Jonathan Ross Hawker v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Lorish and Callins
UNPUBLISHED
Argued at Richmond, Virginia
JONATHAN ROSS HAWKER
MEMORANDUM OPINION* BY
v. Record No. 0112-21-2 JUDGE GLEN A. HUFF
MARCH 15, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Kimberley S. White, Judge
(Michael A. Nicholas; Daniel, Medley & Kirby, P.C., on brief), for
appellant. Appellant submitting on brief.
Robin M. Nagel, Assistant Attorney General (Mark R. Herring,1
Attorney General, on brief), for appellee.
Jonathan Ross Hawker (“appellant”) was convicted of grand larceny, in violation of Code
§ 18.2-95, in the Circuit Court of Halifax County (the “trial court”). Appellant challenges the
sufficiency of the evidence to prove that he was the criminal agent who committed the theft. For
the following reasons, this Court affirms his conviction.
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)). In doing so,
this Court discards any of appellant’s conflicting evidence and regards as true all credible evidence
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Id. at 473.
Appellant approached Ronnie Waller twice in 2019 and asked to purchase a large sign that
hung on an outbuilding on Waller’s property. The sign was red, white, and blue, with the word
“AMERICAN” in all capital lettering and blue type. During the first visit, appellant offered Waller
$400, but Waller declined, stating that the sign had sentimental value and he did not want to sell it.
Appellant offered Waller $700 during the second visit several months later; Waller declined again.
On August 22, 2019, Waller noticed the sign was missing and called the police. When the sign
went missing, it had specific but minimal damage.
Appellant’s ex-girlfriend, Tricia Davis, owned a business on Facebook Marketplace selling
antique signs, cars, gas pumps, and other items from the 1950s. Appellant and Davis sometimes
posted each other’s items for sale. In August 2019, appellant gave Davis a sign that matched the
description of Waller’s missing sign and asked her to sell it on Facebook because he was not
receiving any offers. Appellant initially told Davis that he bought it from a person in Virginia but
later claimed that he found it at a property where he worked and the owner paid him for his work
with the sign. Davis cleaned away some of the rust on the sign and sold it for $1,300. She
previously had sold three similarly colored signs.
Waller contacted Halifax County Investigator Burton on August 23, 2019, after Waller’s
brother saw Davis’s Facebook Marketplace posting of the sign. Investigator Burton obtained a
search warrant for appellant’s Facebook account and found a private conversation from August 22,
2019, where appellant sent a photo of the sign to someone for a potential sale, stating he found the
sign under a barn.
Investigator Burton spoke to Davis on the phone. Appellant was with Davis during the
phone call, but Investigator Burton did not know appellant could hear the conversation. When
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Investigator Burton asked Davis about the sign she had for sale, appellant hung up Davis’s phone
and told her that it is a detective’s job to lie to get the information that they want. Appellant stated
that he did not do anything wrong or take anything and the sign could have been one that Davis had
previously sold.
Davis returned Investigator Burton’s call and spoke with him for about a minute before
appellant grabbed Davis’s phone and hung up again. Appellant was frantic and pacing the floor.
Davis called Investigator Burton a third time, explained that she was having signal issues, and told
him to “just do what you got to do” because she was aggravated, confused, and overwhelmed.
Appellant reiterated to Davis that he had nothing to do with the situation, could not believe what
was happening, and did not want to get in trouble for something that he did not do. Appellant also
told Davis that Investigator Burton was talking about a sign she had purchased in Tennessee, not the
sign he gave her. Davis later identified the sign reported as stolen as the sign appellant gave to her,
not the sign from Tennessee.
At trial, appellant moved to strike the Commonwealth’s evidence, arguing that no one saw
appellant take the sign and Davis’s testimony was not credible. The trial court denied the motion.
Appellant denied stealing Waller’s sign and testified that he never went to Waller’s property in
2019; instead, he asserted that he had asked Waller about the sign once in 2016. Appellant stated
that Davis sent photos of the sign to him and asked him to contact people to find a seller. Appellant
claimed that his statement that he found the sign under a barn was a joke. He denied being present
or hanging up Davis’s phone while she was talking with Investigator Burton and stated that he was
not aware of such a conversation. He further denied giving the sign to Davis or “ever lay[ing] hands
on it.” Appellant had two prior petit larceny convictions from 2016 but did not truthfully testify
about his criminal history.
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At the close of all the evidence, appellant renewed his motion to strike, arguing that Davis
was not a credible witness. The trial court denied the renewed motion, convicted appellant of grand
larceny, and sentenced him to ten years’ imprisonment with nine years and nine months suspended.
The trial court found that Davis was credible and appellant’s testimony was incredible. This appeal
follows.
ANALYSIS
Appellant contends that the evidence was insufficient to sustain his conviction because it
failed to prove that he was the criminal agent. Appellant argues that the trial court erred in “not
crediting his compelling testimony” because he offered “reasonable explanations” about his
comments and the Commonwealth’s “only evidence” as to his identity as the criminal agent was
that he gave the sign to Davis.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting Commonwealth v.
Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Secret v.
Commonwealth, 296 Va. 204, 228 (2018) (quoting Pijor v. Commonwealth, 294 Va. 502, 512
(2017)). Instead, we ask “whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. “If there is evidentiary support for the
conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.
273, 288 (2017)).
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“The fact finder, who has the opportunity to see and hear the witnesses, has the sole
responsibility to determine their credibility, the weight to be given their testimony, and the
inferences to be drawn from proven facts.” Rams v. Commonwealth, 70 Va. App. 12, 26-27
(2019) (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)). “[T]he conclusions of the
fact finder on issues of witness credibility may be disturbed on appeal only when we find that the
witness’ testimony was ‘inherently incredible, or so contrary to human experience as to render it
unworthy of belief.’” Ragsdale v. Commonwealth, 38 Va. App. 421, 429 (2002) (quoting Ashby
v. Commonwealth, 33 Va. App. 540, 548 (2000)). “Evidence is not ‘incredible’ unless it is ‘so
manifestly false that reasonable men ought not to believe it’ or ‘shown to be false by objects or
things as to the existence and meaning of which reasonable men should not differ.’” Gerald, 295
Va. at 487 (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)). In addition, “[i]n 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).
Here, the evidence was sufficient to prove that appellant stole Waller’s sign. First, appellant
had a motive to steal the sign: he had approached Waller twice in 2019 and asked to buy it, but
Waller rejected both offers. Although the Commonwealth need not prove motive to sustain a
conviction, it is nevertheless relevant to establishing guilt, especially when “a conviction is based
on circumstantial evidence.” Tibbs v. Commonwealth, 31 Va. App. 687, 704 (2000) (citing
Smith v. Commonwealth, 220 Va. 696, 702 (1980)).
Second, once the Commonwealth proves the accused’s “exclusive possession of recently
stolen property,” that “unexplained possession of recently stolen goods permits an inference of
larceny by the possessor.” Winston v. Commonwealth, 26 Va. App. 746, 757 (1998) (first citing
Best v. Commonwealth, 222 Va. 387, 389 (1981); and then quoting Bright v. Commonwealth, 4
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Va. App. 248, 251 (1987)). That “inference from the recent, unexplained, possession of stolen
property may, by itself, support a conviction of larceny.” Montague v. Commonwealth, 40
Va. App. 430, 437 (2003) (citing Bright, 4 Va. App. at 251). Indeed, “[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 (1990) (en banc) (quoting Fout v. Commonwealth, 199 Va. 184, 190 (1957)).
In this case, Waller realized that the sign was missing from his property on August 22, 2019.
That same day, appellant tried to sell the sign in a private Facebook conversation. Additionally,
Davis testified that appellant gave her the sign in August 2019 and asked her to post it on Facebook
for him. Thus, the evidence demonstrated that appellant exclusively possessed the sign the same
day it was stolen from Waller’s property, permitting the inference that he was the thief. See
Montague, 40 Va. App. at 437-38 (applying the larceny inference when the defendant was found
driving a car the same day that its owner discovered it “was gone”).
Notwithstanding the above evidence of guilt, appellant argues that the trial court erred in
“not crediting his compelling testimony” that (1) he did not steal the sign, (2) Davis sent photos of
the sign to him and asked him to contact people to find a seller, (3) he was not present when Davis
spoke to Investigator Burton over the phone, and (4) he was joking when he said he found the sign
under a barn. The trial court, however, was not obligated to accept appellant’s testimony or
explanations. Id. at 438 (citing Roberts v. Commonwealth, 230 Va. 264, 272 (1985)). Indeed, the
above testimony was contradicted by the balance of the evidence, including appellant’s initial claim
that he bought the sign from someone in Virginia and that it was given as payment for work he
performed at a property. As the factfinder, “the trial court was at liberty to discount [appellant’s]
self-serving statements as little more than lying to conceal his guilt . . . , and could treat such
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prevarications as affirmative evidence of guilt.” Coleman v. Commonwealth, 52 Va. App. 19, 25
(2008) (internal quotation marks and citations omitted).
Finally, “it is universally conceded that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and related conduct are
admissible as evidence of consciousness of guilt, and thus of guilt itself.” Palmer v.
Commonwealth, 14 Va. App. 346, 348‑49 (1992) (emphasis added) (quoting Langhorne v.
Commonwealth, 13 Va. App. 97, 102 (1991)). Such evidence “may be considered as evidence of
guilt along with other pertinent facts and circumstances.” Hope, 10 Va. App. at 386 (citing
Bowie v. Commonwealth, 184 Va. 381, 392 (1945)). Here, appellant twice hung up Davis’s
phone when she was talking to Investigator Burton and asserted that the sign she posted could
have been one she had previously sold. After those calls, appellant was frantic and pacing the floor.
A rational factfinder could interpret appellant’s actions as evasive behavior evincing a
consciousness of guilt.
In sum, appellant’s motive to steal the sign, exclusive possession of the sign the same day it
was stolen, evasive behavior, and incredible explanations overwhelmingly support the trial court’s
conclusion that he was the criminal agent. Thus, the Commonwealth’s evidence was competent, not
inherently incredible, and sufficient to sustain appellant’s conviction for grand larceny.
Accordingly, this Court affirms the trial court’s judgment.
Affirmed.
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