Marvin Maurice Bradshaw v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 5, 2002
• Docket: 2901001
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Frank Argued at Chesapeake, Virginia

MARVIN MAURICE BRADSHAW MEMORANDUM OPINION * BY v. Record No. 2901-00-1 JUDGE RUDOLPH BUMGARDNER, III FEBRUARY 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Russell I. Townsend, Judge

S. Jane Chittom, Appellate Defender (Public Defender Commission, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Marvin Maurice Bradshaw was convicted of two counts each of

statutory burglary, grand larceny, and property damage. He

contends the evidence was insufficient to prove (1) burglary or

(2) property damage and (3) the trial court erred in finding he

committed two separate larcenies. Finding no error, we affirm.

"[W]e review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom. The [trial court's] judgment . . .

will not be set aside unless it appears from the evidence that

the judgment is plainly wrong or without evidence to support

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987).

Imaad Naser Salem owned a gas station and convenience

store. He did not work a fixed shift at the store, but he

actively managed the gasoline and cigarette inventories. Salem

maintained a daily cigarette inventory of $15,000 to $20,000 at

the store. Before sale, Salem placed a unique mark over the

manufacturer's bar code on each pack. He checked each evening

to make sure the cigarette racks were full.

On August 7, 2000, Salem left the store around 10:00 p.m.

but returned when notified the burglar alarm had activated. The

left front window was shattered and the store burglarized.

Specific brands of cigarettes (Newports, Kools, and Salems),

cigars (Black and Milds or Dutch Master), beer (Natural Ice),

and wine (MD 20/20) were taken. Salem estimated more than

$1,300 worth of cigarettes had been taken. He estimated the

damage to the window was $685 and testified the alarm sensor

remained broken.

On August 10, 2000, Salem left the store before 9:00 p.m.

but returned when police discovered the right front window

shattered. The same brands of cigarettes, beer, and wine were

missing, but a different brand of cigars, "Optimos," were taken.

Salem estimated that more than $1,000 worth of cigarettes and

approximately $100 worth of Optimo cigars were taken that night.

- 2 - The police executed a search warrant for the defendant's

residence on August 10, 2000, between 10:50 and 11:50 p.m. The

owner of his rooming house told the police she had seen the

defendant on August 9, 2000 at approximately 1:30 a.m. carrying

a soft brown suitcase. It was full of individual packs of

Newport Light 100 and Kool cigarettes and packs of cigars.

On the dresser in the defendant's room the police recovered

individual packs of Kool and Newport King cigarettes, and packs

of Black and Mild and Optimo cigars. A black bag also contained

cigarettes and cigars. The police found in the trash empty

Natural Ice 12-pack cartons. Salem identified the cigarettes by

his unique markings as those taken from his store. The owner of

the house denied owning any of the items found there.

The defendant concedes the Commonwealth proved he possessed

recently stolen goods. He contends, however, that the inference

raised from such possession is insufficient to support a

burglary conviction.

The Commonwealth can establish a prima facie case that appellant broke and entered by (1) proving that goods were stolen from a [store] 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.

Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444

(1987) (citations omitted); Sullivan v. Commonwealth, 210 Va.

- 3 - 201, 203, 169 S.E.2d 577, 579 (1969) (credit card found on

defendant three months later sufficient); Ferrell v.

Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 618 (1990).

The Commonwealth proved the convenience store was broken

into on August 7 and 10. Both times the entry was by breaking a

front window after closing. On both occasions, only specific

brands of menthol cigarettes and a particular brand of beer were

taken. The storeowner identified the items as coming from his

store by their brand and special markings that he had placed on

them. The evidence permits the inference that on both occasions

the break-in and theft occurred at the same time and the same

person committed them as part of the same criminal enterprise.

Two days after the first incident, the defendant was seen

with a suitcase filled with the particular brands of cigarettes

and cigars taken on August 7. On the night of the second

burglary, the police found the defendant in possession of

several packs of Optimo cigars, which were stolen only on the

second occasion, August 10. The defendant was in recent,

exclusive possession of property stolen during each of two

break-ins, which gives rise to the inference that he committed

both burglaries. Bright, 4 Va. App. at 253, 356 S.E.2d at 445.

The trial court relied on that inference and concluded, "it was

pretty much an overwhelming circumstantial case." The large

quantity of items recovered from the defendant's possession

negates any possible hypothesis of innocence.

- 4 - The defendant contends the evidence does not support his

convictions of two grand larcenies because it does not prove on

each occasion the items stolen were valued at more than $200.

"[T]he opinion testimony of the owner of personal property is

competent and admissible on the question of the value of such

property . . . ." Walls v. Commonwealth, 248 Va. 480, 482, 450

S.E.2d 363, 364 (1994) (citation omitted). The owner testified

that on August 7 cigarettes worth more than $1,000 were taken

and that on August 10 cigarettes worth more than $1,300 were

taken. The evidence proved that the value of the property

stolen on both occasions exceeded $200.

The defendant also contends the trial court erred in

convicting him of both property damage and burglary because they

were the same act. "Statements unsupported by argument,

authority, or citations to the record do not merit appellate

consideration." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415

S.E.2d 237, 239 (1992). Moreover, if it is reasonable to infer

that the defendant broke into the store, it is reasonable to

infer he did so by breaking the window that permitted entry.

Property damage is not a lesser-included offense of breaking and

entering; they are separate criminal acts. Blockburger v.

United States, 284 U.S. 299, 302 (1932).

We affirm the trial court.

Affirmed.

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