Opinion
Record No. 0451-93-2
Decided: June 14, 1994
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY, Robert G. O'Hara, Jr., Judge
Affirmed.
Jerry E. Waldrop (Hudson Law Office, on briefs), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Fitzpatrick and Retired Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Joe Ben Pair (appellant) was convicted in a jury trial of burglary and grand larceny in violation of Code Sections 18.2-89 and 18.2-95. On appeal, he contends that the trial court erred by: (1) overruling his objection to a canine officer's testimony that every person's scent is unique, like their "DNA or fingerprints;" (2) failing to strike the Commonwealth's case based on insufficient evidence of a nighttime burglary; (3) instructing the jury on the offense of a nighttime burglary and by instructing the jury that appellant's recent and unexplained possession of stolen property was a circumstance from which they could infer guilt. Finding no error, we affirm the convictions.
BACKGROUND
On July 2, 1992, a residential burglary was reported at 444 South Main Street, in Emporia. Relatives of the homeowner discovered that the house had been burglarized and notified the police. The victim's jewelry had been stolen from her bedroom, including an opal and gold pocketwatch. In addition, several pieces of silver were stolen. Red candle wax had been dripped throughout the house and a burned candle was discarded in the victim's bedroom. Raymond L. Randall, a canine officer employed by the Southhampton Correctional Center, was dispatched to the scene of the crime with a tracking dog. The dog picked up the intruder's scent from a loose brick found outside a broken basement window, believed to be the point of entry. The dog tracked the scent to appellant's home.
Two left-hand palm prints collected from the back porch window of the victim's home matched appellant's. After the burglary, appellant attempted to pawn an opal and gold pocketwatch at Jim's Pawn Shop. Appellant initially denied ever having been to the victim's home. However, at trial he claimed he had been to the house just a week or two prior to the burglary, to inquire whether the victim had any paid yard work available.
At trial, in response to a question regarding his field of expertise, Officer Randall testified that bloodhounds are able to track human scent because "it's like the DNA, or fingerprint, everybody's got a different scent." Appellant objected to Officer Randall's reference to "DNA or fingerprints," without stating any specific grounds for the objection. The trial court overruled the objection. Appellant also objected to Jury Instruction No. 7, which informed the jury that proof of exclusive possession of recently stolen property was a circumstance from which they could reasonably infer guilt.
OBJECTION TO CANINE OFFICER'S TESTIMONY
On appeal, appellant argues that the trial court erred in overruling his objection to Officer Randall's testimony explaining the process of how dogs track human scent, because such evidence lacks scientific reliability and was highly prejudicial. During the Commonwealth's direct examination of Officer Randall, the following exchange transpired:
COMMONWEALTH: Can you explain for the jury, exactly how a bloodhound works?
What makes a bloodhound able to track or trail, or do those type of things and exactly what do you use them for?
WITNESS: All our bloodhounds are used for tracking man. They work off the cells that the human expels. Your body drops millions of cells a minute that goes on the ground and those cells have a definite scent. It's like the DNA, or fingerprint, everybody's got a different scent.
DEFENSE: Objection to the reference to like the DNA or fingerprint.
THE COURT: He can certainly comment on his field as it relates to the process.
Defense counsel made no further objection, nor did he state any basis for the objection presented to the trial judge.
"No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Rule 5A:18 (emphasis added). Further, we will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Accordingly, Rule 5A:18 bars our consideration of this question on appeal. Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
SUFFICIENCY OF THE EVIDENCE — NIGHTTIME BURGLARY
Appellant contends that the Commonwealth failed to prove that the unlawful breaking and entering took place at night.
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 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). Further, "[t]he 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).
The Commonwealth's evidence proved that the residence was burglarized sometime between 8:00 p.m. on July 1, 1992, and 4:00 p.m. the following day. Melted candle wax was discovered throughout the house, including the victim's bedroom, where she kept her jewelry. Further, no artificial light was necessary in the house during the daytime. From this evidence, the jury was entitled to infer that the Commonwealth presented sufficient evidence to support a conviction for nighttime burglary.
INSTRUCTION OF THE JURY
Appellant argues that the trial court erred by instructing the jury on nighttime burglary, Code Sec. 18.2-89, and in overruling his objection to instruction number 7, regarding the exclusive personal possession of recently stolen property. "A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.' " Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)); see also Kil v. Commonwealth, 12 Va. App. 802, 809, 407 S.E.2d 674, 678 (1991). "If a proffered instruction finds any support in credible evidence," the instruction must be given to the jury. McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). As we have explained, the jury had credible evidence before it from which they could infer that the breaking and entering took place at night. Accordingly, appellant's argument that the jury should not have been given instruction number 8, regarding nighttime burglary, is without merit.
Instruction No. 7 provides, in part: Proof of the exclusive personal possession by the defendant of recently stolen goods is a circumstance from which you may reasonably infer that the defendant was the thief unless the defendant offers a reasonable account of possession consistent with innocence which the Commonwealth has failed to prove untrue.
The term "recently" is a relative term. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession.
At trial, appellant's stated ground for his objection to instruction number 7 was as follows:
The only evidence that I saw that might show personal possession of recently stolen goods was that testimony concerning the watch at the pawn shop. However, the pawn broker testified that he observed engraving initials on the watch. The owner of the watch testified that there was no engraving on her watch, therefore I submit this instruction should not be given.
Although minor conflicts existed between the pawn broker's description of the watch and the owner's description, the owner testified that "[she] knew in a minute that [the pawn broker] was talking about [her] watch." Accordingly, we agree with the trial judge that appellant's objection to the instruction presented an issue for the jury.
Appellant's argument goes to the credibility of the witnesses and the weight which the evidence should be given. It is well settled, however, that the credibility of witnesses, the weight accorded their testimony, and the inferences to be drawn from proven facts are matters solely within the province of the fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Therefore, we find no error in the instruction of the jury.
For the reasons set forth above, we affirm the convictions.
Affirmed.