Kristopher Quishon Davis v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 5, 2020
• Docket: 1010192
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Huff and Malveaux UNPUBLISHED

Argued by teleconference

KRISTOPHER QUISHON DAVIS MEMORANDUM OPINION* BY v. Record No. 1010-19-2 JUDGE MARY BENNETT MALVEAUX MAY 5, 2020 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Timothy J. Hauler, Judge

Travis R. Williams (Todd M. Ritter; Daniels, Williams, Tuck & Ritter, on brief), for appellant.

Sharon M. Carr, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Kristopher Quishon Davis (“appellant”) was convicted by a jury of statutory burglary, in

violation of Code § 18.2-91, and petit larceny, in violation of Code § 18.2-96.1 On appeal, he

argues the trial court erred in denying his motion to strike because the evidence was insufficient

to establish his identity as the perpetrator of the offenses. For the following reasons, we affirm

the trial court.

I. BACKGROUND

“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth,

the prevailing party in the trial court.” Stoltz v. Commonwealth, 297 Va. 529, 529 (2019)

(quoting Commonwealth v. Perkins, 295 Va. 323, 323 (2018)). “This principle requires us to

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was indicted for grand larceny, in violation of Code § 18.2-95, but convicted of the lesser-included offense of petit larceny, in violation of Code § 18.2-96. ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.’” Vay v. Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Parks v.

Commonwealth, 221 Va. 492, 498 (1980)).

So viewed, the evidence demonstrates that Daniel Uhler protected his home with sensors

and cameras which he could monitor on his smartphone. On April 10, 2018, while Uhler was

away from home, he received a notification on his phone that the French doors to his back deck

were open. He also received a notification that the motion-activated cameras inside his home

had been triggered. Using his phone, Uhler was able to view real-time images from cameras in

his home office, bedroom, and living room. Those images showed a person who was wearing a

dark-colored ski mask, dark-colored pants, a dark-colored long-sleeved jacket, white shoes, and

gloves. As Uhler watched, the person searched through various drawers, boxes, and packages

inside the home and placed a number of items inside a backpack. Uhler did not recognize the

person who was inside his home and had not given anyone permission to enter or take anything

from the house. Uhler called the police.

Officers Kyle Austin and Jared Lawson of the Chesterfield County Police Department

arrived at Uhler’s home at about 12:45 p.m. Officer Lawson watched the front of the house

while Officer Austin went to the rear. At the back of the house, Officer Austin saw a man

wearing dark or black clothing leave the residence and walk off the deck. The man was also

wearing a mask and gloves and carrying a backpack. Officer Austin could see enough of the

man’s skin to identify him as black. He also noted that the man was approximately five feet ten

or eleven inches tall with a thin build and that he was wearing white Air Jordan Series Eight

shoes. Officer Austin testified that he recognized the shoes because he himself owned a pair of

them in a different color.

-2- Officer Austin identified himself as police and told the man to put his hands up. The man

fell to one knee, dropped the backpack, and started running away.2 Officer Austin did not pursue

the man because the back door of Uhler’s house was open and he was unsure whether anyone

else was still inside.

At the front of the house, Officer Lawson saw the man running away and told him to

stop. When the man continued to run the officer chased him into a wooded area. As he did so,

he radioed to police dispatchers that the “[s]uspect ran to the end of [the street], all black with

black hat running towards the end of [the street].” Officer Lawson testified that he did not see

the man’s face because the man was running away from him. He also said he recalled that the

man was of average height and that his clothes were “average” in fit. Officer Lawson further

testified that the man was wearing long sleeves and something covering his head. After pursuing

the man for about thirty seconds, Officer Lawson lost sight of him when he rounded the corner of

a shed. Officer Lawson stopped his pursuit in case the man was waiting behind the shed to

ambush him.

Nearby, Detective Matthew Cippone of the Chesterfield County Police Department was

driving an unmarked vehicle when he heard that a burglary was in progress at Uhler’s home.

The detective drove into Uhler’s neighborhood and began “creeping down [the] street . . . to kind

of . . . blend in.” Although Detective Cippone was aware that other police units were in the area,

he did not see any around him. At that time, he was wearing a “raid vest” which displayed a

badge and was labelled “[p]olice” on its front and back. Detective Cippone saw “a black male

wearing a . . . dark-colored t-shirt and dark-colored pants and white tennis shoes run . . . at a full

2 Uhler testified at trial that the backpack was his property, that it was taken from his bedroom, and that its contents, including a class ring and other jewelry, were also his property. Appellant did not contest at trial that a break-in had occurred or that items were stolen from Uhler’s home. -3- dead sprint” across the street and behind someone’s home. The detective drove to where he had

seen the man disappear, left his vehicle, and pursued the man.

As Detective Cippone rounded the corner of the home, he saw a man whom he identified

in court as appellant “squatted down” in a “hunched position” behind a garbage can. As soon as

appellant saw the detective, he “immediately stood up and just took off running again.” The

detective identified himself as police and ordered appellant to get on the ground, but appellant

ran to the rear of another home where he fell. Detective Cippone arrested appellant, whom he

described as sweating and exhausted. The Commonwealth introduced into evidence several

photographs of appellant that were taken at the time of his arrest. Those photographs depict

appellant wearing a dark-colored t-shirt, white shoes, and jeans. In at least one of the

photographs, the jeans appear to be made of dark blue denim.

Officer Austin testified that approximately twenty minutes after he arrived at Uhler’s

home he learned that a suspect had been taken into custody about three tenths of a mile away.

The officer went to the arrest site, and at trial he identified appellant as the man who had been

arrested that day. Officer Austin also testified that he recognized appellant as the person whom

he had encountered behind Uhler’s home. In particular, the officer noted that appellant “had on

the same shoes” at the time of his arrest. When the Commonwealth’s attorney showed Officer

Austin one of the photographs of appellant which were taken upon his arrest, the officer agreed

that the shoes depicted on appellant’s feet were “the ones that [he] saw on the person that fled the

house.”

Officer Lawson also encountered appellant after he was arrested. He testified that

appellant was of a “[s]imilar build” and “roughly similar height, similar weight” as the man

whom he had pursued outside Uhler’s home.

-4- Officer Austin also stated that police did not recover a mask or black pants from

appellant or from the area. He further testified that appellant did not live in the vicinity of

Uhler’s home.

In addition to hearing the testimony of Uhler and the three officers and viewing the arrest

photographs of appellant, the jury viewed Uhler’s security camera footage. The Commonwealth

also introduced into evidence still photographs excerpted from the footage, one of which

depicted the intruder at full length, including his shoes.

After the Commonwealth presented its case-in-chief, appellant moved to strike the

evidence. He argued the Commonwealth had not met its burden to show that he was the

perpetrator of the charged offenses. The trial court denied the motion.

Appellant presented no evidence.

The jury convicted appellant of statutory burglary, in violation of Code § 18.2-91, and

petit larceny, in violation of Code § 18.2-96. This appeal followed.

II. ANALYSIS

Appellant argues the trial court erred in denying his motion to strike because the evidence

was insufficient to prove his identity as the perpetrator of the burglary and larceny. Specifically,

he contends the identity evidence was insufficient because neither Uhler, nor Officer Austin, nor

Officer Lawson testified that they saw the perpetrator’s face. Instead, only Officer Austin

claimed to be able to identify the perpetrator as appellant, but this identification was made

simply on the basis of Austin’s observation that appellant and the man behind Uhler’s home “had

on the same shoes.” Further, appellant contends the clothing he was wearing when apprehended

did not match the clothing Officers Austin and Lawson described the perpetrator as wearing.

“In the context of a jury trial, a trial court does ‘not err in denying [a] motion to strike the

evidence [when] the Commonwealth present[s] a prima facie case for consideration by the fact

-5- finder.’” Vay, 67 Va. App. at 249 (alterations in original) (quoting Hawkins v. Commonwealth,

64 Va. App. 650, 657 (2015)). Accordingly, “[a] motion to strike challenges whether the

evidence is sufficient to submit the case to the jury.” Lawlor v. Commonwealth, 285 Va. 187,

223 (2013). “What the elements of the offense are is a question of law that we review de novo.

Whether the evidence adduced is sufficient to prove each of those elements is a factual finding,

which will not be set aside on appeal unless it is plainly wrong.” Vay, 67 Va. App. at 249

(quoting Linnon v. Commonwealth, 287 Va. 92, 98 (2014)). “In reviewing that factual finding,

we consider the evidence in the light most favorable to the Commonwealth and give it the benefit

of all reasonable inferences fairly deducible therefrom.” Lawlor, 285 Va. at 224. “After so

viewing the evidence, the question is whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Vay, 67 Va. App. at 249 (quoting

Linnon, 287 Va. at 98). “In sum, if there is evidence to support the conviction, the reviewing

court is not permitted to substitute its judgment, even if its view of the evidence might differ

from the conclusions reached by the finder of fact at the trial.” Lawlor, 285 Va. at 224 (quoting

Commonwealth v. McNeal, 282 Va. 16, 20 (2011)).

“At trial, the Commonwealth bears the burden of proving the identity of the accused as

the perpetrator beyond a reasonable doubt.” Cuffee v. Commonwealth, 61 Va. App. 353, 364

(2013) (quoting Blevins v. Commonwealth, 40 Va. App. 412, 423 (2003)). As with any element

of an offense, identity may be proved by direct evidence or by circumstantial evidence. Crawley

v. Commonwealth, 29 Va. App. 372, 375 (1999). Circumstantial evidence “is as competent and

is entitled to as much weight as direct evidence.” Williams v. Commonwealth, 71 Va. App. 462,

484 (2020) (quoting Breeden v. Commonwealth, 43 Va. App. 169, 177 (2004)). This is so

because “the fact finder . . . ‘is entitled to consider all of the evidence, without distinction, in

reaching its determination.’” Commonwealth v. Moseley, 293 Va. 455, 463 (2017) (quoting

-6- Commonwealth v. Hudson, 265 Va. 505, 512-13 (2003)). “[W]hile no single piece of evidence

may be sufficient, the combined force of many concurrent and related circumstances . . . may

lead a reasonable mind irresistibly to a conclusion.” Williams, 71 Va. App. at 484-85

(alterations in original) (quoting Moseley, 293 Va. at 463). We are further mindful that “[t]he

fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to

determine their credibility, the weight to be given their testimony, and the inferences to be drawn

from proven facts.” McNeal, 282 Va. at 22 (quoting Commonwealth v. Taylor, 256 Va. 514,

518 (1998)).

Here, the trial court correctly concluded that the Commonwealth had adduced sufficient

evidence, if believed by the jury, to prove that appellant was the person who perpetrated the

burglary and larceny.

The jury viewed Uhler’s security camera footage and still photographs excerpted from

that footage, both of which allowed the jury to observe that the perpetrator was wearing a

dark-colored ski mask, dark-colored pants, a dark-colored long-sleeved jacket, white shoes, and

gloves. From the footage and photographs, the jury was also able to observe the perpetrator’s

height and build. The jury then heard Officer Austin’s description of the person he saw leaving

Uhler’s home with a backpack. He described that person as a black male with a thin build who

was approximately five feet ten or eleven inches tall and who was wearing dark or black

clothing, gloves, and a mask. Officer Austin also noted that the person was wearing a distinctive

style of shoe that was personally known to Austin: Series Eight Air Jordans, which were white.

The jury heard that the man encountered by Officer Austin fled from him when he identified

himself as police.

The jury was also presented with Officer Lawson’s testimony that he saw the fleeing

suspect and pursued him. Officer Lawson told the jury that the suspect was of average height

-7- and that he wore long sleeves and something covering his head. Officer Lawson stated that he

told dispatchers the suspect was wearing “all black with [a] black hat.” Although the jury heard

that the suspect had eluded Officer Lawson, it also heard from Detective Cippone that while he

was driving through Uhler’s neighborhood he saw a black male wearing a dark-colored t-shirt,

dark-colored pants, and white tennis shoes. That man ran across the road in front of the

detective’s unmarked vehicle and disappeared behind a home. When Detective Cippone pursued

him, he found the man, whom he identified in court as appellant, hunched down behind a

garbage can. The jury heard that appellant fled when he saw the detective, who was wearing a

police vest, and continued to run through residential yards after Detective Cippone verbally

identified himself as police and told appellant to get on the ground.

Further, the jury heard Officer Lawson describe his encounter with appellant after the

arrest and his testimony that appellant was of similar build, height, and weight as the man whom

he had chased outside Uhler’s home. The jury also heard Officer Austin’s testimony that the

man he saw under arrest was appellant and that he recognized him as the same person whom he

had encountered behind Uhler’s house. Officer Austin made clear that the shoes appellant was

wearing when arrested were the same as the ones he had seen on the person who fled from

Uhler’s home. Officer Austin further told the jury that the arrest occurred approximately twenty

minutes after police arrived at Uhler’s home and about one third of a mile from the home, and he

noted that appellant did not live in the area. Lastly, the jury viewed photographs of appellant

taken at the time of his arrest, including photographs that depicted appellant’s footwear and dark

clothing.

The jury had the opportunity to observe appellant’s race, height, and build at trial. As

fact-finder, it was within their province to determine the credibility and weight to give the

officers’ descriptions of the suspected perpetrator, and to compare those descriptions with their

-8- observations of appellant and the man they saw in the security footage and photographs. It was

also within the jury’s province to determine the credibility and weight to give Officer Austin’s

identification of appellant as the person who emerged from Uhler’s home, and to compare the

clothing and distinctive shoes Austin described with the clothing and shoes visible in the security

camera images and post-arrest photographs. The jury could also reasonably infer guilt from

appellant’s flight from the officers and Detective Cippone, and that between appellant’s flight

from the officers and his arrest he had abandoned his gloves, mask, and other items of clothing.

See Claggett v. Commonwealth, 252 Va. 79, 93-94 (1996) (“Flight following the commission of

a crime is evidence of guilt,” and “includes the taking of any action . . . intended to disguise

one’s identity and distance oneself from the crime”). Also, the evidence indicated that although

appellant did not live in Uhler’s area, he was apprehended a short distance from Uhler’s home

and soon after the break-in. The evidence also evinced that appellant ran through residential

properties and attempted to conceal himself from detection behind a trash can.

Taken in its totality, this evidence was sufficient for the jury to conclude that appellant

was the same person whom they viewed in the camera footage and photographs from Uhler’s

home, whom Officer Austin saw emerge and flee from the residence, whom Officer Lawson

pursued from the home, and whom Detective Cippone arrested. Because the evidence, if

credited by the jury, was sufficient to establish appellant’s identity as the perpetrator of the

burglary and larceny, we conclude the trial court was not plainly wrong in denying appellant’s

motion to strike the evidence.

III. CONCLUSION

For the foregoing reasons, we hold that the trial court did not err in denying appellant’s

motion to strike the evidence. Accordingly, we affirm.

Affirmed.

-9-