Hope v. Com.

• Decision Date: 01 August 1989
• Docket Number: No. 1195-87-2,1195-87-2
• Citation: 386 S.E.2d 807,8 Va.App. 491
• Parties: Mayfield B. HOPE, a/k/a Daryl David Harris, v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 807

386 S.E.2d 807

8 Va.App. 491

Mayfield B. HOPE, a/k/a Daryl David Harris, v. COMMONWEALTH of Virginia.

Record No. 1195-87-2.

Court of Appeals of Virginia.

Aug. 1, 1989.

Rehearing En Banc Granted September 15, 1989.

Milton E. Maddox (Wells & Paris, on brief), for appellant.

Birdie H. Jamison, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Before BAKER, BENTON and COLE, JJ.

JOSEPH E. BAKER, Judge.

In this appeal from a judgment of the Circuit Court of Henrico County (trial court) which approved jury convictions for breaking and entering (statutory burglary) and grand larceny, Mayfield B. Hope (appellant) alleges first, that the evidence was insufficient to establish his guilt beyond a reasonable doubt on either charge, and second, that the trial court erroneously permitted the Commonwealth to introduce into evidence a gun found at the scene of his apprehension.

The uncontradicted evidence is that at approximately 3:00 a.m. on April 30, 1987, the Henrico police responded to an activated burglar alarm at Eastgate Mall where, upon their arrival, they discovered that someone had broken into the mall through a skylight. Entry into Morton's Jewelry (Morton's) store, located inside the mall, had been gained by smashing the entrance door. Eighteen thousand dollars worth of watches and chains was stolen by smashing the glass cases which had displayed them. On the same day, approximately five hours later, Henrico County Investigator Williams received a call from an informant advising him that two black males, one of whom was named Mayfield (appellant's first name), were offering some stolen jewelry for sale and could be reached by calling a beeper number, leaving a number for call-back, and adding two zeros at the end of this number for code purposes. After checking with his police department and learning the details of the theft from Morton's, at approximately 6:00 p.m. Williams called the beeper number and left his phone number and the code. Within two or three minutes a male who gave his name as "Hensley" returned the call and told Williams that "Hensley," driving a gray Monte Carlo, would meet him in the parking lot of the Azalea Mall at 8:30 p.m. that same night. Special police forces were placed at the Azalea Mall to intercept "Hensley" after the purchase was made, as well as to act as a "back-up" for Williams. Williams made contact with "Hensley," who drove up in a Monte Carlo with appellant seated in the passenger seat. Williams had been given $2,100 by police officials to make the buy, all of which had been photostated for identification purposes before he received it. When "Hensley" approached Williams' car Williams told "Hensley" he would deal only with one of them. "Hensley" directed appellant to drive the Monte Carlo behind Williams' car and wait. "Hensley" then went to the Monte Carlo, reached down toward the floorboard, picked up a blue-gray sports bag which contained the stolen watches and brought it to Williams, where they negotiated a sale of seventy-nine watches for $2,000. Among the watches purchased were Nicolet watches, which were sold exclusively by Morton's. When the sale was consummated "Hensley" returned to his car and Williams drove off, giving a prearranged signal to the waiting police who then closed in on the Monte Carlo. Seeing the police cars, appellant and "Hensley" abandoned their vehicle and attempted on foot to evade the police. An examination of the abandoned Monte Carlo revealed a beeper over the sun visor and the gym bag which had contained the stolen jewelry. The gym bag was found on the floorboard in front of the seat on which appellant was sitting as they drove off after the sale. Williams made an in-court demonstration proving that the beeper number was the one he had called.

Officer Russell ran after appellant, who fled into nearby woods. Appellant fell once but arose and continued to flee; however, after falling again he was apprehended and arrested at approximately 8:40 p.m. When returning from the place of arrest one of the officers found a loaded gun at the place where appellant had first fallen. After being arrested, appellant three times falsely stated his name to the police. While searching appellant, the police found $1,000 (one-half of the sale price for the stolen watches) in one of his pockets. The money found on appellant was identified as the money given to Williams to purchase the stolen jewelry. The remaining purchase money was found in the area where codefendant, later identified as Yves Henley, the driver of the Monte Carlo, was arrested. In addition to the money found in appellant's pocket, seven gold chains, identified as the same brand ¹ as those stolen from Morton's, were removed from around appellant's neck and one was removed from his mouth. Twenty watches and various items of jewelry, including a display container, were in the gym bag found in the Monte Carlo. One hundred watches had been stolen; seventy-nine watches were purchased by Williams and twenty were found in the bag, all of which were identified as having been taken from Morton's at the time of the break-in. There was no evidence presented to contradict any of the foregoing evidence, and all of the events described above occurred in less than a twenty-four hour period.

In determining the sufficiency of the evidence on appeal of a conviction, we must consider the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982); Evans v. Commonwealth, 215 Va. 609, 612-13, 212 S.E.2d 268, 271 (1975). The verdict of the trial court will not be disturbed unless it is plainly wrong or without evidence to support it.

Possession of property recently stolen is prima facie evidence of guilt of the crime of larceny, and throws upon the accused the burden of accounting for that possession. Fout v. Commonwealth, 199 Va. 184, 191, 98 S.E.2d 817, 821-22 (1957). No such account is disclosed by this record.

Guilt of breaking and entering a building may be established by circumstantial evidence; eyewitnesses are not required. Id. at 189, 98 S.E.2d at 821. Appellant does not dispute that there was proof of a breaking and entering at Morton's and that goods were stolen from the store. The evidence supports an inference that both the breaking and entering and the larceny were committed at the same time, by the same person, as a part of the same criminal enterprise. When combined with proof that the stolen property was found in appellant's possession soon thereafter, a prima facie case of appellant's guilt of breaking and entering was established. Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24 (1979). No evidence was presented by appellant to rebut the prima facie case created by the evidence. We conclude from our examination of the record that the jury reasonably could have concluded from the evidence that appellant was a perpetrator of the breaking and entering and theft. The evidence sufficiently supports appellant's convictions.

Over appellant's objection, the trial court admitted into evidence the gun and bullets contained therein which were found at the place appellant fell while attempting to avoid arrest. At trial, the ground for appellant's objection to the gun's admissibility was stated to be that "there is nothing to connect this man [appellant] with the pistol ... they are not going to be able to tie this gun, the gun, to this man ... it is highly prejudicial to introduce it ... it makes him look like a criminal ... I don't think we tied it to him." Thus, appellant's objection was based on the assertion that the Commonwealth had not "tied" the gun to appellant, while on appeal he limits his claim to an assertion that the "introduction of the gun was irrelevant and should not have been admitted." Rule 5A:18 requires that to save a point for appeal a party must make his objection at the time the evidence is offered, and state the specific grounds of the objection.

Assuming without deciding that appellant preserved his objection, we find that the gun and bullets were properly admitted for the jury's consideration. Our review of the record discloses that to support the convictions the Commonwealth relied heavily on circumstantial evidence, which is as acceptable as direct evidence to prove guilt. Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981). In all cases based on circumstantial evidence of guilt the conduct of the accused is an important factor in the estimate of the weight of circumstances which point to his guilt. Harris v. Commonwealth, 206 Va. 882, 887, 147 S.E.2d 88, 92 (1966); see also Bowie v. Commonwealth, 184 Va. 381, 391, 35 S.E.2d 345, 349-50 (1945). In cases based on circumstantial evidence of guilt the Virginia Supreme Court has said that relevant evidence is any evidence which may throw light upon the matter being investigated, and while a single circumstance, standing alone, may appear to be immaterial or irrelevant, it frequently happens that the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion. Peoples v. Commonwealth, 147 Va. 692, 704, 137 S.E. 603, 606 (1927).

In Bowie, the Supreme Court of Virginia reaffirmed that evidence of flight may be considered as evidence of guilt along with other pertinent facts and circumstances. Bowie, 184 Va. at 392, 35 S.E.2d at 350. The flight need not immediately follow the commission of the crime since the defendant may be suspected and become aware of the suspicion at a later date. Davis v. Maryland, 237 Md. 97, 104, 205 A.2d 254, 259 (1964), cert. denied, 382 U.S. 945, 86 S.Ct. 402, 15 L.Ed.2d 354 (1965); 1 Wharton's Criminal Evidence § 211 (13th ed. 1972). Thus, the...