Donny Lynn Sprouse, Jr, s/k/a,, etc v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 17, 2002
• Docket: 3448012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Felton and Kelsey Argued by teleconference

DONNY LYNN SPROUSE, JR., S/K/A DONNIE LYNN SPROUSE, JR. MEMORANDUM OPINION * BY v. Record No. 3448-01-2 JUDGE D. ARTHUR KELSEY DECEMBER 17, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Paul M. Peatross, Jr., Judge

Llezelle Agustin Dugger, Assistant Public Defender, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Donny Lynn Sprouse challenges on appeal his convictions for

grand larceny (stealing from vending machines) in violation of

Code § 18.2-95 and possession of burglarious tools (a

dent-puller used to break into vending machines) in violation of

Code § 18.2-94. He claims that the Commonwealth failed to

present sufficient evidence on either charge upon which to find

him guilty beyond a reasonable doubt. We affirm the trial

court, finding the evidence sufficient to support convictions on

both charges.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

When examining a challenge to the sufficiency of the

evidence on appeal, we must review the evidence "'in the light

most favorable to the Commonwealth'" and grant it the benefit of

any reasonable inferences. Ward v. Commonwealth, 264 Va. 648,

654, 570 S.E.2d 827, 831 (2002) (quoting Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

That principle requires us to "'discard the evidence of the

accused'" which conflicts, either directly or inferentially,

with the Commonwealth's evidence. Wactor v. Commonwealth, 38

Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins

v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866

(1998)). We view the facts of this case, therefore, through

this evidentiary prism.

On September 24, 2000, at about 4:30 a.m., Margo Durham was

driving home to her apartment behind a Putt-Putt miniature golf

course in Albemarle County. While driving past the Putt-Putt

course at a speed less than fifteen miles an hour, she saw a man

(she later identified as Sprouse) walking away from several

vending machines on his way down a sidewalk leading to the

parking lot. He was no "more than ten feet from the vending

machines." Sprouse appeared to be headed to an older model

Bronco in the parking lot. She did not testify to seeing any

other persons or vehicles near the area or, for that matter, any

- 2 - problems with the vending machines at that time. Durham simply

"thought it was strange that somebody was up there" given the

time of night.

About two to three minutes later, Durham returned to the

Putt-Putt course and noticed the Bronco had departed. No one

else was present. The vending machines, however, had been

forcibly opened. Durham quickly drove to her apartment, called

the police, and provided a detailed description of what she had

seen. "It couldn't have been more than five or ten minutes"

from the time Durham saw Sprouse to the time she "called the

police."

Within minutes, Officer Pamela Greenwood arrived at the

Putt-Putt course. She found that the locks of the vending

machines had been pulled out and the doors of one of the

machines left "wide open." Seeing no vehicles near the golf

course, Greenwood drove to an apartment complex one eighth of a

mile north of the Putt-Putt course. There, Greenwood observed a

Bronco matching the description given by Durham. Greenwood felt

the truck's hood and noticed that it was "[v]ery warm to the

touch" and "seemed like it had just been driven." Greenwood

then looked in the truck and observed a "dent-puller" in plain

view behind the driver's seat. Officer John McKay joined

Greenwood and also observed the dent-puller through the truck's

window.

- 3 - After discovering that the vehicle was registered to

Sprouse, the officers knocked on his door at the apartment

complex. Sprouse, appearing "alert and awake," opened the door.

The officers identified themselves and explained that they were

investigating a larceny. Before the officers could say much

more, however, Sprouse volunteered, "before you get into all

that I'll help you out with why you-all are here." He was at

the scene of the crime, Sprouse admitted —— not as a criminal,

but merely a concerned citizen investigating suspicious

behavior. Sprouse claimed he parked his Bronco in the parking

lot only after observing "three juveniles near the drink

machines." He then walked over to the vending machines and

discovered they "had been broken into," presumably by these

three unidentified juveniles. He decided against calling the

police, Sprouse explained, assuming a passing motorist would

probably do so.

Sprouse gave the officers consent to search his Bronco and

advised them that "all of the items in the vehicle were his."

The officers retrieved the dent-puller, a screwdriver, a leather

work glove, and a baseball bat. Sprouse admitted owning each of

the items. The officers also discovered the money changers from

the vending machines in a trash dumpster twenty-five yards from

Sprouse's apartment.

At trial, Officer John McKay testified in detail about his

inspection of the damaged vending machines. Having investigated - 4 - similar vending machine cases and being personally familiar with

the characteristics of dent-pullers, McKay explained that he

found the "lock cylinders" in the vending machines (made of

"fairly soft" brass) had been pulled out by a screw (made of

harder steel) commonly found at the end of dent-pullers. "It

looks like they had been pulled out by a dent puller." The

locks showed no other damage, either by a drill bit or any other

tool. "All the locks had been defeated by pulling the

cylinders." Having broken into the vending machines in this

manner, the thief then retrieved the money changers inside. The

changers each contained about $35 and had an equipment value of

$450.

At the close of the evidence, the trial judge found Sprouse

guilty of grand larceny (Code § 18.2-95) and possession of

burglarious tools (Code § 18.2-94). The court imposed a

sentence of ten years on the grand larceny charge and five years

on the burglary tools charge. The court then suspended both

prison terms, except for four months on the grand larceny

conviction.

II.

Virginia appellate courts "presume the judgment of the

trial court to be correct" and reverse on sufficiency grounds

only if the trial court's decision is "plainly wrong or without

evidence to support it." Davis v. Commonwealth, 39 Va. App. 96,

- 5 - 99, 570 S.E.2d 875, 877 (2002) (citations omitted); see also

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (en banc). In this respect, Code § 8.01-680

maintains a subtle, but potent, distinction between mere error

(we may not have convicted based on these facts) and plain error

(no reasonable jurist could have convicted on these facts).

Thus, we may not "substitute our judgment for that of the trier

of fact, even were our opinion to differ." Wactor, 38 Va. App.

at 380, 564 S.E.2d at 162 (citation omitted); see also Harris v.

Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002).

Due process requires the prosecution to prove the

defendant's guilt "beyond a reasonable doubt." Fiore v. White,

531 U.S. 225, 228-29 (2001). This essential safeguard of

liberty, as stringent as it is, does not ignore the axiom that

"'[e]vidence is seldom sufficient to establish any fact as

demonstrated and beyond all doubt.'" Harris v. Commonwealth,

206 Va. 882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler v.

Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)).

Even so, mere suspicion of wrongdoing coupled with a bare

possibility of guilt can never suffice.

In circumstantial evidence cases, the reasonable doubt

standard requires proof "sufficiently convincing to exclude

every reasonable hypothesis except that of guilt." Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). This

construct has two important subsidiary rules. First, only a - 6 - hypothesis of innocence flowing "from the evidence, not those

that spring from the imagination of the defendant" must be

considered. Stevens v. Commonwealth, 38 Va. App. 528, 535, 567

S.E.2d 537, 540 (2002) (citation omitted). Second, whether an

"alternative hypothesis of innocence is reasonable is a question

of fact and, therefore, is binding on appeal unless plainly

wrong." Id.; Harris v. Commonwealth, 38 Va. App. 680, 691, 568

S.E.2d 385, 391 (2002); Archer v. Commonwealth, 26 Va. App. 1,

12-13, 492 S.E.2d 826, 832 (1997). In other words, only when a

fact finder "arbitrarily" ignores the reasonableness of the

innocence hypothesis should the decision be overturned on

appeal. Stevens, 38 Va. App. at 535, 567 S.E.2d at 540

(citation omitted).

III.

A.

Sprouse first claims that the Commonwealth failed to

produce sufficient evidence upon which to convict him for grand

larceny. We disagree. The evidence, in our view, amply

supports the trial court's decision.

An individual commits larceny by wrongfully taking the

property of another "without his permission and with the intent

to permanently deprive him of that property." Stanley v.

Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Welch v.

Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101, 104

(1992) (citations omitted). Grand larceny involves the theft of - 7 - property with a value exceeding $200. Code § 18.2-95; Tarpley

v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763-64

(2001). The Commonwealth must prove that the suspect intended

to steal the property when he took possession of it. Tarpley,

261 Va. at 256, 542 S.E.2d at 764. Criminal intent can be

inferred by "the actions of the defendant and any statements

made by him." Id.

Sprouse's actions and statements, viewed in the light most

favorable to the Commonwealth, provide sufficient evidence upon

which to sustain his conviction. Under these facts, only two

logical scenarios exist: either (i) as Sprouse explained, he

made a personal inspection of the vending machines after

unidentified others had broken into them, or (ii) Sprouse broke

into the machines using his dent-puller, threw the money

changers into the dumpster next to his apartment, and then

volunteered a prevaricating tale to police officers in an effort

to conceal his guilt. We find nothing "plainly wrong," Code

§ 8.01-680, about the trial judge's finding that the second

scenario accurately described the events of that night.

Driving at a speed less than fifteen miles an hour, Margo

Durham clearly saw Sprouse walking away from the vending

machines. She did not testify to seeing any damage to the

machines at that time. Nor did she see any other people. A few

minutes later, Durham circled her vehicle around the block and

saw the machines had just been broken into. If Sprouse's story - 8 - were true, Durham would have seen the damage to the vending

machines the first time. One of the machines had a "door wide

open."

Having found Durham's testimony credible, the trial judge

was at liberty to discount Sprouse's self-serving explanation as

a mere effort at "lying to conceal his guilt." Shackleford v.

Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001);

Mughrabi v. Commonwealth, 38 Va. App. 538, 548, 567 S.E.2d 542,

546 (2002); Morrison v. Commonwealth, 37 Va. App. 273, 284, 557

S.E.2d 724, 730 (2002). "'A defendant's false statements are

probative to show he is trying to conceal his guilt, and thus is

evidence of his guilt.'" Emmett v. Commonwealth, 264 Va. 364,

372, 569 S.E.2d 39, 45 (2002) (quoting in parenthetical from

Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823,

831 (1991)). This conclusion particularly resonates in this

case, given the prevaricating quality of Sprouse's story that he

was concerned enough about three juveniles near the machines to

park his car to investigate, walk over to the machines to

inspect the damage personally, but then (having gone to such an

effort at 4:30 in the morning) decide to let some other passing

motorist contact the police.

All of the other circumstances in this case support the

trial court's conclusion. The police found, in the same vehicle

Sprouse drove that night, a dent-puller consistent with the type

of tool used to open the vending machines. Money changers, each - 9 - valued at over $450, turned up in a trash dumpster twenty-five

yards from Sprouse's apartment. Sprouse's spontaneous desire to

"help out" the police when they arrived at his door (without

first even knowing exactly what they were there to investigate)

shows an overly anxious disposition consistent with a guilty

conscience.

True enough, not one of these circumstances standing alone

would warrant a finding of guilt. An appellate court, however,

cannot "consider otherwise innocent circumstances in isolation

and conclude that each circumstance standing alone" falls short

of proving the defendant's guilt. Hughes v. Commonwealth, 18

Va. App. 510, 524, 446 S.E.2d 451, 460 (1994). We cannot do so

because "that approach denies reality." Id. Our common

experiences teach that circumstances "do not exist in isolation

of one another but exist together with every other proven fact

and circumstance in the case." Id. "'While no single piece of

evidence may be sufficient, the "combined force of many

concurrent and related circumstances, each insufficient in

itself, may lead a reasonable mind irresistibly to a

conclusion."'" Derr v. Commonwealth, 242 Va. 413, 425, 410

S.E.2d 662, 669 (1991) (quoting Stamper v. Commonwealth, 220 Va.

260, 273, 257 S.E.2d 808, 818 (1979), and Karnes v.

Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).

Given Sprouse's explanation (directly refuted on a critical

point by Durham's unimpeached testimony) and the probative - 10 - weight of the combined circumstances in this case, we cannot

find that the trial judge erred in finding Sprouse guilty of

grand larceny.

B.

Sprouse next challenges the sufficiency of his conviction

for possessing burglary tools. Virginia forbids the possession

of "any tools, implements, or outfit" held with the intent to

commit "burglary, robbery, or larceny." Code § 18.2-94.

Unlawful intent will be presumed when one other than a dealer

possesses items "innately burglarious in character" that are

"suitable and appropriate to accomplish the destruction of any

ordinary hindrance of access to any building . . . vault or

safe." Moss v. Commonwealth, 29 Va. App. 1, 4, 509 S.E.2d 510,

511 (1999). To raise the presumption of criminal intent, the

Commonwealth shoulders the burden of first proving that the

items are inherently burglarious. Mercer v. Commonwealth, 29

Va. App. 380, 384, 512 S.E.2d 173, 175 (1999).

Many of the items qualifying as "tools, implements, or

outfit" under this section, however, "may be, and usually are,

designed and manufactured for lawful purposes." Hagy v.

Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001).

For such innocuous items, the Commonwealth "must establish the

requisite intent without benefit of the statutory presumption."

Moss, 29 Va. App. at 4, 509 S.E.2d at 511. Rarely established

- 11 - by direct proof, subjective intent "must be shown by

circumstantial evidence." Servis v. Commonwealth, 6 Va. App.

507, 524, 371 S.E.2d 156, 165 (1988).

As a police officer with experience investigating similar

thefts from vending machines and having personal knowledge of

the mechanics of dent-pullers, Officer McKay explained that the

lock cylinders had been pulled out of the machines —— not pried

out, chiseled out, drilled out, picked out, or hammered out.

The mechanical action of a dent-puller fits precisely the type

of force used on the machines. The thread marks on the cylinder

locks were consistent with the steel screw on the tip of the

dent-puller. Indeed, given their effectiveness, dent-pullers

are "sometimes used as a burglary tool, not only for vending

machines but for motor vehicles." These facts, coupled with

Sprouse's own statements and actions, provide a reasonable basis

for his conviction for possessing burglary tools.

IV.

Sufficient evidence supported Sprouse's convictions for

grand larceny and for possession of burglarious tools. The

trial court, therefore, did not err in convicting Sprouse for

both offenses.

Affirmed.

- 12 -