Sandoval v. Com.

• Decision Date: 04 April 1995
• Docket Number: No. 1516-93-1,1516-93-1
• Citation: 20 Va.App. 133,455 S.E.2d 730
• Parties: Paulino DeJesus SANDOVAL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 730

455 S.E.2d 730

20 Va.App. 133

Paulino DeJesus SANDOVAL v. COMMONWEALTH of Virginia.

Record No. 1516-93-1.

Court of Appeals of Virginia,

Norfolk.

April 4, 1995.

John Anton, Williamsburg (Reese & Anton, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: JOSEPH E. BAKER, WILLIS and ELDER, JJ.

BAKER, Judge.

Paulino DeJesus Sandoval (appellant) appeals from his bench trial convictions by the Circuit Court of Gloucester County (trial court) for breaking and entering with the intent to commit larceny, Code § 18.2-91, and of credit card theft, Code § 18.2-192. He contends that the evidence was insufficient to prove that he was guilty of either charge.

Where 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. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

On February 12, 1993, a viable credit card, a viable ATM card, a knife, and a hat belonging to William A. Tucker (Tucker) were stolen from Tucker's van. On February 15, 1993, Shirley Ing (Ing) discovered that someone had broken into her Gloucester County farmhouse that was being renovated. Insulation had been removed from a second-floor wall and appeared to have been used for sleep covering. Motor oil had been removed from a lawn mower, the dipstick found stuck in some Styrofoam, and a fire had been built on a patio table turned upside down on the living room floor.

At Ing's request, local Virginia State Police Officer E.L. Heptinstall (Heptinstall) agreed to keep watch over the house. On February 23, 1993, Heptinstall went to the farmhouse and found that it had again been broken into and discovered appellant inside. Appellant had in his possession the items that had been stolen from Tucker's van and, in addition, he possessed two pistols.

I. Credit and ATM Cards

Appellant contends that he was indicted only for being in possession of stolen credit cards and that the proof in support of the indictment was limited to evidence that the cards were stolen. He argues that in Cheatham v. Commonwealth, 215 Va. 286, 208 S.E.2d 760 (1974), the Supreme Court held that mere proof of possession of a recently stolen credit card is insufficient to support a conviction for "credit card theft" under Code § 18.2-192. He further contends that principle was affirmed in Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976).

We agree that Cheatham and Wilder support an argument that where only possession of the stolen card is charged or proved, a conviction under Code § 18.2-192 will be overturned. In Cheatham, the only evidence connecting the defendant to the theft was that he found the card and it was in his possession. In Wilder, the only charge against the accused was that he had "in his possession two or more cards belonging to Mrs. John W. Cowan." Id. at 146, 225 S.E.2d at 412. The Supreme Court said "a charge of mere possession of a stolen credit card is not sufficient to state the offense of credit card theft." Id. at 147, 225 S.E.2d at 413. In each case, the charge and proof were limited to mere possession. Those cases are inapposite here.

Appellant was charged in an indictment that provided:

On or about February 12, 1993, in the County of Gloucester, Virginia, [appellant] did unlawfully and feloniously engage in credit card theft by, without the consent of the cardholder, taking and withholding two cards, namely a VISA and a Bank Card, the property of William A. Tucker.

Va.Code Sec. 18.2-192.

(Emphasis added.) Thus, appellant was charged with "taking" and "possessing" the cards. Here, the proof of guilt was more than mere possession. In addition to the evidence that appellant was found in possession of the two cards stolen from Tucker's van, he also was shown to be in possession of the hat and knife which were stolen at the same time and place. Under the facts contained in this record, the fact finder could reasonably have rejected appellant's explanation and reasonably inferred that appellant was the thief who unlawfully took the credit cards. See Fout v. Commonwealth, 199 Va. 184, 190-91, 98 S.E.2d 817, 821-22 (1957); Hope v. Commonwealth, 10 Va.App. 381, 385, 392 S.E.2d 830, 833 (1990) (en banc).

II. Breaking and Entering/Intent to Steal

Appellant concedes that he had unlawfully entered the farmhouse. He denies that his entry was with intent to steal as charged in the indictment and argues that the evidence fails to support that charge. We disagree.

The record discloses that on February 15, 1993, Ing discovered that someone had broken into her farmhouse. She repaired the damage caused by the initial breaking and secured the premises. She boarded the windows and closed the doors. Thereafter, appellant, without Ing's permission, opened the back door and entered the premises. When discovered on the premises, he possessed two pistols and the stolen items from the van, which permitted the inference that he was the thief.

Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case. Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). The state of mind of an accused may be shown by his acts and conduct. Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974); Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968). When an unlawful entry is made into a dwelling of another, the presumption is that the entry was made for an unlawful purpose, and the specific intent with which such entry was made may be inferred from the surrounding facts and circumstances. Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971). In the absence of evidence showing a contrary intent, the trier of fact may infer that a person's unauthorized presence in another's house was with the intent to commit larceny. Ridley, 219 Va. at 837, 252 S.E.2d at 315.

Appellant's assertion that he was a mere "squatter" in the farmhouse is not controlling. His assertion was squarely before the trier of fact to be considered along with the presumption of his intent created by his unlawful entry into the dwelling of another. 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. Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982).

For the reasons stated, we hold that the evidence is sufficient to support both convictions and, accordingly, the judgments of the trial court are affirmed.

Affirmed.

ELDER, Judge, concurring in part and dissenting in part.

I concur in part in the majority's opinion ruling regarding the credit card thefts. I dissent from the ruling regarding appellant's conviction for breaking and entering with the intent to commit larceny.

I. Credit and ATM Cards

I agree that credible evidence supports the trial court's decision that appellant committed credit card theft in violation of Code § 18.2-192. I also agree with the majority's analysis of Cheatham v. Commonwealth, 215 Va. 286, 288, 208 S.E.2d 760, 762 (1974), and Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976). However, I write separately on this issue because I believe that Sullivan v. Commonwealth, 210 Va. 201, 169 S.E.2d 577 (1969), cert. denied 397 U.S. 998, 90 S.Ct. 1142, 25 L.Ed.2d 408 (1970), controls the disposition of this case. In Sullivan, the defendant was charged with burglary after he was found in possession of a credit card that was stolen almost three months earlier. In distinguishing Cheatham from Sullivan, the Supreme Court held as follows:

[I]n Sullivan ... the evidence warranted an inference that the breaking and entering and theft were committed at the same time by the same person and as a part of the same transaction, so that the exclusive possession of the recently stolen card ... could properly give rise to the inference that the possessor [the defendant] had committed the burglary. [The Supreme Court] also held that recency of possession is an issue to be determined by the trier of fact.

Cheatham v. Commonwealth, 215 Va. at 288, 208 S.E.2d at 762.

The majority correctly states that Cheatham and Wilder are inapposite. This case differs from Cheatham, where the defendant was "charged with the statutory offense of credit card theft for withholding" the credit card from the true owner after it came into his possession. He was not charged with "taking" the credit card. Id. The mere "possession" of the stolen credit card was held insufficient to support a finding of credit card theft. Furthermore, in Wilder, the only charge against the accused was that he had in his "possession" two or more cards belonging to the true owner. The Supreme Court held that a charge of mere possession of a stolen credit card is not sufficient to state the offense of credit card "theft." Wilder, 217 Va. at 147, 225 S.E.2d at 413. Thus, in Cheatham and Wilder, the charge and proof were limited to mere possession, without a charge of taking.

In this case, appellant was not charged with mere "possession" or "withholding;" instead, he was charged with the "...