William J Cullipher v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 15, 2002
• Docket: 2422011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia

WILLIAM J. CULLIPHER MEMORANDUM OPINION * BY v. Record No. 2422-01-1 JUDGE WALTER S. FELTON, JR. OCTOBER 15, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Rodham T. Delk, Jr., Judge

Timothy E. Miller, Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

William J. Cullipher was convicted in a bench trial of two

counts of statutory burglary, in violation of Code § 18.2-91, and

one count of grand larceny, in violation of Code § 18.2-95. On

appeal he contends that the evidence was insufficient to sustain a

conviction for statutory burglary and grand larceny. For the

following reasons we affirm the judgment of the trial court.

I. BACKGROUND

On October 18, 2000, at approximately 8:15 a.m., Sheila

Strickland heard her kitchen door open, then slam against the

wall. When she entered the room, she discovered that the screen

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. door was propped open. Seeing nothing else, she closed the door

and went about her morning routine. At approximately 9:00 a.m.,

Ms. Strickland prepared to leave the house and discovered that

her purse was missing. Later that evening, with the assistance

of her mother and the police, her purse was discovered in her

neighbor's trash. Missing from the purse were her wallet, some

blank checks, and credit cards.

Patricia Waterfield lived four houses away from Ms.

Strickland. On that same day, she came home for lunch to

discover the side door ajar. Upon entering the house, she found

that her VCR, jewelry valued at approximately $8,000, and a dark

blue nylon carry-on/gym bag with red piping were missing. Upon

this discovery, she notified police officers who were on her

property and currently investigating the incident at Ms.

Strickland's home.

Earlier that morning, between 8:00 a.m. to 8:15 a.m.,

William Cullipher knocked on Naydene Mitchell's door. Ms.

Mitchell is a neighbor of both Ms. Strickland and Ms.

Waterfield. Upon answering the door, Cullipher asked her if her

house was the Jordan residence. She told him no. She further

stated that none of the neighbors were named Jordan and she knew

of no one by that name. Cullipher left and walked in the

direction of Sheila Strickland's and Patricia Waterfield's

homes. He carried nothing in his hands at that time.

- 2 - Roger Winsor, another neighbor, saw Cullipher between eight

and nine o'clock that morning. Mr. Winsor saw him running

across the lawn carrying a "[b]lue bag, duffel bag-type thing."

Cullipher was moving in a direction away from the victims'

houses and toward Ms. Mitchell's house. He returned to Ms.

Mitchell's house to request a ride. Ms. Mitchell declined and

told him that he could use the phone at the gas station up the

road. She observed him pick up a bag that "was blue with a

little bit of red on it, kind of a carry on bag." Ms. Mitchell

could not see the bag initially because Cullipher had placed it

behind a bush. However, she observed him retrieve the bag and

walk away in the direction away from the victims’ houses.

As Cullipher left the property, Jo Anne Rowland saw him

from her porch. He asked her if she knew where the Jordans

lived. Ms. Rowland observed that Cullipher was carrying a dark

colored bag. She could not provide further details regarding

it. Approximately an hour later, Mr. Winsor saw Cullipher at

the McDonald's on Holland Road with the same bag he observed

earlier.

On June 7, 2001, Cullipher was convicted of two counts of

statutory burglary, in violation of Code § 18.2-91, and one

count of grand larceny, in violation of Code § 18.2-95. He

appeals that conviction.

- 3 - II. ANALYSIS

Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975).

Cullipher contends that the evidence was insufficient to

show that he was the person who committed the burglaries and

larceny. He argues that the only evidence purportedly linking

him to the crimes was possession of a bag, roughly similar to a

bag that was stolen, but was insufficiently identifiable to

prove his guilt. In support of his argument, Cullipher relies

on Griffith v. Commonwealth, 213 Va. 50, 189 S.E.2d 366 (1972).

In Griffith, an apartment was burglarized and the

investigation revealed that there was missing, among other

things, a brownish cardboard carton and an orange colored

sweater. On the same day of the burglary, an employee of the

apartment complex saw Griffith carrying a cardboard box covered

with what appeared to be a yellowish scarf to go on an end

table. He also stated it could have been a scarf, sweater, or

anything.

In reversing Griffith's conviction, the Supreme Court held

that

- 4 - in this case the evidence did not show that the goods the defendant was seen carrying were the goods which had been stolen. All the evidence showed was that the defendant was near the scene of the crime on the day it occurred and that he was carrying an ordinary cardboard box covered by something roughly similar to an article which had been stolen. While his actions were suspicious, the evidence in total was not sufficient to establish his guilt beyond a reasonable doubt.

Griffith, 213 Va. at 51, 189 S.E.2d at 367. Griffith's

conviction was reversed because the cardboard box and the item

covering it were not sufficiently identifiable. Griffith was

seen carrying two very ordinary items. Those circumstances are

not present in this case.

Ms. Waterfield identified a dark blue nylon carry-on/duffel

bag with red piping as one of the items stolen from her home.

Immediately after and within the vicinity of the burglaries,

Cullipher was identified by several neighborhood residents as

carrying a dark colored bag. Ms. Mitchell, who had contact

twice with Cullipher, informed the police that she observed him

with a bag that "was blue with a little bit of red on it, kind

of a carry on bag."

Unlike the ordinary cardboard box and covering discussed in

Griffith, the red piping found on the bag made it sufficiently

identifiable. Cullipher was identified by neighborhood

residents as being in the area at the time the burglaries were

committed. Coupled with the fact that he was observed in

- 5 - possession of a blue bag "with a little bit of red on it," the

evidence was sufficient to sustain his burglary and grand

larceny convictions.

The judgment of the trial court is affirmed.

Affirmed.

- 6 -