Eric Lee Dobson, a/k/a David Lee Brown v. CW

• Court: Court of Appeals of Virginia
• Decided: June 15, 1999
• Docket: 2802972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia

ERIC LEE DOBSON, A/K/A DAVID LEE BROWN MEMORANDUM OPINION * BY v. Record No. 2802-97-2 JUDGE RICHARD S. BRAY JUNE 15, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout, III, Judge

Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Eric Lee Dobson (defendant) was convicted in a bench trial

for obstruction of justice and by a jury for grand larceny,

violations of Code §§ 18.2-460(A) and 18.2-95, respectively. He

complains on appeal that (1) the evidence was insufficient to

prove the offenses, (2) the obstruction of justice prosecution

placed him twice in jeopardy for the same act, 1 and (3) the trial

court erroneously instructed the jury “regarding the exclusive

possession of recently stolen property.” We agree that the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 Because we reverse the obstruction of justice conviction on other grounds, we decline to address the double jeopardy issue. obstruction of justice conviction is not supported by the record

and reverse but find the grand larceny conviction free of error

and affirm.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

On March 28, 1997, Virginia State Trooper Jeffrey Carter

Bradford “pulled a vehicle for speeding.” Carter approached the

car and requested the operator, defendant, to produce his license

and registration documents. Defendant stated “that he didn’t have

any ID on him at the time,” and Bradford asked that he “come back

to [his] vehicle, so [Bradford] could obtain some information, run

a license check on him.” Defendant then falsely identified

himself as David Lee Brown and provided the trooper with an

address, birth date, and incorrect Social Security number.

When Bradford questioned ownership of the vehicle, defendant

answered that, “it was a rental,” and “[h]is friend Billy owned

the vehicle.” Although unable to provide Billy’s surname,

defendant advised Bradford that Billy “was in room 412 at the

Diamond Lodge off of Sherwood Road” and described him as “a 31- to

32-year old male,” “black male, light skin,” “approximately 5’9”

to 10”, . . . 170 pounds,” a student at “Union University.”

However, further investigation by Bradford disclosed that the car

had been stolen, and he arrested defendant at the scene. Bradford

later pursued the information provided by defendant and, within

- 2 - ten minutes, determined that “[n]o one occupied” room 412 at the

Diamond Lodge.

OBSTRUCTION OF JUSTICE

Defendant first contends that the evidence was insufficient

to prove obstruction of justice in violation of Code

§ 18.2-460(A). When the sufficiency of the evidence is challenged

on appeal, we view the record in the light most favorable to the

Commonwealth, granting it all reasonable inferences fairly

deducible therefrom, and the decision will not be disturbed unless

plainly wrong or without evidence to support it. See Code

§ 8.01-680; Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

Code § 18.2-460(A) provides, in pertinent part, that “[i]f

any person without just cause knowingly obstructs . . . any

law-enforcement officer in the performance of his duties as such

. . ., he shall be guilty of a Class 2 misdemeanor.” A conviction

for violation of the statute requires proof of

“‘acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to “obstruct” ordinarily implies opposition or resistance by direct action. It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.’”

Ruckman v. Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389

(1998) (quoting Jones v. Commonwealth, 141 Va. 471, 478-79, 126

S.E. 74, 77 (1925)).

- 3 - Thus, like the statute considered by the Virginia Supreme

Court in Jones, Code § 18.2-460(A) requires “actual hindrance or

obstruction of the officer,” “opposition or resistance by direct

action.” Polk v. Commonwealth, 4 Va. App. 590, 594, 358 S.E.2d

770, 772-73 (1987). 2 “[O]bstruction of justice does not occur

when a person fails to cooperate fully with an officer or when the

person’s conduct merely renders the officer’s task more difficult”

or “frustrate[s] [his or her] investigation.” Ruckman, 28 Va.

App. at 429, 430, 505 S.E.2d at 389, 390.

Here, defendant’s false statements doubtlessly burdened

Trooper Bradford with a brief, but unnecessary, visit to the

Diamond Lodge. However, such conduct by defendant did not

“prevent the officer from performing his duty” in a fashion which

“impli[ed] opposition or resistance by direct action and forcible

or threatened means.” Jones, 141 Va. at 479, 126 S.E. at 77.

Accordingly, the evidence was insufficient to support conviction

of defendant for a violation of Code § 18.2-460(A).

GRAND LARCENY

Upon completion of the trial for obstruction of justice,

prosecution of the grand larceny indictment commenced before a

jury. Trooper Bradford’s evidence was substantially consistent

2 In contrast to both the instant appeal and Ruckman, Polk addressed a violation of former Code § 18.2-460(A), which proscribed an “attempt to intimidate or impede by threats,” not the “actual ‘obstruction’” contemplated by the present statute. Id. at 594-95, 358 S.E.2d at 773 (emphasis added).

- 4 - with his earlier testimony, although he added that defendant

possessed a key to the car.

Richard Lemenzo, manager of the Hertz Rental Car facility

located at the Richmond airport, testified that the stolen vehicle

had been “rented on March 4th, . . . out of Newark, New Jersey”

and returned to the Richmond airport facility on March 6, “by the

same person who rented the car.” Lemenzo explained that, upon

return of cars by customers, “[t]he keys are just usually left on

the front seat and the trunks are open.” A “nonrental report”

generated internally by Hertz reported “no movement on the

[subject] car,” for eight days, and the ensuing investigation

resulted in a “stolen car report” to police on March 28, 1997.

Commonwealth witnesses Deborah Barnes and Phillip Bailey

testified that a man identifying himself as Eric Dobson

(defendant) telephoned Barnes “back in March.” 3 Later that day,

pursuant to an invitation received during the earlier phone

conversation, defendant visited Barnes’ home, driving “a car

exactly like” the stolen vehicle.

Following defendant’s arrest, Billy Fowlkes, a tow truck

operator, recovered the car for Hertz and noticed “a very vile

smell.” Cleaning the car, Fowlkes discovered a wallet containing

defendant’s driver’s license, “stuck down between the seat and the

console.” Fowlkes also found an envelope in the trunk, addressed

3 The substance of this telephone conversation was not allowed into evidence.

- 5 - to “Lynnett T. Jones” and postmarked March 14, 1997, a rotten

“hunk of meat,” “some clothes,” bedding, tapes, and a book.

At the close of the Commonwealth’s case and, again, at the

conclusion of all the evidence, the court denied defendant’s

motions to strike. Additionally, the trial court overruled

defendant’s objections to a jury instruction that embraced the

inference arising from the exclusive possession of recently stolen

goods. The jury convicted defendant of grand larceny, resulting

in this appeal.

It is well established that,

“[i]f . . . property be stolen, and recently thereafter be found in the exclusive possession of the prisoner, then such possession of itself affords sufficient ground for a presumption of fact that he was the thief; and, in order to repel the presumption, makes it incumbent on him, on being called on for the purpose, to account for such possession consistently with his innocence. If he give a reasonable account of it, then it devolves on the Commonwealth to prove that such account is untrue. If he give an unreasonable account of it, then it devolves on the prisoner to sustain such account by other evidence.”

Castle v. Commonwealth, 196 Va. 222, 226, 83 S.E.2d 360, 363

(1954) (citations omitted); see Hackney v. Commonwealth,

26 Va. App. 159, 168, 493 S.E.2d 679, 684 (1997). Thus, “[f]or

the ‘larceny inference’ to arise, the Commonwealth must establish

that the accused was in exclusive possession of recently stolen

- 6 - 4 property.” Winston v. Commonwealth, 26 Va. App. 746, 757, 497

S.E.2d 141, 147 (1998) (citation omitted).

Defendant contends that the evidence was insufficient to

establish that he exclusively possessed the stolen car. However,

he was clearly found operating the vehicle, with the attendant

keys, and then asserted a right of possession, albeit falsely.

His wallet was found hidden in the vehicle, and he had been seen

in exclusive possession of a car “exactly like” the stolen vehicle

after the theft but prior to his arrest. Although evidence

suggests that others may have once occupied the vehicle, nothing

indicates that these persons exercised dominion and control over

the car or were in possession of it. Under such circumstances,

the jury properly concluded that defendant exclusively possessed

the stolen car.

Lastly, defendant complains that the court erroneously

instructed the jury that: “Proof of the exclusive personal

possession by the defendant of recently stolen goods is a

circumstance [for] which you may reasonably infer that the

defendant was the thief, unless the defendant offers a reasonable

account of the possession consistent with innocence, which the

Commonwealth has failed to prove untrue.” 2 Virginia Model Jury

Instructions, Criminal, No. 36.300 (1998 Repl. Vol.). Relying on

Mullaney v. Wilbur, 421 U.S. 684 (1975), defendant argues that the

4 Defendant does not dispute that the car was “recently stolen.”

- 7 - instruction unconstitutionally denied him due process because “it

impermissibly shifted the burden of proof to the defendant of a

fact, the identity of the thief, necessary to convict him of grand

larceny.”

However, “neither the Due Process Clause nor Mullaney

prohibits the use of presumptions or inferences as procedural

devices to shift to the accused the burden of producing some

evidence contesting the otherwise presumed or inferred fact.”

Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695

(1976). “These devices . . . must satisfy certain due process

requirements, and the ultimate burden of proof beyond a reasonable

doubt must remain upon the prosecution.” Id. (citing Mullaney,

421 U.S. at 702-03 n.31). Thus, in analyzing the

constitutionality of a jury instruction, “[t]he court must

determine whether [it] creates a mandatory presumption, or merely

a permissive inference.” Francis v. Franklin, 471 U.S. 307, 314

(1985) (citations omitted).

“A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. . . . A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.”

- 8 - Kelly v. Commonwealth, 8 Va. App. 359, 374, 382 S.E.2d 270, 278

(1989) (quoting Francis, 471 U.S. at 314-15). The instruction in

Mullaney created an unconstitutional, mandatory presumption

because it relieved the prosecution of its burden of persuasion on

an element of the offense. See 421 U.S. at 686.

Here, the trial court instructed the jury that it “may” infer

that defendant had stolen the car from proof of several

indispensable circumstances, including a recent theft and

exclusive possession without a reasonable, truthful explanation.

Thus, the jurors were not directed to draw any inference. Other

instructions properly admonished that the Commonwealth had the

burden of proving all elements of the offense, including proof

that defendant’s explanation was untrue, that defendant was

presumed innocent, and that he had no burden to produce any

evidence. Accordingly, the challenged instruction created a

constitutional, permissive inference, which the jury was free to

reject.

We, therefore, affirm the grand larceny conviction and

reverse the conviction of obstruction of justice.

Affirmed in part, reversed in part, and final judgment.

- 9 -