COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
HAROLD KENNETH DICKERSON, III
MEMORANDUM OPINION * BY
v. Record No. 0090-00-1 JUDGE JEAN HARRISON CLEMENTS
MARCH 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Joseph R. Winston (Elwood Earl Sanders, Jr.,
Appellate Defender; Public Defender
Commissioner, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant Harold Kenneth Dickerson, III, was convicted in a
bench trial of two counts of statutory burglary in violation of
Code § 18.2-91 and two counts of grand larceny in violation of
Code § 18.2-95. On appeal, he contends (1) the evidence was not
sufficient to sustain the convictions and (2) the trial court
erred in applying the "recent possession inference" as a mandatory
presumption. We disagree and affirm the 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 necessary to a
disposition of this appeal.
A. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on
appeal, we review 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). We may 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). 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 factfinder's determination." Keyes v. City of
Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767
(1993).
Dickerson contends that the evidence was insufficient to
support his larceny and burglary convictions because there was
no evidence that he broke into either victim's home and stole
property. According to him, the evidence merely showed that he
was later in possession of some of the missing goods of each
victim. He was, he argues, in both instances, nothing more than
an innocent and unknowing dupe.
"At common law, larceny is the taking and carrying away of
the goods and chattels of another with intent to deprive the
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owner of the possession thereof permanently." Lund v.
Commonwealth, 217 Va. 688, 691, 232 S.E.2d 745, 748 (1977).
Code § 18.2-95 provides that grand larceny includes "larceny not
from the person of another of goods and chattels of the value of
$200 or more." Furthermore, "the unexplained possession of
recently stolen goods permits an inference of larceny by the
possessor." Bright, 4 Va. App. at 251, 356 S.E.2d at 444. In
other words, "'[p]ossession of goods recently stolen is prima
facie evidence of guilt of the crime of larceny, 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) (quoting Fout v. Commonwealth, 199 Va. 184,
190, 98 S.E.2d 817, 821 (1957)). For the larceny inference to
arise, the Commonwealth must prove that the accused was in
exclusive possession of the recently stolen property. Best v.
Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981).
In a burglary prosecution, the Commonwealth can establish a
violation of Code § 18.2-91 by "(1) proving that goods were
stolen from a house which was broken into; (2) justifying the
inference that both offenses were committed at the same time, by
the same person, as part of the same criminal enterprise; and
(3) proving that the goods were found soon thereafter in the
possession of the accused." Bright, 4 Va. App. at 251, 356
S.E.2d at 444. The unexplained or falsely denied exclusive
possession of stolen goods shortly after the burglary "has the
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same efficiency to give rise to an inference that the possessor
is guilty of the breaking and entering as to an inference that
he is guilty of the larceny." Drinkard v. Commonwealth, 163 Va.
1074, 1083, 178 S.E. 25, 28 (1935).
To prove beyond a reasonable doubt that the possession of
the stolen property was exclusive, the Commonwealth's evidence
must show "that the accused was consciously asserting at least a
possessory interest in the stolen property, or was exercising
dominion over the stolen property." Best, 222 Va. at 389, 282
S.E.2d at 17.
In this case, Dickerson does not dispute on appeal that the
Commonwealth's evidence was sufficient to establish that the two
victims' homes were broken into without the permission of the
victims. Likewise, he does not dispute that the evidence was
sufficient to show that, in each instance, a larceny occurred as
a result of the break-in and that both offenses were committed,
in each instance, at the same time, by the same person, as part
of the same criminal enterprise. Rather, Dickerson argues
solely that his recent possession of the stolen items belonging
to the victims was not sufficient evidence to show he committed
the burglaries and larcenies. The issue, then, is whether it
was proper for the trial court to infer guilt from Dickerson's
recent possession of the stolen goods.
Here, there is no direct evidence that links Dickerson to
the burglaries of the homes and larcenies of the stolen jewelry.
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However, the evidence did establish that on March 1, 1999, LoAnn
Murray's home in Portsmouth was broken into and her jewelry was
taken. On March 3, 1999, Dickerson, along with another man and
woman, went to the Castle Coins and Jewelry store in Chesapeake
to sell some jewelry. Shelly Cason, an employee of Castle Coins
and Jewelry, purchased from Dickerson a ring, a dragon pendant,
a rope chain, and a sapphire and diamond dinner ring, all of
which Murray identified as being some of the jewelry belonging
to her that was stolen from her home on March 1. Dickerson told
Cason that he had the jewelry because his grandmother had died.
Neither of the other two people who accompanied Dickerson to the
store gave Cason any of the jewelry.
The evidence further established that, on March 9, 1999,
Marjorie Sheppard's home in Portsmouth was broken into between
10:30 a.m. and approximately 1:30 p.m. and her jewelry was
stolen. That same day, at approximately 2:30 p.m., Dickerson,
accompanied by the same two people who were with him on March 3,
returned to Castle Coins and Jewelry to sell more jewelry to
Cason. Cason purchased from Dickerson three pairs of earring
jackets and an eastern star ring, all of which Sheppard
identified as being some of the jewelry belonging to her that
was stolen from her home on March 9. Because Cason did not have
enough cash on hand to pay Dickerson for the jewelry, he had to
come back later. When he returned, he was alone.
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We hold that this evidence was sufficient to prove that
Dickerson committed the subject burglaries and larcenies. The
evidence established that Dickerson was in exclusive possession
of the victims' stolen jewelry. He alone was exercising
dominion over the stolen property when he sold it to Cason.
Furthermore, the exclusive possession was sufficiently recent,
in both instances, to establish prima facie cases of larceny and
burglary and to justify inferences by the trial court that
Dickerson was the thief and burglar who broke into both victims'
homes and stole their property.
The record discloses no evidence that rebuts the prima
facie cases drawn from the Commonwealth's evidence. Dickerson
presented no evidence at trial to support his hypothesis that he
was an innocent and unknowing dupe and offered no credible
explanation for his possession of the stolen jewelry. Indeed,
the only explanation in the record for Dickerson possessing the
jewelry is his untruthful statement to Cason that he had it
because his grandmother had died. Not only was that lie not a
credible explanation for his possession of the stolen property,
the trial court was entitled to infer from it that Dickerson was
being untruthful in order to conceal his guilt. See Welch v.
Commonwealth, 15 Va. App. 518, 525, 425 S.E.2d 101, 106 (1992).
We hold, therefore, that the evidence presented in this
case was sufficient to prove beyond a reasonable doubt the
elements of the offenses.
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B. RECENT POSSESSION INFERENCE
Dickerson further claims that, in reaching its decision
upon the evidence, the trial court wrongfully applied the recent
possession inference as a mandatory presumption. This, he
asserts, shifted from the Commonwealth the burden of proving
beyond a reasonable doubt each element of the offenses and
placed upon him a burden in derogation of his right to rely upon
the presumption of innocence. Thus, Dickerson argues, his due
process rights were violated.
We disagree with Dickerson's premise. As the Supreme Court
recently noted in addressing a similar matter:
"A mandatory presumption instructs the [fact
finder] that it must infer the presumed fact
if the State proves certain predicate facts.
A permissive inference suggests to the [fact
finder] a possible conclusion to be drawn if
the State proves the predicate facts, but
does not require the [fact finder] to draw
that conclusion. . . . Mandatory
presumptions . . . violate the Due Process
Clause if they relieve the State of the
burden of persuasion on an element of an
offense . . . . A permissive inference does
not relieve the State of its burden of
persuasion because it still requires the
State to convince the [fact finder] that the
suggested conclusion should be inferred
based on the predicate facts proved."
Dobson v. Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 572
(2000) (quoting Francis v. Franklin, 471 U.S. 307, 314 (1985)
(citations omitted)).
Here, the trial court, in discussing the reasons for its
decisions, stated several times that recent possession creates a
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rebuttable presumption of larceny and burglary. Nowhere in the
record, however, did the court say or otherwise indicate that
recent possession creates a mandatory presumption. In fact,
after finding that a victim's home had been burgled and pieces
of her jewelry stolen, the trial judge specifically stated as
follows:
Two days later the defendant turns up
at the coin shop, or whatever it is,
offering to sell these and making
representations to the potential buyer that
these were things that he acquired out of an
estate, which would appear to be untruthful
and lying to conceal where they may have
come from. And I think two days is a
reasonable period of time to consider to be
recent possession.
And that being the case, I think that
we are entitled to draw an inference or
rebuttable presumption—I'm not sure that
there is a practical dissension [sic]
between the two as they apply to this type
of case—that the defendant broke and entered
the property and committed larceny.
The court did not say that, in light of the predicate facts
proven by the Commonwealth and the fact that Dickerson did not
reasonably explain his possession of the recently stolen
property, it was required to draw the inference it did. Rather,
the court said that it was "entitled" to do so. We hold,
therefore, that the trial court properly applied only a
permissive inference, which it was free to reject if the proven
evidence warranted such a rejection.
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For these reasons, we affirm appellant's convictions.
Affirmed.
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