Opinion
Record No. 1504-92-1
December 21, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ROBERT B. CROMWELL, JR., JUDGE.
Nancy E. Kight (Theresa B. Berry; Office of the Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Coleman and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Alan Ray Edmondson was convicted in a jury trial of two counts of grand larceny and two counts of statutory burglary in violation of Code §§ 18.2-95 and -91. We hold that the evidence was sufficient to sustain Edmondson's convictions and that the trial judge did not err by admitting into evidence one of the victims' conclusion as to the point where entry was made into her residence. Accordingly, we affirm the convictions.
On July 23, 1991, at 6:00 a.m., Audrey Johnson and Anne Bisese left their home unoccupied, locking all the doors. That afternoon, a neighbor observed the backside of a slim man approximately 5'9" tall with brown shoulder-length hair wearing jeans and a striped, short-sleeved shirt carrying something heavy to the edge of the Johnson-Bisese property. After he set the object down, an old rust-colored car with a ripped vinyl roof and a license beginning with the letter "T" pulled around the corner. The man placed the object in the car's trunk, got in the car, and the operator drove the car away.
When Johnson and Bisese returned home, they noticed the back door was open. They had left the home secured. Once inside, they noticed dresser drawers open, their beds disturbed, and a broken window in the living room. Missing were two televisions, a compact disc player, numerous gold rings, a few gold necklaces, several watches, bracelets and other items of jewelry. The value of the missing items exceeded $200.
A palmprint found on a piece of broken glass lying inside the burglarized home was identified as Edmondson's. Neither Johnson nor Bisese knew Edmondson. The neighbor later identified a Pontiac that belonged to Edmondson as the rust-colored vehicle she had seen at the house the afternoon of the burglary. She was unable to identify Edmondson as the person whom she had seen loading an item in the car's trunk.
On the same day that the Johnson-Bisese house was burglarized, at approximately 8:30 a.m., Ingeborg Crawford left her home, which is located about a mile away from the Johnson-Bisese residence. Her house was secured, and everything was in place when she left. When she returned that afternoon, she found her garage door open and her house in disarray. The glass in a kitchen window had been shattered, and its aluminum frame had been bent. One storm window had been removed. Her television, VCR, and various gold items of jewelry were missing. The value of these items exceeded $200.
Officer D.C. Ashe, who was investigating the break-in at the Crawford home, discovered a rust-colored Pontiac with Virginia tag number TVG-507, parked at the back of the Cricket Inn. Detective Nathanial Bordner, who was participating in the investigation, arrived and knocked on the motel room door closest to the Pontiac. Edmondson and another man answered. Detective Bordner noticed that Edmondson matched the description of the Johnson-Bisese burglar. Bordner posed as a motel guest and informed them that their car door was open. A few minutes later, the two men drove away in the Pontiac. They later returned and went into the motel room.
Bordner obtained a search warrant for Room 103 and for the Pontiac. When the police executed the search warrant, Edmondson and his companion were present in the room along with another man. The police found jewelry belonging to Bisese and Johnson in the room in a trash can. They also found a glass cutter, some beer cans, and a jewelry box that had Edmondson's fingerprints on it. Upon searching the Pontiac, they found a gold bracelet belonging to Ingeborg Crawford hanging on the rear view mirror.
Edmondson was arrested for burglary. After the arrest, Detective Bordner informed Edmondson that he was investigating recent burglaries involving two homes. After receiving hisMiranda rights, Edmondson asked what he could receive in exchange for returning some of the stolen items. When the police refused to discuss an agreement with him, Edmondson said nothing more. The police determined that the motel room was registered to Robert L. Gilligan and that the Pontiac was owned by Charles Russell. Edmondson was convicted by a jury of statutory burglary and grand larceny involving both the Johnson-Bisese and Crawford residences.
I.
In determining whether evidence is sufficient to sustain a criminal conviction, we review the evidence in the light most favorable to the Commonwealth, granting to it "all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). A jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). The Commonwealth bears the heavy burden to prove beyond a reasonable doubt all the elements of the offense and that the defendant was the criminal agent who committed the crimes charged. Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.
Edmondson was charged with grand larceny and burglary of two private homes under Code §§ 18.2-95 and -91, respectively. To sustain the grand larceny conviction, the Commonwealth had to prove that Edmondson wrongfully took another's goods valued at $200 or more, without the owner's consent and with the intent to permanently deprive the owner of the possession thereof.Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945). To sustain a statutory burglary conviction, the Commonwealth was required to prove beyond a reasonable doubt that Edmondson broke and entered a dwelling house in the daytime with the intent to commit larceny. Code § 18.2-91. The elements of larceny and burglary may be established by direct evidence or by circumstantial evidence, or by both. Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954).
II. JOHNSON-BISESE HOME
The evidence established that the Johnson-Bisese home was forcibly entered by breaking the front window of the residence. Edmondson's left palmprint was found soon after the burglary on a piece of broken glass lying inside the home. A man matching Edmondson's description was seen by a neighbor on the Johnson-Bisese property carrying a heavy object and loading it into a Pontiac during the time when the burglary occurred. Later that day, police officers arrested Edmondson in a motel room in which recently stolen jewelry belonging to Bisese and Johnson was in open view. Edmondson's left thumbprint was on a recently stolen glass jewelry box belonging to Johnson and Bisese that was found in the motel room that Edmondson occupied. The Pontiac vehicle, parked outside the motel room, matched the description of the vehicle seen leaving the crime scene. Edmondson was seen leaving from and returning to the motel in the vehicle.
A. Larceny
Unexplained possession of recently stolen goods permits the fact finder to infer that the possessor is the thief.Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987). In order for the fact finder to draw the inference of larceny from possession of recently stolen property, the Commonwealth must establish that the accused was in exclusive possession of the stolen property. Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). Exclusive possession need not be sole possession; exclusive possession may be established by showing that the person jointly possessed the property with another, provided that he exerts dominion and control over the property.Id.
Edmondson constructively possessed the goods recently stolen from the Johnson-Bisese residence that were found in the motel room where he was. Edmondson's thumbprint was on the jewelry box. The presence of the thumbprint is evidence that he exercised dominion and control over that item of recently stolen property found in the room, as well as the other items stolen from that residence. A person fitting Edmondson's description was seen at the Johnson-Bisese residence from which the goods had been recently stolen. Edmondson's palmprint was found on broken glass inside the Johnson-Bisese residence. The palmprint evidence proved that Edmondson had been in the residence and had an opportunity to steal the property; that evidence tends to negate an inference that his later possession of the goods in the motel may have been innocent. Edmondson's inquiry whether he might return the stolen property in exchange for leniency acknowledged his complicity in the crimes. The evidence was sufficient for the trier-of-fact to infer that Edmondson committed larceny from the Johnson-Bisese home. Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980).
B. Burglary
Where a burglary and larceny occur under circumstances that appear to have occurred as part of the same criminal enterprise, the Commonwealth may establish a prima facie case of burglary by proving that the accused possessed the recently stolen goods that were taken in the burglary. The circumstances of the crimes justify an inference that the larceny and burglary were committed at the same time, by the same person, as part of the same criminal enterprise. The conclusion that logically follows from the possession of recently stolen property under these circumstances is that the person who was the thief was also the burglar. See Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24 (1979); Brown v. Commonwealth, 213 Va. 748, 750, 195 S.E.2d 703, 705 (1973).
The evidence established that the Johnson-Bisese home was forcibly entered. Edmondson's palmprint was found on a piece of broken glass lying inside the home. A person fitting Edmondson's description was seen at the Johnson-Bisese residence loading an item into a vehicle during the time that the burglary is known to have occurred. Edmondson was found later that day in joint exclusive possession of the stolen property. He acknowledged his complicity in the burglary when he sought concessions in exchange for the return of stolen property. The evidence was sufficient to prove beyond a reasonable doubt that Edmondson was a principal in the Johnson-Bisese burglary.
III. CRAWFORD HOME
One mile from the Johnson-Bisese home, the home of Ingeborg Crawford was burglarized a few hours before or after the Johnson-Bisese burglary. A window in the Crawford home had been broken, and various items of jewelry were missing. When Edmondson was arrested, a gold bracelet belonging to Crawford was found hanging in plain view on the rear view mirror of the Pontiac. The police witnessed Edmondson riding in the Pontiac just hours before. A glass cutter was found in the motel room that Edmondson occupied. That instrument was compatible with the cut broken glass found in the Crawford residence and was a circumstance that tended to explain how entry was gained.
Stolen property from the Johnson-Bisese burglary and larceny found in the motel room the same day the crimes were committed is evidence that the occupants of the motel room and vehicle knew that all the items were stolen. In response to a question about his knowledge of the two burglaries, Edmondson asked what he might expect in exchange for returning the stolen property. Under these circumstances, the proximity of the Johnson-Bisese and Crawford residences, the similarity between the methods of entry between the two, and the fact that items stolen from both crimes were in Edmondson's possession establish that Edmondson was a principal in the Crawford burglary.
The evidence is sufficient to support the conviction that Edmondson burglarized Ingeborg Crawford's residence and committed grand larceny therein.
IV. WITNESS OPINION TESTIMONY
Edmondson contends that the trial court erred by permitting Ms. Johnson to testify as to her "opinion" regarding where the burglar or burglars entered her home. The testimony by Ms. Johnson as to where she concluded that the burglar or burglars gained entry to her home was not "opinion evidence" of the type that only an expert witness is qualified to give.
She testified that the glass in the front window was broken and that the burglar probably entered at this point. Her testimony was an impression or factual conclusion that she reached based on her observations of the circumstances surrounding the crime. Moreover, evidence technician B.A. Jackson testified, without objection, that the point of entry was the front window. The trial court did not err in admitting this testimony.
For the foregoing reasons, the defendant's convictions are affirmed.
Affirmed.