Lester v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia

PAUL BRYAN LESTER
OPINION BY
v. Record No. 1023-98-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 31, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge

Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Paul Bryan Lester was convicted of burglary and grand

larceny. Lester contends that the trial court erred (1) in

denying his motion to suppress, (2) in finding the evidence of

value sufficient to prove grand larceny, and (3) in finding the

evidence sufficient to prove he committed burglary. We hold that

the trial court did not err as to the first two issues and that

the defendant is barred from raising the third issue.

Accordingly, we affirm the convictions.

I.

Katharina Bergdoll testified that on October 22, 1997, she

returned to her home on South Pine Street and discovered that

someone had broken into her home. The burglar had taken stereo
equipment, a shotgun, a pistol, a flintlock rifle, and a jewelry

box containing several items of jewelry. The rifle was handmade

and had Bergdoll's name engraved into it.

Within a week, Detective VanBuren received information from a

"concerned citizen" about Paul Bryan Lester. Based on that

information, the detective obtained a warrant to search a dwelling

located one block from Bergdoll's home. He described the dwelling

as a "rooming house" with a family living downstairs and several

persons living in three bedrooms upstairs. When the detective

and other officers went upstairs to search for the property,

they encountered and detained Lester in one bedroom, several

people in a second bedroom, and Amy Donovant in a third bedroom.

The officers read to Lester the Miranda warnings and, after

questioning him, determined that Lester and Donovant, whom

Lester identified as his girlfriend, resided in the bedroom

where Lester was found. Donovant's mother resided in another

bedroom, and "a young lady" resided in the third bedroom.

In the bedroom where Lester and Donovant resided, the

officers recovered from atop a dresser Bergdoll's jewelry case

and a number of items of jewelry, such as earrings, beads, and

rings, some of which had been stolen from Bergdoll's home. A

music box that did not belong to Bergdoll was also on the

dresser. Asked how the stolen property came to be in his room,

Lester responded that he did not know and said, "[a] lot of

people come in and out of the house." When the officers found

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one of Bergdoll's rings on Donovant's finger and informed Lester

that Donovant was wearing one of the stolen rings, Lester denied

knowing where the ring came from. None of Bergdoll's other

property was recovered from the dwelling. The shotgun was later

recovered by the police from another person who was not

identified on the record.

Lester was arrested and indicted for burglary and grand

larceny. The trial judge convicted Lester on both indictments.

Lester appeals the convictions.

II.

Prior to trial, Lester moved to suppress the stolen

property recovered from his bedroom. He contends the search was

conducted without probable cause or his consent in violation of

the Fourth and Fourteenth Amendments.

"[N]o warrants shall issue, but upon probable cause,

supported by oath or affirmation." U.S. Const. amend. IV. "The

existence of probable cause is determined by examining the

'totality of the circumstances,'" Gwinn v. Commonwealth, 16 Va.

App. 972, 974, 434 S.E.2d 901, 903 (1993) (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)), and "may be established based

upon a combination of the content of the information which the

police possess, its degree of reliability, and the degree of

credibility of the informer." Boyd v. Commonwealth, 12 Va. App.

179, 187, 402 S.E.2d 914, 919 (1991). "Where the basis for

concluding that probable cause exists rests upon information

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provided by an informer, one focus of the inquiry must be upon

whether the magistrate could determine the informer's honesty,

veracity, and basis of knowledge." Id. at 186, 402 S.E.2d at

918. "If the informer is a disinterested citizen who is either

the victim or eyewitness of a crime, the magistrate is permitted

to infer that reasonable information obtained from the citizen

is reliable." Polston v. Commonwealth, 24 Va. App. 738, 745,

485 S.E.2d 632, 635 (1997), aff'd, 255 Va. 500, 498 S.E.2d 924

(1998). Thus, we have ruled as follows:

Citizen-informants do not carry the same
presumption of reliability as police
officers, but less evidence is required to
establish their veracity than that of
criminal informants. A citizen-informant's
veracity may be established by the absence
of an apparent motive to falsify or
independent police corroboration of the
details provided by the informant. Where a
citizen-informant reports a crime committed
in his presence, but in which he was not
involved, or one in which he was a victim,
police officers may act upon such a report
if the reliability of the report is enhanced
by a police interview with the victim or
other corroborating information.

Corey v. Commonwealth, 8 Va. App. 281, 287, 381 S.E.2d 19, 22

(1989) (citations omitted).

At the suppression hearing, the detective's affidavit for

the search warrant was entered in evidence. It recited the

following facts as constituting probable cause:

Your affiant spoke with a concerned citizen
(CC) and received the following information:
Within the past 24 hours from 1400 hours on
October 26, 1997, the CC saw a subject known

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 to them as "Paul Lester" with a flintlock
rifle. The name Katharina Bergdoll was
engraved on the rifle. The CC saw "Lester"
carry the rifle into the residence mentioned
in section two of this affidavit. "Lester"
told the CC he was trying to sell the rifle
and some unidentified jewelry. The CC is
acquainted with "Lester" and said that
"Lester" is a thief and sells stolen
property.

To establish the concerned citizen's credibility and the

reliability of the information, the detective reported the

following facts:

The concerned citizen is a registered voter,
has never been arrested, is a long time
resident in the community, attends church,
and is gainfully employed. The citizen
provided information because of an interest
in the community and wishes to remain
anonymous out of fear of retaliation.

On October 22, 1997 at approximately 2030
hours, Ms. Katharina C. Bergdoll reported
her home . . . had been burglarized. She
reported the items mentioned in section
three of this affidavit had been
stolen. . . . She had been told by a local
resident that her property had been stolen
by a white male known as "Paul Lester."

In the past two weeks from October 26, 1997,
Sergeant Roger A. Russell . . . spoke with a
source who said a white male known as "Paul"
was selling stolen property at the location
described in section two of this affidavit.
The items "Paul" was selling matched the
items stolen in an unrelated burglary.

In the past two weeks from October 26, 1997,
Officer Chester Roberts received information
from a source that stolen property was being
kept at the location described in section
two of this affidavit.

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 The trial court denied Lester's motion, finding "that the

magistrate had substantial basis for the issuance of the warrant

and probable cause for the warrant to issue for the search of

that residence." In our review of the denial of the motion to

suppress, "'[t]he burden [is] upon [the appellant] to show that

this ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'" Lewis v.

Commonwealth, 26 Va. App. 113, 115, 493 S.E.2d 397, 398 (1997)

(citation omitted). On appeal, we pay "great deference" to the

fact finding. Gates, 462 U.S. at 236.

Applying these principles, we conclude that the trial court

did not err. Although the informant was never identified, the

affidavit described the informant as a "concerned citizen" who

"wish[ed] to remain anonymous out of fear of retaliation."

According to the affidavit, the informant stated that he or she

was acquainted with Lester, knew Lester to be a thief who sells

stolen property, personally observed Lester carrying into the

residence the rifle engraved with Bergdoll's name, and was told

by Lester that Lester "was trying to sell the rifle and some

. . . jewelry." "[E]ven if we entertain some doubt as to an

informant's motives, [the informant's] explicit and detailed

description of alleged wrongdoing, along with a statement that

the event was observed firsthand, entitles [the informant's] tip

to greater weight than might otherwise be the case." Id. at

234.

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 The police corroborated the informant's tip through their

own investigation. Bergdoll informed the police she had

received information that the person who robbed her home was

known as "Paul Lester." Two other officers received information

that someone known as "Paul" was selling stolen property from

the dwelling where Lester lived. The detailed nature of the

informant's tip, the informant's personal "basis of knowledge,"

and the corroborating evidence gathered by the police all

combined to provide probable cause to justify a warrant. See

Corey, 8 Va. App. at 288-89, 381 S.E.2d at 23. In short, "[t]he

informant's story and the surrounding facts possessed an

internal coherence that gave weight to the whole."

Massachusetts v. Upton, 466 U.S. 727, 734 (1984) (per curiam).

III.

Lester argues that Bergdoll's testimony about the value of

the stolen property amounted to guessing and failed to reveal

the true value of the property. We disagree.

On an appeal challenging the sufficiency of the evidence,

we view the evidence "in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom." Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975). Bergdoll testified as

follows concerning the value of her property recovered from the

bedroom:

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 Jewelry case: $25-$30
1 pair of lapis and silver earrings: $30
1 pair of multiple beaded earrings: $30
Handmade gold and bloodstone ring: $150
5 pairs of earrings: $50

Bergdoll conceded on cross-examination that she did not know the

current market value of the jewelry case. Rather, she testified

that the $25-$30 value represented what she would currently pay

for the jewelry case if she purchased it at a store. She also

testified that she bought the handmade gold and bloodstone ring

in 1974 for $120 and that $150 was "a conservative estimate" of

the ring's current value. The trial judge accepted Bergdoll's

valuations and found that the stolen property's value was

sufficient to prove grand larceny.

"Any person who . . . commits simple larceny not from the

person of another of goods and chattels of the value of $200 or

more . . . shall be guilty of grand larceny." Code § 18.2-95.

"The value of the goods specified in the statute is an essential

element of the crime, and the Commonwealth must prove that

element beyond a reasonable doubt." Walls v. Commonwealth, 248

Va. 480, 481, 450 S.E.2d 363, 364 (1994).

The value of the stolen property is measured
as of the time of the theft, and the
original purchase price may be admitted as
evidence of its current value. The opinion
testimony of the owner of the stolen item
generally is competent and admissible on the
issue of the value of that property.

Parker v. Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483

(1997) (citation omitted).

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 Relying on the Supreme Court's decision in Dunn v.

Commonwealth, 222 Va. 704, 284 S.E.2d 792 (1981) (per curiam),

Lester argues that the value of $150 given by Bergdoll for the

handmade gold and bloodstone ring that she purchased for $120 is

unfounded. In Dunn, the evidence proved that the accused stole

a typewriter which had been purchased ten years previously for

$150. In finding the evidence insufficient to meet the

statutory threshold, the Court noted as follows:

While the original purchase price of an item
may be admitted as evidence of its current
value, there must also be "due allowance for
elements of depreciation." Without a
showing of the effect of age and wear and
tear on the value of an item such as a
typewriter, the [fact finder] might be
misled to believe that original price equals
current value.

Id. at 705, 284 S.E.2d at 792 (emphasis added) (citation

omitted).

The use of the words "such as a typewriter" in the above

quotation is significant. It is common knowledge that technical

equipment generally depreciates in value over time and that

equipment which does not operate properly has significantly

reduced value. However, in this case, the item was jewelry that

the fact finder was able to observe. Lester was able to

cross-examine Bergdoll concerning the condition and value of the

jewelry. No evidence proved the condition of the jewelry had

significantly deteriorated and that it had not appreciated in

value. Dunn, therefore, is not controlling.

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 Lester also challenges the relevance of Bergdoll's

testimony that several years prior to the larceny, she paid $30

each for the lapis and silver and the multiple beaded earrings.

However, "it is generally held that evidence of value a

reasonable time prior and subsequent to the [larceny] is

admissible, its weight being for the trier of fact." Haynes v.

Glenn, 197 Va. 746, 753, 91 S.E.2d 433, 438 (1956). The time

between the earrings' original purchase date and the date of

Bergdoll's testimony was not unreasonably long. Viewing the

jewelry and absent evidence that the earrings were in a

deteriorated condition, the trier of fact could have reasonably

accepted Bergdoll's valuation. Lastly, the issue whether the

remaining items of jewelry, identified only as five pairs of

earrings, were truly valued at $50 is a question of fact.

Nothing in the record tends to establish that $50 is such an

unreasonable sum that we should overrule the finding of the

trier of fact.

Because the evidence, as accepted by the trier of fact,

sufficiently proved that the value of the jewelry exceeded $200,

the evidence was sufficient to sustain the conviction of

larceny. Thus, we need not address Lester's argument that

Bergdoll's testimony concerning the replacement value of the

jewelry case was inadmissible.

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 IV.

No direct evidence proved that Lester burglarized

Bergdoll's home. On appeal, he argues that the evidence is

insufficient to show that he possessed the recently stolen

property found in his room. The defendant did not make this

argument to the trial court. There he argued that the items

found in his possession did not give rise to a presumption of

breaking and entering, only to a presumption of larceny. He did

not challenge the sufficiency of the evidence establishing the

basic fact of the presumption, possession; indeed, he conceded

the point. He did not preserve the argument he now raises, and

he is barred from doing so by Rule 5A:18. See Taylor v.

Commonwealth, 21 Va. App. 557, 565, 466 S.E.2d 118, 122 (1996)

(appellant must have presented to trial court same grounds in

support of claim of insufficiency that he wishes to raise on

appeal) (citing Rule 5A:18).

For the reasons stated, the convictions are affirmed.

Affirmed.

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Benton, J., dissenting, in part, and concurring, in part.

I concur in Parts I, II, and III of the majority opinion.

I do not join in Part IV because I believe Paul B. Lester

preserved for appeal the issue of sufficiency of the evidence to

prove burglary. I also agree with Lester's contention that the

evidence failed to prove he exclusively possessed the stolen

property.

At the conclusion of all the evidence, Lester's counsel

moved to strike the evidence regarding the burglary charge. In

pertinent part, counsel argued as follows:

Incorporating the motion to strike in regard
to the close of all of the evidence. In
terms of the breaking and entering, Your
Honor, I would submit to the Court there has
been no evidence tying Mr. Lester to that
location on October 22nd.

We have a detective who has testified that
there were no fingerprints recovered,
nothing to show he was actually there. And
the mere possession of recently stolen
property has no presumption in regard to a
break and enter.

On this appeal, Lester contends the evidence was insufficient to

prove the burglary charge because the evidence neither proved he

was present at the burgled residence nor proved he had exclusive

possession of the stolen property.

No direct evidence proved that Lester burgled Katharina

Bergdoll's home. We are guided by the following principles

concerning the circumstantial evidence in this case:

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 [W]hen evidence has been introduced, which,
if believed, establishes that a house has
been broken and entered and goods stolen
therefrom, and warrants an inference beyond
a reasonable doubt that the breaking and
entering and the larceny of the goods were
committed at the same time, by the same
person or persons, as a part of the same
transaction, upon principle and authority,
the exclusive possession of the stolen goods
shortly thereafter, unexplained or falsely
denied, has the same efficiency to give rise
to an inference that the possessor is guilty
of the breaking and entering as to an
inference that he is guilty of the larceny.

Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28

(1935). "It is well settled that the unexplained possession of

recently stolen property creates a presumption of guilt, but

such possession must be exclusive on the part of the accused."

Leebrick v. Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214

(1956). Thus, "the evidence must reveal that the accused was

consciously asserting at least a possessory interest in or

exercising dominion over the stolen property." Ferrell v.

Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 618 (1990).

Additionally, an accused can jointly possess stolen property

with another. See Castle v. Commonwealth, 196 Va. 222, 227, 83

S.E.2d 360, 363-64 (1954). However, "[t]he Commonwealth must

prove by the evidence, beyond all reasonable doubt, that the

possession was exclusive; that it was personal; that it was

recent and that it was unexplained." Id. (emphasis added).

Viewed in the light most favorable to the Commonwealth, the

evidence proved that property recently stolen from Bergdoll's

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home was found by police in the bedroom where Lester and Amy

Donovant resided. The officers recovered from atop a dresser

Bergdoll's jewelry case and a number of items of women's

jewelry, such as earrings, beads, and rings, some of which had

been stolen from Bergdoll's home. A music box that did not

belong to Bergdoll was also on the dresser. Asked how the

stolen property came to be in the room, Lester responded that he

did not know and said, "[a] lot of people come in and out of the

house." When the officers found one of Bergdoll's rings on

Donovant's finger and informed Lester that Donovant was wearing

one of the stolen rings, Lester denied knowing the origin of the

ring. None of Bergdoll's other property was recovered from the

dwelling.

Proof that Donovant resided in the room where the jewelry

was located and was wearing one of the stolen rings creates a

reasonable doubt that Lester exclusively possessed the stolen

property. See Best v. Commonwealth, 222 Va. 387, 389, 282

S.E.2d 16, 17 (1981) (per curiam) (holding that exclusive

possession was not proved where "the evidence revealed that

several persons other than the accused had access to the open

shed where the stolen property was found"); Leebrick, 198 Va. at

367, 94 S.E.2d at 213 (holding that where stolen property was

located under a porch where the defendants slept, the evidence

"falls far short of proving that the defendants . . . had

exclusive possession of, or claimed a property interest in . . .

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any of the stolen articles"); Castle, 196 Va. at 228, 83 S.E.2d

at 364 (holding that "[t]he mere fact that stolen articles are

found on the premises of a man of a family or in a place to

which others have free access, without a showing of his actual

conscious possession thereof, . . . is not sufficient to justify

an inference of guilt"). The evidence in the record fails to

exclude the reasonable inference that Lester was unaware that

the property was stolen or that Donovant, who shared the room,

possessed the property and placed it on the bedroom dresser.

"[T]o raise the presumption of guilt from
the possession of the fruits of [or] the
instruments of crime by the [accused] it is
necessary that they be found in his
exclusive possession. A constructive
possession, like constructive notice or
knowledge, though sufficient to create a
civil liability, is not sufficient to hold
the [accused] to a criminal charge. He can
only be required to account for the
possession of things which he actually and
knowingly possessed, as, for example, where
they are found upon his person, or in his
private apartment, or in a place of which he
kept the key. If they are found upon
premises owned or occupied as well by others
as himself, or in a place to which others
had equal facility and right of access,
there seems no good reason why he, rather
than they, should be charged upon this
evidence alone."

Tyler v. Commonwealth, 120 Va. 868, 871, 91 S.E. 171, 172 (1917)

(emphasis added) (citation omitted).

Furthermore, the Commonwealth's claim that Lester jointly

possessed the jewelry with Donovant was not proved beyond a

reasonable doubt. As the Court observed in Reese v.

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Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 267-68 (1985),

"[t]he Commonwealth presented no evidence that [Lester]

exercised any degree of dominion or control over the [stolen

property]." Lester claimed no knowledge of the stolen property

and responded to the officers' questions by noting that a number

of people had access to the bedroom. The Commonwealth's own

evidence proved that the dwelling was a "rooming house" where a

number of persons resided. Although the police initially

detained Donovant in another person's bedroom when they executed

the search warrant, Donovant was wearing one of Bergdoll's

stolen rings, and she resided in the bedroom where the remainder

of Bergdoll's jewelry was recovered. Donovant's mother lived in

another bedroom on the same floor.

These facts fail to establish that Lester possessed the

woman's jewelry. "To establish 'possession' in a legal sense it

is not sufficient to simply show actual or constructive

possession of the [stolen property] . . . by the defendant

[because the] Commonwealth must also establish that the

defendant intentionally and consciously possessed it with

knowledge of its nature and character." Buono v. Commonwealth,

213 Va. 475, 476, 193 S.E.2d 798, 798-99 (1973) (per curiam).

Because no evidence proved beyond a reasonable doubt that

Lester exclusively or jointly possessed the jewelry or exercised

any dominion or control over it, the evidence was insufficient

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to prove that he burgled Bergdoll's home. Therefore, I would

reverse the burglary conviction.

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