Giles Braxton, s/k/a Giles E. Braxton v. CW

• Court: Court of Appeals of Virginia
• Decided: March 28, 2000
• Docket: 1953984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Annunziata Argued at Alexandria, Virginia

GILES BRAXTON, S/K/A GILES E. BRAXTON MEMORANDUM OPINION * BY v. Record No. 1953-98-4 JUDGE ROSEMARIE ANNUNZIATA MARCH 28, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge

V. James Ventura (Brinton T. Warren, on briefs), for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Giles E. Braxton appeals his conviction by jury in the

Circuit Court of Arlington County for statutory burglary and

grand larceny. Braxton contends the evidence was insufficient

to support the convictions. Finding no error, we affirm the

convictions.

BACKGROUND

On August 9, 1995, the Arlington home of Rosemarie Bowie

was burglarized between 2:30 p.m. and 3:45 p.m. Bowie was away

during this period, but upon her return at 3:45, she found one

of her basement windows smashed and the interior of her house

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. ransacked. She also discovered a number of items missing. Soon

thereafter Bowie received her billing statement from Bell

Atlantic, and she discovered a number of unauthorized calls

billed to her Bell Atlantic "IQ" card ("calling card").

Realizing that her telephone calling card had also been stolen

during the August 9 burglary, she informed the police of the

unauthorized calls.

Detective Linda Alcorta of the Arlington County Police

Department investigated the unauthorized calls. She found that

many of the calls had been placed at the Burning Tree Country

Club in Bethesda, Maryland. Upon further investigation, she

learned that Braxton had been employed there at the time of the

burglary. Braxton was charged with the theft of the calling

card and other items from Bowie's home.

At trial, Braxton and the Commonwealth stipulated that "the

defendant, Giles Braxton, used a telephone calling card (703 -

[number deleted]) belonging to Rosemarie G. Bowie to place

[nine] telephone calls" on August 14, 15, 24, and 31,

respectively. Braxton denied breaking into Bowie's house, and

he denied stealing any of her property. Although he stipulated

to using Bowie's calling card, Braxton denied that he ever

possessed the plastic calling card. Rather, Braxton claimed

that one of his co-workers, whose name he could not recall, "had

given [him] authorized use of the [personal identification]

- 2 - number" on the dates in question. Braxton did not write down

the calling card's number, stating he had a good memory and was

able to recall it accurately on the dates he used it. Detective

Alcorta testified that when she asked Braxton on October 20,

1997 how he had come into possession of the calling card, he

replied that he "could have borrowed it or found it," but that

he did not remember. Braxton disputed Detective Alcorta's

recollection of the statements he made to her on October 20,

1997.

On April 2, 1998, the jury found Braxton guilty of

statutory burglary and grand larceny and sentenced him to twelve

months in jail on each conviction, with a recommendation that

the sentences run consecutively. The jury also recommended a

fine of $650. On August 11, 1998, the trial court entered an

order consistent with the jury's verdict and recommendations.

Braxton noted this appeal, raising the sole issue of whether the

evidence at trial was sufficient as a matter of law to convict

him of the charges of burglary and grand larceny. He argues

that evidence that he used Bowie's calling card number to place

calls on the dates in question does not suffice to prove he

possessed the calling card; lacking such proof, he contends that

no inference may reasonably be drawn that he committed the

crimes charged on the theory of recent possession of stolen

- 3 - goods, the theory which the Commonwealth advanced at trial. We

disagree and affirm his convictions.

ANALYSIS

Larceny is "'the wrongful or fraudulent taking of personal

goods of some intrinsic value, belonging to another, without his

assent, and with the intention to deprive the owner thereof

permanently.'" Bryant v. Commonwealth, 248 Va. 179, 183, 445

S.E.2d 667, 670 (1994) (quoting Skeeter v. Commonwealth, 217 Va.

722, 725, 232 S.E.2d 756, 758 (1977)). In every larceny, there

must be an actual taking or severance of the goods from the

possession of the owner. See Jones v. Commonwealth, 3 Va. App.

295, 300-01, 349 S.E.2d 414, 417-18 (1986). "'There is a

[taking] when the defendant takes possession; he takes

possession when he exercises dominion and control over the

property. . . .'" Bryant, 248 Va. at 183, 445 S.E.2d at 670

(quoting 3 C. Torcia, Wharton's Criminal Law § 378 (14th ed.

1980)). "'[T]o raise the presumption of guilt from the

possession of the fruits . . . of crime . . . it is necessary

that they be found in his exclusive possession. A constructive

possession is not sufficient to hold the [accused] to a criminal

charge. He can only be required to account for the possession

of things which he actually and knowingly possessed . . . .'"

Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 363

(1954) (quoting Tyler v. Commonwealth, 120 Va. 868, 871, 91 S.E.

- 4 - 171, 172 (1917)). "Possession of goods recently stolen is prima

facie evidence of guilt . . . and throws upon the accused the

burden of accounting for that possession." Hackney v.

Commonwealth, 26 Va. App. 159, 168, 493 S.E.2d 679, 684 (1997).

Braxton did not contest that the burglary occurred.

Asserting that the evidence proved only "that he made telephone

calls utilizing the PIN number from the . . . calling card,"

Braxton contends that the Commonwealth failed to prove he

actually possessed the stolen telephone card.

The evidence proved, however, that when Braxton was

questioned by a police detective concerning the stolen telephone

card, Braxton "said he could have borrowed it or found it or

said he couldn't remember." Braxton and the Commonwealth also

made the following stipulation at trial:

It is agreed and stipulated that the defendant, Giles Braxton, used a telephone calling card (703 – [number deleted]) belonging to Rosemarie G. Bowie to place telephone calls at the following times and dates:

14 August 1995 @ 12:54 PM

15 August 1995 @ 8:17 AM

15 August 1995 @ 8:23 AM

15 August 1995 @ 10:37 AM

15 August 1995 @ 3:45 PM

24 August 1995 @ 4:45 PM

- 5 - 31 August 1995 @ 1:05 PM

31 August 1995 @ 1:06 PM

It is further agreed that this stipulation may be entered as evidence in the trial of the above case.

This evidence, which was believed by the jury, was

sufficient to prove beyond a reasonable doubt Braxton's actual

possession of the card. Although Braxton could have limited his

stipulation to the fact that he merely used the calling card's

number, he did not. The ordinary meaning of "used a telephone

calling card" and the testimony of the detective were sufficient

to prove beyond a reasonable doubt that Braxton possessed the

actual card.

Accordingly, we affirm Braxton's convictions.

Affirmed.

- 6 -