Cunningham v. Commonwealth
| Decision Date | 20 March 2018 |
| Docket Number | Record No. 0240-17-1 |
| Parties | BRONSON ANTHONY CUNNINGHAM v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Humphreys, Decker and O'Brien
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Taite A. Westendorf (Office of the Public Defender, on brief), for appellant.
John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Bronson Anthony Cunningham appeals his conviction for concealment, a third or subsequent offense, in violation of Code §§ 18.2-96, -103, and -104. He asserts that the circumstantial evidence was insufficient to prove that he willfully concealed merchandise with the intent to convert it to his own use. Specifically, the appellant suggests that the evidence did not exclude the reasonable theory that he left the missing item in question in the store prior to leaving since it was never recovered. We hold that the evidence, viewed under the proper standard, supports the trial court's determination that the appellant committed the offense of concealment. Consequently, we affirm the conviction.
The appellant's conviction is based on his behavior in a Virginia Beach Walmart on the afternoon of September 30, 2015. At the appellant's bench trial, Christen Blake, a loss prevention officer for the store, testified regarding her observations of the appellant as she surveilled him. The appellant drew her attention because he was wearing a large backpack and exhibited certain suspicious behavior. Blake described his demeanor, including "the way he . . . mov[ed]" and continuously "looked around," as "a little odd." She further noticed that he was carrying a motorcycle helmet.
As Blake watched from a distance of about ten feet, the appellant picked up a box containing a motorcycle tank bag, a small bag designed to adhere magnetically to a motorcycle's gas tank. The appellant looked right and left and examined the box. He then removed the tank bag from the box and placed the empty box back on the shelf, behind another box containing the same product. He also picked up a Walmart backpack, which was larger than the tank bag. He held the tank bag behind the Walmart backpack.2 With the tank bag partially obscured by the Walmart backpack, the appellant walked into the men's restroom carrying the two items in the same hand.
While the appellant was in the restroom, fellow employee Vanessa Luna-Caban joined Blake in her surveillance. When the appellant emerged from the restroom less than two minutesafter entering, he was holding only his motorcycle helmet and the Walmart backpack. His personal backpack remained on his back, and the tank bag was not visible.
Blake and Luna-Caban followed the appellant as he "walked . . . back to the shelf" where he had obtained the tank bag, and they watched as he "messed around with another box or so." Then he walked through several other departments as he made his way toward the front of the store, while Blake and Luna-Caban continued to watch him from parallel aisles.3 When the appellant reached the front of the store, he put the Walmart backpack in the "reshop cart," a location "designated . . . for shoppers to put [items] that they don't want to buy." Without stopping at any of the cash registers, he walked through the first set of two sets of doors leading out of the store, as he proceeded to leave.
At the same time, Officer J.W. Shank, a uniformed officer with the Virginia Beach Police Department, was entering the store on an unrelated matter. One of the loss prevention employees asked Shank to "wait a second because they were approaching somebody." With Shank waiting nearby, Blake and Luna-Caban "attempted to apprehend" the appellant as soon as he walked toward the second set of doors that led outside. Blake stood "directly in front of" the appellant at a distance of two feet. She identified herself by name and occupation, and asked the appellant to "step[] in[to]" her office "to talk about the merchandise that [he] concealed." After she "said those words," the appellant "took off" running.
When the appellant ran, Officer Shank, who was standing nearby, said, "Stop, Police," and pursued him into the parking lot. The appellant continued to run away despite the threat of being shot with a Taser. Shank lost sight of the appellant, and police set up a perimeter for a search. While searching for the appellant, law enforcement did not find any discarded propertybelonging to Walmart. Other officers apprehended the appellant a short time later in the bathroom of a nearby pawn shop. He and his backpack were searched, but no property belonging to Walmart was found.
Once the appellant was arrested for larceny, he repeatedly told Officer Shank that he did not steal anything. He asked to be taken back to the store so that he could show the officer "where the item was." Shank asked the appellant to describe where he had left it so that Shank could "have [other] officers go look for it." The appellant then "made a spontaneous statement that he thought it was his girlfriend stalking him and that's why he ran." The appellant never identified the item or told Officer Shank where he claimed to have left it inside the store.
Within two or three minutes of when the appellant fled from the Walmart, Blake and Luna-Caban began to search the store for the tank bag. They looked inside the backpack that the appellant had placed in the reshop cart as well as in the cart itself, and they searched the bathroom. They also searched the automotive department and checked all the aisles that they saw the appellant traverse as he walked from the automotive department to the exit. The empty box for the tank bag was found on the shelf where the appellant put it, but the tank bag was never found.
Additional evidence established that Walmart's inventory control system involved "scan[ning] . . . shelf availability" on a daily basis. Information from the inventory system regarding the suspected theft confirmed that an empty box for a motorcycle tank bag was found in the store on September 30, 2015, after the appellant fled, and that the tank bag itself was never found in the store. Walmart's inventory system further revealed that "the last time" anyone purchased a tank bag was more than four months prior to that date.
The Commonwealth showed multiple video clips from the store's surveillance system during the appellant's trial. Blake, who was present during all the events depicted in the relevantfootage, testified about them while parts of different videos were played. The trial court admitted into evidence the CD containing the videos. It also admitted four photographs produced from the store video footage. The photos show the appellant first exiting the restroom, then walking past "all points of sale" inside the store and, finally, running while in the store's vestibule between the inner and outer doors.
Based on the evidence and admitted copies of orders reflecting the appellant's three prior larceny convictions, the court found the appellant guilty of concealment of merchandise, third or subsequent offense. In convicting him, the court credited the testimony of the Walmart employees who watched the appellant "throughout all of this." It pointed to his attempt to conceal the tank bag behind another item of Walmart merchandise and the appellant's flight after he passed "the point of sale." The judge also noted the testimony concerning the store inventory, holding that "when you put it all together[,] . . . it's clear that beyond a reasonable doubt that [the appellant] did steal the item."4 The court sentenced the appellant to three years in prison with two years nine months suspended.
The appellant challenges the sufficiency of the evidence to prove that he concealed the motorcycle tank bag. In support of his contention, he argues that the evidence failed to exclude thereasonable hypothesis that he left the bag in the store, relying on the fact that the bag was never located.5 We consider this challenge under the proper legal standards relating to an appeal.
On review of a criminal conviction, the appellate court "view[s] the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Twine v. Commonwealth, 48 Va. App. 224, 226, 629 S.E.2d 714, 715 (2006) (quoting Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003)). This Court "is not permitted to substitute" as the trier of fact, who "s[aw] and hear[d] the witnesses" as they testified. Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). Consequently, decisions regarding the credibility of the witnesses and the weight of the evidence are matters left solely to the fact finder below. Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). In that same vein, the fact finder is not required to believe all aspects of a witness' statement or testimony. E.g., Moyer v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc). Instead, the finder of fact may "accept [what] it finds to be believable" and "reject that which it finds implausible." Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
The element in dispute here was proved with circumstantial evidence. It is well established that "circumstantial evidence is competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Brown v. Commonwealth, 54 Va. App. 107, 119, 676 S.E.2d 326, 332 (2009) (alteration in original) (quoting Finney v. Commonwealth, 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009)). However, "[t]he hypotheses of innocence that must be excluded by the Commonwealth are 'those...
To continue reading
Request your trial