Dennis Wayne Toney v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 6, 1998
• Docket: 1802972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia

DENNIS WAYNE TONEY MEMORANDUM OPINION * BY v. Record No. 1802-97-2 JUDGE RUDOLPH BUMGARDNER, III OCTOBER 6, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY F. Ward Harkrader, Jr., Judge Norman Hunter Lamson for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Dennis Wayne Toney appeals his conviction of grand larceny.

He contends that the trial court erred in not suppressing

evidence obtained during a search of his residence. He argues

that (1) his consent was not voluntary, (2) if it was voluntary,

the officers exceeded the scope of his consent, and (3) the

evidence was insufficient to convict. Finding no error, we

affirm the conviction.

B&S Fireworks had $1,500 of fireworks stolen from its store

in Albemarle County on June 25 or 26, 1996. All fireworks owned

by B&S were packaged in boxes marked with the identification

number "418-E74." This was a unique number assigned to B&S by

its distributor. The store identified the types and quantities

of fireworks stolen. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. On June 30, 1996, a police officer saw the defendant with

boxes of fireworks on a folding table outside his trailer. The

defendant told the officer that he bought the fireworks in

Manassas from a guy in an ice-cream-type truck. The defendant

said he was planning to sell them at a yard sale. The officer

did not investigate further because he received a priority call

and left.

The next day, Assistant Fire Marshall Bruce Crow was

inspecting fireworks stands. He noticed Ronald Morris, a

codefendant in this case, unloading fireworks from a pickup truck

in front of the defendant's trailer. The fireworks were in large

boxes bearing the distinctive logo of McDonald's restaurants.

Morris told Crow that he was selling the fireworks for the

defendant's brother, James. Morris did not know whether they had

a license to sell fireworks, but he was sure James had a business

license. Crow determined that neither had a license and issued a

citation for conducting business without one. He also determined

that the defendant owned the pickup truck. Crow received a message to meet Detective Donald Byers, who

was investigating the fireworks theft. They met at the trailer

park and were joined by a uniformed officer. Crow noticed that

the fireworks were no longer in the defendant's truck. Crow

asked a woman to ask Morris to come outside. The three officers

waited outside the fence, while she went inside the trailer. The

defendant rather than Morris came outside, and Crow again asked

- 2 - for Morris. When Morris appeared, Crow asked where the fireworks

were.

When Crow asked Morris about the fireworks, the defendant

asked why he wanted to know about them. Crow responded that he

needed to check if they were "illegal." In response, the

defendant told the officers to "come on," opened the gate for

them, and waved them to follow him into the trailer. Before

entering, Crow again asked the defendant for permission to enter.

The defendant responded, "sure, come on in," and they all

entered the trailer. The boxes of fireworks were neatly stacked in the corner of

the living room. Estimates of the number varied between four or

five and six to nine boxes. The boxes did not have proper

Department of Transportation markings, and all but one were large

shipping boxes with McDonald's restaurant markings.

After everyone was inside, the defendant took a box of

fireworks, opened it, and invited inspection. He took other

boxes, scattered them on the floor, and opened them for

inspection. He told Crow that he was legal and that Crow would

not find anything illegal. Crow began examining the fireworks in

the boxes that the defendant had opened. When he finished

inspecting those, he started pulling down others. Detective

Byers sat on the sofa and took notes.

The testimony of the several witnesses conflicts about the

role Detective Byers played during the examination of the boxes.

- 3 - Byers denied turning and examining any boxes except the one box

marked with the distributor's number. Crow and the defendant

said that Byers did turn the boxes around. Regardless, Byers did

identify one box of fireworks still packaged in the distributor's

container and carrying the number "418-E74." He knew that was

the unique number assigned to B&S Fireworks by its distributor.

When he found that box, Byers announced that he was seizing all

fireworks because he believed they were stolen. The defendant

became hostile and ordered all three officers to leave. The

officers took all the fireworks, despite the defendant's

objection. Throughout the inspection, the officers and the defendant

talked. When asked where he had purchased the fireworks, the

defendant told Byers that he had purchased them from a white

bread-type truck. Morris and the defendant said they had no

receipt for the fireworks, but insisted they bought the fireworks

lawfully with cash and owned them jointly. Neither suggested

that James Toney was involved, though Morris had previously

identified him as the owner. Morris said they bought the

fireworks in Greene County and each paid $200. The next day when

the defendants came to the police station to demand an inventory,

they said they purchased the items in Ruckersville, which is in

Greene County.

A court's denial of a motion to suppress will not be

disturbed on appeal unless, considering the evidence in the light

- 4 - most favorable to the Commonwealth, the ruling is plainly wrong

or lacks evidence to support it. See Fore v. Commonwealth, 220

Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017

(1980). The Commonwealth has the burden of proving voluntariness

of the defendant's consent, Lowe v. Commonwealth, 218 Va. 670,

678, 239 S.E.2d 112, 117 (1977), cert. denied, 435 U.S. 930

(1978), but need not show that the defendant was aware of a right

to refuse. See Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973). Whether consent is freely given is a question of fact to

be determined from a totality of the circumstances. See id.;

Limonja v. Commonwealth, 8 Va. App. 532, 540, 383 S.E.2d 476, 481

(1989), cert. denied, 495 U.S. 905 (1990). The trial court's

determination of voluntariness must be accepted on appeal unless

clearly erroneous. See Stamper v. Commonwealth, 220 Va. 260,

268, 257 S.E.2d 808, 814 (1979), cert. denied, 445 U.S. 972

(1980).

The defendant contends that the officers deceived him about

their reason for searching and that vitiated the consent he gave.

If consent is induced by fraud, trickery or misrepresentation,

then evidence discovered shall be suppressed. See Gouled v.

United States, 255 U.S. 298, 305-06 (1921); United States v.

Tweel, 550 F.2d 297, 299 (5th Cir. 1977) (officers' knowing

deception revokes consent given). However, the defendant's claim

of deception alone does not invalidate his consent, it is just

one of many factors to consider. See Schneckloth, 412 U.S. at

- 5 - 227.

When the officers arrived at the trailer, the defendant

asked why they were asking about the fireworks. When Crow told

him they wanted to check if they were "illegal," the defendant

said, "come on" and waived them into the trailer. The defendant

extended the invitation to enter before any officer made a

request to do so. Crow stopped before entering, again asked the

defendant if they had permission to go inside, and he again

consented. The defendant gave the officers permission to enter,

and he voluntarily opened the boxes of fireworks for them to see.

The officer's statement of purpose, to see if the fireworks were

"illegal," was not false, and they did not mislead by not

elaborating on their purpose. At most, not elaborating might be

considered silence, but silence is not fraud or misrepresentation

unless "'there is a legal or moral duty to speak or where an

inquiry left unanswered would be intentionally misleading.'"

Commonwealth v. E.A. Clore Sons, Inc., 222 Va. 543, 548, 281

S.E.2d 901, 904 (1981) (quoting United States v. Robson, 477 F.2d 13, 18 (9th Cir. 1973)). See United States v. Prudden, 424 F.2d

1021, 1033 (5th Cir.), cert. denied, 400 U.S. 831 (1970). The

trial court did not make a finding that Byers had intentionally

deceived the defendant or had misrepresented his purpose in

conducting the search.

Next, the defendant contends that he limited his consent to

an examination of the fireworks by Crow. The defendant contends

- 6 - that the seizure was unlawful because the boxes were not readily

identifiable as contraband, and Byers discovered the

identification number by improperly moving the boxes. Further,

he asserts that finding the one box with an identification number

did not give the officers cause to confiscate all the boxes.

These arguments are not sound.

The scope of consent given is determined by whether it is

objectively reasonable for an officer to search where he did.

See Florida v. Jimeno, 500 U.S. 248, 251 (1991); Bynum v.

Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996).

The defendant did not limit the scope of the search and passively

acquiesced as to both who was searching and their conduct. See

Grinton v. Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860,

863 (1992).

The officers reasonably interpreted the defendant's

invitation to enter and to inspect as extending to all three of

them. The defendant could reasonably expect that the officers

would discover that the fireworks were stolen if the police

inspected them to see if they were "illegal." The defendant

displayed the boxes and opened them for inspection. The

defendant did not limit the scope of the search or who could

search. Byers reasonably believed that he had permission to

inspect the fireworks and the boxes containing them. The

defendant did not object to the actions of any officer present

until Byers announced that he was confiscating the boxes. The

- 7 - trial court found that the defendant knowingly and voluntarily

consented to the officers' entry to inspect the fireworks. We

find no error.

Finally the defendant asserts that the evidence was

insufficient to prove the fireworks found in his trailer were the

ones stolen. He argues the evidence failed to prove (1) that the

items taken from his trailer were the same ones taken from the

fireworks store, (2) that the defendant took the fireworks, and

(3) that the value of the fireworks taken was more than $200.

When an appellant challenges the sufficiency of the evidence, the

evidence must be viewed in the light most favorable to the

Commonwealth, granting it all reasonable inferences deducible

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975). A verdict will not be disturbed

unless plainly wrong or unsupported by the evidence. See

Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385,

cert. denied, 469 U.S. 873 (1984).

The evidence was sufficient to prove that the items stolen

were those found in the defendant's trailer. "When an accused is

found in possession of goods of a type recently stolen, strict

proof of identity of the goods is not required." Henderson v.

Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975).

While no one could identify precisely the stolen fireworks as the

ones found, those found in the defendant's trailer matched the

types that the owner reported and identified as stolen.

- 8 - Fireworks are not normally packaged in fast-food restaurant boxes

as they were when found in the defendant's home. Though B&S

Fireworks operated other stores, and the identification number

applied to their inventory, only the store in Albemarle County

had been burglarized.

The box with the owner's number linked precisely a part of

the fireworks found to those stolen. That link permits the trier

of fact to infer that all fireworks found in the defendant's

trailer were stolen. "It is immaterial that the quantity of

goods possessed was less than the quantity stolen and charged in

the indictment, for the fact-finder '" . . . may infer the

stealing of the whole from the possession of part."'" Henderson

v. Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975)

(quoting Johnson v. Commonwealth, 141 Va. 452, 456, 126 S.E. 5, 7

(1925)).

If a defendant is found in possession of recently stolen

goods, the trier of fact may infer guilt if the possession is not

explained credibly or if the possession is falsely denied. See

Carter v. Commonwealth, 209 Va. 317, 163 S.E.2d 589 (1968), cert.

denied, 394 U.S. 991 (1969). The trial court stated that the

defendant was "inconsistently innovative" in explaining to the

police where he got the fireworks and that "his credibility [was]

diminished to the point of being inconsequential." The defendant

did not testify at trial. All of his contradictory statements

permit the reasonable conclusion that the fireworks in the

- 9 - defendant's possession were those stolen from the fireworks

store.

The evidence is clear that the value of the items stolen

exceeded $200 because the trier of fact may infer stealing of the

whole from possession of a part. See id. The owners testified

that the wholesale value of the fireworks stolen was $1,500.

During the inspection, Morris said that both he and the defendant

paid $200 in cash for the fireworks. We conclude that the evidence is sufficient to convict.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

- 10 -