Greene v. Commonwealth
| Decision Date | 23 April 2019 |
| Docket Number | Record No. 0641-18-1 |
| Court | Virginia Court of Appeals |
| Parties | DOMENICO O. GREENE, JR. v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Stephen K. Smith for appellant.
John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Domenico O. Greene, Jr., appeals his convictions for grand larceny, statutory burglary, and conspiracy to commit statutory burglary, in violation of Code §§ 18.2-22, -91, and -95.1 On appeal, he argues that the evidence was insufficient to support his convictions because it failed to prove that he was one of the criminal agents or had any knowledge of the larceny and burglary. He also contends that the evidence was insufficient to prove that he conspired with others to commit the offenses. We hold that the direct and circumstantial evidence, viewed under the proper standard, establishes that he committed the crimes. Accordingly, we affirm the convictions.
The appellant was indicted in pertinent part for "break[ing] and enter[ing] in the daytime . . . the dwelling of Donna Ayotte and Steven Ayotte[] with the intent to commit larceny." He was also indicted for conspiracy to commit that offense and for grand larceny. The appellant was tried jointly for these offenses with Ryan Taybron.3
At trial, the evidence established that Ms. Ayotte left her home at about 11:00 a.m. on February 25, 2016. Mr. Ayotte was at work at that time. Around 12:15 p.m., Ms. Ayotte received a call from the police on her cell phone reporting that her home had been burglarized.
Additional evidence reflected that Officer Mark Ramirez of the Hampton Police Division "was dispatched to a burglary in progress" at the Ayotte address. Dispatch reported that four males of a specified race were breaking into the residence and provided a description of their vehicle "as a black Honda Civic displaying temporary tags."4
When Officer Ramirez arrived in the area, he saw a vehicle that matched the description he had received. He also noted that four men of the same race as the reported burglars were inside the car. Believing that the car and its occupants had been involved in the burglary, Ramirez activated his emergency equipment, and the car stopped in the middle of the road. As Ramirez approached on foot, the passenger door behind the driver opened, and the officercommanded the person to stay in the vehicle and close the door. The passenger did as he was told, and at that point, the vehicle sped away.
The officer immediately got back into his police car and pursued the Honda. He saw the driver commit several traffic offenses, including traveling intermittently in the lane for oncoming traffic, nearly striking another car, and driving at speeds of 50 miles per hour in a zone of 25 to 30 miles per hour. At the end of a street with no outlet, the Honda struck a pole and came to a stop. The appellant got out of the driver's seat and attempted to flee, but Officer Ramirez restrained him beside the car and then placed him in the custody of another officer. A second man, the appellant's co-defendant Taybron, jumped out of the front passenger's seat and ran away but was apprehended nearby. The other two occupants, who were in the back seat, also fled.
Police recovered a variety of electronics from the Honda, which Mr. Ayotte identified as items stolen from his home. Ayotte identified photos of a tablet computer in a black-and-yellow case, three televisions, a laptop computer, two video game consoles, a video game controller, various video games, and a backpack as items taken from his home that day. The tablet computer was found on the front passenger floorboard of the Honda. Some of the gaming items were found in the pockets behind the front seats. The other items were found in the trunk. Ayotte testified that the insurance company valued the stolen items at $3,300. He further testified that he did not recognize the appellant or Taybron and did not give them permission to enter his home or take the property at issue.
Several hours after the men were apprehended, Officer William Darden interviewed the appellant about his involvement in the crimes.5 The appellant admitted that he was driving theHonda at the time of the stop but claimed that he fled because he was driving without a license.6 He also said that he had been driving the car for thirty minutes to an hour before the stop. When Darden asked if the appellant stopped anywhere while driving, he "responded with no." Additionally, the appellant said that he did not see anyone commit any crimes. He never admitted any "knowledge" of the burglary or the stolen items in the car.
The appellant opted not to present any evidence and twice moved to strike the Commonwealth's evidence. After hearing argument, the trial court denied the motions to strike and found the appellant guilty of the charged offenses. In doing so, the judge made numerous relevant factual findings. He noted that the evidence was "very clear" that a break-in and theft had occurred. He pointed out the report of a "burglary in progress" with a description of a car and the "very quick sighting of this car" by a police officer, who stopped it. The judge opined that it was "clear" that the appellant was the driver and that he fled twice, once by car and a second time on foot. The judge also emphasized that "the variety of items" taken from the home were found not only in the vehicle's trunk but also on the "passenger floorboard" and that "the possession of these items was immediately after this report[ed break-in], not hours or days" later. The court expressly found that the appellant's "action . . . as the driver" and "the speed with which [he] left" the scene of the stop contributed to a finding that the appellant was guilty beyond a reasonable doubt. Finally, the judge concluded that the circumstances established that the breaking and entering and grand larceny were "not . . . completely spontaneous" and that the men had "a sufficient prior agreement" to commit the offenses.
The appellant was sentenced to five years of incarceration for each of the three offenses, but the court suspended part of each sentence, leaving him with two years nine months to serve concurrently on each one.
The appellant acknowledges that the grand larceny and burglary of the victims' home occurred. Nevertheless, he argues that the evidence is insufficient to prove that he was one of the criminal agents or had any knowledge of the larceny and burglary. He also contends that the evidence was insufficient to establish that he conspired with the other occupants of the car to commit the crimes.
On appeal, we view the evidence "in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). This deferential standard "requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth[] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn'" from that evidence. Vasquez v. Commonwealth, 291 Va. 232, 236 (2016) (quoting Bowman v. Commonwealth, 290 Va. 492, 494 (2015)). Additionally, the standard "applies not only to the historical facts themselves, but [also to] the inferences from those facts." Clanton v. Commonwealth, 53 Va. App. 561, 566 (2009) (en banc) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2 (2003)). In drawing inferences from the evidence, the fact finder may conclude regarding even a non-testifying defendant that his false statements establish that he lied to conceal his guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209-10 (2001); Rollston v. Commonwealth, 11 Va. App. 535, 547-48 (1991).
Additionally, circumstantial evidence "is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesisexcept that of guilt." Breeden v. Commonwealth, 43 Va. App. 169, 177 (2004) (quoting Coleman v. Commonwealth, 226 Va. 31, 53 (1983)). "The reasonable-hypothesis principle 'merely echoes "the standard applicable to every criminal case."'" Commonwealth v. Moseley, 293 Va. 455, 464 (2017) (quoting Vasquez, 291 Va. at 250). It is "simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt." Commonwealth v. Hudson, 265 Va. 505, 513 (2003). Further, "[t]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant." Archer v. Commonwealth, 26 Va. App. 1, 12 (1997) (alteration in original) (quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755 (1993)). "Whether an alternative hypothesis of innocence is reasonable is a question of fact" that will be reversed on appeal only if plainly wrong. Id. at 12-13.
We consider the appellant's arguments in the context of these guiding legal principles.
The appellant does not contest that grand larceny of the victims' personal property and a burglary of their home occurred. Rather, he argues that the evidence was not sufficient to prove that he participated in the crimes.
Larceny is the taking and carrying away of the property of another with intent to permanently deprive the owner of the possession of that property. Williams v. Commonwealth, 53 Va. App. 50, 60 (2008) (quoting Lund v. Commonwealth, 217 Va. 688, 691 (1977)). A theft is classified as either grand larceny or petit larceny depending on the value of the goods taken. Compare Code § 18.2-95, with Code § 18.2-96.7 Under settled principles, once a larceny hasbeen established, the larceny inference applies to permit the...
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