Alonzo Ellis Marshall, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 9, 2021
• Docket: 0466201
• Status: Unpublished

Opinion

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Present: Judges Huff, O’Brien and AtLee UNPUBLISHED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 -2- 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 -3- 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

-4- 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 -5- 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 -6- 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 1

whether Marshall had an intent to commit a crime. -7- 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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