Bentley v. Commonwealth, Record No. 1804-03-4 (VA 8/16/2005)
| Decision Date | 16 August 2005 |
| Docket Number | Record No. 1804-03-4. |
| Parties | CHRISTOPHER LEE BENTLEY v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of Fairfax County, Michael P. McWeeny, Judge.
Dawn M. Butorac, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Haley and Senior Judge Annunziata.
Christopher Bentley contends on appeal that the trial court committed reversible error in admitting into evidence a personally recorded compact disc (CD) containing on its face a handwritten list of musical groups. He also claims the Commonwealth's "circumstantial evidence was not sufficient to establish beyond a reasonable doubt that [he] committed the larceny of the property of Mr. Markos and Ms. Monks." For the reasons that follow, we disagree and affirm the trial court.
I. Background
The Commonwealth indicted Bentley on four counts of burglary and four counts of grand larceny. Specifically, he was charged with: burglarizing Tim Young's house on November 18, 2002, and stealing his property; burglarizing George Markos's house on November 25, 2002, and stealing his property; burglarizing JoAnn Monks's house on or about December 4 or December 5, 2002, and stealing her property; and burglarizing Evelyn Merritt's house on December 5, 2002, and stealing her property. A jury found Bentley guilty of burglarizing Merritt's house, stealing her property, stealing Markos's property, and stealing Monks's property. It acquitted him of the three other burglaries and of stealing Young's property. This appeal concerns the larceny of property from Markos and Monks.
Reviewed in the light most favorable to the Commonwealth, the party prevailing below, Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003), the evidence established that Fairfax County Police Officer James Urie responded to Stonepath Circle in Centreville on November 25, 2002, after a resident found a pile of property sitting in a grassy area next to a townhouse. Urie found a driver's license in the pile and contacted George Markos, who lived in the townhouse complex with his fiancée.
Markos identified property in the pile belonging to him, his fiancée, and his fiancée's daughter. Markos then realized that his 1996 Acura was missing from the parking lot. He testified that he "always leaves [his cell phone] in the front . . . of the car between the seats because [he] do[es]n't have any need for it any other place but in the car in case of an emergency." Police recovered Markos' car a few weeks later. His cell phone and CDs were missing, and, although Markos did not smoke, the "car was full of cigarettes." Markos also found an unfamiliar CD in his car's CD player, which he provided to police. Markos reviewed his cellular phone bill for the period following the theft of his car and identified several telephone calls that were placed from his cellular phone with which he was not familiar and which he denied making.
Shortly after midnight on December 3, 2002, police found Markos's stolen Acura parked in the Red Roof Inn parking lot. Located next door to the Red Roof Inn is the Brookside Motel. Officer P.M. McCurry testified that officers "set up" surveillance around the car and investigated whether any guests at the Red Roof Inn claimed the car. Unable to locate anyone at the Red Roof Inn with an Acura, McCurry made inquiries to guests at the Brookside Motel. Bentley and his girlfriend, Fanta Jackson, were in Room 5. Bentley "seemed hesitant to speak to" the officers and immediately "took out a cigarette and lit it."
Officer M.P. Goodley participated in the surveillance of the Acura. He processed and searched it after surveillance terminated. He noticed "the ashtray was full of cigarette butts and ashes, which Mr. Markos stated that wasn't his." Ultimately, Goodley released the Acura to Markos.
Detective Michael Motafches obtained a record of telephone calls made by Bentley from the detention center after his arrest. He compared the records from the detention center with Markos's cellular telephone records and found six different numbers that were on both phone records. Motafches testified that "forty-five phone calls made from [Markos's] cell phone . . . matched [one of those six] numbers [on] the jail [telephone record]." Moreover, Bentley placed eight hundred twenty-five calls from jail to one of the six different numbers contained on Markos's phone record. On cross-examination, Motafches said he "learned Bentley's name as a suspect through contacting some of the numbers called on [Markos's] cell phone" after it was stolen.
Around 9:30 a.m. on December 5, 2002, a police officer telephoned Evelyn Merritt and advised her that her car had been involved in a hit-and-run accident. Merritt checked her garage and discovered her garage door was open and her 1993 green Honda Accord was gone. She testified that her car was in the garage the preceding night, that she left the garage door open a few inches so her cat could come inside, and that she left the keys and the remote control for the alarm inside the car. The garage is attached to the house. After the police contacted Merritt, she and her husband went to Reston to identify her car. Merritt found "a pair of yellowish gloves in the back seat which were not [hers]" and a "palm pilot" on the front seat which was not hers.
Helena Villareal is the on-site manager of Glendale Condominiums. Between 7:00 a.m. and 7:30 a.m. on December 5, 2002, Villareal was outside 2332 Freetown Court in the Glendale complex when she saw Merritt's green Honda pull out of a parking space, "hit [a] white Chevrolet and keep going." The man driving the Honda wore a gray sweatshirt, and his hair was loose. Villareal, who was twenty feet away, viewed the Honda's license plate number. Fifteen to twenty minutes later, she again saw the green Honda parked on the other end of the property in another visitor lot. Villareal saw Bentley get out, use the alarm to lock it and proceed up the sidewalk. After he walked away from the car, Villareal checked the license number and noticed it was the same car involved in the hit and run. Villareal said she was familiar with Bentley because "he's on the property all the time." Moreover, Bentley looked at Villareal as he exited the Honda and proceeded to 2322 Freetown Court, where his girlfriend, Fanta Jackson, and her father live. Villareal walked to the door of Jackson's residence and noticed the footprints went up to the door. After the police were contacted, officers brought Bentley outside, and Villareal identified him. Villareal testified she had "[n]o doubt" Bentley was the man she saw exit Merritt's Honda. Although Villareal did not see the driver that hit the Chevrolet, she testified that Bentley wore a gray sweatshirt similar to the one she saw the driver wearing earlier.
Officer Chris Lehmann testified that Bentley wore "blue jeans and a grey sweat shirt." He told Lehmann "he had been inside and wasn't involved in any accident, and he wasn't driving any car." Lehmann asked Bentley to follow him outside to determine if Villareal could identify him. Shortly thereafter, Lehmann placed Bentley under arrest for grand larceny.
Officer Mark Simmons testified that Villareal positively identified Bentley as the person who had operated Merritt's stolen Honda. Simmons inspected the interior of Merritt's stolen Honda and recovered "a palm pilot" located on the front passenger seat. However, it did not belong to Merritt.
On the morning of December 5, 2002, Joann Monks discovered that her key rack, purse, and tote bag were missing from her residence at 2450 Freetown Court. Monks explained that the "gate door that opens to the garage door onto the street was not closed," and the door that leads from the garage to the kitchen was not locked. Monks testified that her purse contained her wallet, jewelry, cosmetic case, and palm pilot. Police found Monks's palm pilot in Merritt's Honda.
Detective Motafches testified that the distance from Jackson's residence to Monk's residence was four-tenths of a mile. He also determined that Merritt's residence was approximately twelve miles away from the residences of Jackson and Monks.
Bentley contends the compact disc was inadmissible hearsay and, thus, improperly admitted.
During the Commonwealth's case-in-chief, Markos testified that he found a CD in his car's CD player after police returned it to him. He provided it to police. The CD was not a factory-recorded CD, but was individually recorded, or burned, and contained a handwritten list of musical groups on its face, one name being the Northeast Groovers.
Jackson testified at trial that the police came to her house around 9:00 a.m. on December 5, 2002, and spoke with her and Bentley. Jackson stated that Bentley arrived at her home around 10:45 p.m. on December 4, 2002, and remained there until the police arrived the next morning. Jackson testified that Bentley's "hair was braided" at the time. When asked how she and Bentley got to the Brookside Motel on December 3, 2002, Jackson said they took a train.
During cross-examination by the Commonwealth, Jackson identified the "Northeast Groovers" as "a go-go band." Although Jackson had heard that band, she testified that she "do[es]n't listen to go-go." The Commonwealth then asked if Bentley "listen[s] to the Northeast Groovers," to which Jackson replied, 1
In the Commonwealth's case on rebuttal, Officer Goodley identified the CD he received from Markos. When the...
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