Carter v. Com., 810416

• Decision Date: 30 April 1982
• Docket Number: No. 810416,810416
• Citation: 290 S.E.2d 865,223 Va. 528
• Parties: Joseph W. CARTER, III v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 865

290 S.E.2d 865

223 Va. 528

Joseph W. CARTER, III v. COMMONWEALTH of Virginia.

Record No. 810416.

Supreme Court of Virginia.

April 30, 1982.

Thomas J. Foltz, E. Thompson MaGoffin, Jr., Reston, for appellant.

Richard B. Smith, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

STEPHENSON, Justice.

Joseph W. Carter, III, was convicted, following a bench trial, of the possession of tools with intent to commit larceny, in violation of Code § 18.2-94. ¹ He was sentenced to five years in the penitentiary. The sole issue on appeal is whether the evidence is sufficient, as a matter of law, to sustain the conviction.

In the early afternoon of June 25, 1980, Police Officers E. T. Sines and Frank L. Bradley, while traveling along the George Washington Parkway, observed Andre Braxton standing behind a large tree approximately 100 yards to the rear of a residence. After stopping their vehicle, the officers observed the defendant at the back door of the residence. Officer Sines was suspicious because the defendant was wearing a wool sport coat and the temperature was 95? .

Carter left the rear of the house and went to the front door. He rang the door bell and was met by Lisa Murphy, a babysitter. Murphy testified that the defendant told her he was lost and wanted to get back to the District of Columbia.

Sines approached Carter as he left the house and ordered him to stop. A search revealed a large screwdriver (over 12 "' long) in the inside pocket of Carter's coat. Carter was also carrying a towel. He told Sines his automobile "had broken down" and he had approached the residence to get help. He explained that he had used the screwdriver to adjust the carburetor of the vehicle. The defendant also told Sines he had picked up Braxton as a hitchhiker and that he had asked him to remain at the tree line.

Thereafter, the two officers, the defendant, and Braxton went to Carter's automobile. The car was over a half mile from the residence. There were a number of other houses closer to the defendant's automobile and more visible from the Parkway than the residence in question. The officers asked Carter to start the vehicle, and Sines testified that it started immediately.

Officer Bradley, an experienced burglary investigator, characterized the screwdriver as one "you would use for prying up a window or a door after you got the door partially opened." He also testified he had spoken with Braxton at the scene and Braxton had denied knowing Carter.

Carter testified in his own defense that he had been experiencing difficulties with the car all day and that he was lost. He further related that he stopped the car several times and attempted to adjust the carburetor by using the screwdriver, which he was carrying in his coat pocket. Carter decided to go to the residence to seek help. His primary intent was to call his sister and tell her he would be late picking her up from work. Carter admitted he said nothing to the babysitter about having car trouble and he didn't ask to use the telephone.

On cross-examination, Carter stated there were several people at the place where he stopped his car, but he didn't ask anyone there for assistance. He admitted he had been convicted of two felonies.

Braxton generally corroborated Carter's testimony as to the car trouble and their being lost. However, he testified that Carter had gotten the screwdriver from the trunk after they stopped on the Parkway. Further, he stated he had known Carter for about three months prior to the time of the alleged offense. Both Carter and Braxton denied any wrongdoing, and Officer Sines testified he found no physical evidence of an attempted break-in.

Carter first contends the trial court erred in refusing to strike the Commonwealth's evidence at the end of its case-in-chief. He asserts the Commonwealth's prima facie case was dependent upon the presumption found in the second sentence of the statute, and that the Commonwealth was not entitled to the benefit of the presumption because it presented no evidence that Carter was not a "licensed dealer." ² We need not address this argument. The defendant, by presenting evidence on his behalf, waived his right to stand on his motion to strike. Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976); Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948). We will therefore weigh the sufficiency of the evidence by examining the entire record.

In passing upon the sufficiency of the evidence, we are guided by certain well-established principles. Since the fact finder had the opportunity of hearing and observing the witnesses, its findings are entitled to great weight. The evidence and all just and reasonable inferences therefrom must be viewed on appeal in the light most favorable to the appellee. In addition, the verdict of the trial court will not be disturbed unless it appears to be plainly wrong or without evidence to support it. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Finally, since evidence of the defendant's intent is wholly circumstantial, "all necessary circumstances proved must be consistent...