COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued by teleconference
CHRISTOPHER ROBIN PATRICK
OPINION BY
v. Record No. 0832-06-3 CHIEF JUDGE WALTER S. FELTON, JR.
NOVEMBER 27, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Jesse W. Meadows III for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Following a jury trial, Christopher Robin Patrick (appellant) was convicted of larceny,
third or subsequent offense, in violation of Code § 18.2-104. On appeal, he contends the trial
court erred in granting Jury Instruction Number 7, arguing that instruction “unconstitutionally
commented upon [his] failure to testify by informing the jury that it could infer [he] was the thief
from his failure to testify . . . .” Finding no error, we affirm appellant’s conviction.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). Consistent with this principle, the evidence proved that during the early
morning hours of October 18, 2004, someone broke into the Sycamore Grocery Store in Gretna
and stole cigarettes and Virginia Lottery scratch-off tickets. 1 Later that same morning,
storeowner Douglas Dalton called the Virginia Lottery’s hotline and reported the serial numbers
of the tickets missing following the break-in. Lottery officials flagged those tickets in its
statewide, computerized database system. Once flagged, if any of the missing tickets was
presented for payment, the computer would generate an exception message, directing the cashier
to not redeem the ticket and to contact Lottery officials.
Around 11:30 a.m. that same day, appellant entered the Fast Stop Food Mart in Altavista,
located approximately fifteen miles from the Sycamore Grocery. The cashier knew appellant
because she had lived “across the street” from him for approximately thirteen years. Appellant
handed the cashier three scratch-off tickets to determine if they were winners. When she
scanned the tickets into the store’s Lottery computer terminal, the Lottery database recognized
those tickets as three of the eight reported missing following the Sycamore Grocery break-in, and
generated an exception message directing her to contact Lottery officials. Unable to redeem the
tickets, the cashier handed them back to appellant, who then left the store.
A lottery “exception activity” report, admitted into evidence, detailed the exact time,
11:31 a.m., and location where three tickets 2 were presented for payment, and identified each
ticket as previously reported lost or stolen. Using this report, a Virginia Lottery investigator
tracked the three tickets to the Altavista Fast Stop Food Mart, where the cashier identified
appellant as the person who had presented tickets for payment which had been rejected.
1
The tickets reported missing were: three “Triple Sevens,” ticket numbers 11, 12, and 13
(each a $5 ticket); two “Double Down Doubler” tickets, numbers 31 and 32 (each a $2 ticket);
and two “Rag Top Riches,” ticket numbers 15 and 16 (each a $2 ticket).
2
The report listed “Double Down Doubler” ticket number 31, “Rag Top Riches” ticket
number 15, and “Triple Sevens” ticket number 11.
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At trial, appellant called as his only witness Pittsylvania Sheriff’s Investigator Boyd
Arnold, whose testimony showed inconsistencies between the cashier’s statements to him during
his investigation of the incident and her testimony at trial. 3
Among the instructions the trial court gave the jury were Instruction 2, instructing it that
“[t]here is no burden on the [appellant] to produce any evidence”; Instruction 3, instructing it that
“[t]he [appellant] does not have to testify, and exercise of that right cannot be considered by
[it]”; and Instruction 7, providing in pertinent part: “Proof of the exclusive personal possession
by the [appellant] of recently stolen goods is a circumstance from which you may reasonably
infer that the [appellant] was the thief unless the [appellant] offers a reasonable account of
possession consistent with innocence which the Commonwealth has failed to prove untrue.”
Appellant timely objected to Instruction 7, arguing that the words “unless the [appellant]
offers a reasonable account of possession consistent with innocence” impermissibly told the jury
that it could infer appellant’s guilt if he did not testify, and thereby violated his Fifth Amendment
right under the United States Constitution not to testify. This appeal followed.
II. ANALYSIS
Appellant contends that the trial court erred, as a matter of law, when it granted
Instruction 7. ‘“A reviewing court’s responsibility in reviewing jury instructions is “to see that
the law has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.”’” Gaines v. Commonwealth, 39 Va. App. 562, 568-69, 574 S.E.2d 775, 778 (2003) (en
banc) (quoting Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982))). “[It] is the duty of
3
The inconsistencies related to the wording of the message that appeared on the Lottery
terminal when the cashier scanned in the tickets, the make and model of the car in which
appellant arrived as a passenger at the Altavista store, and the name of the person who drove the
car.
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the jury to consider the instructions as a whole and in the light of the evidence applicable to the
issues presented.” Rollston v. Commonwealth, 11 Va. App. 535, 541, 399 S.E.2d 823, 826
(1991).
In considering appellant’s challenge to Instruction 7, we note that the Fifth Amendment
to the United States Constitution provides, in pertinent part, that an accused in a criminal case
“cannot be compelled in any criminal case to be a witness against himself . . . .” U.S. Const.
amend V. Consistent with that protection, the government is prohibited from telling a jury that
“a defendant’s silence is ‘evidence of guilt.’” Portuondo v. Agard, 529 U.S. 61, 69 (2000)
(quoting Griffin v. California, 380 U.S. 609, 615 (1965)) (internal citations omitted). 4 In
determining whether an instruction given by a trial court impermissibly commented upon an
accused’s right not to testify, we consider whether:
“the language used was manifestly intended or was of such
character that the jury would naturally and necessarily take it to be
a comment on the [failure] of the accused to testify.” Hazel v.
Commonwealth, 31 Va. App. 403, 411, 524 S.E.2d 134, 138
(2000) [(citations omitted)]. Thus, a comment on the defendant’s
failure to contradict the incriminating evidence presented by the
prosecution does not offend the Fifth Amendment if, in context,
the comment could be understood to refer to contradictory
evidence from sources other than the defendant. See Johnson v.
Commonwealth, 236 Va. 48, 51, 372 S.E.2d 134, 136 (1988).
Pollino v. Commonwealth, 42 Va. App. 243, 250, 590 S.E.2d 621, 625 (2004)
(alteration added).
Here, Instruction 7 informed the jury that if it found the evidence proved that appellant
presented recently stolen lottery tickets to the cashier, it could reasonably infer that he stole those
tickets, unless he offered a reasonable account of his possession of those tickets, consistent with
4
‘“Our courts have consistently held that the protections afforded under the Virginia
Constitution are co-extensive with those in the United States Constitution.’” Henry v.
Commonwealth, 32 Va. App. 547, 551, 529 S.E.2d 796, 798 (2000) (quoting Bennefield v.
Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996)).
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his innocence, that the Commonwealth did not disprove. By its verdict, the jury determined that
appellant failed to offer a reasonable account of his possession of those stolen tickets, and
inferred that he was the thief.
In addition to Instruction 7, which appellant argues told the jury it could infer his guilt
from his not testifying, the trial court also instructed the jury that appellant did not have to
present any evidence (Instruction 2). It futher instructed the jury that appellant did not have to
testify and that it could not consider his failure to testify in its deliberations (Instruction 3).
Virginia appellate courts have consistently held that a jury is deemed to have considered the
instructions given to it as a whole, and in light of evidence applicable to the issues presented to
it. See Jordan v. Commonwealth, 50 Va. App. 322, 329, 649 S.E.2d 709, 713 (2007); Walshaw
v. Commonwealth, 44 Va. App. 103, 119, 603 S.E.2d 633, 641 (2004); Rollston, 11 Va. App. at
541, 399 S.E.2d at 826. We find nothing in the record to suggest that the jury did not do so here.
From the record before us, we cannot conclude that Instruction 7, particularly considered
together with Instructions 2 and 3, ‘“was manifestly intended or was of such character that the
jury would naturally and necessarily take it to be a comment on the [failure] of the accused to
testify.’” Pollino, 42 Va. App. at 250, 590 S.E.2d at 625 (quoting Hazel, 31 Va. App. at 411, 524
S.E.2d at 138) (alteration added).
III. CONCLUSION
For the foregoing reasons, we affirm appellant’s conviction of larceny, third or
subsequent offense.
Affirmed.
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