Opinion
Record No. 2233-92-1
Decided: August 16, 1994
FROM THE CIRCUIT COURT OF YORK COUNTY, G. Duane Holloway, Judge
Affirmed.
(William P. Robinson, Jr.; Robinson, Madison, Fulton Anderson, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
John Roland Hogge, Jr., appeals his convictions for grand larceny and statutory burglary. He contends that the evidence is insufficient to support either conviction. Because Hogge did not raise the issue in the trial court whether the evidence is sufficient to sustain his larceny conviction, we will not consider that issue for the first time on appeal. Rule 5A:18. As to the burglary conviction, we find the evidence sufficient to sustain Hogge's conviction for burglary. Accordingly, we affirm the trial court's judgments of conviction for both offenses.
On December 23, 1991, Charles Newton's York County residence was burglarized by a front window being pried open, and a camcorder, a ring, and cash were stolen from the home. Prior to the burglary, John Hogge, the appellant, had been a guest, living at the Newton residence. Based upon information provided by Newton, Detective R.L. Jackson obtained an arrest warrant for Hogge. Following Hogge's arrest, he confessed to having burglarized a friend's house in York County by "popp[ing]" a window open and stealing a camcorder and some cash from inside the residence. Hogge admitted that, in the past, he had stayed as a guest in the residence that he burglarized. Hogge did not identify by name the friend whose house he burglarized. He admitted that he did not have permission "to go in [the residence] and take anything."
According to the transcript, Detective Jackson, who had investigated the offense, repeatedly referred in his testimony to the victim of Hogge's burglary as "Mr. Nellums" when he testified. Jackson testified that Hogge admitted breaking into the home of a "Mr. Nellums." Based on Detective Jackson's testimony that Hogge broke into the home of "Mr. Nellums" and stole property, he contends that the evidence is insufficient to prove beyond a reasonable doubt that he burglarized Newton's residence and stole Newton's property.
At the conclusion of the Commonwealth's evidence, defense counsel, in his motion to strike, argued:
[T]he larceny is clear, Judge. I would move to strike the burglary. The testimony of the victim, the owner of the house, was that it was not uncommon for this individual to come and go. He stayed there from time-to-time . . . I would argue . . . [the Commonwealth] ha[s] not met their burden on the burglary. Clearly, the grand larceny speaks for itself, but I think on the burglary . . . they have not met their burden.
Despite appellant's concession in the trial court that the evidence was sufficient to prove grand larceny, he now contends on appeal that the evidence is insufficient to support either the grand larceny conviction or the burglary conviction. We decline to address the claim as to grand larceny because the appellant failed to raise the issue in the trial court, and we will not consider it for the first time on appeal. See Rule 5A:18; Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). Rule 5A:18 precludes our review of appellant's argument unless "good cause [is] shown" or unless appellate review is necessary to enable us "to attain the ends of justice." Id.; Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc). Neither of the exceptions to Rule 5A:18 applies in this case.
As to the burglary conviction, the evidence is sufficient to prove beyond a reasonable doubt that Hogge burglarized the home of Charles Newton. The Commonwealth proved that the home of Charles Newton in York County was burglarized by entry through a window and that a camcorder and money were stolen. Hogge confessed to stealing a camcorder and cash from the home of a friend in York County by "popp[ing]" open a window. Hogge admitted that he had previously stayed with this friend as a guest. Thus, Hogge admitted to having committed a burglary and larceny at the home of a friend. The only issue was whether the home and property belonged to Charles Newton. The victim, Newton, testified that Hogge had previously resided as a guest at his home for six months. The testimony, along with Hogge's confession, was sufficient to prove beyond a reasonable doubt that Hogge burglarized Newton's York County residence.
The Attorney General contended at oral argument that the transcript, showing Detective Jackson referring to Mr. Newton as "Mr. Nellums," was a mistake either by Detective Jackson or by the court reporter misunderstanding Jackson or by the court reporter erroneously recording or transcribing his testimony. Although the reference to "Mr. Nellums" must be considered a mistake, in view of the jury's verdict, we do not address that question directly. We need only decide, in view of the jury's verdict that necessarily rejected or did not hear a reference to a "Mr. Nellums," whether the evidence is otherwise sufficient to support the conviction.
Hogge further contends that the evidence is insufficient to prove a burglary because he had permission to be in the Newton residence and, therefore, his entry was not illegal. The evidence proved, however, that Hogge did not have permission to be in the Newton residence. At the time of the burglary, his occupancy of the home had been terminated. Investigator Jackson testified that he asked Hogge, "[d]id anyone give you permission to go in [the home] and take anything?" Hogge answered, "[n]o, not to take anything." Moreover, Hogge's act of entering the house by prying open the window is evidence of an unauthorized entry and gives rise to a reasonable inference that he did not have permission to be in the Newton home. Accordingly, the evidence is sufficient to establish that Hogge broke and entered Newton's house without consent and with the intent to commit a larceny. See generally Rash v. Commonwealth, 9 Va. App. 22, 24-25, 383 S.E.2d 749, 750-51 (1989). We affirm the appellant's convictions for statutory burglary and grand larceny.
Affirmed.