Opinion
Record No. 2049-92-2
December 14, 1993
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY JOHN F. DAFFRON, JR., JUDGE.
Roger S. Fraley (Kauffman Fraley, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Michael William Britt (Britt) appeals his convictions for burglary, grand larceny and use of a firearm during the commission of a felony. Britt challenges the sufficiency of the evidence on the grounds that (1) his mere presence at and flight from the scene of the alleged crime cannot support the convictions for burglary and grand larceny; and, (2) the testimony of a single eyewitness cannot support his conviction for use of a firearm in the commission of a felony. For the reasons that follow, we affirm Britt's convictions.
The parties are familiar with the facts of this case. Accordingly, we restate only those facts necessary to explain our holding. In the early morning hours of September 21, 1992, Katherine Murdock (Murdock) returned to her home in Chesterfield County and discovered an unfamiliar pick-up truck parked in her driveway. Murdock observed a man run from the house to the pick-up truck, reach inside and raise his hands toward her. Immediately, Murdock heard two loud gunshots. Before Murdock could drive away, the man struck her vehicle with the truck, then drove around her. She saw several items in the back of the truck but could not discern whether they were property taken from her residence. At trial, Murdock identified Britt as the driver of the truck.
Chesterfield police officers arrested Lonnie Gooch at the Murdock house. When police arrived, Gooch had called out, "Mike, Mike." Both a ground floor door and upper story window showed signs of forced entry. Murdock discovered over fifteen thousand dollars of property missing and severe damage to the remainder of the house. Police discovered three shell casings at the scene.
Police traced the pick-up truck to Britt. Britt denied going to Chesterfield County on September 21. He claimed that he had loaned the truck to an individual named George, who had the truck at that time. At trial, however, Britt admitted going to the Murdock home with Gooch. Britt testified that he believed Gooch had rented the house from George Lane and claimed that Gooch had a door key. Britt claimed that he left the house when Murdock arrived because he mistook her for George Lane, and he and Lane did not get along well. Britt denied shooting at Murdock and ramming her car.
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
In the present case, the evidence taken in the light most favorable to the Commonwealth established that Britt was present at the scene of a recent burglary and the concomitant larceny predicated by that burglary. The evidence further established that Britt used force in escaping from the scene. When first confronted with these facts, Britt denied being present at the Murdock house. However, at trial, Britt admitted being present but offered a convoluted justification for his presence.
The jury had the right and the duty to reject Britt's testimony if from its contradictions, or from the improbability of his story and his manner of relating it, or because of the attending facts and circumstances, they had reason to believe that he was not speaking the truth. See Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973).
The jury was privileged to consider Britt's inconsistent prior statements and conclude that his flight resulted from a "consciousness of guilt." See Jenkins v. Commonwealth, 132 Va. 692, 111 S.E. 101, 102 (1922); Hope v. Commonwealth, 8 Va. App. 491, 496, 386 S.E.2d 807, 810 (1989), aff'd on reh'g, 10 Va. App. 381, 392 S.E.2d 830 (1990) (en banc). The jury could also infer guilt from Britt's inconsistent statements. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981); Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 179-80 (1988).
The evidence established that a significant amount of property had been removed from the house and that considerable damage had occurred to the structure and fixtures. Gooch was wearing a leg cast at the time of his arrest and the jury could reasonably conclude that he could not have accomplished the theft and destruction on his own. It was reasonable for the jury to have concluded, given all the evidence, that Britt was Gooch's partner in the burglary and theft. Thus, under the applicable standard of review, we cannot say that the jury's verdict was plainly wrong or without support in the evidence.
Britt maintains that Murdock's testimony is the sole evidence that he possessed and used a firearm at the Murdock house. Murdock's testimony, if credited by the jury, supports the conviction for use of a firearm. See Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103 (1980). Furthermore, Britt concedes that the Commonwealth adduced further evidence, albeit circumstantial, by producing three shell casings found at the scene. Thus, Murdock's testimony is not unsupported and, when viewed with the circumstantial evidence in the light most favorable to the Commonwealth, supports the jury's finding that Britt had and used a firearm.
The predicate felony of the firearm charge was the attempted murder of Murdock. Although the jury acquitted on the underlying felony, we have held that inconsistency of the verdicts alone does not invalidate a conviction. See Wolfe v. Commonwealth, 6 Va. App. 640, 648, 371 S.E.2d 314, 318 (1988). We will not speculate on the jury's reasoning, nor will we subvert that reasoning absent a clear showing of error.
For these reasons, we find the evidence sufficient to sustain the jury's verdict and, accordingly, the convictions appealed from are affirmed.
Affirmed.