COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Coleman Argued at Richmond, Virginia
BILLY JACK HOPPER MEMORANDUM OPINION * BY v. Record No. 2492-10-2 JUDGE ROSSIE D. ALSTON, JR. JUNE 12, 2012 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY James F. D’Alton, Jr., Judge
Ronald Gore for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Billy Jack Hopper (“appellant”) appeals his convictions for statutory burglary in violation
of Code § 18.2-91, and petit larceny, third or subsequent offense, in violation of Code
§ 18.2-96. 1 Appellant contends on appeal that the trial court erred in finding the evidence
sufficient to convict him of statutory burglary because the Commonwealth failed to prove he had
the requisite intent upon entry onto the property and because the evidence failed to justify the
inference of breaking and entering from the possession of recently stolen items. Additionally,
appellant claims that the trial court erred in convicting him of burglary and larceny because the
Commonwealth failed to prove that he had exclusive possession of recently stolen items.
Similarly, appellant argues that the trial court erred in finding the evidence sufficient to convict
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was also convicted of attempted uttering in violation of Code §§ 18.2-26 and 18.2-172 which he challenged in his petition for appeal, but a panel of this Court granted review of his challenges to the burglary and larceny convictions only. him of larceny because the evidence failed to justify the inference of larceny from the possession
of recently stolen items. We disagree and affirm both convictions.
BACKGROUND 2
When reviewing a conviction for the sufficiency of the evidence, this Court asks only if
“‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” Maxwell
v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Additionally, we “will affirm the judgment unless the judgment is
plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148,
654 S.E.2d 584, 586 (2008) (citing Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109,
110 (2005)).
So viewed, the evidence indicated that Ellis Palmore closed and locked his office at Ellis
M. Palmore Lumber, Inc. on December 18, 2008, before leaving for the night. When he returned
the next morning, he discovered that someone had broken into the office and rifled through the
drawers and papers in the office, scattering some items on the floor. At the time of the break-in,
Palmore did not believe that the person had taken anything. However, several weeks later,
Palmore discovered that several checks, all in sequence, were missing.
Palmore testified at trial that he stored his company’s payroll checks in a desk drawer in
his office. Each week, he filled in the relevant payment information on the checks with a
computer, and then either he or his son would sign the completed check. Although they used the
checks weekly, Palmore and his son did not usually take inventory of the checks.
2 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. -2- On December 19, 2008, the day after the break-in at Palmore’s office, appellant entered a
“Get N Go” convenience store in Chesterfield County to cash a check for $350 drawn on the
payroll account of Palmore Lumber. Neither Palmore nor his son had signed the check, and
Palmore only became aware that the check was cashed a month later. Appellant, who lived one
and a half miles from Palmore’s office, had never worked for Palmore and later told police that
he was “not familiar with” Palmore. Nonetheless, the check, dated December 19, 2008, was
made out to appellant and bore the signature “E.M. Palmore.”
On January 16, 2009, appellant tried to cash two additional payroll checks from Palmore
Lumber at a convenience store, Al’s Marketplace. The owner, Altaf Kapadi, was suspicious
because the checks were dated one month prior – December 2008. Consequently, he called
Palmore Lumber to verify the checks’ authenticity. While Kapadi was on hold, appellant asked
Kapadi to give him the checks back and quickly left the store. Palmore investigated his desk
drawer after speaking with Kapadi and discovered that he was missing several checks.
Appellant was identified as the presenter of the check after reviewing surveillance
footage from Kapadi’s store, and on January 25, 2009, police recovered the first check appellant
had cashed at the Get N Go. Appellant admitted that he had cashed the check, but told police
that a black male living “in the Hull Street Road area” had given him the check as payment for
cutting down trees. Appellant could not remember either the man’s name or the address where
he had allegedly performed the work.
On October 13, 2009, a grand jury charged appellant with statutory burglary in violation
of Code § 18.2-91, petit larceny, third or subsequent offense, in violation of Code § 18.2-96, and
attempted uttering in violation of Code §§ 18.2-26 and 18.2-172. At appellant’s bench trial on
June 6, 2010, Palmore testified consistently with the events described above and admitted that
there was a prior break-in at the Palmore Lumber warehouse before December 18, 2008, but that
-3- the break-in did not extend into his personal office. He also testified that he noticed that tools
and other specific items were stolen in the prior break-in. Kapadi testified that the check that
appellant cashed at the Get N Go bore the same company name, amount, and date as the checks
that appellant had attempted to cash at Kapadi’s store. Lieutenant Kevin Wolfe of the Powhatan
County Sheriff’s Office testified to appellant’s statements about how he obtained the check.
Additionally, a handwriting expert testified that despite finding no similarities between
appellant’s handwriting and the writing on the checks, there were strong similarities between the
handwriting of appellant’s girlfriend, Kristin Sharp, and the handwriting on the checks.
Appellant moved to strike the evidence at the end of the Commonwealth’s case-in-chief.
He argued that the Commonwealth failed to prove when the checks were taken because it took
Palmore several weeks to notice they were missing. As a result, according to appellant, there
was no concrete evidence that the checks were “recently stolen” when appellant had them, and
thus the Commonwealth could not rely on the inference arising from his possession of recently
stolen goods to prove either the breaking and entering or the larceny of the checks. Appellant
argued that the evidence was insufficient to convict him without this inference, as his hypothesis
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Alston and Senior Judge Coleman Argued at Richmond, Virginia
BILLY JACK HOPPER MEMORANDUM OPINION * BY v. Record No. 2492-10-2 JUDGE ROSSIE D. ALSTON, JR. JUNE 12, 2012 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY James F. D’Alton, Jr., Judge
Ronald Gore for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Billy Jack Hopper (“appellant”) appeals his convictions for statutory burglary in violation
of Code § 18.2-91, and petit larceny, third or subsequent offense, in violation of Code
§ 18.2-96. 1 Appellant contends on appeal that the trial court erred in finding the evidence
sufficient to convict him of statutory burglary because the Commonwealth failed to prove he had
the requisite intent upon entry onto the property and because the evidence failed to justify the
inference of breaking and entering from the possession of recently stolen items. Additionally,
appellant claims that the trial court erred in convicting him of burglary and larceny because the
Commonwealth failed to prove that he had exclusive possession of recently stolen items.
Similarly, appellant argues that the trial court erred in finding the evidence sufficient to convict
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was also convicted of attempted uttering in violation of Code §§ 18.2-26 and 18.2-172 which he challenged in his petition for appeal, but a panel of this Court granted review of his challenges to the burglary and larceny convictions only. him of larceny because the evidence failed to justify the inference of larceny from the possession
of recently stolen items. We disagree and affirm both convictions.
BACKGROUND 2
When reviewing a conviction for the sufficiency of the evidence, this Court asks only if
“‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” Maxwell
v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Additionally, we “will affirm the judgment unless the judgment is
plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148,
654 S.E.2d 584, 586 (2008) (citing Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109,
110 (2005)).
So viewed, the evidence indicated that Ellis Palmore closed and locked his office at Ellis
M. Palmore Lumber, Inc. on December 18, 2008, before leaving for the night. When he returned
the next morning, he discovered that someone had broken into the office and rifled through the
drawers and papers in the office, scattering some items on the floor. At the time of the break-in,
Palmore did not believe that the person had taken anything. However, several weeks later,
Palmore discovered that several checks, all in sequence, were missing.
Palmore testified at trial that he stored his company’s payroll checks in a desk drawer in
his office. Each week, he filled in the relevant payment information on the checks with a
computer, and then either he or his son would sign the completed check. Although they used the
checks weekly, Palmore and his son did not usually take inventory of the checks.
2 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. -2- On December 19, 2008, the day after the break-in at Palmore’s office, appellant entered a
“Get N Go” convenience store in Chesterfield County to cash a check for $350 drawn on the
payroll account of Palmore Lumber. Neither Palmore nor his son had signed the check, and
Palmore only became aware that the check was cashed a month later. Appellant, who lived one
and a half miles from Palmore’s office, had never worked for Palmore and later told police that
he was “not familiar with” Palmore. Nonetheless, the check, dated December 19, 2008, was
made out to appellant and bore the signature “E.M. Palmore.”
On January 16, 2009, appellant tried to cash two additional payroll checks from Palmore
Lumber at a convenience store, Al’s Marketplace. The owner, Altaf Kapadi, was suspicious
because the checks were dated one month prior – December 2008. Consequently, he called
Palmore Lumber to verify the checks’ authenticity. While Kapadi was on hold, appellant asked
Kapadi to give him the checks back and quickly left the store. Palmore investigated his desk
drawer after speaking with Kapadi and discovered that he was missing several checks.
Appellant was identified as the presenter of the check after reviewing surveillance
footage from Kapadi’s store, and on January 25, 2009, police recovered the first check appellant
had cashed at the Get N Go. Appellant admitted that he had cashed the check, but told police
that a black male living “in the Hull Street Road area” had given him the check as payment for
cutting down trees. Appellant could not remember either the man’s name or the address where
he had allegedly performed the work.
On October 13, 2009, a grand jury charged appellant with statutory burglary in violation
of Code § 18.2-91, petit larceny, third or subsequent offense, in violation of Code § 18.2-96, and
attempted uttering in violation of Code §§ 18.2-26 and 18.2-172. At appellant’s bench trial on
June 6, 2010, Palmore testified consistently with the events described above and admitted that
there was a prior break-in at the Palmore Lumber warehouse before December 18, 2008, but that
-3- the break-in did not extend into his personal office. He also testified that he noticed that tools
and other specific items were stolen in the prior break-in. Kapadi testified that the check that
appellant cashed at the Get N Go bore the same company name, amount, and date as the checks
that appellant had attempted to cash at Kapadi’s store. Lieutenant Kevin Wolfe of the Powhatan
County Sheriff’s Office testified to appellant’s statements about how he obtained the check.
Additionally, a handwriting expert testified that despite finding no similarities between
appellant’s handwriting and the writing on the checks, there were strong similarities between the
handwriting of appellant’s girlfriend, Kristin Sharp, and the handwriting on the checks.
Appellant moved to strike the evidence at the end of the Commonwealth’s case-in-chief.
He argued that the Commonwealth failed to prove when the checks were taken because it took
Palmore several weeks to notice they were missing. As a result, according to appellant, there
was no concrete evidence that the checks were “recently stolen” when appellant had them, and
thus the Commonwealth could not rely on the inference arising from his possession of recently
stolen goods to prove either the breaking and entering or the larceny of the checks. Appellant
argued that the evidence was insufficient to convict him without this inference, as his hypothesis
of innocence – that the check was payment for his services cutting trees – was reasonable.
Additionally, appellant maintained that there was no evidence that the breaking and entering
occurred at nighttime, or that the person who vandalized the office actually broke and entered
instead of walking in through an unlocked door. The trial court denied the entirety of appellant’s
motion to strike.
Appellant did not present any evidence of his own, and merely renewed his motion to
strike on the same grounds. During its consideration of the motion to strike, the trial court first
granted the Commonwealth’s motion to amend its burglary charge to exclude the nighttime
element and then denied the remainder of appellant’s motion. The trial court found appellant
-4- guilty of statutory burglary in violation of Code § 18.2-91, petit larceny, third or subsequent
offense, in violation of Code § 18.2-96, and attempted uttering in violation of Code §§ 18.2-26
and 18.2-172. The trial court later sentenced appellant to thirty years’ imprisonment with
twenty-eight years and six months suspended.
This appeal followed.
ANALYSIS
A. Intent Upon Entry and Exclusive Possession
Appellant makes three distinct arguments challenging his burglary conviction. First,
appellant contends that the Commonwealth failed to prove that he had the intent to commit a
felony at the time that he entered Palmore’s office. Second, appellant argues that the
Commonwealth’s evidence was insufficient because the evidence demonstrated not only that
appellant’s handwriting was not on the checks, but that appellant’s girlfriend, Sharp, may have
been the person who wrote the information on the checks. According to appellant, because the
evidence failed to prove that appellant exclusively possessed the checks following the burglary,
he claims the trial court impermissibly applied the inference of burglary from the possession of
recently stolen goods.
Rule 5A:18 precludes our review of any “ruling of the trial court . . . unless an objection
was stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice.” It is well settled that this Court will
not consider arguments on appeal that an appellant did not make at trial. See Edwards v.
Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc). “A general
argument or an abstract reference to the law is not sufficient to preserve an issue.” Id. (citing
Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994)). Making one
specific argument on an issue does not preserve a separate legal point on the same issue for
-5- review. See Clark v. Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262 (1999)
(preserving one argument on sufficiency of the evidence does not allow argument on appeal
regarding other sufficiency questions). Although appellant made related arguments at trial, he
did not present either of these specific arguments to the trial court about the Commonwealth’s
failure to prove his intent upon entry onto the property or that he had exclusive possession of the
checks following the burglary.
Moreover, appellant has not requested that this Court apply the ends of justice or good
cause exceptions to consider these arguments. This Court does not raise either of these
exceptions sua sponte. Edwards, 41 Va. App. at 761, 589 S.E.2d at 448. Consequently, we
deem both arguments waived and will not consider their merits.
B. Inference of Burglary from Possession of Recently Stolen Goods
Appellant contends that the Commonwealth’s evidence was insufficient to prove that he
committed the December burglary at Palmore’s office because the Commonwealth did not
establish an unbroken chain of circumstances beginning with the checks’ presence in the office
and ending with appellant’s possession of the checks.
When we review the sufficiency of the evidence on appeal, we grant all reasonable
inferences properly inferred from the evidence viewed in the light most favorable to the
Commonwealth. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
We will not reverse the trial court’s decision unless it is plainly wrong or without evidence to
support it. Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002).
The Virginia Supreme Court has explained the “burglary inference” as follows:
upon proof of a breaking and entering and a theft of goods, and if the evidence warrants an inference that the breaking and entering and the theft were committed at the same time by the same person and as part of the same transaction, “the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an inference that the -6- possessor is guilty of the breaking and entering as to an inference that he is guilty of the larceny.”
Sullivan v. Commonwealth, 210 Va. 201, 203, 169 S.E.2d 577, 579 (1969) (quoting Drinkard v.
Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935)). Appellant’s arguments are
similar to those made in Brown v. Commonwealth, 213 Va. 748, 195 S.E.2d 703 (1973). Brown
argued, as appellant does here, that the Commonwealth had merely proven that he possessed
stolen property because it did not introduce direct evidence of Brown’s breaking and entering.
Id. at 749, 195 S.E.2d at 705. Affirming Brown’s conviction, the Supreme Court reiterated
Sullivan’s requirements and went on to note:
if the evidence proves further that the goods stolen were found soon thereafter in the possession of the accused, the Commonwealth has made a prima facie case that the accused broke and entered. At that point, although the ultimate burden of proof remains with the Commonwealth, the burden of going forward with the evidence shifts to the accused. If the accused fails to go forward with evidence in justification of possession, his failure is an inculpatory circumstance which, considered with the circumstance of possession, is sufficient to support a conviction of breaking and entering. If the accused elects to go forward with the evidence, he bears the burden of proving the truth of his evidence in justification of possession, and if he fails, his failure is another such inculpatory circumstance. See also Christian v. Commonwealth, 210 Va. 117, 168 S.E.2d 112 (1969); Miller v. Commonwealth, 185 Va. 17, 37 S.E.2d 864 (1946); Gravely v. Commonwealth, 86 Va. 396, 10 S.E. 431 (1889).
Brown, 213 Va. at 750, 195 S.E.2d at 705.
The Commonwealth’s evidence in this case demonstrated that someone broke and
entered into Palmore’s office on the night of December 18, 2010, and that appellant successfully
cashed a forged payroll check drawn from the Palmore Lumber checking account on December
19, 2010. Just as Brown attempted to justify his possession of stolen checks after the
Commonwealth established a prima facie case, id. at 749, 195 S.E.2d at 704-05, appellant
claimed that he had received the stolen checks from an unnamed man for cutting down trees but
-7- could not provide the address where he performed the work. “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.” Sandoval v. Commonwealth, 20
Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). As in Brown, the factfinder here necessarily
determined that appellant’s justification for possessing the stolen checks was not credible; we
cannot say that this conclusion was unsupported by the evidence, especially considering that
appellant could not provide the man’s name or the address where he claimed to have cut down
the trees. Consequently, we find no error in the trial court’s conviction of appellant for statutory
burglary.
C. The Larceny Inference
Under his second assignment of error, appellant asserts that the trial court erred in
applying the larceny inference when the evidence was insufficient to justify the trial court’s
drawing that inference of larceny from appellant’s possession of recently stolen items. More
specifically, appellant contends on brief that the error stems from the Commonwealth’s failure to
demonstrate that the stolen checks were physically in Palmore’s office prior to the December 18,
2010 break-in and failed to establish when they were taken.
Viewing the evidence in the light most favorable to the Commonwealth and according it
all reasonable inferences as the prevailing party below, the evidence was sufficient to support the
trial court’s conclusion that appellant took the payroll checks from Palmore’s office on the night
of December 18, 2010. Although the trial court did not give any rationale for its determination
on any of appellant’s convictions, the record supports this determination by application of the
larceny inference.
Similar to the inference supporting burglary from the possession of recently stolen items,
the Commonwealth needed to first prove that personal property had been taken from its owner
-8- without the owner’s consent and that appellant had possession of the stolen items to support the
larceny inference. See Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
(1987). Palmore testified that he was missing several checks and that he did not sign the check
that appellant cashed. Appellant admitted to Lieutenant Wolfe that he cashed the check at the
Get N Go the day after the break-in. As we noted above, “‘the exclusive possession of the stolen
goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an
inference that the possessor is guilty of the breaking and entering as to an inference that he is
guilty of the larceny.’” Sullivan, 210 Va. at 203, 169 S.E.2d at 579 (quoting Drinkard, 163 Va.
at 1083, 178 S.E. at 28). Similar to the analytical framework with respect to the burglary
conviction, we find no error in the trial court’s credibility determination discrediting appellant’s
explanation for his possession of the stolen checks.
CONCLUSION
Because we find that appellant waived some of his arguments, and we find no error in
those arguments properly preserved for appeal, we affirm his convictions.
Affirmed.
-9-