Opinion
Record No. 0129-93-3
Decided: January 17, 1995
FROM THE CIRCUIT COURT OF PULASKI COUNTY, A. Dow Owens, Judge
Roy David Warburton, Office of the Public Defender, for appellant.
John H. McLees, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Connie Mack Lynn was convicted in a jury trial of statutory burglary and grand larceny. On appeal, he contends that (1) the evidence produced by the Commonwealth was insufficient, as a matter of law, to support the convictions; and (2) the trial court erred by permitting handwriting exemplars, prepared for forensic comparison, which were found by the expert to be inconclusive, to be taken into the jury room. For the following reasons, we affirm the trial court's decision.
In February, 1992, Michelle and Kevin Adkins lived on Owens Road in Pulaski County. Owens Road is a dead-end road, approximately six miles long. The Adkins' home is approximately one-half mile from the far end of the road. Brian Cox and his father, witnesses in this case, reside at the very end of the road.
On February 18, 1992, Michelle Adkins left for work at 7:45 a.m.; her husband left at 8:00 a.m. At approximately 10:30 a.m., while the Adkins were at work, Brian Cox and his father were driving home on Owens Road. Approximately one-eighth to one-fourth mile after passing the Adkins' residence, the Coxes noticed a beaten-up cream-colored pickup truck with primer spots on the door parked on the side of the road. Brian Cox observed a man get out of the truck. Brian's father saw the man immediately reenter the truck. Brian Cox recognized Connie Mack Lynn, the appellant, as the man in the truck. Brian Cox had known Lynn for approximately three years at the time. The Coxes proceeded to their home at the end of Owens Road.
Fifteen minutes later, Cox and his father drove out Owens Road from their home. On this trip, they saw the same pickup truck parked in the driveway of the Adkins' home. The Adkins were at work. Upon seeing the truck at the Adkins' house, Brian's dad turned and went by the Adkins' house again so Brian could write down the license number "[j]ust . . . in case anything happened." Although the license plate was partially obscured by a trailer hitch, Brian wrote down the number "DIV856." When Mr. Cox turned and passed by the Adkins' home again, still no one was in sight.
That afternoon around 5:30 p.m., Mrs. Adkins returned home to find her home ransacked. Many valuable possessions were missing. An outside door had been forcibly broken open. Stolen were several antique firearms including one "blunderbuss," a Higgins double-barrelled shotgun, a 30-30 lever action rifle, a Savage 30-06 rifle, a .22 caliber pistol, several other guns, a television set, stereo components, a VCR, a jewelry box with Cyprus coins in it, a flowered pillowcase, and other items.
That evening, investigators had been alerted to look for a pickup truck that matched the one seen earlier at the Adkins' home bearing license plate DIV856. At approximately 11:00 p.m., a cream-colored pickup truck with primer spots on the doors, bearing license plate DI W 856, pulled into the parking lot where the police investigators were located. Three individuals were in the truck, two men and a woman. The appellant was the driver. When the two men exited the truck, the investigators approached and questioned them. Through the open door of the truck, the investigators saw a VCR sitting on the seat and a flowered pillowcase containing other items sitting in the floorboard.
The officers searched the truck and discovered much of the property that had been stolen from the Adkins' residence. Also in the pillowcase was a book entitled Official Price Guide to Antiques and Modern Firearms. Under the driver's seat was a book entitled Gun Trader's Guide. Inside that book were two napkins on which was written an exact list of all the property that had been stolen from the Adkins' residence. Behind the truck's seat was another book entitled Gun Digest.
The napkins with the handwriting were sent to the state forensic lab for comparison to the handwriting exemplars obtained from the appellant. The lab report was inconclusive as to whether the handwriting on the napkins matched the appellant's handwriting on the exemplars. The report stated that the exemplars were "slowly and awkwardly written" and their use for comparison purposes was limited. At trial, the appellant objected to the admission of the exemplars into evidence. The trial court admitted the exemplars over the appellant's objection.
I.
The appellant contends that the handwriting exemplars should not have been allowed to go to the jury room so that the jury could conduct its own comparison between the handwriting on the exemplars and the handwriting on the napkins. We disagree. "[E]very fact, however remote or insignificant, that tends to establish a probability or improbability of a fact in issue is admissible." Stamper v. Commonwealth, 220 Va. 260, 269, 257 S.E.2d 808, 815 (1979) (citing Handy's, Case, 110 Va. 910, 922, 67 S.E. 522, 527 (1910)). The question of admissibility of relevant evidence is within the sound discretion of the trial judge. Stamper, 220 Va. at 269, 257 S.E.2d at 815.
The appellant argues that it was improper to allow the jury to conduct their own "testing" by comparing the exemplars to the napkins in the jury room. He further contends that if the State's forensic handwriting expert could not determine if the two handwritings matched, the jury should not be allowed to conduct their own "test."
The appellant ignores the settled legal principle that a jury is qualified to judge whether handwriting in question matches another, Keister v. Philips, 124 Va. 585, 590-91, 98 S.E. 674, 676 (1919), provided that the evidence establishes that the specimens are genuine. Id. In this case, the appellant concedes that the exemplars came from him and that the handwriting on the napkins is the same as those found in his truck. The trial judge did not abuse his discretion by admitting the exemplars into evidence and allowing them to be taken to the jury room for purposes of comparison, if the jury so chose. The jury was entitled to consider any similarities in the handwritings, particularly in view of the testimony that the exemplars were written slowly and deliberately.
As to the appellant's argument that the exemplars should not have been allowed into the jury room, Code Sec. 8.01-381 states, in pertinent part:
Exhibits may, by leave of court, be so carried by the jury ["from the bar"]. Upon request of any party, the court shall instruct the jury that they may request exhibits for use during deliberations. Exhibits requested by the jury shall be sent to the jury room or may otherwise be made available to the jury.
Once the exemplars were admitted into evidence, the trial judge had the discretion to allow the jury to examine them in the jury room. He did not abuse his discretion by doing so.
II.
The appellant contends the evidence is insufficient, as a matter of law, to convict him of grand larceny or burglary. We disagree. When the sufficiency of the evidence is challenged on appeal, "it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). In a bench trial, we presume that the trial judge based his decision on the evidence presented and that the judge properly applied the law to the evidence. Brown v. Commonwealth, 8 Va. App. 126, 133, 380 S.E.2d 8, 12 (1989). A trial judge's findings and judgment will not be disturbed on appeal unless plainly wrong or without evidence to support them.
Larceny is the wrongful taking of another's property without his consent with the intent to permanently deprive him of possession. Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987). The finder-of-fact is permitted to draw reasonable inferences from the proven facts. Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991). Often the only evidence presented in larceny cases to prove the identity of the thief is circumstantial. Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991). Any fact may be proven by circumstantial evidence. Stultz v. Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217 (1988). Circumstantial evidence alone is sufficient to sustain a conviction. Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 342 S.E.2d 163, 167 (1986).
In a larceny case, the Commonwealth must first prove that a crime was committed. Bright, 4 Va. App. at 251, 356 S.E.2d at 444. When the corpus delicti has been established, the finder-of-fact is permitted to infer that a person in exclusive possession of recently stolen property is the thief. Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). A person can be in exclusive possession of property even though he jointly possesses it with others. Carter v. Commonwealth, 209 Va. 317, 323, 163 S.E.2d 589, 594 (1968), cert. denied, 354 U.S. 991 (1969); Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 363-64 (1954).
For the inference to arise, however, a person must consciously exert a possessory interest, see Castle, 196 Va. at 228, 83 S.E.2d at 364, or exercise dominion and control over the property. Best, 222 Va. at 389, 282 S.E.2d at 17. Evidence that stolen property is merely found in a place to which several people have access is not sufficient to support such an inference. See Castle, 196 Va. at 227, 83 S.E.2d at 364; Tyler's Case, 120 Va. 868, 871, 91 S.E. 171, 172 (1917); Taliaferro v. Commonwealth, 77 Va. 411, 413 (1883).
The evidence is sufficient to prove that the appellant asserted dominion and control or exercised a possessory interest in the property. The Commonwealth proved that the appellant was the owner of the pickup truck, and stolen items were found in the appellant's truck, which he occupied at the time. In fact, the appellant was the driver of the truck. The items were in plain view. Thus, he knew of their presence and existence. The officers testified that the passenger side floorboard was so "full" of the stolen items that a passenger could not put his feet down. Moreover, several books were found in the appellant's truck that related to the sale prices of used and antique goods. The book under the driver's seat contained a handwritten list of items that corresponded exactly with the stolen items. When asked for handwriting exemplars, the appellant wrote in a "slow and awkward" manner.
On these facts, the fact finder reasonably could infer that the appellant was exercising dominion and control over the stolen goods. Thus, from this evidence, the fact finder reasonably could infer that the appellant was the thief.
As to the sufficiency of the evidence to sustain a burglary conviction, the Commonwealth must prove more than mere possession of recently stolen goods; possession alone is not sufficient to support an inference that the possessor was the burglar. However, possession of recently stolen property, combined with "other circumstances" which tend to show that the same person who stole the items also burglarized the place from where they were stolen, may be sufficient to infer that the possessor also committed the burglary. "It is the general rule that where goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and where, in addition, other inculpatory circumstances are proved, such proof will warrant a conviction." Christian v. Commonwealth, 210 Va. 117, 119-20, 168 S.E.2d 112, 114 (1969) (emphasis added). The other circumstances that the Commonwealth must prove, in addition to possession of recently stolen goods, include the facts that the offenses were committed at the same time, by the same person, as part of the same criminal enterprise, and that there was a breaking and entering. See Schaum v. Commonwealth, 215 Va. 498, 501, 211 S.E.2d 73, 76 (1975). Such proof can, however, come by way of circumstantial evidence, Hope v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990), because many times it is "unusual" to find eyewitnesses to the crime.
Furthermore, it is permissible to allow the fact finder to infer, if the circumstances so warrant, that the crimes were committed at the same time, by the same person, and as part of the same criminal enterprise. Gwynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823 (1979). This inference, however, must be based on more than mere possession. "There should be some evidence of guilty conduct, besides the bare possession of the stolen property before the [inference] of burglary or house breaking is superadded to that of larceny." Gravely v. Commonwealth, 86 Va. 396, 400-01 (1889).
The evidence proved that a breaking and entry occurred between 8:00 a.m. and 5:30 p.m. on February 18, 1992. The house was located near the end of a six-mile dead-end road. The appellant was seen in the vicinity of the house with his truck around 10:15 a.m. At 10:30 a.m., his truck was seen parked at the Adkins' home while both occupants were at work. The goods stolen from the Adkins' house were found later that day in the appellant's truck, with price guides for used goods.
The circumstances are sufficient from which the fact finder reasonably could infer that the burglary and theft occurred at the same time, by the same person or persons, and as part of the same criminal enterprise. Thus, the evidence is sufficient to sustain the burglary conviction.
We, therefore, affirm the trial court's decision.
Affirmed.