COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued by teleconference
DONNY LYNN SPROUSE, JR., S/K/A
DONNIE LYNN SPROUSE, JR.
MEMORANDUM OPINION * BY
v. Record No. 3448-01-2 JUDGE D. ARTHUR KELSEY
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Llezelle Agustin Dugger, Assistant Public
Defender, for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Donny Lynn Sprouse challenges on appeal his convictions for
grand larceny (stealing from vending machines) in violation of
Code § 18.2-95 and possession of burglarious tools (a
dent-puller used to break into vending machines) in violation of
Code § 18.2-94. He claims that the Commonwealth failed to
present sufficient evidence on either charge upon which to find
him guilty beyond a reasonable doubt. We affirm the trial
court, finding the evidence sufficient to support convictions on
both charges.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
When examining a challenge to the sufficiency of the
evidence on appeal, we must review the evidence "'in the light
most favorable to the Commonwealth'" and grant it the benefit of
any reasonable inferences. Ward v. Commonwealth, 264 Va. 648,
654, 570 S.E.2d 827, 831 (2002) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
That principle requires us to "'discard the evidence of the
accused'" which conflicts, either directly or inferentially,
with the Commonwealth's evidence. Wactor v. Commonwealth, 38
Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins
v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998)). We view the facts of this case, therefore, through
this evidentiary prism.
On September 24, 2000, at about 4:30 a.m., Margo Durham was
driving home to her apartment behind a Putt-Putt miniature golf
course in Albemarle County. While driving past the Putt-Putt
course at a speed less than fifteen miles an hour, she saw a man
(she later identified as Sprouse) walking away from several
vending machines on his way down a sidewalk leading to the
parking lot. He was no "more than ten feet from the vending
machines." Sprouse appeared to be headed to an older model
Bronco in the parking lot. She did not testify to seeing any
other persons or vehicles near the area or, for that matter, any
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problems with the vending machines at that time. Durham simply
"thought it was strange that somebody was up there" given the
time of night.
About two to three minutes later, Durham returned to the
Putt-Putt course and noticed the Bronco had departed. No one
else was present. The vending machines, however, had been
forcibly opened. Durham quickly drove to her apartment, called
the police, and provided a detailed description of what she had
seen. "It couldn't have been more than five or ten minutes"
from the time Durham saw Sprouse to the time she "called the
police."
Within minutes, Officer Pamela Greenwood arrived at the
Putt-Putt course. She found that the locks of the vending
machines had been pulled out and the doors of one of the
machines left "wide open." Seeing no vehicles near the golf
course, Greenwood drove to an apartment complex one eighth of a
mile north of the Putt-Putt course. There, Greenwood observed a
Bronco matching the description given by Durham. Greenwood felt
the truck's hood and noticed that it was "[v]ery warm to the
touch" and "seemed like it had just been driven." Greenwood
then looked in the truck and observed a "dent-puller" in plain
view behind the driver's seat. Officer John McKay joined
Greenwood and also observed the dent-puller through the truck's
window.
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After discovering that the vehicle was registered to
Sprouse, the officers knocked on his door at the apartment
complex. Sprouse, appearing "alert and awake," opened the door.
The officers identified themselves and explained that they were
investigating a larceny. Before the officers could say much
more, however, Sprouse volunteered, "before you get into all
that I'll help you out with why you-all are here." He was at
the scene of the crime, Sprouse admitted —— not as a criminal,
but merely a concerned citizen investigating suspicious
behavior. Sprouse claimed he parked his Bronco in the parking
lot only after observing "three juveniles near the drink
machines." He then walked over to the vending machines and
discovered they "had been broken into," presumably by these
three unidentified juveniles. He decided against calling the
police, Sprouse explained, assuming a passing motorist would
probably do so.
Sprouse gave the officers consent to search his Bronco and
advised them that "all of the items in the vehicle were his."
The officers retrieved the dent-puller, a screwdriver, a leather
work glove, and a baseball bat. Sprouse admitted owning each of
the items. The officers also discovered the money changers from
the vending machines in a trash dumpster twenty-five yards from
Sprouse's apartment.
At trial, Officer John McKay testified in detail about his
inspection of the damaged vending machines. Having investigated
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similar vending machine cases and being personally familiar with
the characteristics of dent-pullers, McKay explained that he
found the "lock cylinders" in the vending machines (made of
"fairly soft" brass) had been pulled out by a screw (made of
harder steel) commonly found at the end of dent-pullers. "It
looks like they had been pulled out by a dent puller." The
locks showed no other damage, either by a drill bit or any other
tool. "All the locks had been defeated by pulling the
cylinders." Having broken into the vending machines in this
manner, the thief then retrieved the money changers inside. The
changers each contained about $35 and had an equipment value of
$450.
At the close of the evidence, the trial judge found Sprouse
guilty of grand larceny (Code § 18.2-95) and possession of
burglarious tools (Code § 18.2-94). The court imposed a
sentence of ten years on the grand larceny charge and five years
on the burglary tools charge. The court then suspended both
prison terms, except for four months on the grand larceny
conviction.
II.
Virginia appellate courts "presume the judgment of the
trial court to be correct" and reverse on sufficiency grounds
only if the trial court's decision is "plainly wrong or without
evidence to support it." Davis v. Commonwealth, 39 Va. App. 96,
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99, 570 S.E.2d 875, 877 (2002) (citations omitted); see also
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc). In this respect, Code § 8.01-680
maintains a subtle, but potent, distinction between mere error
(we may not have convicted based on these facts) and plain error
(no reasonable jurist could have convicted on these facts).
Thus, we may not "substitute our judgment for that of the trier
of fact, even were our opinion to differ." Wactor, 38 Va. App.
at 380, 564 S.E.2d at 162 (citation omitted); see also Harris v.
Commonwealth, 38 Va. App. 680, 691, 568 S.E.2d 385, 390 (2002).
Due process requires the prosecution to prove the
defendant's guilt "beyond a reasonable doubt." Fiore v. White,
531 U.S. 225, 228-29 (2001). This essential safeguard of
liberty, as stringent as it is, does not ignore the axiom that
"'[e]vidence is seldom sufficient to establish any fact as
demonstrated and beyond all doubt.'" Harris v. Commonwealth,
206 Va. 882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler v.
Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)).
Even so, mere suspicion of wrongdoing coupled with a bare
possibility of guilt can never suffice.
In circumstantial evidence cases, the reasonable doubt
standard requires proof "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). This
construct has two important subsidiary rules. First, only a
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hypothesis of innocence flowing "from the evidence, not those
that spring from the imagination of the defendant" must be
considered. Stevens v. Commonwealth, 38 Va. App. 528, 535, 567
S.E.2d 537, 540 (2002) (citation omitted). Second, whether an
"alternative hypothesis of innocence is reasonable is a question
of fact and, therefore, is binding on appeal unless plainly
wrong." Id.; Harris v. Commonwealth, 38 Va. App. 680, 691, 568
S.E.2d 385, 391 (2002); Archer v. Commonwealth, 26 Va. App. 1,
12-13, 492 S.E.2d 826, 832 (1997). In other words, only when a
fact finder "arbitrarily" ignores the reasonableness of the
innocence hypothesis should the decision be overturned on
appeal. Stevens, 38 Va. App. at 535, 567 S.E.2d at 540
(citation omitted).
III.
A.
Sprouse first claims that the Commonwealth failed to
produce sufficient evidence upon which to convict him for grand
larceny. We disagree. The evidence, in our view, amply
supports the trial court's decision.
An individual commits larceny by wrongfully taking the
property of another "without his permission and with the intent
to permanently deprive him of that property." Stanley v.
Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Welch v.
Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101, 104
(1992) (citations omitted). Grand larceny involves the theft of
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property with a value exceeding $200. Code § 18.2-95; Tarpley
v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763-64
(2001). The Commonwealth must prove that the suspect intended
to steal the property when he took possession of it. Tarpley,
261 Va. at 256, 542 S.E.2d at 764. Criminal intent can be
inferred by "the actions of the defendant and any statements
made by him." Id.
Sprouse's actions and statements, viewed in the light most
favorable to the Commonwealth, provide sufficient evidence upon
which to sustain his conviction. Under these facts, only two
logical scenarios exist: either (i) as Sprouse explained, he
made a personal inspection of the vending machines after
unidentified others had broken into them, or (ii) Sprouse broke
into the machines using his dent-puller, threw the money
changers into the dumpster next to his apartment, and then
volunteered a prevaricating tale to police officers in an effort
to conceal his guilt. We find nothing "plainly wrong," Code
§ 8.01-680, about the trial judge's finding that the second
scenario accurately described the events of that night.
Driving at a speed less than fifteen miles an hour, Margo
Durham clearly saw Sprouse walking away from the vending
machines. She did not testify to seeing any damage to the
machines at that time. Nor did she see any other people. A few
minutes later, Durham circled her vehicle around the block and
saw the machines had just been broken into. If Sprouse's story
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were true, Durham would have seen the damage to the vending
machines the first time. One of the machines had a "door wide
open."
Having found Durham's testimony credible, the trial judge
was at liberty to discount Sprouse's self-serving explanation as
a mere effort at "lying to conceal his guilt." Shackleford v.
Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001);
Mughrabi v. Commonwealth, 38 Va. App. 538, 548, 567 S.E.2d 542,
546 (2002); Morrison v. Commonwealth, 37 Va. App. 273, 284, 557
S.E.2d 724, 730 (2002). "'A defendant's false statements are
probative to show he is trying to conceal his guilt, and thus is
evidence of his guilt.'" Emmett v. Commonwealth, 264 Va. 364,
372, 569 S.E.2d 39, 45 (2002) (quoting in parenthetical from
Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823,
831 (1991)). This conclusion particularly resonates in this
case, given the prevaricating quality of Sprouse's story that he
was concerned enough about three juveniles near the machines to
park his car to investigate, walk over to the machines to
inspect the damage personally, but then (having gone to such an
effort at 4:30 in the morning) decide to let some other passing
motorist contact the police.
All of the other circumstances in this case support the
trial court's conclusion. The police found, in the same vehicle
Sprouse drove that night, a dent-puller consistent with the type
of tool used to open the vending machines. Money changers, each
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valued at over $450, turned up in a trash dumpster twenty-five
yards from Sprouse's apartment. Sprouse's spontaneous desire to
"help out" the police when they arrived at his door (without
first even knowing exactly what they were there to investigate)
shows an overly anxious disposition consistent with a guilty
conscience.
True enough, not one of these circumstances standing alone
would warrant a finding of guilt. An appellate court, however,
cannot "consider otherwise innocent circumstances in isolation
and conclude that each circumstance standing alone" falls short
of proving the defendant's guilt. Hughes v. Commonwealth, 18
Va. App. 510, 524, 446 S.E.2d 451, 460 (1994). We cannot do so
because "that approach denies reality." Id. Our common
experiences teach that circumstances "do not exist in isolation
of one another but exist together with every other proven fact
and circumstance in the case." Id. "'While no single piece of
evidence may be sufficient, the "combined force of many
concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a
conclusion."'" Derr v. Commonwealth, 242 Va. 413, 425, 410
S.E.2d 662, 669 (1991) (quoting Stamper v. Commonwealth, 220 Va.
260, 273, 257 S.E.2d 808, 818 (1979), and Karnes v.
Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919)).
Given Sprouse's explanation (directly refuted on a critical
point by Durham's unimpeached testimony) and the probative
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weight of the combined circumstances in this case, we cannot
find that the trial judge erred in finding Sprouse guilty of
grand larceny.
B.
Sprouse next challenges the sufficiency of his conviction
for possessing burglary tools. Virginia forbids the possession
of "any tools, implements, or outfit" held with the intent to
commit "burglary, robbery, or larceny." Code § 18.2-94.
Unlawful intent will be presumed when one other than a dealer
possesses items "innately burglarious in character" that are
"suitable and appropriate to accomplish the destruction of any
ordinary hindrance of access to any building . . . vault or
safe." Moss v. Commonwealth, 29 Va. App. 1, 4, 509 S.E.2d 510,
511 (1999). To raise the presumption of criminal intent, the
Commonwealth shoulders the burden of first proving that the
items are inherently burglarious. Mercer v. Commonwealth, 29
Va. App. 380, 384, 512 S.E.2d 173, 175 (1999).
Many of the items qualifying as "tools, implements, or
outfit" under this section, however, "may be, and usually are,
designed and manufactured for lawful purposes." Hagy v.
Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001).
For such innocuous items, the Commonwealth "must establish the
requisite intent without benefit of the statutory presumption."
Moss, 29 Va. App. at 4, 509 S.E.2d at 511. Rarely established
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by direct proof, subjective intent "must be shown by
circumstantial evidence." Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988).
As a police officer with experience investigating similar
thefts from vending machines and having personal knowledge of
the mechanics of dent-pullers, Officer McKay explained that the
lock cylinders had been pulled out of the machines —— not pried
out, chiseled out, drilled out, picked out, or hammered out.
The mechanical action of a dent-puller fits precisely the type
of force used on the machines. The thread marks on the cylinder
locks were consistent with the steel screw on the tip of the
dent-puller. Indeed, given their effectiveness, dent-pullers
are "sometimes used as a burglary tool, not only for vending
machines but for motor vehicles." These facts, coupled with
Sprouse's own statements and actions, provide a reasonable basis
for his conviction for possessing burglary tools.
IV.
Sufficient evidence supported Sprouse's convictions for
grand larceny and for possession of burglarious tools. The
trial court, therefore, did not err in convicting Sprouse for
both offenses.
Affirmed.
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