COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
WILLIAM J. CULLIPHER
MEMORANDUM OPINION * BY
v. Record No. 2422-01-1 JUDGE WALTER S. FELTON, JR.
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
Timothy E. Miller, Public Defender (Office
of the Public Defender, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
William J. Cullipher was convicted in a bench trial of two
counts of statutory burglary, in violation of Code § 18.2-91, and
one count of grand larceny, in violation of Code § 18.2-95. On
appeal he contends that the evidence was insufficient to sustain a
conviction for statutory burglary and grand larceny. For the
following reasons we affirm the judgment of the trial court.
I. BACKGROUND
On October 18, 2000, at approximately 8:15 a.m., Sheila
Strickland heard her kitchen door open, then slam against the
wall. When she entered the room, she discovered that the screen
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
door was propped open. Seeing nothing else, she closed the door
and went about her morning routine. At approximately 9:00 a.m.,
Ms. Strickland prepared to leave the house and discovered that
her purse was missing. Later that evening, with the assistance
of her mother and the police, her purse was discovered in her
neighbor's trash. Missing from the purse were her wallet, some
blank checks, and credit cards.
Patricia Waterfield lived four houses away from Ms.
Strickland. On that same day, she came home for lunch to
discover the side door ajar. Upon entering the house, she found
that her VCR, jewelry valued at approximately $8,000, and a dark
blue nylon carry-on/gym bag with red piping were missing. Upon
this discovery, she notified police officers who were on her
property and currently investigating the incident at Ms.
Strickland's home.
Earlier that morning, between 8:00 a.m. to 8:15 a.m.,
William Cullipher knocked on Naydene Mitchell's door. Ms.
Mitchell is a neighbor of both Ms. Strickland and Ms.
Waterfield. Upon answering the door, Cullipher asked her if her
house was the Jordan residence. She told him no. She further
stated that none of the neighbors were named Jordan and she knew
of no one by that name. Cullipher left and walked in the
direction of Sheila Strickland's and Patricia Waterfield's
homes. He carried nothing in his hands at that time.
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Roger Winsor, another neighbor, saw Cullipher between eight
and nine o'clock that morning. Mr. Winsor saw him running
across the lawn carrying a "[b]lue bag, duffel bag-type thing."
Cullipher was moving in a direction away from the victims'
houses and toward Ms. Mitchell's house. He returned to Ms.
Mitchell's house to request a ride. Ms. Mitchell declined and
told him that he could use the phone at the gas station up the
road. She observed him pick up a bag that "was blue with a
little bit of red on it, kind of a carry on bag." Ms. Mitchell
could not see the bag initially because Cullipher had placed it
behind a bush. However, she observed him retrieve the bag and
walk away in the direction away from the victims’ houses.
As Cullipher left the property, Jo Anne Rowland saw him
from her porch. He asked her if she knew where the Jordans
lived. Ms. Rowland observed that Cullipher was carrying a dark
colored bag. She could not provide further details regarding
it. Approximately an hour later, Mr. Winsor saw Cullipher at
the McDonald's on Holland Road with the same bag he observed
earlier.
On June 7, 2001, Cullipher was convicted of two counts of
statutory burglary, in violation of Code § 18.2-91, and one
count of grand larceny, in violation of Code § 18.2-95. He
appeals that conviction.
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II. ANALYSIS
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable
to the Commonwealth and give it all
reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975).
Cullipher contends that the evidence was insufficient to
show that he was the person who committed the burglaries and
larceny. He argues that the only evidence purportedly linking
him to the crimes was possession of a bag, roughly similar to a
bag that was stolen, but was insufficiently identifiable to
prove his guilt. In support of his argument, Cullipher relies
on Griffith v. Commonwealth, 213 Va. 50, 189 S.E.2d 366 (1972).
In Griffith, an apartment was burglarized and the
investigation revealed that there was missing, among other
things, a brownish cardboard carton and an orange colored
sweater. On the same day of the burglary, an employee of the
apartment complex saw Griffith carrying a cardboard box covered
with what appeared to be a yellowish scarf to go on an end
table. He also stated it could have been a scarf, sweater, or
anything.
In reversing Griffith's conviction, the Supreme Court held
that
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in this case the evidence did not show that
the goods the defendant was seen carrying
were the goods which had been stolen. All
the evidence showed was that the defendant
was near the scene of the crime on the day
it occurred and that he was carrying an
ordinary cardboard box covered by something
roughly similar to an article which had been
stolen. While his actions were suspicious,
the evidence in total was not sufficient to
establish his guilt beyond a reasonable
doubt.
Griffith, 213 Va. at 51, 189 S.E.2d at 367. Griffith's
conviction was reversed because the cardboard box and the item
covering it were not sufficiently identifiable. Griffith was
seen carrying two very ordinary items. Those circumstances are
not present in this case.
Ms. Waterfield identified a dark blue nylon carry-on/duffel
bag with red piping as one of the items stolen from her home.
Immediately after and within the vicinity of the burglaries,
Cullipher was identified by several neighborhood residents as
carrying a dark colored bag. Ms. Mitchell, who had contact
twice with Cullipher, informed the police that she observed him
with a bag that "was blue with a little bit of red on it, kind
of a carry on bag."
Unlike the ordinary cardboard box and covering discussed in
Griffith, the red piping found on the bag made it sufficiently
identifiable. Cullipher was identified by neighborhood
residents as being in the area at the time the burglaries were
committed. Coupled with the fact that he was observed in
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possession of a blue bag "with a little bit of red on it," the
evidence was sufficient to sustain his burglary and grand
larceny convictions.
The judgment of the trial court is affirmed.
Affirmed.
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