COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
ITEMUS WILSON
MEMORANDUM OPINION * BY
v. Record No. 2850-00-2 JUDGE SAM W. COLEMAN III
MAY 28, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John R. Alderman, Judge
Craig S. Cooley for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Randolph A. Beales,
Attorney General, on brief), for appellee.
Itemus Wilson appeals his jury trial convictions for
burglary, petit larceny, and tampering. He argues that the trial
court erred by 1) denying his motion to suppress evidence, 2)
instructing the jury on the permissible inferences to be drawn
from the possession of recently stolen goods, and 3) denying his
motion to strike the evidence for insufficiency. For the reasons
that follow, we disagree and affirm his convictions.
BACKGROUND
Police officers received notice that a silent alarm had
been triggered at a rural lodge at 5:29 a.m. on January 1, 2000.
The police officers contacted Johnny Strickland, a lodge
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
employee, and responded to the scene. Strickland met the
officers at the lodge and noted that several pieces of equipment
had been damaged. The coin boxes on several pinball and arcade
machines had been pried open and the money removed. Strickland
testified that when he closed the lodge following the previous
evening's party he inspected the building, locked its doors, and
activated the motion detecting security system. He stated that
when he left the lodge at approximately 3:15 a.m., there was no
damage to any of the doors, the juke box, pinball machines, or
pool tables. The pinball machines and pool tables accepted only
quarters; the juke box accepted quarters and bills. The
machines had been serviced one week earlier and contained
quarters at the time. Stickland testified he had also observed
patrons inserting coins into the machines during the New Year's
Eve party.
When Strickland returned to the lodge to meet the officers,
he noted the outside door had been broken open. Inside the
lodge he saw that the money receptacles had been pried off the
juke box and pool tables. On the floor he saw the broken locks
and several quarters near the pool tables. During the ensuing
investigation, Investigator Drew Darby located one of the
missing coin boxes near a path along the road close to the
lodge.
At 6:50 a.m. approximately three-tenths of a mile from the
lodge, Sergeant Michael Anthony saw two males walking alongside
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the road. Anthony approached the men and immediately noticed an
odor of alcohol emanating from Itemus Wilson, one of the two
men. Anthony testified Wilson's eyes were bloodshot and
dilated, that his speech was slurred, and that he swayed from
side to side. Anthony informed the men he was investigating a
break-in of the lodge. He stated the suspects might be on foot
and they likely would be carrying a large number of quarters.
Anthony asked Wilson if he would consent to being searched,
which Wilson refused. Wilson admitted to the officer that he
had been drinking. Wilson said he had been playing poker all
night at nearby apartments. Anthony testified Wilson appeared
nervous, that he attempted to back away from the officer, that
his pockets had large bulges, and that Wilson repeatedly put his
hands in his pockets. Anthony stated he was concerned Wilson
was carrying a weapon. He patted Wilson down, felt a hard
object in his pocket and felt what appeared to be a large number
of quarters. Anthony then arrested Wilson for being drunk in
public and searched him incident to the public drunkenness
arrest. Anthony recovered $174.75 (699) in quarters from
Wilson's pants pocket. Among the quarters he also had a metal
cam or circular metal disc similar to a piece missing from one
of the lodge's machines. Wilson also carried a flashlight.
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ANALYSIS
I.
Wilson challenges his arrest and the resulting search of his
person incidental to the arrest. He argues the arrest for public
drunkenness was merely a pretext to allow Anthony to conduct a
search of his person.
"The police may use the opportunity presented by a legal
arrest to learn more about crimes for which they have no
probable cause to arrest." James v. Commonwealth, 8 Va. App.
98, 102, 379 S.E.2d 378, 380 (1989). Therefore, provided
Anthony had probable cause to arrest Wilson for public
drunkenness, we do not explore the officer's subjective motive
for arresting Wilson. See Horne v. Commonwealth, 230 Va. 512,
517, 339 S.E.2d 186, 189-90 (1986).
The constitutional validity of a warrantless arrest depends
on whether, at the time of the arrest, the officers had probable
cause to believe that the defendant had engaged or was engaging
in criminal activity. See McGuire v. Commonwealth, 31 Va. App.
584, 592, 525 S.E.2d 43, 47 (2000). "'Probable cause exists
where "the facts and circumstances within [the arresting
officers'] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that" an
offense has been or is being committed.'" Jefferson v.
Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)
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(citation omitted). "If any person . . . is intoxicated in
public, whether such intoxication results from alcohol, narcotic
drug or other intoxicant or drug of whatever nature, he shall be
deemed guilty of a Class 4 misdemeanor." Code § 18.2-388. 1
"'Intoxicated' means a condition in which a person has drunk
enough alcoholic beverages to observably affect his manner,
disposition, speech, muscular movement, general appearance or
behavior." Code § 4.1-100.
Anthony testified that Wilson slurred his speech and swayed
from side to side. Wilson also smelled of alcohol, and his eyes
were bloodshot and glassy. Darby testified that he saw Wilson
shortly after his arrest and also noticed that he slurred his
speech, stumbled, and smelled of alcohol. "The evidence was
sufficient to support a finding that the defendant had drunk
enough alcoholic beverage to so affect his manner, disposition,
speech, muscular movement, general appearance or behavior as to
be apparent to observation." Farren v. Commonwealth, 30 Va.
App. 234, 240, 516 S.E.2d 253, 256 (1999), see also Leake v.
Commonwealth, 27 Va. App. 101, 110-11, 497 S.E.2d 522, 526-27
(1998) (holding that factors such as odor of alcohol, slurred
speech, unsteadiness in walking, and poor balance demonstrated
intoxication within the definition of Code § 4.1-100). Thus,
1
Although public drunkenness is a Class 4 misdemeanor,
pursuant to Code § 19.2-74(A)(2), the police are authorized to
arrest an accused and not merely issue a summons.
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the evidence was sufficient to support a finding that Anthony
possessed probable cause to believe that Wilson was drunk in
public.
"One of the established exceptions to the Fourth
Amendment's warrant requirement is for a 'search incident to a
lawful arrest.'" Commonwealth v. Gilmore, 27 Va. App. 320, 327,
498 S.E.2d 464, 468 (1998) (quoting United States v. Robinson,
414 U.S. 218, 224 (1973)). Anthony lawfully arrested Wilson for
public drunkenness and properly searched him incident to that
arrest. The trial court did not err in denying Wilson's motion
to suppress.
II.
Next, Wilson argues the trial court erred by instructing the
jury that "[p]roof of the exclusive personal possession . . . of
recently-stolen goods is a circumstance from which you may
reasonably infer that the defendant was the thief." He contends
the evidence did not support the trial court's conclusion that
the items he possessed were "recently stolen."
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted).
"When an accused is found in possession of goods of a type
recently stolen, strict proof of identity of the goods is not
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required." Henderson v. Commonwealth, 215 Va. 811, 812-13, 213
S.E.2d 782, 783 (1975).
"It is not necessary that the identity of
stolen property should be invariably
established by positive evidence. In many
such cases identification is impracticable,
and yet the circumstances may render it
impossible to doubt the identity of the
property, or to account for the possession
of it by the accused upon any reasonable
hypothesis consistent with his innocence."
Reese v. Commonwealth, 219 Va. 671, 673, 250 S.E.2d 345, 346
(1979) (quoting Gravely v. Commonwealth, 86 Va. 396, 402, 10
S.E. 431, 433 (1889)). The trial judge concluded the evidence
supported the granting of the inference instruction.
The undisputed evidence is that Wilson was walking near the
lodge shortly after the burglary carrying a flashlight, an
unusually large number of quarters, and a metal cam or disc
similar to a piece missing from the lodge's pinball machine.
The presence of the metal cam or disc found among the inordinate
number of quarters that Wilson possessed, which were the only
denomination of coins recently stolen from the lodge, was
sufficient for the fact finder to consider whether these were
the recently stolen items, from which they could infer that
Wilson was the thief. Accordingly, the trial court did not err
by instructing the jury on recently stolen property.
III.
Finally, Wilson contends the evidence is insufficient to
support his convictions. "On appeal, 'we review the evidence in
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the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that Strickland secured the
lodge at approximately 3:15 a.m. on January 1, 2000. He stated
that the lodge had a motion detector alarm system that was
triggered at 5:29 a.m. When Stickland met the police at the
lodge he observed that the coin boxes from several of the
machines had been pried open. Richard Mundy, president of the
company that owned the machines, testified that no one had
permission to tamper with the machines. He also noted that the
machines accepted only quarters and bills. Darby testified that
he recovered a coin box from one of the machines in the woods
along the road where Wilson was walking. At the time of his
arrest, Wilson carried 699 quarters or $174.75 in quarters. He
also had a metal cam or disc among the quarters that was similar
to ones on the metal lock on one of the lodge's pinball
machines. Anthony found Wilson three-tenths of a mile from the
lodge a short time after the burglary.
In a criminal prosecution for larceny, evidence showing
"[p]ossession of goods recently stolen is prima facie evidence of
guilt . . . and throws upon the accused the burden of accounting
for that possession." Hope v. Commonwealth, 10 Va. App. 381, 385,
392 S.E.2d 830, 833 (1990) (en banc) (citation omitted).
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While it is often said that unexplained possession of
recently stolen property supports an inference that the possessor
is the thief, this same inference applies where the defendant's
explanation for how he came into possession of the property is
"patently incredible and totally unsupported." Catterton v.
Commonwealth, 23 Va. App. 407, 411, 477 S.E.2d 748, 750 (1996).
Wilson claimed that he won the 699 quarters in a poker game at a
nearby apartment. He gave no details about the claimed poker
game or who was in the game. Furthermore, he gave no
explanation for where he got the metal cam or disc like the one
from the lodge's pinball machine. The presence of the metal cam
found in Wilson's pocket among the large number of quarters was
sufficient for the fact finder to conclude that these items were
the ones recently stolen from the machines at the lodge.
Wilson's bare assertion that he had won the money in a poker
game, when considered with the lack of detail about the game or
its participants, the fact that Wilson had a metal cam like that
from the lodge's pinball machine among the quarters, and the
unlikelihood that these quarters had come from a poker game was
sufficient to permit the fact finder to reject Wilson's account
as not credible. "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995). The Commonwealth's evidence
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was competent, was not inherently incredible, and was sufficient
to prove beyond a reasonable doubt that Wilson was guilty of
burglary, third offense petit larceny, and tampering.
Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
I dissent from the majority's holding that the evidence was
sufficient to establish probable cause to arrest Itemus Wilson
for public drunkenness. I would, therefore, hold that the money
discovered in Sergeant Anthony's search incident to that arrest
was unlawfully seized.
Probable cause to arrest requires more than a showing that
an officer had a "suspicion" that the suspect was engaged in
criminal activity. Bass v. Commonwealth, 259 Va. 470, 475, 525
S.E.2d 921, 923 (2000).
The test of constitutional validity is
whether at the moment of arrest the
arresting officer had knowledge of
sufficient facts and circumstances to
warrant a reasonable man in believing that
an offense ha[d] been committed. If the
arresting officer had no probable cause to
arrest then he could not lawfully search the
defendant's person.
Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970) (citations omitted).
The evidence proved that an hour and a half after learning
of a burglary on New Year's Day, Sergeant Anthony was going home
when he approached Wilson, who was walking along a road,
three-tenths of a mile from the building. Before stopping to
question Wilson, the sergeant did not observe anything about his
gait that suggested Wilson was intoxicated. He testified that
he saw Wilson walking on the shoulder of the road and that
Wilson was not impeding traffic. After the sergeant stopped his
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car, Wilson continued to walk past the car. In fact, the
sergeant testified that Wilson walked on the shoulder of the
road, not the street, as he passed the sergeant's car. He did
not testify that Wilson swayed or staggered as he walked.
Rather, he acknowledged that Wilson appeared to recognize the
lack of wisdom of walking in the roadway.
The sergeant stopped Wilson, told him about the burglary,
and asked him whether he knew anything about it. When the
sergeant asked Wilson where he had been, Wilson said he had been
playing poker all night and had won some money. At one point in
the conversation, the sergeant asked if he could search Wilson.
Wilson told the sergeant he did not want the sergeant to search
him. The sergeant testified that after further conversation
with Wilson, he arrested Wilson for being drunk in public. He
then searched Wilson incident to the arrest.
According to Code § 4-1.100, "intoxicated" means "a
condition in which a person has drunk enough alcoholic beverages
to observably affect his manner, disposition, speech, muscular
movement, general appearance or behavior." The sergeant
testified that he arrested Wilson because Wilson smelled of
alcohol, Wilson's eyes appeared dilated and bloodshot, his
speech was slurred and mumbled, and Wilson was staggering from
side to side. The sergeant testified, however, that he had not
met Wilson before this occasion and therefore was not familiar
with the normal appearance of Wilson's eyes or speech pattern of
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Wilson's voice. Indeed, the trial judge noticed that Wilson's
eyes were bloodshot at trial.
Although the sergeant testified that Wilson was continually
swaying from one leg to the other, he admitted that Wilson
remained in a stationary position and that people often are
nervous when stopped by police. He also admitted that Wilson
never fell or stumbled while walking and that Wilson was not
verbally or physically unruly. The sergeant further testified
that he asked Wilson several questions and that Wilson gave a
reasonable response to every question posed to him.
Unlike the appellant in Debroux v. Commonwealth, 32 Va.
App. 364, 368, 528 S.E.2d 151, 153 (2000), Wilson was not "loud
and disorderly" and did not respond as if he "didn't know where
he was, [or] what was going on." Further, unlike the appellant
in Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522,
527 (1998), who stopped his truck "in the travel portion of a
. . . highway" to clean it even though there was a usable
shoulder on the road, Wilson had not behaved strangely and
engaged in no conduct on the roadway that indicated he was not
aware of where he was. When the sergeant stopped Wilson, Wilson
was simply walking on the shoulder of a two-lane road. Wilson's
gait was unremarkable and his responses to the sergeant's
initial questions, in which he indicated he had been up all
night, provided a justifiable reason why his eyes may have
appeared dilated and bloodshot. In addition, Wilson's response
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to the sergeant that he had had an alcoholic drink did not
indicate that Wilson was "intoxicated" to a degree prohibited by
the statute. The law does not prohibit walking along a street
after drinking alcohol.
Critically, the sergeant did not request that Wilson
perform any field sobriety test, which could have confirmed or
dispelled his suspicion that Wilson was intoxicated. In Weaver
v. Commonwealth, 29 Va. App. 487, 513 S.E.2d 423 (1999), we
affirmed a conviction for driving while intoxicated where the
appellant's eyes appeared watery and glassy, the appellant had
open beer bottles in his car, the appellant admitted that he had
drunk 3 or 4 beers, the last of which had been 30 minutes
earlier, and the appellant "failed several field sobriety
tests." 29 Va. App. at 490, 513 S.E.2d at 425. Although the
sergeant may have been justified under the totality of these
circumstances to further investigate his suspicion by sobriety
tests or breath tests to ascertain whether Wilson was
"intoxicated," the facts known to the sergeant fall short of
probable cause to arrest for public intoxication. The evidence
strongly suggests the arrest occurred solely because Wilson
refused to consent to a search of his person.
Based on the totality of these circumstances, I would hold
that the sergeant did not have probable cause to arrest Wilson
for being "intoxicated" in public. For these reasons, the trial
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judge should have granted the motion to suppress. Accordingly,
I would reverse and remand for a new trial.
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