Opinion
Record No. 2628-06-1.
November 27, 2007.
Appeal from the Circuit Court of Prince William County LeRoy F. Millette, Jr., Judge.
Raymond J. Morley, Jr., for appellant.
Josephine F. Whalen, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges McClanahan, Petty and Senior Judge Fitzpatrick.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A jury convicted appellant Jordan Joseph Kinard of grand larceny. On appeal, Kinard argues that the trial court abused its discretion by allowing the Commonwealth to introduce into evidence a BB gun that was found in his possession at the time of his arrest, because the evidence was unduly prejudicial and did not serve to prove an element of the crime of larceny. For the reasons stated below, we affirm the conviction.
Kinard stole a paint sprayer from a townhouse that the victim was remodeling. When the victim discovered the theft and challenged Kinard, he abandoned the paint sprayer and fled. The victim immediately notified the police, and Kinard was arrested a short time later. At the scene of the arrest, the police found a BB gun that looked like a semi-automatic pistol. Kinard admitted that he had abandoned the gun just before he was taken into custody.
Before trial, Kinard moved to exclude the gun from evidence. Kinard argued that the evidence would be overly prejudicial and the jury would believe that he was "going around with this BB gun . . . looking for some kind of trouble or to commit some kind of crime." The Commonwealth's attorney, on the other hand, argued that Kinard was not entitled to "sanitize the evidence." He further argued that the BB gun gave "credence to what his intent was, what his means of operation would be" and that the jury should be able to make a "fair inference as to why he may have been armed with a [BB gun] that looked like a real pistol." The trial court denied Kinard's motion. The jury convicted Kinard of grand larceny and imposed a sentence of 15 years in the penitentiary. The trial court subsequently suspended one year of that sentence.
The facts and argument in this case are virtually identical to those in Hope v. Commonwealth, 10 Va. App. 381, 392 S.E.2d 830 (1990) ( en banc). In Hope, the police found a loaded gun in an area where a larceny suspect, later identified as Hope, had fallen while being pursued by police. Id. at 384, 392 S.E.2d at 833. In that case, a six-judge majority of this Court held that the gun was admissible at trial, despite Hope's objection that its admission would be "highly prejudicial." Id. at 386, 392 S.E.2d at 833.
The majority determined that the gun "was surely a tool intended to be used if deemed necessary by the thief to continue the larceny and/or perfect his escape." Id. at 387, 392 S.E.2d at 834. Thus, the majority reasoned that the gun was admissible because "[t]he acts or conduct of the defendant after the crime, which are not elements of the crimes charged, are admissible because they may tend to show a 'consciousness of guilt.'" Id. at 386, 392 S.E.2d at 834 (quoting Jenkins v. Commonwealth, 132 Va. 692, 696, 111 S.E. 101, 102 (1922)).
Based on the reasoning of Hope, we conclude that the trial court did not err in admitting the gun into evidence. Thus, we affirm Kinard's conviction.
Affirmed.