Lunsford v. Com.

• Citation: 683 S.E.2d 831,55 Va. App. 59
• Decision Date: 13 October 2009
• Docket Number: Record No. 2383-08-1.
• Court: Court of Appeals of Virginia
• Parties: Shawn Lamont LUNSFORD v. COMMONWEALTH of Virginia.

683 S.E.2d 831

55 Va. App. 59

Shawn Lamont LUNSFORD v. COMMONWEALTH of Virginia.

Record No. 2383-08-1.

Court of Appeals of Virginia, Chesapeake.

October 13, 2009.

Ben Pavek (Office of the Public Defender, on briefs), for appellant.

Erin M. Kulpa, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and FRANK and POWELL, JJ.

FELTON, Chief Judge.

Following a bench trial, Shawn Lamont Lunsford ("appellant") was convicted of breaking and entering in violation of Code § 18.2-91 and grand larceny in violation of Code § 18.2-95. He contends the trial court erred in finding the evidence sufficient to prove that he committed either offense. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

On appeal, "[w]here the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995). "The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is `plainly wrong or without evidence to support it.'" Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01-680). "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval, 20 Va.App. at 138, 455 S.E.2d at 732.

The evidence at trial proved that on January 30, 2008, police responded to a series of burglaries that occurred in the apartment complex where the victim lived. A window of the victim's apartment had been pried open and his apartment "ransacked." When the victim returned home later that day,¹ he reported that his Epiphone guitar and 30-inch Samsung high-definition television, as well as several other items, were missing from his apartment.²

Laura Epstein, an employee of the Best Loan Company, testified that on January 28, 2008, appellant sold an Epiphone guitar to that business. She testified she personally conducted that transaction with appellant whom she recognized from prior visits. She stated that when the Best Loan Company purchases an item, the seller is required to present a picture identification and to sign a purchase agreement acknowledging ownership of the item being sold. She further stated that the purchase agreement records the seller's full name and "all the information from the merchandise, ... its make, model, serial and description." The purchase agreement for the Epiphone guitar, which appellant signed in Epstein's presence, was admitted into evidence. In addition to the guitar's brand name, Epiphone, that purchase agreement showed the number, "F500288."

At trial, the victim identified the shipping box in which he received the Epiphone guitar, with its original shipping label still affixed. The victim testified that "[t]his is the shipping card for the guitar. I purchased it.... That is the serial number for the guitar." The trial court admitted the shipping label into evidence, which showed, in part, "SERIAL # : F500288."

The victim also testified that the serial number of the Samsung television missing from his apartment was "AG2K3CAL901944K." He stated that when he purchased the television, he registered its serial number on Samsung's website for warranty purposes. Later, at the investigating officer's request, he retrieved that serial number from Samsung's website using his password to access that website. That serial number is identical to written information shown on the Best Loan Company purchase agreement for its purchase of a Samsung television from appellant on January 31, 2008.

ANALYSIS

Appellant argued in his brief on appeal, and at oral argument, that the trial court erred in admitting the stolen items' serial numbers into evidence, asserting that those numbers were inadmissible hearsay. However, the question presented in appellant's petition for appeal on which this Court granted his appeal, as well as in his opening brief, was: "Has the Commonwealth established that the appellant was in recent possession of the stolen property, in that has the evidence proven that the items that were pawned were in fact pawned by the appellant, or that they were the same items that were taken from the victim?" Appellant's question presented challenges the sufficiency of the evidence at trial, not the admissibility of that evidence. See Banks v. Mario Indus., 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007) ("admissibility of evidence and the sufficiency of evidence are distinct issues"). Rule 5A:12(c) provides, "Only questions presented in the petition for appeal will be noticed by the Court of Appeals."

Appellant, in essence, asks this Court to accept his argument that the serial numbers for the items stolen were inadmissible hearsay, and asks that we then consider the sufficiency of the evidence to convict absent that evidence. When determining the sufficiency of the evidence, we consider all admitted evidence, including the evidence appellant here asserts was inadmissible. See Sprouse v. Commonwealth, 53 Va.App. 488, 493, 673 S.E.2d 481, 483 (2009). Because appellant framed his question as one of sufficiency of the evidence, and not one of admissibility of the victim's testimony regarding the serial numbers of his missing guitar and television, we...