Furqan Abdulaziz Shabazz v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 12, 2019
• Docket: 0470183
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Russell and Malveaux Argued at Lexington, Virginia UNPUBLISHED

FURQAN ABDULAZIZ SHABAZZ MEMORANDUM OPINION* BY v. Record No. 0470-18-3 JUDGE MARY BENNETT MALVEAUX MARCH 12, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Jr., Judge

Elizabeth Hurt, Assistant Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Furqan Abdulaziz Shabazz (“appellant”) appeals his convictions for statutory burglary, in

violation of Code § 18.2-91, and petit larceny, in violation of Code § 18.2-96. He argues the trial

court erred in denying his motion to strike and convicting him because the evidence was

insufficient to prove his intent to commit larceny and that a larceny occurred. For the reasons

that follow, we affirm appellant’s convictions.

I. BACKGROUND

“Under familiar principles of appellate review, we will state ‘the evidence in the light

most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the

Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’”

Chavez v. Commonwealth, 69 Va. App. 149, 153 (2018) (quoting Sidney v. Commonwealth, 280

Va. 517, 520 (2010)).

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Elsie Elaine Stewart Harper was injured in a car accident in April 2016. After being

hospitalized for her injuries she spent several weeks in a rehabilitation facility. During that time,

Harper’s sister, Diane Williams, frequently visited Harper’s home to collect the mail and check

on the house.

On June 22, 2016, Williams entered Harper’s home and saw that a light was on in the

bathroom. Williams had not left the light on when she had last visited the house four days

earlier. In the bathroom, Williams noticed that the trash can liner and a towel were missing.

Williams discovered further anomalies when she inspected the rest of the home. A side

door, which Williams always locked at the end of her visits, was unlocked. The rug beside

Harper’s bed was “crumpled up” and “scattered around.” Windows in two rooms at the back of

the house—a laundry room and a “junk room”—were broken. Further, doors between the junk

room and the laundry, and between the laundry and the kitchen, had been broken open or kicked

in. Williams also noticed blood on the door between the laundry and the kitchen. The blood had

not been there before.

Williams reported the break-in to the police. Later that day, she saw appellant in the

neighboring yard. Appellant, whose mother was Harper’s next-door neighbor, had a bandage on

his arm. Appellant had visited the hospital the day before and received stitches for a cut to his

right leg.

Police collected a sample of the blood found in Harper’s home. A forensic scientist with

the Virginia Department of Forensic Science developed a DNA profile from the sample. After

searching for the profile in the Virginia DNA Data Bank, she certified that the profile was

consistent with appellant. The same forensic scientist later analyzed a buccal swab collected

from appellant and certified that he could not be eliminated as a contributor of the profile

developed from the blood sample.

-2- Harper returned home approximately one week after Williams discovered the break-in

and checked to see if anything was missing from the house. Harper told police that she had set

aside $50 for lawn care and that the money was missing from her dresser.

Appellant was indicted for statutory burglary with the intent to commit larceny, in

violation of Code §§ 18.2-90 and -91. He was also charged by warrant with petit larceny of U.S.

currency, in violation of Code § 18.2-96.

At trial, Harper testified that the money had been “laying on [her] chest of drawers,

$50.00 that wasn’t there” when she returned home. The money had not been in an envelope and

was “cash money laying there” just inside the bedroom door, which was next to the bathroom.

Harper stated that she had placed the money on the chest of drawers when she “got [her] check”

at the beginning of April and that it was to be used to pay the man who mowed her lawn. During

her time away from home, Harper had arranged for the man to be paid by a friend whom she

would later reimburse.

In addition, Harper also testified, without objection, that she “always kept money on [her]

chest of drawers to pay the man who did [the] mowing.” She said that when she would receive

her check, she would “lay [the money] there for the month” and that she “usually just [laid] the

cash up there.” On cross-examination, when counsel for appellant asked Harper if “the reason

you think the cash . . . was there is because that’s just something you would always do at the

beginning of the month was put cash there,” Harper replied, “I keep it there.”

At the conclusion of the Commonwealth’s case, appellant moved to strike the evidence.

He argued there was no evidence of any larcenous intent or theft of any money from Harper’s

home, because Harper only “thinks that [the money] might have been there.” The trial court

-3- denied the motion and denied appellant’s renewed motion to strike at the conclusion of the

evidence.1

The trial court found the evidence sufficient to establish that $50 was missing from

Harper’s home and stated that it was “making an adjudication of guilt as to both offenses.”2 It

then directed the parties to submit briefs addressing whether Harper’s testimony about the money

was based upon her specific recollections or upon her habits and routines. The court also asked

the parties to address whether habit and routine evidence is admissible in criminal cases. At the

sentencing hearing, the court heard argument on these issues and reviewed an audio recording of

Harper’s testimony. The court found that Harper was “a very credible and very articulate

witness” and reaffirmed its prior rulings. This appeal followed.

II. ANALYSIS

“When considering on appeal the sufficiency of the evidence presented below, we

‘presume the judgment of the trial court to be correct’ and reverse only if the trial court’s

decision is ‘plainly wrong or without evidence to support it.’” White v. Commonwealth, 68

Va. App. 111, 118 (2017) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en

banc)). “We do not ‘substitute our judgment for that of the trier of fact.’ Rather, ‘the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution,

1 Although the trial transcript does not indicate that appellant renewed his motion to strike or that the motion was denied, the trial court stated in its conviction order that “[a]t the conclusion of all of the evidence, [appellant] renewed [his] motion to strike . . . on the same grounds, which motion was overruled and exception was noted.” Because “[i]t is the firmly established law of this Commonwealth that a trial court speaks . . . through its written orders,” Davis v. Mullins, 251 Va. 141, 148 (1996), and “those orders are presumed to accurately reflect what transpired” at trial, McBride v. Commonwealth, 24 Va. App. 30, 35 (1997), we conclude that appellant’s motion to strike was properly renewed and denied. 2 The trial court also found that appellant had violated the terms of his probation and revoked three months of appellant’s previously suspended sentence for grand larceny. Appellant does not appeal the revocation. -4- any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Ramsey v. Commonwealth, 65 Va. App. 694, 697 (2015) (citation omitted)

(first quoting Wactor v. Commonwealth, 38 Va. App. 375, 380 (2002); then quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “This familiar standard gives full play to the responsibility

of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Burrous v. Commonwealth, 68

Va. App. 275, 279 (2017) (quoting Kelly, 41 Va. App. at 257-58). In conducting our analysis,

we are mindful that “determining the credibility of the witnesses and the weight afforded the

testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and

see them as they testify.” Miller v. Commonwealth, 64 Va. App. 527, 536 (2015).

Appellant does not challenge the sufficiency of the evidence that he was the individual

who unlawfully entered Harper’s home.3 Rather, he argues simply that the evidence was

insufficient to prove that a larceny occurred or that he intended to commit larceny. Appellant

contends that Harper’s testimony that she left $50 on her chest of drawers and that it was gone

after the break-in was not based upon Harper’s specific recollections, but upon her recollection

of her habit and routine of leaving money for lawn care on the chest of drawers. Such testimony,

appellant argues, was inadmissible in a criminal trial and, in the alternative, was insufficient to

prove that the money had been there and that a larceny occurred.

“Larceny is the wrongful taking of the goods of another without the owner’s consent and

with the intention to permanently deprive the owner of possession of the goods.” Traish v.

Commonwealth, 36 Va. App. 114, 135 (2001) (quoting Bright v. Commonwealth, 4 Va. App.

3 Appellant conceded at trial that someone broke in to Harper’s home and stated at oral argument that he did not contest the sufficiency of the evidence that he entered Harper’s house.

-5- 248, 251 (1987)).4 Statutory burglary, in turn, is the commission of any act enumerated in Code

§ 18.2-90, including breaking and entering with the intent to commit larceny. Code § 18.2-91.

“‘Proving intent by direct evidence often is impossible.’ Therefore, intent, ‘[l]ike any other

element of a crime, . . . may be proved by circumstantial evidence.’” Kelley v. Commonwealth,

69 Va. App. 617, 628 (2019) (alteration in original) (citation omitted) (quoting Adams v.

Commonwealth, 33 Va. App. 463, 470-71 (2000)). Further, “when an unlawful entry is made

into a dwelling of another, the presumption is that the entry was made for an unlawful purpose,

and the specific intent with which such entry was made may be inferred from the surrounding

facts and circumstances.” Vincent v. Commonwealth, 276 Va. 648, 653 (2008) (quoting Ridley

v. Commonwealth, 219 Va. 834, 836 (1979)). Where, as here, there is a “prosecution of burglary

with intent to commit larceny, the [Commonwealth] must prove the specific intent to steal

beyond a reasonable doubt.” Jones v. Commonwealth, 3 Va. App. 295, 299 (1986) (quoting

Ridley, 219 Va. at 836).

We are not persuaded by appellant’s sufficiency arguments with respect to larceny and

intent to commit larceny. Harper, whom the trial court found to be very credible, testified that

before she was injured she placed $50 on top of the chest of drawers in her bedroom. The money

was set aside for lawn care and was not in an envelope; it was “cash money laying there.” When

Harper returned home after appellant’s break-in, the money was gone. Thus, regardless of any

additional testimony by Harper about her habits and routines—evidence to which appellant did

not object at trial—Harper testified to her specific recollection of leaving $50 in a particular

place for a particular purpose and finding it was gone after the break-in. Further, Harper

4 See also Code § 18.2-96(2) (providing, in pertinent part, that petit larceny is the offense of committing “simple larceny not from the person of another of goods and chattels of the value of less than $500”). The threshold for elevating petit larceny to grand larceny was $200 at the time of the instant case and was increased to $500 when Code § 18.2-96 was amended in 2018. See 2018 Va. Acts chs. 764, 765. -6- specifically told police that she had set aside $50 to pay for lawn care and that the money was

missing when she returned home. Viewing this evidence in the light most favorable to the

Commonwealth, a rational trier of fact could have found that Harper left $50 in cash in her

bedroom for lawn care and that after appellant broke in to Harper’s home, he took the money

without Harper’s consent and with the intent to permanently deprive her of the money. Further,

appellant’s unlawful entry into Harper’s home supports the inference that his entry was made for

an unlawful purpose. See Vincent, 276 Va. at 653. In turn, a rational trier of fact could have

concluded from the money’s disappearance that the purpose or intent of appellant’s unlawful

entry was to steal from Harper. Thus, the evidence was sufficient to convict appellant both for

committing petit larceny of currency from Harper and for burglarizing Harper’s home with

larcenous intent.

III. CONCLUSION

For the foregoing reasons, we hold that the evidence was sufficient to convict appellant

for statutory burglary, in violation of Code § 18.2-91, and petit larceny, in violation of Code

§ 18.2-96, and consequently affirm appellant’s convictions.

Affirmed.

-7-