COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Petty Argued at Richmond, Virginia
DAVID EDWIN SAUNDERS MEMORANDUM OPINION * BY v. Record No. 2051-08-2 JUDGE WILLIAM G. PETTY DECEMBER 1, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Robert G. O’Hara, Judge
Michael T. Hemenway for appellant.
Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Following a bench trial, appellant, David Edwin Saunders, was convicted of one count of
burglary in violation of Code § 18.2-91, and one count of petit larceny in violation of Code
§ 18.2-96. 1 Saunders now appeals, arguing that the trial court had insufficient evidence to show
that he actually committed burglary. Because we disagree with Saunders’ reasoning regarding the
sufficiency of the evidence to prove that he committed burglary, we affirm his conviction.
I. Background
Upon familiar principles, we state the evidence on appeal in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Bailey v.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 This Court’s May 7, 2009 order only granted an appeal to Saunders on the issue of the sufficiency of the evidence to prove burglary. Saunders also raised two additional issues in his brief on appeal: whether the evidence was sufficient to prove that he committed petit larceny and whether the trial court erred in finding that he violated his parole. Because those questions are not properly before this Court, we will not address them. See Rule 5A:12(c). Commonwealth, 38 Va. App. 794, 797, 568 S.E.2d 440, 442 (2002). On October 16, 2006, the
employees of Cabell Insurance in Albemarle County came to work and discovered that their
office had been burglarized. Although there were no signs that either the office building or
Cabell’s office itself had been forcibly entered, there were several items missing. To enter
Cabell’s office space, a person must first enter two different security codes on two different
keypads, one outside the building and one outside of the office space—and go through a total of
four doors.
Police questioned David Saunders because he had access to the building as a repair
person and because his mother worked for Cabell Insurance. Saunders told the police that he and
his wife, Charissa Saunders, had been working in an adjacent building on the previous night.
David Saunders said that while they were working Charissa Saunders proposed that they should
break into the Cabell building and steal some property that they could then trade for crack
cocaine. David Saunders gave Charissa Saunders the access codes to the building because she
did not have independent access. Charissa Saunders alone went into the building and came out
shortly thereafter with a TV and VCR from inside the building. Charissa Saunders put the
equipment into the Saunderses’ truck. The Saunderses then drove to another location where they
exchanged the property for crack cocaine.
Saunders explained to the police officer investigating the burglary and at trial that he had
given his access codes to his wife because she had left her purse in the building and she wanted
to retrieve it. David Saunders also claimed that he told his wife that he would not steal from
Cabell and that he was outraged when she returned to the truck with stolen property. He stated
that he did not exchange the property for drugs but that his wife did. Finally, he claimed to have
notified both the Albemarle County police and Cabell, through his mother, that he had
information about the burglary.
-2- The trial court found Saunders guilty beyond a reasonable doubt of burglary as a
principal in the second degree. The trial court explained that it simply did not believe Saunders:
The issue initially is one of truthfulness . . . . [T]he Court as the fact finder . . . must first determine the credibility of witnesses, and in so doing, is charged with using its common sense when assessing all of the evidence and all of the reasonable and legitimate inferences that may be drawn from the facts of the case, and in so doing, the Court finds the defendant not to be credible nor does his position appear to be worthy of belief. . . . His eagerness and remorse to report a crime seems to have been silenced for almost nine months and the Court finds that to be most unreasonable and defies logic and common sense if he did share what he professed is the remorse that his mother’s place of business had been victimized.
II. Analysis
“Sufficiency-of-the-evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilt beyond a reasonable
doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). As an appellate court, we review the
trial court’s factfinding “with the highest degree of appellate deference.” Thomas v.
Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006).
A reviewing court does not “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(emphasis in original and citation omitted). Instead, we ask only ‘“whether, 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, 443 U.S. at 319) (emphasis in
original). These principles recognize that an appellate court is “not permitted to reweigh the
evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate
courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44
Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). -3- Initially, we note that Saunders was convicted of burglary as a principal in the second
degree. Thus, the Commonwealth was not required to prove that he committed the actual
criminal act. Instead, an individual is liable for a crime as a principal in the second degree when
the Commonwealth proves that he was “‘present, aiding and abetting, by helping some way in
the commission of the crime.’” Washington v. Commonwealth, 43 Va. App. 291, 306, 597
S.E.2d 256, 263 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d
465, 468 (1986)). 2 In other words, “‘[t]he Commonwealth must prove that the defendant
consented to the felonious purpose and the defendant contributed to its execution.’” Brickhouse
v. Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 163 (2008) (quoting McMorris v.
Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008)).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Petty Argued at Richmond, Virginia
DAVID EDWIN SAUNDERS MEMORANDUM OPINION * BY v. Record No. 2051-08-2 JUDGE WILLIAM G. PETTY DECEMBER 1, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Robert G. O’Hara, Judge
Michael T. Hemenway for appellant.
Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Following a bench trial, appellant, David Edwin Saunders, was convicted of one count of
burglary in violation of Code § 18.2-91, and one count of petit larceny in violation of Code
§ 18.2-96. 1 Saunders now appeals, arguing that the trial court had insufficient evidence to show
that he actually committed burglary. Because we disagree with Saunders’ reasoning regarding the
sufficiency of the evidence to prove that he committed burglary, we affirm his conviction.
I. Background
Upon familiar principles, we state the evidence on appeal in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Bailey v.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 This Court’s May 7, 2009 order only granted an appeal to Saunders on the issue of the sufficiency of the evidence to prove burglary. Saunders also raised two additional issues in his brief on appeal: whether the evidence was sufficient to prove that he committed petit larceny and whether the trial court erred in finding that he violated his parole. Because those questions are not properly before this Court, we will not address them. See Rule 5A:12(c). Commonwealth, 38 Va. App. 794, 797, 568 S.E.2d 440, 442 (2002). On October 16, 2006, the
employees of Cabell Insurance in Albemarle County came to work and discovered that their
office had been burglarized. Although there were no signs that either the office building or
Cabell’s office itself had been forcibly entered, there were several items missing. To enter
Cabell’s office space, a person must first enter two different security codes on two different
keypads, one outside the building and one outside of the office space—and go through a total of
four doors.
Police questioned David Saunders because he had access to the building as a repair
person and because his mother worked for Cabell Insurance. Saunders told the police that he and
his wife, Charissa Saunders, had been working in an adjacent building on the previous night.
David Saunders said that while they were working Charissa Saunders proposed that they should
break into the Cabell building and steal some property that they could then trade for crack
cocaine. David Saunders gave Charissa Saunders the access codes to the building because she
did not have independent access. Charissa Saunders alone went into the building and came out
shortly thereafter with a TV and VCR from inside the building. Charissa Saunders put the
equipment into the Saunderses’ truck. The Saunderses then drove to another location where they
exchanged the property for crack cocaine.
Saunders explained to the police officer investigating the burglary and at trial that he had
given his access codes to his wife because she had left her purse in the building and she wanted
to retrieve it. David Saunders also claimed that he told his wife that he would not steal from
Cabell and that he was outraged when she returned to the truck with stolen property. He stated
that he did not exchange the property for drugs but that his wife did. Finally, he claimed to have
notified both the Albemarle County police and Cabell, through his mother, that he had
information about the burglary.
-2- The trial court found Saunders guilty beyond a reasonable doubt of burglary as a
principal in the second degree. The trial court explained that it simply did not believe Saunders:
The issue initially is one of truthfulness . . . . [T]he Court as the fact finder . . . must first determine the credibility of witnesses, and in so doing, is charged with using its common sense when assessing all of the evidence and all of the reasonable and legitimate inferences that may be drawn from the facts of the case, and in so doing, the Court finds the defendant not to be credible nor does his position appear to be worthy of belief. . . . His eagerness and remorse to report a crime seems to have been silenced for almost nine months and the Court finds that to be most unreasonable and defies logic and common sense if he did share what he professed is the remorse that his mother’s place of business had been victimized.
II. Analysis
“Sufficiency-of-the-evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilt beyond a reasonable
doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). As an appellate court, we review the
trial court’s factfinding “with the highest degree of appellate deference.” Thomas v.
Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006).
A reviewing court does not “ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(emphasis in original and citation omitted). Instead, we ask only ‘“whether, 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, 443 U.S. at 319) (emphasis in
original). These principles recognize that an appellate court is “not permitted to reweigh the
evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate
courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44
Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). -3- Initially, we note that Saunders was convicted of burglary as a principal in the second
degree. Thus, the Commonwealth was not required to prove that he committed the actual
criminal act. Instead, an individual is liable for a crime as a principal in the second degree when
the Commonwealth proves that he was “‘present, aiding and abetting, by helping some way in
the commission of the crime.’” Washington v. Commonwealth, 43 Va. App. 291, 306, 597
S.E.2d 256, 263 (2004) (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d
465, 468 (1986)). 2 In other words, “‘[t]he Commonwealth must prove that the defendant
consented to the felonious purpose and the defendant contributed to its execution.’” Brickhouse
v. Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 163 (2008) (quoting McMorris v.
Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008)).
Although “[e]vidence of a defendant’s mere presence at a crime scene is insufficient to
sustain a conviction as a principal in the second degree,” id., the Commonwealth may prove that
an individual is guilty as a principal in the second degree “by any combination of circumstantial
or direct evidence,” id. at 687, 668 S.E.2d at 163. Thus, the evidence, taken as a whole, must
show that Saunders “committed an overt act knowingly in furtherance of the commission of the
crime . . . , or that [he] shared in the criminal intent of the principal committing the crime.” Id.
A person is guilty of burglary when he “breaks and enters” a building with the intent to,
inter alia, commit larceny. 3 Code §§ 18.2-90, 18.2-91. Evidence showing that a door was
2 Saunders did not raise the issue of whether he was present when the crime was committed. We note, however, that “[a]ctual presence at the commission of the crime . . . is not required to convict the accused as a principal in the second degree. The accused need only be constructively present at the crime’s commission.” Washington, 43 Va. App. at 306, 597 S.E.2d at 264 (citing Sutton v. Commonwealth, 228 Va. 654, 667, 324 S.E.2d 665, 672 (1985) (“[I]f several persons set out together . . . upon one common design . . . unlawful in itself, and each takes the part assigned him; . . . they are all, provided the act be committed, in the eyes of the law, present at it.”)). 3 The trial court also convicted Saunders of petit larceny, and that conviction is not before us on appeal. Therefore, we need not determine whether the evidence established the other -4- opened is sufficient to establish a breaking. “Actual breaking involves the application of some
force, slight though it may be, whereby the entrance is effected. Merely pushing open a door,
turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute
this element of the crime . . . .” Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357
(1922) (emphasis added).
The evidence in this case, viewed in the light most favorable to the Commonwealth,
establishes that Saunders gave his wife, Charissa Saunders, the entry codes she needed to enter
both the main office building in which Cabell Insurance was located, and Cabell’s actual office
space. The evidence further established that when he gave her the codes he knew that she
intended to use them to gain entry to the insurance office and steal property. Thus, the trial court
had sufficient evidence from which it could infer that Saunders committed an overt act—giving
his wife the entry codes—and that he did so in order to further the crime of burglary. Whether
David Saunders was the individual who then actually entered the security codes and opened the
doors into the office building and then the insurance company’s office is immaterial given that
he was convicted as a principal in the second degree. See Washington, 43 Va. App. at 306, 597
S.E.2d at 264 (“[A] principal in the second degree may be indicted, tried, convicted, and
punished in all respects as if a principal in the first degree.”).
Finally, we note that Saunders argues on brief that, had the trial court given credence to
his version of the facts, the evidence would have been insufficient to convict him. However, 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. Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v. Commonwealth,
element of the crime of burglary—the intent to commit larceny. Moreover, Saunders’ counsel clarified at oral argument that he was only challenging the sufficiency of the evidence to prove that Saunders committed a “breaking.” -5- 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982). We give deference to the fact finder who, having
seen and heard the witnesses, assesses their credibility and weighs their testimony. See Saunders
v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991). Accordingly, we will not revisit
a trial court’s credibility determination on appeal, where, as here the trial court specifically
“[found] the defendant not to be credible” and determined that “his position [does not] appear to
be worthy of belief.”
III. Conclusion
Based on the foregoing discussion, we hold that that the evidence presented in the trial
court was sufficient to support Saunders’ conviction, and, accordingly, we affirm.
Affirmed.
-6-