Edward William Coles, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 19, 2022
• Docket: 0930212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and Fulton UNPUBLISHED

Argued by videoconference

EDWARD WILLIAM COLES, JR. MEMORANDUM OPINION * BY v. Record No. 0930-21-2 JUDGE GLEN A. HUFF APRIL 19, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAROLINE COUNTY Sarah L. Deneke, Judge

Maureen L. White for appellant.

Justin B. Hill, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Edward William Coles, Jr., appeals his convictions, from a bench trial, of statutory burglary

and robbery, in violation of Code §§ 18.2-91 and 18.2-58. 1 Appellant asserts that the Caroline

County Circuit Court (the “trial court”) erred in finding the evidence sufficient to convict him of

statutory burglary and robbery. For the following reasons, this Court disagrees and affirms his

convictions.

BACKGROUND

On appeal, this Court “review[s] the evidence in the light most favorable to the

Commonwealth,” the prevailing party at trial. Clanton v. Commonwealth, 53 Va. App. 561, 564

(2009) (en banc). Accordingly, the Court must “discard the evidence of the accused in conflict with

that of the Commonwealth, and regard as true all the credible evidence favorable to the

*Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was also convicted of felony property damage and possession of a firearm after having been convicted of a felony. He does not challenge those convictions. 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)).

In the afternoon on May 13, 2020, Susan Zeller was sitting in her living room when

appellant opened her front door. Susan did not know appellant and yelled at him to “get out of [her]

house.” Appellant said, “[Y]ou’re just tripping,” and left. Susan locked the door behind him,

grabbed her phone, and fled out the back door to the garden where her husband, Frederick Zeller,

was working.

Susan told Frederick that a man had just come into their home. Frederick told Susan to call

911, and he went inside to investigate. Frederick did not see anyone at the house, and he retrieved

his nine-millimeter Ruger from their first-floor bedroom. The Ruger was loaded with Remington

target ammunition and holstered. After retrieving his gun, Frederick heard a noise. He ventured

into the living room and saw that the door had been broken. The molding was cracked and the

door-jam and frame torn.

Frederick heard noises upstairs so he went to the staircase and shouted for the person to get

out. Frederick heard movement and saw appellant descend the stairs. Frederick repeatedly

demanded that appellant leave, but appellant refused. Appellant then asked Frederick if he had a

gun and began to walk toward Frederick. Frederick recently had been hospitalized and was unable

to run, but he turned and walked away as fast as he could. Appellant followed and continued

yelling at Frederick as they traveled out of the house. Eventually, appellant caught up with

Frederick and grabbed him from behind. A struggle for the gun ensued. When appellant disarmed

Frederick, Frederick believed he was going to die.

While Frederick was inside the house, Susan spoke with a 911 dispatcher who asked Susan

what kind of car appellant drove. As Susan approached the vehicle, she saw Frederick and

-2- appellant leave the house and appellant disarm Frederick. Moments later, Frederick reached Susan.

Frederick began to relate to the 911 dispatcher what just occurred. As Frederick was relating his

encounter, he heard multiple gunshots.

When Caroline County Sheriff’s Deputy Michael Dan Holmes arrived at the Zellers’

residence, Frederick explained to him that he had been in a physical altercation with a large man,

who had taken his firearm and was now in the residence. Deputy Holmes told Frederick to go to the

wood line at the back of the residence, and he waited behind his patrol car until other units arrived.

As Deputy Holmes waited, appellant appeared in the entry way to the porch area of the

residence and had a small black firearm in his hand. Deputy Holmes ordered appellant to drop the

handgun and come outside. After twenty to thirty seconds, appellant retreated inside. Deputy

Holmes testified that appellant stood ten to fifteen yards away from him at the time of this

exchange.

Caroline County Sheriff’s Deputy Jason Miller arrived shortly thereafter as backup.

Moments later, appellant exited the residence naked. After the officers arrested appellant, Deputy

Miller spoke with Susan and Frederick and began investigating the scene.

Appellant’s black sedan was parked outside the residence. There was a large hole in the

car’s front passenger-side window and several spent Remington nine-millimeter shell casings in the

seats. There was also a bullet hole in the center of the sedan’s dashboard

Inside the house, deputies retrieved a Ruger nine-millimeter handgun and a magazine on the

floor of a small room downstairs. In the living room, deputies found bullet-entry holes and

recovered spent nine-millimeter bullets. Deputy Miller testified that “[i]f you were to draw a line

from the hole in [the car’s passenger-side] window to the house where the bullet holes were entering

the house, it would be a straight line.” Police found appellant’s clothes in a small room upstairs.

-3- Upon the conclusion of the Commonwealth’s evidence, appellant made a motion to strike,

arguing that the Commonwealth failed to prove his intent to steal as to the robbery charge. He

claimed no evidence showed he intended to flee with the gun. He emphasized that the gun was

recovered in a separate room from where his clothes were and nothing else was missing from the

house. As to the statutory burglary charge, appellant argued the Commonwealth failed to show that

he intended to commit larceny, assault and battery, or some other felony. He noted again that

nothing was missing in the house. Additionally, the struggle for the gun occurred outside the home

and he claimed that he only took the firearm because he feared he would be shot. The trial court

denied the motions to strike as to the burglary and robbery charges.

Appellant then testified in his own defense, giving his own version of the events. He stated

that he was traveling from Washington, D.C., to Henrico County, Virginia, on business. Having

never traveled that far south, he relied completely on his phone’s GPS. As he was driving, he

realized that his phone was not charging but was in fact dead. He got off Interstate 95 and looked

for a place where he could charge his phone. First he stopped at a McDonald’s, but because of the

COVID-19 pandemic, the dining room was closed. Then appellant tried to charge his phone at the

Exxon gas station across the street, but the store was closed. While pumping gas at the Exxon, a

woman informed appellant that he could charge his phone at a guard post to a gated community not

far from the gas station. He tried to follow the woman’s directions but almost immediately got lost,

and he pulled off onto a gravel driveway.

As he sat in the driveway attempting to charge his phone, a man knocked on his window.

Thinking that the man may be able to help him, he rolled down his window. The man, who he

claimed was Frederick, asked appellant what he was doing. Appellant began to explain that he was

lost and needed to charge his phone. But before he could finish Frederick unholstered the gun on

his hip and pointed it at appellant. Appellant, who was afraid of guns after being shot in 2014,

-4- jumped over to the passenger seat and grabbed the passenger door. At the same time, appellant

heard the first shot hit his dashboard, and he jumped out of the car. The second shot broke the

passenger window.

Appellant further claimed that he hurried to a nearby house to ask for help. Susan opened

the door but when appellant told her that Frederick was shooting and asked her to call the police,

she immediately started screaming and ran past appellant. Appellant entered the house and began

looking for a phone. Appellant looked back and saw that Frederick was coming into the house, so

he ran upstairs. Frederick was yelling, but appellant could not understand what he was saying.

Appellant then came back downstairs and saw no one. He looked out the front door and saw the

police, who were telling him to drop the gun and come out with his hands up. Appellant testified

that he did not have a gun and held only his cell phone in his hand. Appellant decided that he

should take off all his clothes to show the officers that he was not armed and ensure that he did not

get shot. Appellant testified that he entered the house because he feared for his life.

On cross-examination, appellant acknowledged that the police found a rolled-up cigarette

containing marijuana in his car. He denied that he smoked it while driving or that it was dipped in

anything and further claimed that he had not consumed any drugs.

On rebuttal, the Commonwealth called Caroline County Sheriff’s Deputy Erin Cardoso.

Deputy Cardoso testified that she witnessed appellant exit the Zellers’ house naked. She checked

on appellant’s welfare after the police placed him in a car. When she asked him what had

happened, he responded that “it was the drugs.”

The trial court denied appellant’s renewed motion to strike. The trial court found

Frederick’s and Susan’s testimony more credible than appellant’s testimony. It also found that

appellant first walked through an unlocked door and then, after being asked to leave, he returned

and broke through the door Susan had locked behind him. Despite appellant’s claim that he took

-5- the gun only to protect himself, the trial court found the evidence “contrary” to the story. The court

noted that appellant did not attempt to disassemble the gun or make it unusable by tossing it away.

Ultimately, the trial court convicted appellant of statutory burglary, robbery, felony property

damage, and possession of a firearm and sentenced him to seventeen years’ incarceration, with

nine years suspended. This appeal followed.

ANALYSIS

Appellant challenges the sufficiency of the evidence to convict him of statutory burglary and

robbery. “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting

Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.

(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the

relevant question is 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, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion

might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72

Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

“[T]he credibility of a witness, the weight accorded the testimony, and the inferences to

be drawn from proven facts are matters solely for the fact finder’s determination.” Fletcher v.

Commonwealth, 72 Va. App. 493, 502 (2020) (quoting Crawley v. Commonwealth, 29 Va. App.

372, 375 (1999)). “In its role of judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to

-6- conceal his guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable

v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).

“[T]he ‘fact finder may infer that a person intends the immediate, direct, and necessary

consequences of his voluntary acts.’” Brown v. Commonwealth, 68 Va. App. 746, 788 (2018)

(quoting Robertson v. Commonwealth, 31 Va. App. 814, 820 (2000)). “[W]hether the required

intent exists is generally a question of fact for the trier of fact.” Smith v. Commonwealth, 72

Va. App. 523, 536 (2020) (quoting Brown, 68 Va. App. at 787).

A. Burglary

Appellant asserts that the evidence was insufficient to convict him of statutory burglary. He

argues that the Commonwealth failed to prove he entered the Zellers’ home with the intent to

commit larceny or any other felony. Instead, he claims, his testimony proved that he entered the

house because he was fleeing from Frederick, who threatened him with a gun. He says, under his

version of events, he made no threats upon entering the house, demanded nothing from the Zellers,

and left immediately when asked. He further argues that the drugs he consumed triggered a state of

paranoia, causing him to act erratically, so he entered the home to obtain assistance. Consequently,

appellant concludes, the evidence was insufficient to convict him of statutory burglary. But

appellant’s actions—and the trial court’s rejection of his version of the events—demand the

opposite conclusion.

“If any person . . . in the daytime breaks and enters or enters and conceals himself in a

dwelling house . . . with intent to commit murder, rape, robbery or arson . . . he shall be deemed

guilty of statutory burglary.” Code § 18.2-90. “If any person commits any of the acts mentioned in

§ 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson . . .

he shall be guilty of statutory burglary.” Code § 18.2-91.

-7- The accused’s “intent is usually proved by circumstantial evidence.” Slaughter v.

Commonwealth, 49 Va. App. 659, 667 (2007). “In burglary cases, the fact finder may infer from

the entry that the purpose of the illegal entry was unlawful.” Id. “Further, ‘[i]n the absence of

evidence showing a contrary intent, the trier of fact may infer that a person’s unauthorized presence

in another’s house was with the intent to commit larceny.’” Id. (quoting Sandoval v.

Commonwealth, 20 Va. App. 133, 138 (1995)).

Under appellant’s version of events, he never intended to commit any felony. The trial

court, however, rejected his version of events as incredible. Flanagan, 58 Va. App. at 702 (“In its

role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony

of the accused and to conclude that the accused is lying to conceal his guilt.” (quoting Marable, 27

Va. App. at 509-10)). The trial court instead found that appellant initially entered the home through

an unlocked door. When Susan asked appellant to leave, he did, and she immediately locked the

door behind him. Moments later, however, appellant broke through the now locked door and again

entered the house. He initially went upstairs but then came downstairs, got in a physical altercation

with Frederick, and took his gun. This evidence was sufficient to establish appellant entered the

Zellers’ home illegally and for the trial court to infer that appellant entered with unlawful intent.

Thus, this Court will not disturb this finding of fact on appeal.

B. Robbery

Appellant asserts that the evidence was insufficient to convict him of robbery. He argues

that the Commonwealth failed to prove that he intended to permanently deprive Frederick of his

firearm. Rather, he says he intended only to temporarily deprive Frederick of his firearm for his

own safety. He emphasizes that he did not attempt to leave with the firearm and instead left the gun

in the house when he exited naked. Accordingly, appellant argues, the robbery conviction should be

reversed.

-8- “In Virginia, robbery is a common law crime proscribed statutorily by Code § 18.2-58

and defined as the taking, with intent to steal, of the personal property of another, from his

person or in his presence, against his will, by violence or intimidation.” Anderson v.

Commonwealth, 52 Va. App. 501, 507 (2008) (quoting Jay v. Commonwealth, 275 Va. 510, 524

(2008)).

The intent to steal—or animus furandi—“is an intent to feloniously deprive the owner

permanently of his property.” Pierce v. Commonwealth, 205 Va. 528, 533 (1964). A factfinder

may divine that intent by inferring it “from the [accused’s] asportation and conversion of the

property, in the absence of satisfactory countervailing evidence introduced by the defendant.”

Clay v. Commonwealth, 30 Va. App. 254, 261 (1999). Moreover, “[i]ntent is the purpose formed

in a person’s mind at the time an act is committed.” Carter v. Commonwealth, 280 Va. 100, 105

(2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 519 (1998)). Intent “may occur

momentarily” and “does not have to exist for any particular length of time.” Commonwealth v.

Jones, 267 Va. 284, 289 (2004) (quoting Durham v. Commonwealth, 214 Va. 166, 169 (1973)).

“Intent may, and often must, be inferred from the facts and circumstances of the case, including

the actions of the accused and any statements made by him.” Carter, 280 Va. at 105 (quoting

Stanley v. Webber, 260 Va. 90, 96 (2000)).

Crucial here, a person may act with multiple intents or purposes. See Holley v.

Commonwealth, 44 Va. App. 228, 237-38 (2004). For example, an assailant in a tussle with a

victim over a firearm may intend to “deprive the [victim] wholly of the [victim’s] pistol,”

indicating a robbery, even while “the assailant[,] on snatching the pistol[,] may also have

intended to prevent its being used against [him].” See, e.g., Jordan v. Commonwealth, 66 Va.

943, 948 (1874). “Both intents may have existed at the time.” Id. Appellant’s argument misses

this point.

-9- Although appellant says he took the gun only to prevent Frederick from using it against

him, the trial court found the facts contradicted that argument. Appellant walked down the stairs

and found Frederick with a holstered gun. Appellant asked Frederick about the gun, approached

him, and subsequently disarmed him. Appellant did not throw the gun away or simply keep

Frederick from using it. Instead, appellant kept the gun until police arrived—and even fired the

gun into the Zellers’ home. Because a rational factfinder could conclude this evidence was

sufficient to show appellant intended to keep the firearm when he disarmed Frederick, this Court

will not disturb the trial court’s judgment on appeal.

CONCLUSION

The evidence at trial was sufficient to prove appellant entered the home with the intent to

commit a larceny or felony therein and to prove that appellant intended to permanently deprive

Frederick of his firearm. Accordingly, this Court affirms appellant’s burglary and robbery

Affirmed.

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