Michael Wilkerson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 8, 1999
• Docket: 1286981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner Argued at Norfolk, Virginia

MICHAEL WILKERSON MEMORANDUM OPINION * BY v. Record No. 1286-98-1 JUDGE RUDOLPH BUMGARDNER, III JUNE 8, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHHAMPTON COUNTY Rodham T. Delk, Jr., Judge

(Robert E. O'Neill; Office of the Public Defender, on brief), for appellant. Appellant submitting on brief.

(Mark L. Earley, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Michael Wilkerson appeals his conviction after a bench

trial of two counts of petit larceny, third offense. The

defendant challenges the sufficiency of the evidence.

Concluding that the evidence was sufficient to sustain the

convictions, we affirm.

On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Archer v.

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

so doing, we must discard the evidence of the accused in

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. conflict with that of the Commonwealth. See Cirios v.

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988).

A Franklin County detective was patrolling on August 13,

1997 at 6:30 p.m., a clear and sunny day. He passed the

defendant, who was riding a bicycle and carrying a grocery bag

that “looked to be somewhat heavy.” The detective made eye

contact with the defendant as they passed and continued to watch

the defendant in his rearview mirror. The defendant turned

twice to look back at the detective. When the detective turned

the corner, the defendant dropped the grocery bag into the ditch

at the side of the road. He “leaned down, came to a stop on the

bicycle, laid the item down and he was looking back towards [the

detective] and he . . . proceeded to go forward again.” The

defendant then continued down the road toward the Winn Dixie

store.

The detective turned and went back, following the defendant

whom he again passed in the Winn Dixie parking lot. The

defendant spent two or three minutes at a pay phone. He then

left the parking lot headed away from the detective and the

discarded grocery bag. The detective got out of his car and

walked back toward the grocery bag. As he did, the defendant

was “peddling pretty fast.” The detective retrieved the bag,

which was a plastic Winn Dixie grocery bag, got back in his car,

and caught up with the defendant, who had gotten about a quarter

mile away.

- 2 - As the detective approached, the defendant pulled over and

got off his bicycle. The detective asked him why he had dropped

the bag full of steaks in the ditch. The defendant denied

knowing what he was talking about, denied the steaks were his,

and denied ever having seen them. The detective opened the bag

while he talked with the defendant. It contained four packages

of Winn Dixie steaks and two packages of Super Fresh steaks but

no receipt from either store. The steaks were cold but not

frozen. The detective arrested the defendant when he denied

that the steaks were his. At no point did the defendant claim

the steaks.

Both the Super Fresh and Winn Dixie grocery stores were

located in the area, and the managers of both identified the

packages of steaks as coming from their particular stores. The

detective obtained from both stores cash register tapes showing

all sales made within an hour and a half of the detective first

seeing the defendant. Neither tape showed a sale of the steaks,

and no cashier had seen anyone fitting the description of the

defendant.

The defendant argues that the evidence is insufficient to

prove larceny because it did not show when or how the steaks

were removed from the store. He contends that the

Commonwealth’s case is comprised solely of the fact that the

defendant was in possession of the steaks, but they could have

- 3 - been displayed and sold earlier than the period accounted for by

the store receipts.

"[L]arceny is the taking and carrying away of the goods and

chattels of another with intent to deprive the owner of the

possession thereof permanently." Lund v. Commonwealth, 217 Va.

688, 691, 232 S.E.2d 745, 748 (1977). Evidence of possession of

recently stolen goods “is prima facie evidence of guilt.”

Hackney v. Commonwealth, 26 Va. App. 159, 164, 493 S.E.2d 679,

681 (1997). When this possession is unexplained or falsely

explained, the fact finder may infer that the person in

possession of the stolen goods was the thief. See Montgomery v.

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980).

“The inference derived from evidence of recent possession of

stolen property may be enough, by itself, to support a

conviction of larceny.” Hackney, 26 Va. App. at 168-69, 493

S.E.2d at 681 (citing Bright v. Commonwealth, 4 Va. App. 248,

251, 356 S.E.2d 443, 444 (1987)).

The detective saw the defendant in possession of property.

The defendant discarded the bag in a ditch when he first saw the

law enforcement officer and quickly rode away. When the

detective confronted the defendant, he denied throwing the bag

away or ever seeing the steaks. The bag was full of steaks but

no receipts. The steaks were still cold on a sunny day, in the

middle of August, in Franklin County. The managers could

- 4 - identify the steaks as coming from their stores, but no receipt

recorded their sale and no cashier recognized the defendant.

This evidence permitted the inference that the defendant

possessed recently stolen goods and that permitted the inference

that he was the thief. The inferences to be drawn from the

evidence are solely within the province of the fact finder. See

LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316

(1950). We will not substitute our judgment for that of the

fact finder. See Cable v. Commonwealth, 243 Va. 236, 239, 415

S.E.2d 218, 220 (1992). The trial court's judgment will not be

disturbed on appeal unless plainly wrong or without evidence to

support it. See Commonwealth v. Jenkins, 255 Va. 516, 520, 499

S.E.2d 263, 265 (1998). The credibility of the witnesses and

the weight to be accorded their testimony are matters solely for

the fact finder who can accept or reject the testimony in whole

or in part. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528,

351 S.E.2d 598, 601 (1986). Further, the fact finder is

entitled to disbelieve the self-serving testimony of the accused

and to conclude that the accused is lying to conceal his guilt.

See Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95,

98 (1987) (en banc).

For the foregoing reasons, we affirm the convictions.

Affirmed.

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