Larry Antonio Neblett v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
LARRY ANTONIO NEBLETT
MEMORANDUM OPINION * BY
v. Record No. 1247-00-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 21, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Pursuant to the mandate of our memorandum opinion issued
herein on May 22, 2001, the trial court entered two orders dated
August 2, 2001, nunc pro tunc April 5, 2000 and May 18, 2000
respectively, correcting clerical errors in its orders of April 5
and May 18, 2000, and clarifying and confirming that it was the
trial court's judgment to convict Larry Antonio Neblett of
breaking and entering on January 11, 2000, as charged in
Indictment No. 00-380-F and to acquit him of breaking and entering
on January 27, 2000, as charged in Indictment No. 00-379-F.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Whereupon, it appears that Larry Antonio Neblett stands
convicted in the trial court of breaking and entering on January
11, 2000, as charged in Indictment No. 00-380-F and he stands
acquitted of breaking and entering on January 27, 2000, as charged
in Indictment No. 00-379-F. On appeal, Neblett contends that the
trial court erred in finding the evidence sufficient to support
his conviction. We affirm the judgment of the trial court.
When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 718,
721 (1988).
The judgment of a trial court sitting
without a jury is entitled to the same
weight as a jury verdict and will not be set
aside unless it appears from the evidence
that the judgment is plainly wrong or
without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Yvette Pelt and Neblett enjoyed a romantic relationship.
Pelt allowed Neblett to stay at her house. The relationship
became contentious. Pelt testified that on January 11, 2000,
they got into an argument. She stated:
I loaned [Neblett] some money and in turn he
was supposed to pay me back. However, he
never did. And, he had two televisions at
my home in lieu of the money. And, in the
event he didn't pay me it was kind of like a
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consignment type thing. And, he never paid
me back on that day that he promised to pay
me back. And, we had an argument. And, he
decided he wanted to take the televisions
with him. And, I told him he wasn't going
to unless he gave me the money. And, in
turn I locked my door. I asked him to
leave, locked my door, and two seconds later
he kicked the door in and insisted on taking
the televisions. At that point he had taken
them and I had called 9-1-1. I felt like
they were mine.
Pelt's testimony supports the trial court's determination
that Neblett broke and entered Pelt's dwelling house with the
intent to steal the television sets that he had "consigned" to
her in payment of his indebtedness to her. Thus, Neblett's
conviction is supported by credible evidence.
The judgment of the trial court is affirmed.
Affirmed.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
LARRY ANTONIO NEBLETT
MEMORANDUM OPINION * BY
v. Record No. 1247-00-2 JUDGE JERE M. H. WILLIS, JR.
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender; Office of
the Public Defender, on brief), for
appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his bench trial convictions of arson, in
violation of Code § 18.2-77, and breaking and entering, in
violation of Code § 18.2-91, Larry Antonio Neblett contends that
the trial court erred (1) in permitting the Commonwealth's
expert witness to testify regarding the ultimate issue in the
arson case and (2) in concluding that the evidence was
sufficient to support both convictions. For the reasons that
follow, we affirm in part and remand.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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I. BACKGROUND
Yvette Pelt and Neblett began a romantic relationship, and
Pelt allowed Neblett to stay at her house. The relationship
became contentious. Pelt testified that they got into an
argument on January 11, 2000. She stated:
I loaned [Neblett] some money and in turn he
was supposed to pay me back. However, he
never did. And, he had two televisions at
my home in lieu of the money. And, in the
event he didn't pay me it was kind of like a
consignment type thing. And, he never paid
me back on that day that he promised to pay
me back. And, we had an argument. And, he
decided he wanted to take the televisions
with him. And, I told him that he wasn't
going to unless he gave me the money. And,
in turn I locked my door. I asked him to
leave, locked my door, and two seconds later
he kicked the door in and insisted on taking
the televisions. At that point he had taken
them and I had called 9-1-1. I felt like
they were mine.
Pelt testified that a neighbor repaired her door and that
she later allowed Neblett to return. Pelt stated that on
January 27, 2000, she told Neblett that she no longer wanted to
see him. He became "upset." That evening, she "heard the door
bash open" and "[Neblett] was standing in [her] foyer." Pelt
testified that Neblett's "eyes were red," he was "staggering,"
and she could smell alcohol on his breath. Neblett went to the
basement and stated, "I'm not going anywhere, I am not leaving."
Pelt, her daughter, and a guest who was present left the house.
Pelt called the police from a nearby store. Officer William
Bryant arrived at the store to take her report and as she was
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talking to him, someone ran past her and said a house was on
fire. The house was Pelt's. It was destroyed by the fire.
William M. Martin of the Fire Marshall's Office
investigated the fire. Upon being qualified as an expert
witness, Investigator Martin explained that fires are either
accidental or intentional. He identified photographs of several
rooms in the house. He discussed where the fires had been set
and the burn patterns in those rooms. He explained the fire's
progress through the house and noted that no accelerants had
been used.
Christopher Moody testified that, while returning home from
the bank on the evening of January 27, 2000, he saw a fire
inside Pelt's house. He knocked on the front and rear doors "to
wake up anybody who happened to be asleep inside."
William Downs testified that on January 27, 2000, he saw "a
man run around from the side of the house through the front yard
and into a car that was parked on the curb." He testified that
the car was a "blue sedan" bearing a license plate that read
"Big L." He stated that the man tried to drive away quickly,
but had a difficult time because of the weather conditions. He
could not identify the man.
Lauren Vincelli testified to essentially the same facts as
did Downs. Specifically, she stated that she saw "a light blue
four-door sedan stuck in the snow. . . . [I]t was trying pretty
hard to get out of the snow. . . . [F]inally he did." Vincelli
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testified that the individual "definitely [had] the figure of a
man," but she could not identify him.
Officer Bryant testified that on January 28, 2000, he told
the officers on his shift to be "on the look-out for the Honda,
license plate 'Big L'." Later that day, Officer Bryant was
contacted by two other officers who had stopped a car with this
license plate. He went to where the car was stopped and saw
Neblett standing next to the Honda bearing the license plate
"Big L."
Neblett presented no evidence.
II. EXPERT WITNESS TESTIMONY
Neblett contends that the trial court committed reversible
error by allowing Investigator Martin to testify upon the
ultimate issue of fact. The Commonwealth contends that this
issue is barred by Rule 5A:18 because Neblett did not specify
this objection at trial. We agree.
On direct examination, Investigator Martin testified, "[I]n
this particular case I determined that it was not of accidental
nature, so I started -- ." Defense counsel objected, "Judge,
I'm going to object to his opinion testimony unless some proper
foundation can be made."
The Commonwealth's attorney proceeded to qualify
Investigator Martin as an expert in fire investigations.
Defense counsel cross-examined him as to his expertise. He was
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then received as an expert by the trial court. That ruling is
not challenged on appeal.
Upon further direct examination, Investigator Martin was
asked by the Commonwealth's attorney, "[C]an you tell the Judge
if you know and what your opinion is, as to how these fires got
started?" Defense counsel interjected, "Objection, Judge."
Neither objection asserted to the trial court that the
witness was being called upon to testify as to the ultimate
issue of fact. Thus, this contention on appeal is barred by
Rule 5A:18. We perceive no reason to invoke the ends of justice
exception to the operation of the Rule.
[A] witness may detail the facts and
observations which came to his attention
while investigating the fire and may give
his or her conclusions or opinions on such
matters as where the fire started, the cause
or source of ignition, how it proceeded, and
whether and why certain accidental causes
can be eliminated. However, the court must
"permit the jurors to draw their own
conclusions as to the cause" of the fire.
Callahan v. Commonwealth, 8 Va. App. 135, 139, 379 S.E.2d 476,
479 (1989) (citation omitted).
III. SUFFICIENCY OF THE EVIDENCE
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom."
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 718,
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721 (1988). "The judgment of a trial court sitting without a
jury is entitled to the same weight as a jury verdict and will
not be set aside unless it appears from the evidence that the
judgment is plainly wrong or without evidence to support it."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
A. ARSON
Although the arson case is based on circumstantial
evidence, circumstantial evidence is sufficient to support a
conviction. See Hughes v. Commonwealth, 18 Va. App. 510, 518,
446 S.E.2d 451, 456 (1994) (en banc) (citation omitted). Where
"a conviction is based on circumstantial evidence, 'all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Garland v. Commonwealth, 225 Va.
182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).
"The Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
"Whether a hypothesis of innocence is reasonable is a question
of fact, and a finding by the trial court is binding unless
plainly wrong." Glasco v. Commonwealth, 26 Va. App. 763, 774,
497 S.E.2d 150, 155 (1998) (citation omitted).
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The circumstantial evidence sufficiently supports Neblett's
arson conviction. Pelt testified that on the night of the fire,
Neblett entered her house upset and intoxicated. He was alone
in the house for approximately twenty minutes before the fire
was detected. Mr. Downs and Ms. Vincelli saw a man running from
the house and attempting to leave the area hurriedly in a "blue
sedan" bearing the license plate "Big L." Neblett was found in
possession of that car. This evidence is sufficient to support
the arson conviction.
B. THE BURGLARY CHARGES
Two statutory burglary indictments were returned against
Neblett. Indictment No. 00-379-F charged him with statutory
burglary on January 27, 2000. Indictment No. 00-380-F charged
him with statutory burglary on January 11, 2000.
At the conclusion of the trial, the trial judge stated from
the bench:
[T]he first one is when he kicked the door
in. . . . Apparently to get his
televisions. . . . I will find him guilty of
that. On the second one I have some
question about. I find him not guilty of
the second B and E.
* * * * * * *
On the first charge the Court is going to
find you guilty of B and E, find you not
guilty on the second charge. That was the
one on the 27th, I guess.
The trial order, entered April 5, 2000, states, in
pertinent part:
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Thereupon, it is Ordered that the
defendant be, and he is hereby, acquitted of
Break and Enter in Case No. 00-380-F.
Whereupon, the Court, having fully
heard the evidence and argument of counsel,
doth finds [sic] the defendant guilty as
charged in Case No's. [sic] 00-379-F and
00-381-F, . . . .
This order bears the signature of the trial judge.
The sentencing order, entered May 18, 2000, provides, in
pertinent part:
On April 5, 2000, the defendant was found guilty
by the Court of the following offense(s):
CASE OFFENSE DESCRIPTION OFFENSE VA. CODE
NUMBER AND INDICATOR (F/M) DATE SECTION
00-379-F Break and Enter (F) 01/27/00 18.2-91
00-381-F Arson (F) 01/27/00 18.2-77
This order also bears the trial judge's signature.
The trial judge's pronouncements from the bench compel the
conclusion that, at that time, he intended to convict Neblett of
statutory burglary on January 11, 2000, as specified in
Indictment No. 00-380-F, and to acquit him of statutory burglary
on January 27, 2000, as specified in Indictment No. 00-379-F.
Counsel for both sides on appeal have proceeded upon that
understanding. However, both the trial order of April 5, 2000,
and the sentencing order of May 18, 2000, set forth a contrary
decision, namely: that Neblett was convicted of statutory
burglary on January 27, 2000 and acquitted of statutory burglary
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on January 11, 2000. This disparity prevents our rendering a
decision on this conviction.
Wherefore, it is ordered that this case is remanded to the
trial court with direction:
(1) to ascertain whether the orders of April 5, 2000 and
May 18, 2000 contain clerical errors or are accurate statements
of the trial court's determinations;
(2) if the orders contain clerical errors, to render a
correct statement of the dispositions therein reported;
(3) if the orders contain clerical errors, to render a
correct disposition of Indictment No. 00-379-F and Indictment
No. 00-380-F; and
(4) the trial court shall certify to this Court its order
setting forth the determinations and actions required by this
remand.
Affirmed in part and remanded.
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