COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray Argued by Teleconference
DAVID WAYNE BOWMAN MEMORANDUM OPINION * BY v. Record No. 2827-95-3 CHIEF JUDGE NORMAN K. MOON APRIL 15, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge Rickey G. Young (Law Office of Rickey G. Young, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
David W. Bowman appeals from his conviction for statutory
burglary and grand larceny. Bowman raises two questions: (1)
whether the evidence was sufficient to prove statutory burglary
and grand larceny; and (2) whether the circuit court erred in
failing to suppress evidence discovered at Bowman's residence.
We hold that the evidence was sufficient and that the trial court
properly admitted the evidence because it was discovered pursuant
to a search warrant which was based on probable cause.
On April 27, 1994, Bowman went to the home of Chancey Ashley
in order to look at Ashley's home which was for sale. After
touring the inside of Ashley's home, Bowman asked to be allowed
to look inside Ashley's storage building. Ashley accompanied
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Bowman to the storage building which contained a variety of
tools, a riding lawn mower, and some chain saws. On April 28,
1994, Ashley left for work at 5:00 a.m. and returned home at
approximately 6:00 p.m. and discovered his home had been
burglarized. Tools and equipment, valued at $1,500, including a
wrench with "C. Ashley" engraved on it, were missing.
Five months later, on October 5, 1994, Investigator D. J.
Runge of the Patrick County Sheriff's Department received a
telephone call from Franklin County Investigator Shively who
informed him that he had reason to believe Bowman might possess
stolen property, and that Franklin County officers would attempt
to obtain a search warrant. Shively informed Runge that some of
the property that Bowman possessed might be property that was
stolen from Shively's home in a recent break-in. Shively
requested Runge proceed to Bowman's home in order to make certain
that no property was removed from Bowman's residence. Runge arrived at Bowman's home at approximately 7:30 a.m.
and knocked on Bowman's door. Bowman answered, and Runge
informed him "that Franklin County investigators were in route
and were going to attempt to obtain a search warrant for his
residence." Runge then inquired if Bowman would consent to a
search of his home. Bowman said that he "was unsure whether he
would" permit a search of his residence.
At approximately 7:45 a.m., Officer Cox arrived at Bowman's
home. At approximately 8:00 a.m., Runge ran a check on Bowman
and was informed that there were outstanding warrants for
- 2 - Bowman's arrest in Henry County. Runge placed Bowman under
arrest and advised him of his rights. Bowman then volunteered
that there were firearms in his home and that he had handled the
weapons. Runge was aware that Bowman was a convicted felon and
Runge felt, based on Bowman's statements regarding the presence
of firearms in the residence and Bowman's possession of them,
that he had probable cause to obtain a search warrant.
Subsequently, Shively arrived and Runge relayed the
information regarding the weapons to Sheriff Gregory who was
still in the process of obtaining a search warrant for Bowman's
residence. The information regarding the firearms was included
in the affidavit supporting the search warrant. After observing
Bowman, Shively informed Runge that Bowman was wearing Shively's
class ring. Runge also relayed this information to Sheriff
Gregory, and this information was also included in the affidavit
supporting the search warrant. Also attached to the affidavit
was a list of the items stolen from Shively's home, which
included a 1976 Franklin County High School ring and a number of
firearms. At 11:00 a.m., a search warrant was issued, and Bowman's
residence was searched. A wrench bearing the engraving "C.
Ashley" was among the items seized from Bowman's home. At trial,
Bowman moved to suppress the evidence found in his residence,
specifically the wrench bearing the engraving "C. Ashley," as the
product of an unlawful search and seizure.
Motion to Suppress
- 3 - The standard which we apply in reviewing a magistrate's probable cause determination is whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. We are further mindful that a magistrate may draw reasonable inferences from the material supplied to him and that his determination of probable cause "'should be paid great deference by reviewing courts.'" "A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant."
Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87
(1987) (citations omitted). Here, the affidavit supporting the warrant for the search of
Bowman's residence provided that (1) Runge reported he was
searching for stolen property including stolen guns and that
Bowman had indicated that he had guns on the premises of his
home; (2) Bowman was wanted in Henry County on two outstanding
arrest warrants; and (3) that Shively positively identified a
ring on Bowman's finger that had been stolen from Shively's
residence.
This evidence, considered in its totality, provided the
magistrate with sufficient information to reach the reasonable
conclusion that there was "a fair probability that contraband or
evidence of a crime w[ould] be found in" Bowman's residence. Illinois v. Gates, 462 U.S. 213, 238 (1983). Such a finding
constitutes probable cause upon which a warrant may properly
issue. Id.
Motion to Strike
- 4 - Bowman argues that the evidence was insufficient to sustain
his conviction because the Commonwealth failed to prove recent
possession of recently stolen property and because Ashley's
identification of Bowman was "faulty."
On appeal, the evidence is to be viewed in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
trial court's verdict will not be disturbed on appeal unless it
is plainly wrong or without evidence to support it. Stockton v.
Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, cert.
denied, 469 U.S. 873 (1984).
Bowman's arguments raise questions of credibility. Efforts
to challenge the credibility of the Commonwealth's witnesses must
be made before the trier of fact. It is for the trial court to
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray Argued by Teleconference
DAVID WAYNE BOWMAN MEMORANDUM OPINION * BY v. Record No. 2827-95-3 CHIEF JUDGE NORMAN K. MOON APRIL 15, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge Rickey G. Young (Law Office of Rickey G. Young, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
David W. Bowman appeals from his conviction for statutory
burglary and grand larceny. Bowman raises two questions: (1)
whether the evidence was sufficient to prove statutory burglary
and grand larceny; and (2) whether the circuit court erred in
failing to suppress evidence discovered at Bowman's residence.
We hold that the evidence was sufficient and that the trial court
properly admitted the evidence because it was discovered pursuant
to a search warrant which was based on probable cause.
On April 27, 1994, Bowman went to the home of Chancey Ashley
in order to look at Ashley's home which was for sale. After
touring the inside of Ashley's home, Bowman asked to be allowed
to look inside Ashley's storage building. Ashley accompanied
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Bowman to the storage building which contained a variety of
tools, a riding lawn mower, and some chain saws. On April 28,
1994, Ashley left for work at 5:00 a.m. and returned home at
approximately 6:00 p.m. and discovered his home had been
burglarized. Tools and equipment, valued at $1,500, including a
wrench with "C. Ashley" engraved on it, were missing.
Five months later, on October 5, 1994, Investigator D. J.
Runge of the Patrick County Sheriff's Department received a
telephone call from Franklin County Investigator Shively who
informed him that he had reason to believe Bowman might possess
stolen property, and that Franklin County officers would attempt
to obtain a search warrant. Shively informed Runge that some of
the property that Bowman possessed might be property that was
stolen from Shively's home in a recent break-in. Shively
requested Runge proceed to Bowman's home in order to make certain
that no property was removed from Bowman's residence. Runge arrived at Bowman's home at approximately 7:30 a.m.
and knocked on Bowman's door. Bowman answered, and Runge
informed him "that Franklin County investigators were in route
and were going to attempt to obtain a search warrant for his
residence." Runge then inquired if Bowman would consent to a
search of his home. Bowman said that he "was unsure whether he
would" permit a search of his residence.
At approximately 7:45 a.m., Officer Cox arrived at Bowman's
home. At approximately 8:00 a.m., Runge ran a check on Bowman
and was informed that there were outstanding warrants for
- 2 - Bowman's arrest in Henry County. Runge placed Bowman under
arrest and advised him of his rights. Bowman then volunteered
that there were firearms in his home and that he had handled the
weapons. Runge was aware that Bowman was a convicted felon and
Runge felt, based on Bowman's statements regarding the presence
of firearms in the residence and Bowman's possession of them,
that he had probable cause to obtain a search warrant.
Subsequently, Shively arrived and Runge relayed the
information regarding the weapons to Sheriff Gregory who was
still in the process of obtaining a search warrant for Bowman's
residence. The information regarding the firearms was included
in the affidavit supporting the search warrant. After observing
Bowman, Shively informed Runge that Bowman was wearing Shively's
class ring. Runge also relayed this information to Sheriff
Gregory, and this information was also included in the affidavit
supporting the search warrant. Also attached to the affidavit
was a list of the items stolen from Shively's home, which
included a 1976 Franklin County High School ring and a number of
firearms. At 11:00 a.m., a search warrant was issued, and Bowman's
residence was searched. A wrench bearing the engraving "C.
Ashley" was among the items seized from Bowman's home. At trial,
Bowman moved to suppress the evidence found in his residence,
specifically the wrench bearing the engraving "C. Ashley," as the
product of an unlawful search and seizure.
Motion to Suppress
- 3 - The standard which we apply in reviewing a magistrate's probable cause determination is whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. We are further mindful that a magistrate may draw reasonable inferences from the material supplied to him and that his determination of probable cause "'should be paid great deference by reviewing courts.'" "A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant."
Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87
(1987) (citations omitted). Here, the affidavit supporting the warrant for the search of
Bowman's residence provided that (1) Runge reported he was
searching for stolen property including stolen guns and that
Bowman had indicated that he had guns on the premises of his
home; (2) Bowman was wanted in Henry County on two outstanding
arrest warrants; and (3) that Shively positively identified a
ring on Bowman's finger that had been stolen from Shively's
residence.
This evidence, considered in its totality, provided the
magistrate with sufficient information to reach the reasonable
conclusion that there was "a fair probability that contraband or
evidence of a crime w[ould] be found in" Bowman's residence. Illinois v. Gates, 462 U.S. 213, 238 (1983). Such a finding
constitutes probable cause upon which a warrant may properly
issue. Id.
Motion to Strike
- 4 - Bowman argues that the evidence was insufficient to sustain
his conviction because the Commonwealth failed to prove recent
possession of recently stolen property and because Ashley's
identification of Bowman was "faulty."
On appeal, the evidence is to be viewed in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
trial court's verdict will not be disturbed on appeal unless it
is plainly wrong or without evidence to support it. Stockton v.
Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, cert.
denied, 469 U.S. 873 (1984).
Bowman's arguments raise questions of credibility. Efforts
to challenge the credibility of the Commonwealth's witnesses must
be made before the trier of fact. It is for the trial court to
make determinations of credibility. Myers v. Commonwealth, 11
Va. App. 634, 400 S.E.2d 803 (1991). Here, the trial court
rejected Bowman's explanation that he had acquired Mr. Ashley's
wrench by purchasing it from his father or at a flea market. The
trial court found Bowman's explanation of his possession of the
stolen property unbelievable. The truth of an explanation
regarding possession of stolen property is a question of fact and
the trial court is under no burden to accept any explanation that
may be offered. Roberts v. Commonwealth, 230 Va. 264, 272, 337
S.E.2d 255, 260 (1985). Similarly, the trial court's decision to
accept Mr. Ashley's identification of Bowman was a determination - 5 - of the witness' credibility, a determination that is reserved to
the trier of fact and that is not to be disturbed on appeal
unless plainly wrong. Here, the evidence was sufficient to
support the trial court's findings and accordingly, those
findings must be affirmed.
Bowman's argument that his possession of stolen property was
not recent was not argued at trial and may not be raised for the
first time on appeal. Rule 5A:18; George v. Commonwealth, 242
Va. 264, 281 n.4, 411 S.E.2d 12, 22 n.4 (1991). Furthermore,
neither the ends of justice nor good cause exist to warrant
consideration of this issue on appeal. Moreover, the possession
of the tool was not the only evidence of guilt. Bowman's
presence on the premises on the evening before the burglary, his
possession of the stolen tool, and his false explanation for that
possession were sufficient pieces of circumstantial evidence to
sustain the fact finder's belief that Bowman was guilty and to
exclude any reasonable theory of innocence. Accordingly, the trial court's decision is affirmed. Affirmed.
- 6 -