COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
TIMOTHY A. COBB, S/K/A
TIMOTHY ALLEN COBB
OPINION BY
v. Record No. 2681-96-1 JUDGE JOSEPH E. BAKER
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Jennifer T. Stanton (J. T. Stanton, P.C., on
brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Timothy A. Cobb (appellant), sometimes known as Timothy
Allen Cobb, appeals from a judgment of the Circuit Court of the
City of Chesapeake (trial court) that approved a jury verdict
convicting him for breaking and entering into a business place in
the daytime with intent to commit larceny, in violation of Code
§ 18.2-91. The sole issue presented is whether the evidence is
sufficient to support appellant's conviction.
Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, see Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987), we find that on the morning of
September 26, 1995, Larry Miller, the parts and warehouse manager
at Virginia Air Distributors, discovered that someone had broken
into the company warehouse building, which consisted of the
warehouse and two offices. In the office area, Miller "noticed
[that] change was thrown all over the place" and that the "petty
cash box had been broken into." Missing from the office area
were (1) money from the cash box and (2) a set of high-low
pressure gauges, which had been hanging behind the parts counter
in the office. A hole big enough for a person to crawl through
had been cut into the sheet metal wall of the warehouse. In the
office of the operations manager, Wayne Smith, the police found a
pair of yellow-handled tin snips bearing the name "T. Cobb." The
tin snips were the type used to cut sheet and various light
metals. The snips did not belong to Virginia Air Distributors,
and Smith had not left them there. Miller did not know appellant
and had not given him permission to be on the premises.
Smith's office is normally locked at night; however, the
record fails to establish that it had been locked on the break-in
day. On the day prior to the break-in, Miller and Smith had
closed the business at the regular time of 5:30 p.m. When Miller
arrived the next morning, Smith was already present on the
premises and "in a panic" due to the break-in.
Several weeks after the break-in, Miller identified the
missing high-low gauge set at the Easy Pawn Shop. A pawn shop
employee, Harris Perry, testified that appellant had pawned that
gauge set on October 24, 1995. Miller testified that the set had
been hanging at eye level behind the counter at the warehouse
every day for two years. Miller had used the gauge set about a
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week prior to the burglary and was absolutely certain that the
pawned gauge set was the one stolen from Virginia Air
Distributors.
Appellant denied committing the burglary, claiming that he
had obtained the gauge set from his former employer, but the
former employer failed specifically to corroborate appellant's
claim. Appellant further claimed that the tin snips had been
stolen from him, but he did not report the alleged theft until he
was questioned about the subject burglary. Appellant admitted
that he previously had been convicted of five felonies.
Relying upon Williams v. Commonwealth, 193 Va. 764, 71
S.E.2d 73 (1952), appellant contends that evidence of his
possession of stolen property, coupled with evidence of his own
property having been stolen, is insufficient to convict him of
burglary. In Williams, however, no evidence of a break-in was
shown. Therefore, Williams is inapposite and is clearly
distinguishable from the case before us. In Hawley v.
Commonwealth, 206 Va. 479, 485, 144 S.E.2d 314, 318 (1965), the
Supreme Court said:
Williams v. Commonwealth, 193 Va. 764,
71 S.E.2d 73 (1952), relied upon by the
defendant, is not authority to the contrary.
In that case, we held that bare evidence of
the possession of stolen goods was not
sufficient to support a conviction of
storebreaking, where there was no evidence of
breaking by force. Here, there was direct
proof of breaking by force.
The Commonwealth makes a prima facie case of breaking and
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entering against an accused when it proves (1) "a breaking and
entering, and a theft of goods," (2) "that both offenses were
committed at the same time, by the same person, as a part of the
same criminal enterprise," and (3) "that the stolen goods [were]
found soon thereafter in the possession of the accused." Schaum
v. Commonwealth, 215 Va. 498, 501, 211 S.E.2d 73, 76 (1975). We
find that the evidence contained in this record meets those
requirements.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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