COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
FRANK WILLIAM FREEMAN
MEMORANDUM OPINION * BY
v. Record No. 0796-02-3 JUDGE JEAN HARRISON CLEMENTS
JUNE 10, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Frank William Freeman was indicted for burglary, in violation
of Code § 18.2-89, and grand larceny, in violation of Code
§ 18.2-95. He was convicted in a bench trial of trespass, in
violation of Code § 18.2-119, and grand larceny, as charged. On
appeal, Freeman contends the trial court erred in (1) convicting
him of statutory trespass on an indictment charging burglary and
(2) finding the evidence sufficient to prove grand larceny.
Finding no error, we affirm Freeman's convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
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. See Dowden v. Commonwealth, 260
Va. 459, 461, 536 S.E.2d 437, 438 (2000).
So viewed, the evidence establishes that Glostrice Deshazor
lived with her daughter, Jada Walton, and Walton's
four-and-one-half-year-old son, Sydney, in Apartment 2B of
Southside Gardens Apartments at 145 Levelton Street in the City
of Danville. Freeman was employed as a maintenance man for the
apartment complex and had a master key.
Prior to going to bed at approximately 8:30 p.m. on
November 2, 2001, Deshazor placed $268 in her purse. The purse
was on a chair under the kitchen table. Walton had given her
mother the money that day as reimbursement for Walton's portion
of the month's rent. Deshazor saw three bottles of her
medications on the kitchen table that evening before going to
bed. The front door of the apartment was locked.
Upon entering the apartment, the living room was to the
left and the kitchen was to the right. The bedroom was to the
rear of the apartment beyond the living room-kitchen area.
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Sydney's tricycle had been left near the front door of the
apartment.
Shortly after midnight on November 3, 2001, all three
residents of the apartment were in the bedroom. Deshazor and
Sydney were asleep in bed, and Walton was lying at the foot of
the bed watching television. At that time, Walton heard the
tricycle rattle as the front door opened. Walton asked who was
there, and Freeman responded, "Frank, the maintenance man."
Freeman had used his key to gain entry into the locked
apartment. Although Walton and Deshazor had had some problems
in the past with their smoke alarm, neither had requested any
maintenance work that required Freeman to be at their apartment
in the middle of the night.
Freeman went into the bedroom, dangled his keys in
Deshazor's face and called her name. Deshazor, awakened by
Walton, sat up on the bed. Freeman said, "We're family.
Today's my birthday." Freeman then asked Deshazor for money.
Deshazor had no money with her. Walton went to the hall closet,
got $5, gave it to Freeman, and told him "to get the hell out of
[her] apartment."
After Freeman left, Walton relocked the front door. She
then called Freeman's wife, Walton's co-worker at a local store,
and told her what had happened. Walton then called the police,
and a uniformed officer responded.
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At approximately 7:00 a.m. that morning, Deshazor
discovered that the $268 in cash had been taken from her purse
and her medications on the kitchen table were missing. Deshazor
and Walton again called the police.
Tammy Surratt, manager of the Southside Gardens Apartments,
testified that, in addition to Freeman, the maintenance
supervisor and a painter who worked for the company also had
master keys. All three were authorized to work at night on
Apartment 193 on the other side of the complex, but only after
notifying her. No one had reason to go to the victims'
apartment after midnight unless called by the residents for an
emergency, Surratt said.
Freeman was indicted for burglary, in violation of Code
§ 18.2-89, and grand larceny, in violation of Code § 18.2-95. He
was convicted in a bench trial of trespass, in violation of Code
§ 18.2-119, and grand larceny, as charged.
This appeal followed.
II. TRESPASS CONVICTION
Freeman contends his trespass conviction is invalid because
trespass, in violation of Code § 18.2-119, is not a
lesser-included offense of common-law burglary under Code
§ 18.2-89. Relying on Lowe v. Commonwealth, 33 Va. App. 583, 535
S.E.2d 689 (2000), Freeman further claims his failure to object to
the trial court's sua sponte ruling does not preclude him from
raising this issue for the first time on appeal.
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It is well settled that, "[u]nless an indictment is amended
to conform to the proof or an accused acquiesces in being found
guilty of an offense other than the one charged, a trial court
lacks the authority to find an accused guilty of an offense
other than the one charged or a lesser included offense." 1
Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d 241,
245 (1997). "The lack of authority of the trial court to render
the judgment that it did may be raised at any time and by this
Court on its own motion." Id.
The Commonwealth conceded at oral argument that statutory
trespass, in violation of Code § 18.2-119, is not a
lesser-included offense of common-law burglary under Code
§ 18.2-89. The Commonwealth contends, however, that Freeman
acquiesced in his conviction of trespass. The trial court's
action of reducing the burglary charge to trespass was not done
sua sponte, the Commonwealth argues, but rather in response to
Freeman's agreement in a discussion with the Commonwealth and
trial court during closing argument that, if the court did not
believe the evidence was sufficient to convict Freeman of the
charged offense of burglary, he could still be found guilty of
trespass. Moreover, the Commonwealth continues, when the trial
court found Freeman guilty of trespass, Freeman did not object.
1
The Commonwealth does not suggest on appeal, nor does the
record show, that Freeman's indictment for burglary was amended
by the trial court to reflect the offense of trespass.
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Freeman claims that, throughout the trial, he argued merely
that the evidence was insufficient to prove beyond a reasonable
doubt the charges of burglary and larceny. He did not, he
asserts, ask that the burglary charge be reduced to trespass or
tell the trial court it was proper to do so. The trial court's
decision to reduce the burglary charge to trespass, he argues,
occurred sua sponte. Alternatively, Freeman maintains, if anyone
suggested to the trial court that the charge could be reduced, it
was the attorney for the Commonwealth alone who did so.
The record in this case establishes that prior to ruling on
the issue of Freeman's guilt, the trial court expressed doubts
about the sufficiency of evidence to prove both of the charged
offenses. The trial judge also stated his concern that "it would
be irreconcilably incongruent to convict on one and not on the
other." The following colloquy then occurred:
THE COURT: [I]f I believe that the defendant
was guilty of the entering with the . . .
[PROSECUTOR]: Well, Judge, actually I think
the burglary . . .
[DEFENSE COUNSEL]: That's two separate
things.
[PROSECUTOR]: . . . hinges . . . hinges on
the larceny.
[DEFENSE COUNSEL]: Larceny.
[PROSECUTOR]: If you believe that he
committed the larceny, then . . .
[DEFENSE COUNSEL]: You can say . . . and for
the burglary, but you've got to . . .
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[PROSECUTOR]: . . . you have . . . you would
have to convict him of the burglary.
THE COURT: Right.
[PROSECUTOR]: If you don't believe he
committed the larceny . . .
[DEFENSE COUNSEL]: Larceny . . . proof
beyond a reasonable doubt.
[PROSECUTOR]: . . . then it falls back to
misdemeanor trespass.
[DEFENSE COUNSEL]: And that's why . . . it
could be a trespass, and still not be a grand
larceny . . . it's proof beyond a reasonable
doubt.
THE COURT: Right. I understand.
[DEFENSE COUNSEL]: Circumstantial evidence.
THE COURT: Let me think about it.
[DEFENSE COUNSEL]: Yes sir.
THE COURT: Give me . . . give me just a few
minutes.
[PROSECUTOR]: Okay.
THE COURT: (After a brief pause, the cases
continued, as follows) All right, I'm ready.
Here's what I'm going to do . . . I'm going
to . . . after considering the evidence . . .
here's what I've decided on the reasonable
doubt aspect. I am going to find the
defendant guilty of grand larceny as charged
in Indictment No. 2, and I am going to find
him guilty of trespass on Indictment No. 1.
And the reason is, is because there is a
possibility that he did not have the intent
to commit larceny when he came in . . . that
he had the intent to borrow money or ask for
money, and then when he saw the pocketbook on
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the way out, he took the money, and that's
. . . and I'm convinced he took the money.
[DEFENSE COUNSEL]: Thank you, Your Honor.
"Acquiescence requires something more than a mere failure to
object." Lowe, 33 Va. App. at 589, 535 S.E.2d at 692. Likewise,
a mere statement or question to the judge seeking to clarify that
one's conviction is for a misdemeanor rather than a felony for
which he was indicted does not constitute acquiescence. See
Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244. However,
"[w]here the defendant asks for a reduced or less serious
disposition of a felony charge, a different result will obtain."
Id. at 163, 487 S.E.2d at 244.
Here, it is clear the trial judge had concerns about whether
the Commonwealth's evidence was sufficient to prove the burglary
and grand larceny charges. It is also clear that, in injecting
the offense of trespass into the brusquely flowing, fast-moving
discussion, the Commonwealth and Freeman led the trial court to
believe that, if the evidence was not sufficient to convict
Freeman of burglary, the court could properly convict him of
trespass. Freeman's participation in that discussion manifested a
willingness to be convicted of trespass. Indeed, following the
Commonwealth's reference to "misdemeanor trespass," Freeman's
counsel agreed that "it could be a trespass." Relying on the
option it believed had been proposed by both parties, the trial
court found Freeman guilty of trespass and grand larceny. At that
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point, rather than raising a specific objection to the court's
ruling and clarifying its position, the defense, willing to accept
a gift to which it was not entitled, merely thanked the court and
asked that its exception to the court's overall ruling be noted.
We conclude that, by suggesting to the trial court that he
could be found guilty of a less serious crime than the felony for
which he was charged, Freeman invited the trial court's action.
Furthermore, once the trial court took the action it had been
invited to take, Freeman assented to it. "'The defendant, having
agreed upon the action taken by the trial court, should not be
allowed to assume an inconsistent position.'" Manns v.
Commonwealth, 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1997)
(quoting Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784,
792 (1979)).
We hold, therefore, that Freeman acquiesced in his conviction
for trespass. Thus, the trial court had authority to find Freeman
guilty of statutory trespass and did not err in doing so.
III. GRAND LARCENY CONVICTION
When the sufficiency of the evidence is challenged on appeal,
we view the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "In so doing, we must discard
the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
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favorable to the Commonwealth and all fair inferences that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination." Crawley v. Commonwealth, 29
Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not
disturb the conviction unless it is plainly wrong or unsupported
by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,
337 S.E.2d 897, 898 (1985).
Freeman contends the Commonwealth failed to prove beyond a
reasonable doubt that he was guilty of grand larceny.
Specifically, he argues the evidence presented at trial was
insufficient to show he took or carried away money from Glostrice
Deshazor's purse that was on a chair under the kitchen table or
three bottles of her medications that were on the kitchen table.
Furthermore, he adds, no stolen goods were found in his possession
and he made no confession or incriminating statements. Freeman
further contends the Commonwealth's evidence was circumstantial
and merely showed that he had the opportunity to commit larceny.
The evidence did not, he asserts, exclude every reasonable
hypothesis except that of guilt, specifically, the "reasonable
possibility" that someone else who had access to the apartment
committed the larceny.
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To convict Freeman of grand larceny, the Commonwealth had to
prove that he unlawfully took property valued at over two hundred
dollars belonging to Glostrice Deshazor with the intent to
permanently deprive her thereof. See Code § 18.2-95(ii). Motive,
time, place, means, and conduct must establish beyond a reasonable
doubt that Freeman was the perpetrator of the crime. See Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).
Viewed in the light most favorable to the Commonwealth, the
evidence in this case showed that Freeman used his master key to
enter the victims' locked apartment shortly after midnight.
Although he was a maintenance man at the apartment complex,
neither Deshazor nor Walton had made any maintenance requests
that required his presence at that hour. Freeman gave the two
women no maintenance-related reason for his entry. Indeed,
Freeman did not identify himself until Walton, who had heard his
unauthorized entry, asked who was there. After walking into the
bedroom, Freeman made some incoherent statements and demanded
money. After obtaining $5, Freeman left when Walton ordered him
to get out of the apartment. Walton then relocked the door.
Money in a purse on a kitchen chair and three bottles of
medications that had been on the kitchen table at 8:30 in the
evening, were discovered missing at 7:00 a.m. the next morning.
The kitchen was located to the right of the front entrance, and
the bedroom to the rear of the apartment.
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The trial court, which had the opportunity to hear and
observe the witnesses on the stand and weigh the evidence
accordingly, could reasonably infer from this evidence that
Freeman was responsible for the larceny of the money and
medications.
As to Freeman's argument that the Commonwealth's evidence
was purely circumstantial and that it merely showed he had the
opportunity to steal the money and medications but failed to
exclude every reasonable hypothesis of innocence, our review of
the record convinces us that this contention is without merit.
"Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "However, '[t]he Commonwealth need only
exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the
defendant.' Whether an alternative hypothesis of innocence is
reasonable is a question of fact and, therefore, is binding on
appeal unless plainly wrong." Archer v. Commonwealth, 26
Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) (citation omitted)
(quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993)).
Freeman argues that another maintenance man and a painter
who worked for the apartment complex both had master keys and,
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therefore, had access to the apartment and the stolen items.
However, there was no evidence that either person entered the
locked apartment between 8:30 p.m. and 7:00 a.m., the period of
time during which the property was stolen. The trial court also
considered and discounted Freeman's hypothesis that Walton
herself had stolen the property from her mother. The trial
court found it probative that the two women would call the
police immediately after Freeman left, corroborate it further by
a phone call to Freeman's wife, but not report the theft until
the next day. We conclude from this evidence, as did the trial
court, that the only reasonable hypothesis flowing from the
evidence in this case is that Freeman took the $268 from
Deshazor's purse and her medications from the table during his
unlawful midnight entry into the victims' apartment.
For these reasons, we hold that the evidence presented in
this case sufficiently supports Freeman's conviction of grand
larceny and that the conviction is not plainly wrong.
Accordingly, we affirm Freeman's convictions of statutory
trespass and grand larceny.
Affirmed.
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