Gary Stephen Diaz v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
GARY STEPHEN DIAZ
MEMORANDUM OPINION * BY
v. Record No. 2987-97-4 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Paul E. Pepper, Assistant Public Defender
(Susan L. Korfanty, Senior Assistant Public
Defender, on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Gary Stephen Diaz appeals his conviction of receiving stolen
property in violation of Code § 18.2-108. He argues that the
evidence presented during his bench trial was insufficient to
sustain the trial court's finding of guilt. Concluding the
evidence did support that finding, we affirm the conviction.
On appeal we view the evidence in the light most favorable
to the Commonwealth with all reasonable inferences fairly
deducible therefrom. See Archer v. Commonwealth, 26 Va. App. 1,
11, 492 S.E.2d 826, 831 (1997). In so doing, we must discard the
evidence of the accused in conflict with that of the
Commonwealth, see Cirios v. Commonwealth, 7 Va. App. 292, 295,
373 S.E.2d 164, 165 (1988), and not substitute our judgment for
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
that of the fact finder. See Cable v. Commonwealth, 243 Va. 236,
239, 415 S.E.2d 218, 220 (1992). The trial court's ruling will
not be disturbed on appeal unless plainly wrong or without
evidence to support it. See George v. Commonwealth, 242 Va. 264,
278, 411 S.E.2d 12, 20 (1991), cert. denied, 503 U.S. 973 (1992);
Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416
(1993).
So viewed, the evidence established that Jeffrey Robertson
stole a bracelet and diamond ring from his grandmother. He and a
friend, also an underage teenager, took the jewelry to the Gold
Star Pawn Shop and pawned it to the defendant, who worked there.
The items were worth $2,950, but they received only $120. Both
Robertson and his friend identified the defendant as the person
to whom they pawned the jewelry. They said that he did not ask
for identification, did not ask who owned the bracelet, and did
not ask them to complete any paperwork.
As soon as Robertson's grandmother discovered the jewelry
was missing, she suspected him of taking it. He admitted
stealing the jewelry and returned to the pawn shop with her where
he identified the defendant to her. The defendant returned the
bracelet to her without charge and without completing any
paperwork. An attorney for the pawn shop returned the ring a
week later.
Pawn shop regulations required verified identification of
anyone who pawned property. The required information included
the name, address, phone number, height, weight, and birth date.
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The regulations also required the pawn shop to make a detailed
description of the property received and to file it in writing
with the police. The detective who maintained these records
testified that he never received any form describing the jewelry
Robertson pawned. When asked for the pawn ticket for the
jewelry, the defendant gave the detective a pawn ticket, but it
was for a bracelet pawned by another person, Martha Jones, and
the description on the ticket did not match the jewelry Robertson
pawned.
The defendant said that he had been in the store all day on
the day in question, but he did not know if "two kids" had come
into the store. He acknowledged being in the store when the
grandmother claimed her bracelet, but he said that it had been in
the store "for a while." The defendant also claimed that he had
given the detective the correct ticket for the transaction with
Robertson, but later stated that the "constant bombardment" by
the detectives caused him to give them the wrong ticket.
Three other witnesses testified for the defendant. The shop
owner, his half-brother and his wife all testified that they had
been in the store on the day in question but had not seen the two
boys. The defendant argues that the trial court erred by
disregarding the three defense witnesses and in believing
Robertson and his friend. He asserts that accepting the
testimony of the two teenagers over that of the three adults was
arbitrary. However, the credibility of witnesses, the weight
accorded their testimony, and the inferences to be drawn from
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proven facts are matters solely for the fact finder's
determination. See Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
We conclude that the evidence is sufficient to affirm the
defendant's conviction for receiving stolen property. Robertson
and his friend pawned stolen jewelry to the defendant. He paid
them $120 for two items worth much more and asked for no
identification from the teenagers. He prepared no paperwork and
did not file the required information with the police. The
defendant returned the bracelet to the grandmother but charged
her nothing. From this evidence the trial court could find that
the defendant received the property and could infer that he knew
it was stolen when he did so.
Finally, the defendant gave conflicting explanations for his
actions. He first said that Jones's ticket was the correct
ticket for the grandmother's jewelry but later stated that the
detectives pressured him into providing the wrong pawn ticket.
Where a fact finder concludes a defendant's testimony is
incredible, it can infer the defendant lied to conceal his guilt.
See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987).
The evidence is sufficient to affirm the defendant's
conviction, and we affirm the judgment of the trial court.
Affirmed.
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