Davon Rashad Lewis v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 15, 2022
• Docket: 0803211
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Russell, Athey and Senior Judge Frank Argued at Hampton, Virginia

DAVON RASHAD LEWIS MEMORANDUM OPINION* BY v. Record No. 0803-21-1 JUDGE WESLEY G. RUSSELL, JR. MARCH 15, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Bryant L. Sugg, Judge

Charles E. Haden for appellant.

Mason D. Williams, Assistant Attorney General (Mark R. Herring,1 Attorney General; Robert H. Anderson, III, Senior Assistant Attorney General, on brief), for appellee.

Davon Rashad Lewis appeals his convictions of petit larceny, burglary, and conspiracy to

commit burglary. He asserts that the trial court erred by denying his motions to strike. Lewis

contends that the Commonwealth failed to establish that he stole the property or that the stolen

property was worth at least $500 and that the evidence was insufficient to prove he committed

burglary or conspired to commit burglary. For the following reasons, we disagree and affirm the

convictions.

BACKGROUND

On appeal, “we review the evidence in the light most favorable to the Commonwealth.”

Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc). That principle requires us to

“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn

therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v.

Commonwealth, 26 Va. App. 335, 348 (1998)).

On October 28, 2019, the victim resided in the City of Newport News. At around 1:00 p.m.

that day, the victim’s home security service notified him that his home security camera was

disconnected. The victim reviewed prior security footage on his phone and saw that two people had

entered his home and had gone upstairs. The two men were unknown to the victim and did not have

permission to be inside or take property from the residence. When the two men returned

downstairs, they were holding the victim’s property. The victim called the police, and after police

examined his residence, the victim returned home. He observed that his back door and bedroom

doors were kicked in. The victim determined that his home security camera was missing as well as

an iPhone SE and a Samsung Galaxy S10.

Detective S.L. Sturgis went to the victim’s home to investigate the burglary. Sturgis

reviewed the video footage from the victim’s security camera and identified Lewis and Kadory

Dixon as the two men in the recording. Sturgis noted that Lewis was wearing a white shirt, a gray

jacket, and purple gloves. In addition, officers collected fingerprints and DNA samples from the

residence. Analysis of DNA recovered from the exterior handle of the rear door of the apartment

showed that Lewis could not be eliminated as a major contributor.

About an hour after the burglary, police received a separate report that suspicious males

were harassing residents at a Newport News apartment complex. Police determined that the

description of the two individuals at the apartment complex matched the two individuals seen in the

footage from the victim’s security camera. Officers detained the two men, who ultimately proved to

be Lewis and Dixon. When apprehended, Lewis possessed purple gloves. The officers did not find

the stolen phones or camera in the possession of either Lewis or Dixon.

-2- At the conclusion of the Commonwealth’s evidence, Lewis moved to strike the charges for

possession of burglarious tools, grand larceny, and conspiracy to commit burglary. Lewis did not

move to strike the burglary charge.2 The trial court granted Lewis’ motion to strike the charge for

possession of burglarious tools and partially granted the motion to strike the grand larceny charge,

reducing the charge to petit larceny. The trial court denied the motion to strike the charge for

conspiracy to commit burglary. Lewis elected not to present evidence, but in closing, renewed his

motion to strike. The trial court denied the motion and convicted Lewis of petit larceny, burglary,

and conspiracy to commit burglary. This appeal followed.

ANALYSIS

A. Standard of Review

Lewis asserts that the “trial court erred in denying [his] motion to strike the charges of grand

larceny, burglary, and conspiracy to commit burglary[.]” In challenging the trial court’s denial of

his motion to strike, Lewis’ appeal raises the question of whether the evidence adduced

sufficiently presented “a prima facie case for consideration by the” factfinder. Vay v.

Commonwealth, 67 Va. App. 236, 249 (2017) (quoting Hawkins v. Commonwealth, 64 Va. App.

650, 657 (2015)).

Our consideration of that question involves determinations regarding both the elements of

the offenses and whether there was sufficient evidence regarding each element so identified. The

identity of the necessary elements presents a question of law subject to de novo review. Lawlor

v. Commonwealth, 285 Va. 187, 223 (2013). “Whether the evidence adduced is sufficient to

prove each of those elements is a factual finding, which will not be set aside on appeal unless it

is plainly wrong.” Vay, 67 Va. App. at 249 (quoting Linnon v. Commonwealth, 287 Va. 92, 98

2 At trial, Lewis did not simply fail to move to strike the burglary charge. Rather, his counsel affirmatively acknowledged that he was not making such a motion, stating that he was “not making an argument on the burglary charge.” -3- (2014)). In determining whether sufficient evidence was adduced, “we consider the evidence in

the light most favorable to the Commonwealth and give it the benefit of all reasonable inferences

fairly deducible therefrom.” Lawlor, 285 Va. at 224.

Accordingly, we examine the trial court’s factual findings “with the highest degree of

appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608 (2006). We do not ask

“whether [we] believe[] that the evidence at the trial established guilt beyond a reasonable doubt[,]”

Secret v. Commonwealth, 296 Va. 204, 228 (2018) (quoting Pijor v. Commonwealth, 294 Va. 502,

512 (2017)), but rather, we ask only “whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt[,]’” Vasquez v. Commonwealth, 291 Va.

232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is

evidentiary support for the conviction, ‘[we are] not permitted to substitute its own judgment, even

if [our] opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez

v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.

273, 288 (2017)).

B. Larceny

Lewis asserts that the trial court erred by denying his motion to strike the “grand larceny”

charge for two reasons. He asserts that the evidence did not establish that he took the stolen items

and argues that the evidence failed to establish that the items stolen were worth $500 or more,

which was the threshold for grand larceny at the pertinent time.

Before addressing Lewis’ appellate argument regarding whether the evidence was sufficient

to establish his identity as the thief, we note a significant defect in his assignment of error. His

assertion that the “trial court erred in denying [his] motion to strike the charge[] of grand larceny” is

based on a false premise. The trial court, finding that the evidence was insufficient to meet the

statutory threshold for grand larceny, granted the motion to strike the grand larceny charge,

-4- reducing the charge to petit larceny. Accordingly, on its face, Lewis’ assignment of error challenges

a ruling the trial court did not make, and his arguments regarding the value of the items stolen

address an issue not pertinent to this appeal.

Turning to Lewis’ argument regarding his identity as the thief, the evidence was more than

sufficient to support the trial court’s conclusion that Lewis committed larceny. It is undisputed that

Lewis did not have permission to enter the apartment or to remove items from the apartment. Video

footage depicts Lewis and Dixon entering the apartment and leaving with items taken from the

apartment. That Lewis is the person depicted in the video is corroborated by both his DNA being

found at the apartment and by the fact that, when apprehended, he possessed purple gloves

matching those seen on the video. All of this evidence provided more than a sufficient basis for the

trial court’s conclusion that Lewis committed larceny, and therefore, the trial court did not err in

convicting Lewis of petit larceny.

C. Burglary

Lewis next asserts that the trial court erred in “denying [his] motion to strike the charge[] of

. . . burglary[.]” The record makes clear, however, that Lewis never moved to strike the burglary

charge. Thus, by definition, the trial court could not have erred in the manner alleged.

Lewis’ failure to move to strike the burglary charge is fatal to his argument regarding that

charge on appeal: “[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, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of this

contemporaneous objection requirement is to allow the trial court a fair opportunity to resolve the

issue at trial, thereby preventing unnecessary appeals and retrials.” Creamer v. Commonwealth, 64

Va. App. 185, 195 (2015). Here, not only did Lewis not move to strike the burglary charge, his

counsel acknowledged that the Commonwealth’s evidence established a prima facie case, stating

-5- “I’m not making an argument on the burglary charge. I think the evidence is what it is in the light

most favorable to the Commonwealth on that.”

Clearly, the trial court did not err in failing to grant a motion that Lewis never made and that

he conceded in the trial court would not have been well-founded if he had made it. Accordingly, the

trial court did not err in convicting Lewis of burglary.

D. Conspiracy to Commit Burglary

Lewis argues that the Commonwealth failed to prove that he conspired to commit burglary.

Specifically, he asserts that “the Commonwealth’s evidence failed to exclude the reasonable

hypothesis that there had [been] no agreement or conspiracy to commit burglary, the burglary being

an impulsive and spontaneous action of just one person.”

“The Supreme Court has defined conspiracy as ‘an agreement between two or more persons

by some concerted action to commit an offense.’” Carr v. Commonwealth, 69 Va. App. 106, 117

(2018) (quoting Wright v. Commonwealth, 224 Va. 502, 505 (1982)). In order to prove conspiracy,

the Commonwealth must show “‘knowledge of and voluntary participation in’ the agreement to

carry out the criminal act.” Id. (quoting Zuniga v. Commonwealth, 7 Va. App. 523, 527 (1988)).

“The Commonwealth [is] not required to show a specific conversation among the men establishing

the conspiracy.” Id. at 119. Indeed, “[a] conspiratorial agreement ‘often may only be established by

circumstantial and indirect evidence including the overt actions of the parties.’” Johnson v.

Commonwealth, 58 Va. App. 625, 636 (2011) (quoting Jones v. Commonwealth, 279 Va. 295, 301

(2010)). Circumstantial evidence “is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that

of guilt.” Sarka v. Commonwealth, 73 Va. App. 56, 67 (2021) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53 (1983)).

-6- The mere 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)). “By finding [a] defendant guilty, therefore, the

factfinder ‘has found by a process of elimination that the evidence does not contain a reasonable

theory of innocence.’” Id. (alteration in original) (quoting Haskins, 44 Va. App. at 9). “While a

factfinder may not arbitrarily disregard a reasonable doubt, whether ‘the hypothesis of innocence is

reasonable is itself a “question of fact,” subject to deferential appellate review.’” Burton v.

Commonwealth, 58 Va. App. 274, 285-86 (2011) (quoting Clanton, 53 Va. App. at 572-73).

In response to Lewis’ argument at trial that the burglary may have occurred spontaneously

without prior agreement between the parties, the trial court reasoned that “it’s a little bit more than

two people showing up at the same place . . . .” The trial court reviewed the video and concluded

that the video, “showed two people going in a house. It show[ed] two people going up and down

the stairs, two people that the [c]ourt saw conferring with the items in their hands . . . .” “[A]t least

from everything the [c]ourt could determine, there wasn’t anything in the video that would indicate

that that was just two people who stumbled upon each other inside the victim’s apartment.”

The evidence was sufficient to support a finding that Lewis and Dixon agreed, in

advance, to break and enter into the victim’s residence. In support of proving this mutual goal,

the video depicts the two men in close proximity to each other, entering the living room together,

and following one another up and down the stairs. Notably, the two men were still together an

hour after the burglary. The trial court permissibly concluded from these circumstances that Lewis

and Dixon had agreed to commit the burglary. The trial court considered Lewis’ proposed

hypothesis of innocence and reasonably rejected it. “The rejection of a hypothesis of innocence ‘is

-7- binding on appeal unless plainly wrong . . . .’” Ervin v. Commonwealth, 57 Va. App. 495, 519

(2011) (en banc) (quoting Archer v. Commonwealth, 26 Va. App. 1, 12-13 (1997)). Considering

the totality of the evidence, the trial court did not err in convicting Lewis of conspiracy to commit

burglary.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

-8-