Stephen Paul Rabender, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 23, 2024
• Docket: 0269232
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Chaney, White and Senior Judge Annunziata Argued at Fairfax, Virginia

STEPHEN PAUL RABENDER, JR. MEMORANDUM OPINION* BY v. Record No. 0269-23-2 JUDGE ROSEMARIE ANNUNZIATA APRIL 23, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY L.A. Harris, Jr., Judge

(Katherine M. Coleman; Blackburn, Conte, Schilling & Click, P.C., on brief), for appellant. Appellant submitting on brief.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Stephen Paul Rabender, Jr., appeals his conviction and eight-year sentence for grand larceny

of a vehicle under Code § 18.2-95(ii). He argues that the trial court erred in admitting irrelevant

evidence, providing an overbroad jury instruction, and denying his motion to strike. We find no

error and affirm the judgment of the trial court.

BACKGROUND

On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “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.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

* This opinion is not designated for publication. See Code § 17.1-413(A). At approximately 8:45 p.m. on December 21, 2021, Rabender fled from a Target store in

Glen Allen to evade police detention. In the direction he fled, Susan Byerly lived in her townhouse;

her home was less than a ten-minute walk from the Target. She arrived home around 9:00 p.m.,

parked her white Toyota Tacoma in her garage, and exited her garage without watching the garage

door fully close. When she heard the garage door open several minutes later, she assumed it was a

neighbor who had code access to her garage. Her remote garage door opener and EZ pass were

inside her vehicle. At around 9:30 p.m. that night, her EZ pass was used at the intersection of

Powhite Parkway and Midlothian Turnpike in Chesterfield County, 20 minutes from her home.

Byerly was not driving her truck at that time, nor had she given anyone permission to drive the

vehicle. She discovered her truck was missing from the garage the following morning.

Chesterfield police found Byerly’s truck on January 7, 2022. A search of the vehicle

uncovered court paperwork for a “Michelle Leake”; the document was a “Request for Appointment

of a Lawyer” form and was dated December 22, 2021. While incarcerated, Michelle Leake made

jail calls to a “Stephen Rabender.” Leake “identified” as Rabender’s wife. The document was

entered into evidence over Rabender’s objection.

Police detectives also located an ATM receipt dated January 2, 2022, and timestamped

5:41 p.m., in Byerly’s truck; the receipt was from a Wawa store in Colonial Heights. Surveillance

footage from that store captured part of the passenger side of a white, four-door Toyota pickup truck

arriving there on January 2, 2022, at 5:39 p.m. The truck parked, and the front lights turned off;

shortly after, Rabender walked from the direction of the truck and into the store. Surveillance

footage recorded inside the Wawa showed Rabender use the ATM and walk from the store toward

the truck; shortly after Rabender reached the truck, the truck left the lot. The surveillance footage

did not show a passenger side door of the truck open while on the lot, nor did it record another

person walk toward or away from the vehicle.

-2- The circuit court denied Rabender’s motion to strike and also overruled his objection to a

jury instruction. The jury found Rabender guilty of grand larceny, and the trial court sentenced

him to eight years of incarceration with four years suspended. This appeal followed.

ANALYSIS

I. Court Document Admissibility

Rabender first argues that the trial court erred in admitting the court document with the

name “Michelle Leake” into evidence over his objection because the Commonwealth failed to

establish any relevancy. “It is well-settled that ‘[d]ecisions regarding the admissibility of

evidence “lie within the trial court’s sound discretion and will not be disturbed on appeal absent

an abuse of discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (quoting

Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)). “A court has abused its

discretion if its decision was affected by an error of law or was one with which no reasonable

jurist could agree.” Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022). “All relevant

evidence is admissible” unless another evidentiary principle requires its exclusion. Va. R. Evid.

2:402. Evidence is relevant if it has “any tendency to make the existence of any fact in issue

more probable or less probable than it would be without the evidence.” Va. R. Evid. 2:401.

But relevant evidence is inadmissible if “the probative value of the evidence is

substantially outweighed by . . . the danger of unfair prejudice . . . .” Va. R. Evid. 2:403(a).

“The responsibility for balancing the competing considerations of probative value and prejudice

rests in the sound discretion of the trial court.” Spencer v Commonwealth, 240 Va. 78, 90

(1990). The trial court must determine “whether the probative value of the evidence is

substantially outweighed by its unfair or unduly prejudicial effects.” Lee v. Spoden, 290 Va.

235, 252 (2015) (emphasis omitted). “‘[U]nfair prejudice’ refers to the tendency of some proof

-3- to inflame the passions of the trier of fact, or to invite decision based upon a factor unrelated to

the elements of the claims and defenses in the pending case.” Id. at 251.

The Commonwealth laid a foundation that the court document belonged to a person who

contacted Rabender from jail and “identified” as his wife. The document was dated the day after

the truck was stolen. These facts tend to make Rabender’s involvement with the stolen vehicle,

where the item was found, “more probable.” Va. R. Evid. 2:401; see also Ragland v.

Commonwealth, 16 Va. App. 913, 918 (1993) (“Evidence is relevant if it has any logical tendency,

however slight, to establish a fact at issue in the case.”).

Rabender argues that the document failed to establish that he “ever read, saw or knew of the

existence of the paper,” or how it entered the truck. Nonetheless, a single piece of evidence need

not be dispositive on an issue; “[e]very fact, however remote or insignificant, that tends to establish

the probability or improbability of a fact in issue is relevant.” Commonwealth v. Proffitt, 292 Va.

626, 634 (2016) (alteration in original) (quoting Virginia Elec. & Power Co. v. Dungee, 258 Va.

235, 260 (1999)). It was within the jury’s purview to assign appropriate weight to the document in

determining Rabender’s guilt or innocence, see Robertson v. Commonwealth, 31 Va. App. 814, 821

(2000), and the trial court did not abuse its discretion in admitting the item into evidence.

II. Jury Instruction

The trial court granted jury instruction 11 stating that “[b]ecause larceny is a continuing

offense, anyone who knows that property is stolen and assists in its transportation or disposition is

guilty of larceny.” Rabender argues that the trial court erred in overruling his objection to the

instruction because it was overbroad and not supported by the evidence.

“A trial court’s decision whether to grant or refuse a proposed jury instruction is

generally subject to appellate review for abuse of discretion.” Howsare v. Commonwealth, 293

Va. 439, 443 (2017). “A litigant is entitled to jury instructions supporting his or her theory of the

-4- case if sufficient evidence is introduced to support that theory and if the instructions correctly

state the law.” Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78 (2004).

Rabender concedes that the instruction was an accurate statement of law, but argues it

was “improper as it does not conform to the facts in evidence.” We disagree. Rabender’s flight

towards Byerly’s home occurred shortly before her garage door opened suspiciously, and the EZ

pass inside the truck registered at a toll plaza without Byerly’s knowledge or permission.

Rabender did not argue to the jury that no theft occurred; he instead argued that the evidence

failed to prove he stole the truck or that he knew the truck was stolen. The jury was entitled to

consider whether the evidence proved Rabender knew the truck was stolen and “assist[ed] in its

transportation or disposition” given that several documents and surveillance footage connected him

to the vehicle. The jury instruction was therefore supported by the evidence, and the trial court did

not abuse its discretion in granting it.

III. Sufficiency of the Evidence

Rabender asserts that the trial court erred in finding sufficient evidence to find him guilty

of grand larceny and denying his motions to strike. “When reviewing the sufficiency of the

evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it

is plainly wrong or without evidence to support it.’” McGowan v. Commonwealth, 72 Va. App.

513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460

(2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Id. (alteration in original) (quoting Secret

v. Commonwealth, 296 Va. 204, 228 (2018)). “Instead, we ask only ‘whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Secret, 296 Va. at 228). “If there is evidentiary support for the conviction, ‘the

reviewing court is not permitted to substitute its own judgment, even if its opinion might differ

-5- from the conclusions reached by the finder of fact at the trial.’” Id. (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)).

“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.’” Goldman v. Commonwealth, 74 Va. App. 556, 562 (2022) (quoting Carter v.

Commonwealth, 280 Va. 100, 104-05 (2010)). “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)).

Rabender does not challenge that a grand larceny occurred; only that the evidence was

insufficient to establish that he stole the vehicle or otherwise knowingly assisted in the

transportation or disposition of the vehicle. We disagree.

As with any element of an offense, identity may be proved by direct or 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, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of guilt.” Holloway v.

Commonwealth, 57 Va. App. 658, 665 (2011) (quoting Coleman v. Commonwealth, 226 Va. 31,

53 (1983)). “[C]ircumstantial evidence is not viewed in isolation.” Id. (quoting Emerson v.

Commonwealth, 43 Va. App. 263, 277 (2004)). “While 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.” Pijor v. Commonwealth, 294 Va. 502, 512-13

(2017) (alteration in original) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).

Moreover, “[b]y finding the defendant guilty . . . the factfinder ‘has found by a process of

elimination that the evidence does not contain a reasonable theory of innocence.’” James v.

-6- Commonwealth, 53 Va. App. 671, 681 (2009) (quoting Haskins v. Commonwealth, 44 Va. App.

1, 9 (2004)). That conclusion “is itself a ‘question of fact,’ subject to deferential appellate

review.” Id. (quoting Haskins, 44 Va. App. at 9). Of course, a factfinder “cannot ‘arbitrarily’

choose, as between two equally plausible interpretations, one that incriminates the defendant.”

Id. at 681-82 (quoting Haskins, 44 Va. App. at 9). “The choice becomes arbitrary, however,

only when ‘no rational factfinder’ could believe the incriminating inferences and disbelieve the

exculpatory inferences.” Id. at 682 (quoting Haskins, 44 Va. App. at 9).

Considering all the facts and circumstances, a reasonable jury could find beyond a

reasonable doubt that Rabender stole the vehicle. He fled from Target in the direction of

Byerly’s home before the truck was stolen. The timing of the suspicious opening of Byerly’s

garage was consistent with Rabender completing the ten-minute walk from the store to the

house. The video footage showed the vehicle pull up to the Wawa days after its theft. After the

truck parked, Rabender was the only person on video who approached the store from the

vehicle’s direction. The vehicle’s lights turned off after it was parked, and no passenger side

door opened. Rabender then conducted an ATM transaction, the receipt of which remained in

the vehicle when it was recovered. The truck entering and leaving the Wawa corresponded to

Rabender walking to and from the vehicle; he was the only person seen on video walking to or

from the vehicle. A court document belonging to Leake, who called Rabender from jail and

“identified” as his wife, was in Byerly’s truck when the police found it.

Rabender’s “unexplained possession of [the recently stolen vehicle] permits an inference

of larceny.” Winston v. Commonwealth, 26 Va. App. 746, 757 (1998). The totality of the

evidence was therefore sufficient for a reasonable factfinder to conclude beyond a reasonable

doubt that Rabender stole the vehicle with an intent to permanently deprive Byerly of it and that

-7- he was guilty of grand larceny. We find that this record supports the trial court’s denial of his

motion to strike.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

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