Leroy Nathaniel Smith v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 28, 1999
• Docket: 1976983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia

LEROY NATHANIEL SMITH MEMORANDUM OPINION * BY v. Record No. 1976-98-3 JUDGE JAMES W. BENTON, JR. DECEMBER 28, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge

Albert L. Shaw for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General; Ruth M. McKeaney, Assistant Attorney General, on brief), for appellee.

A jury convicted Leroy Nathaniel Smith of six burglaries,

three grand larcenies, and three petit larcenies. Smith contends

the evidence was insufficient to prove he committed five of the

burglaries, two of the grand larcenies, and the three petit

larcenies. He does not contest one burglary and one grand larceny

conviction. For the reasons that follow, we affirm Smith's

convictions.

I.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). So viewed, the evidence established that

six homes were burglarized in Pittsylvania County between

November 25 and December 4, 1997. On November 25, 1997, the

home of Robert Lindsay and his daughter was burglarized. When

Lindsay returned home that afternoon, he saw narrow bicycle

tracks leading from the road through his gravel driveway and his

muddy yard to the carport. The door to his home had been pried

open with a tool. The burglar had taken coins, $220 in cash, a

high school class ring, four gold rings, and other jewelry.

During the trial, the Lindsays identified the class ring and the

four gold rings stolen from their home.

On December 1, 1997, Larry and Pamela Kincaid's home was

burglarized. The burglar pried open the carport door with a

tool and took jewelry, coins, a wallet with credit cards, and a

.38 Smith & Wesson handgun. During the trial, Pamela Kincaid

identified the handgun stolen from her home and testified that

three missing gold necklaces were each valued at one hundred

dollars.

Also on December 1, the home of Barry Carter was

burglarized. The burglar removed a radio and a camcorder valued

at $1,000. Smith does not contest the convictions for burglary

and grand larceny related to Carter's home.

- 2 - On December 3, 1997, the home of Evelyn Woodson was

burglarized. The burglar pried open the front door with a tool

and took coins, several two-dollar bills, a gold necklace, and a

.38 Smith & Wesson handgun valued at $294. During the trial,

Woodson's brother identified a photograph of the two-dollar bills

that were stolen and testified that he had earlier identified the

bills because of large creases caused by his folding of the bills.

Woodson also earlier identified the necklace the police recovered

and, at trial, identified a photograph of the necklace.

On December 4, 1997, the home of Joan Tarpley-Robinson was

burglarized. The burglar pried open the basement door with a tool

and took coins and a radio. Before trial, Tarpley-Robinson

identified the radio the police recovered and, during the trial,

she identified a photograph of the radio.

Also, on December 4, 1997, Kenneth and Lori Oakes' home was

burglarized. After prying open the front door with a tool, the

burglar took a 9mm Astra handgun, a holster and ammunition, all

valued at $400, six rings valued in excess of $1,000, a watch, and

some loose change. At trial, Kenneth Oakes identified the

handgun, clip, holster, ammunition, and a ring that were stolen

from his home and recovered by the police. Oakes' wife identified

the five rings that were stolen from their home and recovered by

the police.

On the afternoon of December 4, 1997, Major Gary Goodson and

Sergeant Donald Motley were patrolling an area of the county where

- 3 - several burglaries had occurred when they saw Smith carrying a

blue sack and walking a ten-speed bicycle. They informed Smith

that he matched the description of an individual involved in

several burglaries and asked him for identification. Smith

identified himself and allowed Goodson to look in his sack.

When Goodson opened it, he saw a pair of gloves, a screwdriver,

and a large number of coins.

Expressing a concern that people would see him talking with

the police, Smith asked if they could go to his residence. The

officers agreed and followed Smith to a nearby residential

trailer. As they arrived at the trailer, Deputy Paul Burke

pulled into the driveway. With Smith's consent, Motley and

Burke searched the residence. When the officers asked Smith in

what part of the trailer he lived, he told them the master

bedroom.

In the master bedroom, the officers found the camcorder

taken from the Carters' home, a ski mask, screwdriver, two ice

picks, a putty knife, a large assortment of coins, and coin

wrappers. The officers then arrested Smith and searched him.

During the search, the officers saw two watches and a ring but

did not confiscate them.

Motley searched the sack again and found the gold necklace

stolen from the Woodsons' residence, the radio stolen earlier

that day from the Tarpley-Robinsons' residence, and the 9mm

Astra handgun, clip, and ammunition stolen earlier that day from

- 4 - the Oakes' residence. In the bathroom, which Smith used while

the officers were in the trailer, Goodson recovered the .38

Smith & Wesson handgun stolen from the Kincaids' residence

hidden in a trash can.

At the county jail, Burke searched Smith and recovered from

his wallet the four two-dollar bills that had been taken from

the Woodsons' residence. Burke later searched the seat in the

rear of Burke's vehicle where Smith had been sitting and found

five of the six rings which had been taken from the Oakes'

residence. After his arrest, Smith was detained in the jail,

where he sold to an inmate one of the rings stolen from the

Oakes' residence. The police later recovered the ring from the

inmate.

Smith recorded a statement for the police and admitted

possessing the Kincaids' .38 Smith & Wesson handgun. Smith

stated that he had taken the gun on Sunday, November 30, 1997,

from some "crackheads."

Linda Goggins, who also occupied the trailer searched by

police, later summoned Burke to the trailer. When Burke arrived

at the trailer, Goggins gave him the class ring and the four

gold rings that had been stolen from the Lindsays' residence and

other jewelry. At trial, Goggins testified that she had never

seen the class ring and the four gold rings before she found

them in the master bedroom of the trailer. In addition,

Goggins' daughter testified that she had never seen the jewelry.

- 5 - Upon consideration of all the evidence, the jury convicted

Smith of six burglaries, three grand larcenies, and three petit

larcenies. On appeal, Smith does not contest the convictions

for the burglary and grand larceny at Carter's residence;

however, he contends the evidence is insufficient to prove the

other offenses.

II.

It is well established that "the unexplained possession of

recently stolen goods permits an inference of larceny by the

possessor." Bright v. Commonwealth, 4 Va. App. 248, 251, 356

S.E.2d 443, 444 (1987). Similarly, a prima facie case of

burglary is established by the following:

(1) proving that goods were stolen from a house which was broken into; (2) justifying the inference that both offenses were committed at the same time, by the same person, as part of the same criminal enterprise; and (3) proving that the goods were found soon thereafter in the possession of the accused.

Id. Although "the unexplained possession of recently stolen

property creates a presumption of guilt, . . . possession must

be exclusive on the part of the accused." Leebrick v.

Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214 (1956).

"[T]he evidence must reveal that the accused was consciously

asserting at least a possessory interest in or exercising

dominion over the stolen property." Ferrell v. Commonwealth, 11

Va. App. 380, 388, 399 S.E.2d 614, 618 (1990); see also Nelson

- 6 - v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384, 386

(1991).

"Guilt of breaking and entering a building may be

established by circumstantial evidence; eyewitnesses are not

required." Hope v. Commonwealth, 10 Va. App. 381, 385, 392

S.E.2d 830, 833 (1990) (en banc) (citation omitted). Moreover,

if an accused is found in possession of recently stolen goods,

the trier of fact may infer guilt if the possession is not

explained credibly or if the possession is falsely denied. See

Carter v. Commonwealth, 209 Va. 317, 323-24, 163 S.E.2d 589, 594

(1968).

The testimony of the Commonwealth's witnesses proved that

someone broke into each residence and stole items. That proof

justified an inference by the fact finder that the offenses were

committed at the same time, by the same person, as part of the

same criminal enterprise. See Bright, 4 Va. App. at 251, 356

S.E.2d at 444.

(A)

Lindsay observed narrow bicycle tire tracks on his

property. When the police apprehended Smith, he had a bicycle

and was carrying recently stolen items. He also possessed tools

that could have been used to break into a house. Nine days

after the burglary at the Lindsays' residence, the Lindsays'

class ring and four gold rings were recovered from the master

- 7 - bedroom Smith said he occupied. Smith offered no explanation

for his possession of these items.

In order for the presumption to arise, the possession must be exclusive, but "[o]ne can be in exclusive possession of an item when he jointly possesses it with another," as long as "the accused was consciously asserting at least a possessory interest in the stolen property or was exercising dominion over [it]."

Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832

(1997) (citation omitted).

Neither Goggins nor her daughter had ever seen the jewelry

before Goggins delivered it to police and did not know from

where it came. Under these circumstances, the fact finder could

infer beyond a reasonable doubt that Smith had exclusive

possession of the Lindsays' jewelry and exercised dominion over

it.

The combination of Smith's unexplained possession of the

items recently stolen from the Lindsays' home and the

circumstantial evidence could lead the fact finder to infer

beyond a reasonable doubt that Smith broke into the Lindsays'

home and stole the items. See Carter, 209 Va. at 323-24, 163

S.E.2d at 594. Therefore, the evidence was sufficient to prove

beyond a reasonable doubt that Smith was guilty of the burglary

of the Lindsays' home and the grand larceny of the items stolen

from their home.

- 8 - (B)

The Kincaids' handgun was recovered three days after the

burglary, hidden in a bathroom trash can in the trailer occupied

by Smith. When confronted with the gun, Smith admitted

possessing it, but indicated he had obtained it on Sunday,

November 30, 1997, from some "crackheads." The evidence proved,

however, that the burglary did not take place until Monday,

December 1, 1997. Based upon these inconsistencies, the fact

finder was entitled to reject Smith's explanation of his

possession of the gun. "The credibility of the witnesses and

the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).

Based on the combination of circumstantial evidence,

Smith's recent possession of the gun stolen from the Kincaids'

home, and his incredible explanation for that possession, the

fact finder could infer beyond a reasonable doubt that Smith

broke into the Kincaids' home and stole the gun. See Carter,

209 Va. at 323-24, 163 S.E.2d at 594. Therefore, the evidence

was sufficient to prove beyond a reasonable doubt that Smith was

guilty of the burglary of the Kincaids' home and the petit

larceny of the items stolen from their home.

- 9 - (C)

One day after the burglary, the police recovered the

Woodsons' necklace from Smith's sack and their two-dollar bills

from his wallet. "When an accused is found in possession of

goods of a type recently stolen, strict identity of the goods is

not required." Henderson v. Commonwealth, 215 Va. 811, 812-13,

213 S.E.2d 782, 783 (1975). All of the circumstances,

considered together, permitted the fact finder to infer that the

gold necklace found in Smith's sack and the two-dollar bills

found in his wallet were stolen from the Woodsons' home. The

fact finder was entitled to reject Smith's explanation for

possession of the two-dollar bills, see Sandoval, 20 Va. App. at

138, 455 S.E.2d at 732, and Smith provided no explanation for

his possession of the Woodsons' necklace.

Based upon circumstantial evidence and the incredible

evidence concerning Smith's recent possession of the Woodsons'

stolen items, the fact finder could infer beyond a reasonable

doubt that Smith broke into the Woodsons' home and stole the

property. See Carter, 209 Va. at 323-24, 163 S.E.2d at 594.

Therefore, the evidence was sufficient to prove beyond a

reasonable doubt that Smith was guilty of the burglary of the

Woodsons' home and the petit larceny of the items stolen from

the home.

- 10 - (D)

The police recovered the radio within hours of the burglary

of Tarpley-Robinson's home. It was in the sack that Smith was

carrying. Smith offered no explanation for his possession of

the radio. We find no merit to Smith's argument that the trial

judge should have granted his motion to strike the indictment

because the Commonwealth failed to amend the indictment to

reflect that property belonging to Tarpley-Robinson's daughter

was stolen. The Commonwealth's evidence proved that at least

thirty dollars worth of coins were stolen at the same time the

radio was stolen. The value of the radio was not relevant in

establishing the petit larceny; rather, the combination of

Smith's unexplained possession of it within hours after it was

stolen and other circumstantial evidence was sufficient to prove

he broke and entered the Tarpley-Robinsons' home and stole the

reasonable doubt that Smith was guilty of the burglary of the

Tarpley-Robinsons' home and the petit larceny of property.

(E)

Within hours of the burglary, the police recovered the

Oakes' handgun from Smith's sack. The Oakes' jewelry was

recovered from the seat of the vehicle in which Smith was

transported to the jail after his arrest. Smith sold one of the

Oakes' rings to an inmate at the jail. The fact finder was

- 11 - entitled to reject Smith's explanation for his possession of the

Oakes' handgun, see Sandoval, 20 Va. App. at 138, 455 S.E.2d at

732, and Smith offered no explanation for his possession of the

Oakes' rings.

Based upon Smith's lack of a credible explanation for his

possession of the gun, his unexplained possession of the rings,

and the recency of the events, the fact finder could infer

beyond a reasonable doubt that Smith broke into the Oakes' home

and stole property, having a value in excess of $200. See

Carter, 209 Va. at 323-24, 163 S.E.2d at 594. Therefore, the

evidence was sufficient to prove beyond a reasonable doubt that

Smith was guilty of the burglary of the Oakes' home and the

grand larceny of the items stolen from their home.

For the foregoing reasons, we affirm the convictions.

Affirmed.

- 12 -