Herbert William Jones, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley
Argued at Richmond, Virginia
HERBERT WILLIAM JONES, JR.
MEMORANDUM OPINION* BY
v. Record No. 0712-22-2 JUDGE DANIEL E. ORTIZ
MAY 23, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Paul W. Cella, Judge
(David G. Moss; The Law Office of David G. Moss, PLLC, on
brief), for appellant. Appellant submitting on brief.
Robert Bauer, Assistant Attorney General (Jason S. Miyares,
Attorney General; Leanna C. Minix, Assistant Attorney General, on
brief), for appellee.
Following a bench trial, Herbert William Jones, Jr. was convicted of one count of breaking
and entering and two counts of petit larceny.1 The trial court imposed a total sentence of twenty
years and thirty-three months with fourteen years and forty-four months suspended, for an active
period of incarceration of five years and one month. On appeal, Jones argues that the trial court
erred in excluding testimony from his expert witness regarding the accuracy of his GPS ankle
monitor. Jones further contends that the evidence was insufficient to support his convictions,
arguing that the Commonwealth failed to prove he was the perpetrator. Because the trial court did
not abuse its discretion in excluding the testimony of one of Jones’s expert witnesses and because
there was sufficient evidence that Jones committed all three offenses, we affirm the trial court.
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Jones did not appeal his conviction for a good behavior violation.
BACKGROUND2
On May 9, 2020, Qadira Stewart’s husband mowed his lawn before stowing the lawnmower
near his house. The next morning, Stewart noticed the lawnmower was missing. After hearing the
Stewarts’ lawnmower was missing, the Stewarts’ neighbor, Michael Lee Cole, reviewed
surveillance videos captured by his eight security cameras. The videos showed an individual enter
Cole’s carport at 11:49 p.m. for a matter of seconds, and then leave while covering his face. As he
reviewed the videos, Cole visually tracked the individual’s movements to the Stewarts’ house,
where he saw the shadow of an individual carrying away a lawnmower. The individual took the
lawnmower from the Stewarts’ house, crossed the street, and placed it near a tree in the yard of the
house to the left of Cole’s house. Cole was unable to identify the individual in the video. Cole
captured several screenshots of the activity near his house but did not preserve the actual videos.
In the early morning hours of Sunday, May 31, 2020, several members of the Smith
family—Anne Smith, Peter Smith, and two of their daughters—were asleep in their house. The day
before, Anne Smith had placed her pocketbook containing her zippered wallet on her dining room
table. In the early hours of that Sunday morning, R.S., a minor child of Anne and Peter Smith,
heard the back door next to her ground level bedroom open, and for approximately ten minutes she
heard footsteps walking up and down the stairs leading to the dining room. R.S. alerted her parents
as to what she heard. At 3:00 or 3:30 a.m., Peter and Anne Smith went downstairs to investigate.
Peter saw that the wooden back door was unlocked and the adjoining storm door was
uncharacteristically cracked open. Peter and Anne searched the house for signs of any disturbance
2
“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, we discard any of Jones’s conflicting evidence, and regard as true all
credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Id. at 473.
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but did not see any other than the open and unlocked doors. Neither Anne nor Peter noticed that
anything was missing but did not check Anne’s pocketbook at that time. When the Smiths awoke
later that morning, nothing appeared to be out of place. Anne took her pocketbook containing her
wallet with her to church that day but did not open it. In the afternoon of Sunday, May 31, 2020,
Anne noticed the wallet in her pocketbook was open and about $400 or $500 was missing. The last
time she had seen that money had been one or two days earlier. Neither R.S. nor Peter had taken the
money from Anne’s pocketbook.
Jones’s terms of probation from a prior conviction required him to wear a GPS ankle
monitoring system. In accordance with federal standards, Jones’s GPS device reports his position
within thirty feet with ninety percent accuracy. The GPS device transmits its location once per
minute when in motion. When the GPS device has not moved for more than ten minutes, the GPS
device transmits its location once per hour. On May 9, 2020, GPS location data from Jones’s
monitor placed him within the area of the Stewarts’ lawnmower at 11:51 p.m. The data from May
31, 2020, showed Jones in and around the Smiths’ home at 3:38 a.m. Six data points indicated
Jones’s presence inside the house.
In addition to the two counts of petit larceny and one count of breaking and entering, Jones
was tried on two counts of spying into a dwelling—a house belonging to Troy and Glenda Ford—
with offense dates in June 2020. Jones’s GPS data from the dates and times for the June offenses
were consistent with Jones being inside the Fords’ house. However, the Fords testified that Jones
was never inside their house. At the close of the Commonwealth’s evidence, the trial court granted
Jones’s motion to strike both spying-into-a-dwelling charges. Jones subsequently called
Christopher Elke, who testified as a GPS expert. During Elke’s direct examination, Jones attempted
to elicit testimony about the GPS data from the June offense dates. The Commonwealth objected to
the relevance of the June GPS data, as the June charges were no longer before the court. Jones
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proffered that the June GPS data was relevant to show inaccuracies with the GPS data, notably that
the GPS data indicating that Jones was inside the dwelling was contradicted by witness testimony.
The trial court sustained the Commonwealth’s objection on the ground that the charges from June
were no longer before the court. Jones was subsequently convicted of petit larceny of the Stewarts’
lawnmower, the petit larceny of Anne’s cash, and breaking and entering into the Smiths’ house.
This appeal followed.
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion When It Excluded Certain Expert Testimony
Jones first asserts that the trial court erred in excluding Elke’s testimony concerning the
accuracy of the GPS monitor. Jones argues that testimony referencing two specific instances of
inaccuracy were relevant to show that “[t]he margin of error is clearly true and not just some
statistic.” The trial court acted within its discretion in excluding this testimony because,
although relevant, it was cumulative.
“It is well-settled that ‘[d]ecisions regarding the admissibility of evidence “lie within the
trial court’s sound discretion and will not be disturbed on appeal absent an abuse of
discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (quoting Blankenship
v. Commonwealth, 69 Va. App. 692, 697 (2019)). “A court has abused its discretion if its
decision was affected by an error of law or was one with which no reasonable jurist could agree.”
Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022). “In evaluating whether a trial court
abused its discretion, . . . we do not substitute our judgment for that of the trial court. Rather, we
consider only whether the record fairly supports the trial court’s action.” Kenner v. Commonwealth,
299 Va. 414, 423 (2021) (quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)).
Jones attempted to elicit Elke’s expert opinion about the accuracy of GPS data from June
offense dates. The June GPS data was consistent with Jones’s presence inside the Fords’ house,
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but the testimony indicated that he never entered the home, but rather was on the front porch.
Jones conceded that he was in this general area on the dates and times in question and does not
dispute that he was within thirty feet of the Fords’ house.
“‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact in issue more probable or less probable than it would be without the evidence.” Va. R. Evid.
2:401. “Relevant evidence may be excluded if . . . the evidence is needlessly cumulative.” Va.
R. Evid. 2:403(b). The GPS’s accuracy in placing Jones inside the home is a fact at issue and
therefore relevant. However, the record is replete with recitations that the accuracy of the GPS
device is limited and is only expected to accurately determine position within thirty feet, ninety
percent of the time. When the trial court excluded testimony interpreting two specific instances
in which Jones’s GPS system reported positions inside a house when Jones was actually outside,
the record included ample evidence that GPS data points inside a house but less than thirty feet
from the exterior of the house may be inaccurate because it is within the margin of error for the
GPS monitor. Therefore, the evidence Jones sought to introduce provided no new evidence for
the court to consider; it was cumulative evidence about the limitations of the GPS monitor’s
accuracy. We therefore conclude that the trial court did not abuse its discretion in excluding this
testimony.
II. Sufficiency of Proof of Identity
This Court also finds no merit in Jones’s contention that the trial court erred in finding
the evidence sufficient to prove that he was the individual who committed the crimes of petit
larceny and breaking and entering. The evidence sufficiently supports Jones’s convictions and is
not plainly wrong. “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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
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(quoting Smith v. Commonwealth, 296 Va. 450, 460 (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.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)).
“The question on appeal, is whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Ingram v. Commonwealth, 74 Va. App. 59,
76 (2021) (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). “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.’”
McGowan, 72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
A. Petit Larceny
“Any person who . . . [c]ommits simple larceny not from the person of another of goods
and chattels of the value of less than $500 . . . shall be deemed guilty of petit larceny.” Code
§ 18.2-96 (Repl. Vol. 2018).3 Jones argues the evidence failed to establish that he was the
person who took the lawnmower and cash. “At trial, the Commonwealth bears the burden of
proving the identity of the accused as the perpetrator beyond a reasonable doubt.” Cuffee v.
Commonwealth, 61 Va. App. 353, 364 (2013) (quoting Blevins v. Commonwealth, 40 Va. App.
412, 423 (2003)). On appeal, we review the trier of fact’s determination regarding the identity of
the criminal actor in the context of “the totality of the circumstances.” Brown v. Commonwealth,
37 Va. App. 507, 523 (2002) (quoting Satcher v. Commonwealth, 244 Va. 220, 249 (1992)).
As with any element of an offense, identity may be proved by direct or circumstantial
evidence. Crawley v. Commonwealth, 29 Va. App. 372, 375 (1999). “Circumstantial evidence
is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently
3
The threshold for elevating petit larceny to grand larceny was $500 at the time of the
offense and was increased to $1000 effective July 1, 2020. See 2020 Va. Acts cc. 89, 401.
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convincing to exclude every reasonable hypothesis except that of guilt.” Holloway v.
Commonwealth, 57 Va. App. 658, 665 (2011) (en banc) (quoting Coleman v. Commonwealth,
226 Va. 31, 53 (1983)). “[C]ircumstantial evidence is not viewed in isolation.” Id. (quoting
Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). “While no single piece of evidence may
be sufficient, the combined force of many concurrent and related circumstances, each insufficient
in itself, may lead a reasonable mind irresistibly to a conclusion.” Pick v. Commonwealth, 72
Va. App. 651, 668 (2021) (quoting Finney v. Commonwealth, 277 Va. 83, 89 (2009)). The fact
that “[a] defendant’s theory of the case differs from that taken by the Commonwealth does not
mean that every reasonable hypothesis consistent with his innocence has not been excluded.
What weight should be given evidence is a matter for the [factfinder] to decide.” Edwards v.
Commonwealth, 68 Va. App. 284, 301 (2017) (alterations in original) (quoting Haskins v.
Commonwealth, 44 Va. App. 1, 9 (2004)).
Jones argues that “no other circumstantial evidence was presented to further identify
[Jones] as the perpetrator” of the larceny of the lawnmower. The evidence, however, established
that Jones was at the Stewarts’ house at the same time that the video surveillance indicated that a
person removed the lawnmower from the area. Additionally, Jones conceded his presence in the
general area and the GPS data placed Jones at the Stewarts’ house. Screenshots from the video
surveillance recording showed an individual whose movements were tracked to the Stewarts’
house. Cole testified that while viewing the surveillance video he was able to track the
individual’s movements from his house to the Stewarts’ house, and back to his neighbor’s house
where the individual placed a lawnmower against his neighbor’s tree. The court had the
opportunity to view both Jones and the stills from the surveillance video and make a visual
comparison. The record supports that a rational trier of fact could find that Jones was the
individual who took the Stewarts’ lawnmower.
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The record also supports the finding that Jones was the individual who broke into the
Smiths’ home and took money from Anne’s wallet. Although there was no eyewitness
testimony, there is sufficient circumstantial evidence such that a rational trier of fact could
conclude that Jones unlawfully entered the home and took the money. The GPS monitoring
evidence establishes Jones’s presence in or around the Smiths’ house at the time the Smiths’
daughter heard an intruder. The record shows that R.S. heard a person inside the family home
opening the back door and climbing the stairs several times. A reasonable factfinder could infer
that Jones was the individual that R.S. heard.
The evidence establishes that Anne discovered the money in her pocketbook to be
missing after the break-in and that the last time she saw the money in her pocketbook was the
day prior. The record also shows that neither her husband nor her daughter, R.S., took the
money. At the time of the break-in, the pocketbook was located on the dining room table and
would have been immediately visible upon climbing the stairs from the ground level after
entering the back door. Upon searching the house after hearing the intruder, the Smiths did not
notice that anything else was displaced or missing. A reasonable factfinder could infer that Jones
broke into the Smiths’ home looking for valuables, found the cash in Anne’s pocketbook, and
took the cash before leaving the premises.
B. Breaking and Entering
Finally, Jones argues that the trial court erred by finding that he was the individual who
unlawfully entered the Smiths’ house. “[T]he Commonwealth was required to establish that
[Jones] committed a breaking and entering of a dwelling of another with intent to commit” a
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larceny.4 Pooler v. Commonwealth, 71 Va. App. 214, 220 (2019); see Code § 18.2-91. We
disagree with Jones’s assertion.
The record supports a finding that Jones’s entry into the house was not lawful, as three
members of the Smith family testified that Jones did not have permission to be in their house.
“[W]hen an unlawful entry is made into a dwelling of another, the presumption is that the entry
was made for an unlawful purpose, and the specific intent with which such entry was made may
be inferred from the surrounding facts and circumstances.” Vincent v. Commonwealth, 276 Va.
648, 653 (2008) (quoting Ridley v. Commonwealth, 219 Va. 834, 836 (1979)). “In a prosecution
for statutory burglary under Code § 18.2-91, proof that the accused unlawfully entered another’s
dwelling supports an inference that the entry was made for an unlawful purpose.” Breeden v.
Commonwealth, 43 Va. App. 169, 181 (2004) (quoting Robertson v. Commonwealth, 31
Va. App. 814, 822 (2000)).
As with the previous two charges, there is sufficient evidence in the record to support the
finding that Jones was the perpetrator. The GPS data shows Jones was present in or around the
Smiths’ house at approximately the same time that an unknown person was heard entering the
ground level back door of the Smiths’ home and moving throughout the house. The record
shows that R.S. heard the back door open and subsequently heard footsteps walking up and down
the stairs. Upon investigating, Peter discovered the back door to the house was unlocked and the
adjoining screen door was cracked open. Although this evidence is circumstantial, it is sufficient
for a rational trier of fact to find beyond a reasonable doubt that Jones was the individual who
committed a breaking and entering of the Smiths’ house. Holloway, 57 Va. App. at 665.
4
Appellant does not raise issue with sufficiency of the evidence in showing a breaking or
unlawful entering of the Smiths’ home, but takes issue with the sufficiency of the evidence in
showing that Jones was the individual who broke into the home and took the money.
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CONCLUSION
The trial court did not abuse its discretion in excluding expert testimony that was
cumulative, and a rational trier of fact could reasonably conclude that Jones is guilty of all three
offenses. For these reasons, we affirm the trial court’s judgment.
Affirmed.
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