COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
WELDON BUNN, a/k/a
WENDALL BUNN, s/k/a
WELDON L. BUNN OPINION BY
JUDGE SAM W. COLEMAN III
v. Record No. 2152-94-2 FEBRUARY 6, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Sterling H. Moore (Canfield, Moore, Shapiro,
Sease & Baer, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Weldon Bunn was convicted by a jury of grand larceny and
sentenced to the maximum punishment of twenty years in the
penitentiary. He contends that the trial court erred in its
application of the bifurcated sentencing statute,
Code § 19.2-295.1, by admitting evidence of three prior
convictions for offenses that were committed after the charged
offense. Bunn asserts that penal statutes must be narrowly
construed and that the trial court's construction of the statute
violates the constitutional prohibition against ex post facto
laws. Bunn also contends that the trial court erred in refusing
to instruct the jury on the lesser offense of petit larceny and
that the evidence is insufficient to support the grand larceny
conviction. We find no error and affirm the defendant's
conviction.
I.
Code § 19.2-295.1, which became effective July 1, 1994,
provides that after a guilty verdict in a jury trial, "a separate
proceeding limited to the ascertainment of punishment shall be
held as soon as practicable before the same jury." "At such
proceeding, the Commonwealth shall present the defendant's prior
criminal convictions. . . ." Code § 19.2-295.1 (emphasis added).
The defendant asserts that because penal statutes are to be
construed narrowly against the Commonwealth, Frere v.
Commonwealth, 19 Va. App. 460, 464, 452 S.E.2d 682, 685 (1995),
the trial court and this Court should construe the phrase, "prior
criminal convictions," to mean convictions obtained prior to the
date the charged offense was committed. He argues that to
construe and apply the statute otherwise would, in effect, give
ex post facto application to the statute by allowing his sentence
to be based on convictions that could not have been considered
for purposes of punishment at the time the charged crime was
committed.
We will not construe a penal statute in a manner that
requires us to disregard the clear and obvious meaning of the
statute. Huddleston v. United States, 415 U.S. 814, 831 (1974).
"[T]he plain, obvious, and rational meaning of a statute is
always to be preferred to any curious, narrow, or strained
construction." Turner v. Commonwealth, 226 Va. 456, 459, 309
S.E.2d 337, 338 (1983). The obvious purpose of Code § 19.2-295.1
-2-
is to allow the jury, which will be recommending sentence, to
consider the defendant's most current record of criminal
convictions. Nothing in the language or logic of the statute
suggests that the legislature intended to limit the jury's
consideration to anything other than the defendant's complete
criminal record. The clear and obvious reading of the statute is
that "prior convictions" refers to convictions obtained prior "to
the [bifurcated sentencing] proceeding." See Watkins v.
Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), cert. denied,
475 U.S. 1099 (1986) (upholding application of bifurcated
sentencing statute in death penalty case in which evidence of
other crimes committed eight days after charged offense was
admitted).
Furthermore, we reject the defendant's contention that this
construction of the statute violates constitutional protections
against ex post facto laws. The enactment of Code § 19.2-295.1
and its application in this case do not violate ex post facto
protections if the statute
does not punish as a crime an act previously
committed, which was innocent when done; nor
make more burdensome the punishment for a
crime, after its commission; nor deprive one
charged with [a] crime of any defense
available according to law at the time when
the act was committed.
Collins v. Youngblood, 497 U.S. 37, 52 (1990). Code § 19.2-295.1
as applied in this case does none of these, and, therefore, it is
not an ex post facto law.
-3-
II.
The defendant contends that the trial court erred by
refusing to give a jury instruction on the lesser included
offense of petit larceny. "If any credible evidence in the
record supports a proffered instruction on a lesser included
offense, failure to give the instruction is reversible error."
Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563,
564 (1993) (quoting Boone v. Commonwealth, 14 Va. App. 130, 132,
415 S.E.2d 250, 251 (1992)). We are bound by the principle that
the accused is entitled, on request, to have the jury instructed
on a lesser included offense that is supported by more than a
"scintilla of evidence" in the record. Id. In considering
whether the evidence requires giving the lesser included
instruction, the evidence relevant to the refused instruction
must be viewed in the light most favorable to the defendant.
Martin v. Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401
(1992) (en banc).
The facts pertinent to this issue, and the sufficiency of
the evidence issue in Part III, are that sixteen days after
someone stole items from David Harlan's locked car, the police
searched Wheldon Bunn incidental to his arrest on unrelated
charges and found Harlan's Nationsbank Visa credit card, which
had been stolen from the car, "in his [Bunn's] left inside
pocket." Bunn lived three-tenths of a mile from where the
larceny occurred.
-4-
Eric Townes, who was arrested along with Bunn, was wearing
at the time David Harlan's leather jacket, which had also been
stolen from Harlan's car. The credit card and jacket were the
only two stolen items accounted for from among the twenty-five
compact discs, an AT&T phone card, a calculator, a book bag, and
an amplifier that were also stolen.
David Harlan testified that the total value of the stolen
items was about $500. The evidence showed that after the theft
and after Bunn's arrest, someone had used the stolen AT&T phone
card to make calls from northern Virginia and from various places
in the United States and Japan.
Code § 18.2-192 provides that credit card theft is grand
larceny. Bunn contends, nevertheless, that although possession
of recently stolen property warrants the presumption that the
person in possession is the thief, the fact finder could have
found that he did not steal the credit card, but may have stolen
some of the other items that were valued at less than $200.
Thus, Bunn argues the fact finder could have found that he did
not steal the credit card, but stole items valued at less than
$200.
The argument is not supported by the evidence. Although the
fact finder could infer from Bunn's possession of the recently
stolen credit card that he stole all the property from Harlan's
car, at a minimum, the evidence supported the inference that Bunn
stole the Visa credit card. No evidence suggests that Bunn
-5-
selectively stole only some of the items from Harlan's car that
were valued at less than $200. Accordingly, the trial court did
not err by refusing to give the jury an instruction on petit
larceny.
III.
"Once the crime [of larceny] is established, the unexplained
possession of recently stolen goods permits an inference of
larceny by the possessor." Bright v. Commonwealth, 4 Va. App.
248, 251, 356 S.E.2d 443, 444 (1987). Bunn contends that the
"recently stolen" inference should not apply on these facts
because the nature and size of a credit card make it easily lost
and found and, thus, provide a reasonable explanation or
hypothesis for possession by someone other than the owner. He
argues that the inference should not apply on these facts and,
therefore, the evidence is insufficient to support the grand
larceny conviction.
We reject Bunn's argument. Whether the recently stolen
inference is permissible does not depend on the physical
characteristics of the stolen item, but upon whether the
possession was knowing and recent. See Montgomery v.
Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980)
(holding that the recently stolen inference applied when the
evidence showed that the defendant possessed the goods
approximately four weeks after they were stolen). Furthermore,
the fact that the stolen AT&T phone credit card was apparently
-6-
being used by someone other than Bunn and the fact that Eric
Townes, who was with Bunn when arrested, also possessed recently
stolen property do not prevent the fact finder from drawing the
permissible inference that Bunn stole Harlan's Visa credit card
and was involved in stealing the other items from Harlan's car.
See Fout v. Commonwealth, 199 Va. 184, 185-86, 190-91, 98 S.E.2d
817, 819, 821-22 (1957) (upholding the application of the
recently stolen inference to both defendants even though only one
of the defendants had actual possession of the stolen guns); Hope
v. Commonwealth 10 Va. App. 381, 383-85, 392 S.E.2d 830, 832-33
(1990) (en banc) (holding that the inference of larceny from
recent possession applies even though under the facts, two people
possessed the stolen items).
In determining whether the evidence is sufficient to prove
Bunn's guilt beyond a reasonable doubt, we consider the evidence
and any reasonable inferences fairly deducible therefrom in the
light most favorable to the Commonwealth. See Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
"The jury's verdict will not be disturbed on appeal unless it is
plainly wrong or without evidence to support it." Id. The
evidence proved that Bunn possessed Harlan's Visa credit card
sixteen days after it was stolen from Harlan's locked car. Bunn
lived three-tenths of a mile from where the larceny occurred.
Because the jury could infer from Bunn's unexplained possession
of the recently stolen credit card that he stole it, the jury's
-7-
verdict was not "plainly wrong or without evidence to support
it."
We find no error and affirm the defendant's conviction.
Affirmed.
-8-
BENTON, J., dissenting.
Bunn raises two distinct sufficiency issues. He argues that
the evidence failed to prove that the property he possessed was
recently stolen and, thus, contends the evidence provides no
basis upon which an inference could be drawn that he was the
thief. He also argues that the evidence as a whole failed to
prove beyond a reasonable doubt that he was the thief.
Bunn cites no case law in support of his argument that the
trial judge erred in refusing to strike the evidence as to the
larceny charge because the property was not "recently stolen."
The narrative argument raises the question "what is 'recently
stolen'" and whether the inference of theft from Bunn's
possession of the stolen property was "applicable to this
situation." Distilled to its core, the issue raised and posed to
the trial judge was whether "as a matter of law, passage of more
than two weeks has taken us beyond the realm of recently stolen."
I agree with the majority that the Supreme Court has held
that "[f]our weeks is not, as a matter of law, so long a time
that goods may not be considered recently stolen." Montgomery v.
Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980). That
holding was based, however, upon the case of Wilborne v.
Commonwealth, 182 Va. 63, 28 S.E.2d 1 (1943), where the accused,
charged with the offense of "house breaking," id. at 64, 28
S.E.2d at 1, was:
in possession of the identical tool which had
been used in breaking into the building,
. . . was also in possession of firearms,
flashlights, gloves, and other articles
-9-
commonly employed by burglars [, and] . . .
had in his possession . . . a tire similar in
make, design and type to one which had been
stolen [and from which] . . . the serial
number, the only means of exact
identification, had been obliterated - a
device commonly used by malefactors to
obscure the source of their acquisition of
stolen property.
Id. at 67-68, 269 S.E.2d at 3. The Supreme Court concluded that
"the accused's possession of the burglarious tool, three months
after the commission of the crime, under the circumstances
related, was [not] too remote, as a matter of law, for the
application of the stated principle." Id. at 69, 269 S.E.2d at 4
(emphasis added). In other words, the Court held that in
establishing recent possession, the passage of a significant
amount of time can be ameliorated by other circumstances that
tend to prove the accused engaged in the charged conduct.
The evidence proved that Bunn possessed a credit card issued
to a person he did not know. No explanation for his possession
was given. Without any explanation, the jury could have inferred
that Bunn must have known or been aware of the high probability
that the credit card he possessed had been either lost by its
holder or stolen. However, Bunn was not indicted or tried for
"receiv[ing] . . . or . . . concealing any stolen goods or other
thing, knowing the same to have been stolen." See Code
§ 18.2-108. The prosecution was premised upon the hypothesis
that Bunn stole the credit card.
Although Bunn raised the matter of the inference arising
from "unexplained" possession and alluded in his narrative to a
-10-
constitutional issue regarding his "right to remain silent at
trial," he did not specify the authority upon which he relied.
Moreover, Bunn did not specifically challenge the
constitutionality of the inference. See Barnes v. United States,
412 U.S. 837, 846 n.11 (1973). We must assume for purposes of
this appeal that no constitutional defect exists. See Benderson
Development Co. v. Sciortino, 236 Va. 136, 148, 372 S.E.2d 751,
757 (1988).
The sufficiency of the evidence remains, however, an issue
to be decided because "determining that a permissive inference
instruction is valid does not settle whether the verdict is
supported by sufficient evidence." Cosby v. Jones, 682 F.2d
1373, 1377 (11th Cir. 1982). An inference is a permissible
conclusion that may be drawn from a proven fact or set of facts.
The inference of larceny that the jury was instructed that it
could draw is not a presumed, conclusive test of guilt. See
Sandstrom v. Montana, 442 U.S. 510 (1979). It is only one
circumstance from which the jury may infer that the person in
possession of stolen goods was the thief. "[T]he inference of
participation in the crime drawn from possession of fruits of the
crime is to be judged like any other inference, that is, on the
strength of that inference in the light of the facts of each
particular case." Cosby, 682 F.2d at 1380.
The conviction rested solely upon the inference that Bunn
was the thief which was drawn from proof that Bunn possessed the
stolen property. Absent other evidence, that inference does not
-11-
follow beyond a reasonable doubt from the proven fact. See In re
Winship, 397 U.S. 358, 361-64 (1970).
Nothing in the evidence concerning the circumstances of the
theft or Bunn's possession of the credit card added any probative
force to the Commonwealth's hypothesis that Bunn was present when
the card was stolen or that he was the thief. Of the more than
thirty-one items taken from the victim's automobile, Bunn
possessed only the credit card. In contrast to Bunn's mere
possession of the card, the evidence proved that another credit
card taken from the victim's automobile was used in a city one
hundred miles distant from Bunn's residence and continued to be
used after Bunn's arrest. In addition, the evidence proved that
another person possessed a coat that was taken from the victim's
automobile. Those facts tend to weaken the inference that Bunn
was the thief.
Although as a matter of law, the fact that the items had
been removed from the automobile sixteen days earlier does not
negate application of the "recent" possession inference,
remoteness in time certainly reflects upon the strength of the
inference. See United States v. Jones, 418 F.2d 818, 821 (8th
Cir. 1969). The likelihood that stolen items will be discarded
or found in the possession of persons who were not the thief
greatly increases with the passage of time. Thus, even the
"[e]arly English cases . . . [where] [t]he rule was well stated
[recognize that] . . . '[t]he strength of the presumption, which
arises from such possession, is in proportion to the shortness of
-12-
the interval which has elapsed.'" Id. (quoting Reg v. Exall, 4
F. & F. 922, 926-27 (1866)). When the passage of two weeks is
considered together with proof that Bunn had not used the card in
his possession and had done no other act consistent with
thievery, the inference is greatly weakened.
The evidence in this case that the Commonwealth points to as
implicating Bunn as the thief arises solely from the permissive
inference. I would hold that, under the circumstances, the
evidence was insufficient to support the conviction. "Jackson
[v. Virginia, 443 U.S. 307 (1979)] requires that a reasonable
juror be able to find the defendant guilty beyond a reasonable
doubt, and if the evidence viewed in the light most favorable to
the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence of the
crime charged, then a reasonable jury must necessarily entertain
a reasonable doubt." Cosby, 682 F.2d at 1383.
For these reasons, I would reverse the conviction.
Therefore, I dissent.
-13-