observed him from five to ten feet away. There is nothing in the
record to suggest Culpepper’s and Stevens’ testimony was unreliable or inherently incredible.
Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that Marshall had
the requisite intent.
C. Use of a Firearm Charge
Marshall also argues that the evidence was insufficient to prove that he used a firearm
while attempting to break and enter the Dollar Tree store.
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling
. . . .” Under the rule, “a specific argument must be made to the trial court at the appropriate
time, or allegation of error will not be considered on appeal.” Edwards v. Commonwealth, 41
Va. App. 752, 760 (2003) (en banc).
In his brief to this Court, Marshall argued that the evidence was insufficient for two
reasons: (1) Culpepper’s testimony was insufficient to prove he used a firearm, especially in
light of Marshall’s testimony that he had a magazine from the BB gun in his hand, and (2) that
the use of a firearm charge fails because the Commonwealth failed to prove the predicate offense
of attempted breaking and entering. In the court below, however, Marshall argued only that the
use of a firearm charge must fail because the evidence was insufficient to prove the predicate
offense. Nothing in his argument below alerted the trial court to his other argument before this
Court.1 “Making one specific argument on an issue does not preserve a separate legal point on
the same issue for review.” Id. Accordingly, Marshall’s first argument, that the evidence was
Marshall’s only argument below relating to the firearm and how it was used addressed
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whether Marshall had an intent to commit a crime.
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insufficient to prove that he used the firearm, is not preserved, and we will not consider it on
appeal.
Unlike the previous argument, Marshall’s second contention, that the use of a firearm
charge fails if the evidence was not sufficient to support his attempted breaking and entering
charge, was properly preserved. Nevertheless, it fails, because, as explained above, we find the
evidence sufficient to prove the predicate offense of attempted breaking and entering. Therefore,
Marshall’s conviction for use of a firearm stands.
III. CONCLUSION
Because the evidence was sufficient to support both of Marshall’s convictions, we affirm
the decision of the trial court.
Affirmed.
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