COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
MARK FILBY, S/K/A
MARK DOUGLAS FILBY
MEMORANDUM OPINION * BY
v. Record No. 2208-99-1 JUDGE ROBERT J. HUMPHREYS
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Paul H. Wilson (Wilson & Wilson, P.C., on
brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Mark Filby appeals his convictions in a bench trial for
possession of burglary tools and wearing a mask in public. He
complains (1) that the trial court erred in considering
testimony which it had earlier ruled inadmissible; (2) that the
evidence was insufficient as a matter of law to support the
conviction for possession of burglary tools; and, (3) that the
trial court erred in sentencing Filby to the maximum sentence
contemplated by law for wearing a mask in public while imposing
a lesser sentence for possession of burglary tools. For the
reasons that follow, we disagree and affirm his convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. Background
Between 10:30 p.m. and 11:00 p.m. on February 4, 1999,
Filby's estranged wife phoned police and stated that she had
just seen a man outside her kitchen window staring at her,
wearing a full-faced ski mask. She told the dispatcher that she
thought the man might be her husband who was banned from her
property pursuant to a protective order. An officer responded
to her home and after talking with Mrs. Filby, looked around
outside the window. The officer found an air conditioning unit
that appeared to have been moved to a location under the window.
He also found footprints on the air conditioning unit. The
officer observed no evidence of tampering with the window.
Shortly thereafter, the officer noticed a maroon vehicle in the
parking lot, which he considered to have "taken off" much faster
than it "really needed to." Mrs. Filby told the officer that
her husband drove a maroon Ford Taurus, so the officer radioed a
description of the car and asked that the license plate be
checked.
Another officer heard the call and observed the car in a
convenience store parking lot across the street from the
apartment complex where Mrs. Filby lived. Filby was out of his
vehicle when the officer approached him to ask his name. After
the officer informed Filby of the incident involving his wife,
Filby initially denied any knowledge of the matter. At the
officer's request, Filby consented to a search of his vehicle.
- 2 -
In the front seat of Filby's vehicle, police found a pair of
binoculars and a lock-blade knife. In the trunk they found a
ski mask, a long flathead screwdriver, duct tape, a BB gun,
gloves, a glass cutter and a dark sweatshirt. Filby then stated
that he had not gone to his wife's house but had been in the
area on other business. After further questioning, Filby
admitted that he had gone to his wife's house to see her and
that he had been wearing a mask. He stated that he had gone to
the kitchen window and observed her for thirty-five minutes. He
admitted that he knew of the protective order prohibiting him
from the premises.
At trial, Filby testified that he only had a key to the
ignition and doors of the car. He explained that he had the
door and ignition locks "re-keyed" but not the trunk lock. He
testified that he did not have a key to the trunk and that his
wife had both sets of keys. The police officers testified that
they had to get a key from Mrs. Filby to search the trunk of the
vehicle. Filby further testified that the mask he was wearing
was only a partial mask which he wore for work at a recycling
center and that although the items in the trunk were similar to
what he would carry in his trunk, the items were not his and he
didn't know how they got there. He also testified that he had
not spoken to his wife since January, then testified that he did
talk to her the night of the incident because she opened the
window after she saw him and yelled. Filby stated he then ran
- 3 -
from the scene and threw the mask he was wearing into a nearby
dumpster.
Mrs. Filby testified that she did not open the window and
that she had not had possession of the vehicle for a month.
During the trial, the prosecutor called Michael Bunting, a
maintenance man and groundskeeper, who worked at the apartment
complex. Bunting testified that he had observed Filby at his
wife's apartment in mid-January examining the doors and windows
of his wife's apartment.
Filby objected to this testimony, and the trial court
sustained the objection in part and ruled that only the fact
that Filby was seen at the apartment in January would be
admissible. The trial court held the evidence that Filby was
examining the doors and windows was inadmissible. Based upon
this ruling, Filby did not cross-examine the witness.
During Filby's closing argument, the trial court, sua
sponte, indicated that it was "changing its mind" concerning the
testimony of Bunting and as trier of fact would consider his
testimony in its entirety. To Filby's strenuous objection that
the court could not now admit evidence it had previously ruled
inadmissible, and further that Filby could not now cross-examine
the witness, the court responded, "I'm changing my rules."
Filby was convicted as charged.
Before sentencing, Filby filed a motion to reconsider based
upon the admission of the testimony of the maintenance man. The
- 4 -
Commonwealth conceded that the evidence should not have been
considered because Filby was unable to cross-examine the witness
in light of the subsequent ruling of the court. The
Commonwealth suggested as a remedy that the court reopen the
case and permit further questioning of the witness. Filby
objected that this was not an adequate remedy in view of the
passage of some eight weeks since the trial, during which the
witnesses were no longer separated. The court granted Filby's
motion to reconsider but stated that the stricken evidence did
not affect Filby's convictions. In finding that the evidence
was sufficient without the stricken testimony of Bunting, the
court specifically noted the presumption contained in Code
§ 18.2-94, which it found was not rebutted by the evidence. 1
The court then sentenced Filby to ten years imprisonment
with eight years and four months suspended for his conviction of
possession of burglary tools and sentenced him to five years
imprisonment for wearing a mask in public.
1
Code § 18.2-94 provides in pertinent part that "[i]f any
person have in his possession any tools, implements or outfit,
with intent to commit burglary, robbery or larceny, upon
conviction thereof he shall be guilty of a Class 5 felony. The
possession of such burglarious tools, implements or outfit by
any person other than a licensed dealer, shall be prima facie
evidence of an intent to commit burglary, robbery or larceny."
- 5 -
II. Motion to Reconsider
Whether to reopen a case lies within the sound discretion
of the trial judge. See Mundy v. Commonwealth, 161 Va. 1049,
171 S.E. 691 (1933).
When all the testimony in the trial of a
case has been concluded and the witnesses
for the respective parties have been excused
from their attendance upon court, whether
the court will allow the introduction of
other testimony is a question addressed to
the sound discretion of the trial judge,
". . . and unless it affirmatively appears
that this discretion has been abused this
court will not disturb the trial court's
ruling thereon."
Id. at 1064, 171 S.E. at 696 (citation omitted). See also Minor
v. Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993).
We do not approve of the procedure by which the trial court
chose to consider this evidence -- namely, to wait until the
closing argument of counsel to announce that it would consider
evidence it had previously ruled inadmissible. We agree that
Filby would have been prejudiced by his inability to
cross-examine Bunting following the trial court's reversal of
its earlier ruling. We also find the trial court's ruling that
it was "changing [its] rules" to be curious and inappropriate.
However, on the facts of this case, we find that any error
was waived by Filby and cured by the trial court ultimately
granting Filby the relief he sought by excluding the evidence to
which he objected.
- 6 -
While the trial court created confusion and uncertainty by
repeatedly changing its ruling concerning the admissibility of
evidence at various stages of the proceeding, the trial court
granted Filby the relief he sought when it granted his motion to
reconsider. In the absence of evidence to the contrary, we are
constrained to accept a statement from a trial court, sitting as
the trier of fact, that it did not consider evidence which it
said it would not consider. "[I]n a bench trial, the trial
judge is presumed to disregard prejudicial or inadmissible
evidence, and this presumption will control in the absence of
clear evidence to the contrary." Hall v. Commonwealth, 14 Va.
App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc) (citation
omitted). We do not find that Filby has overcome that
presumption.
III. Sufficiency of the Evidence
Filby argues that the evidence was insufficient as a matter
of law to support the charge of possession of burglary tools.
Filby suggests initially that he could not possess the
items in question because, as he had no key to the trunk of his
car, he could not have dominion and control over the items
therein.
The court as trier of fact was not required to accept
Filby's testimony that he had no access to the trunk and that he
had disposed of his mask in a dumpster. The trial court was
entitled to consider a number of factors affecting Filby's
- 7 -
credibility. For instance, Filby made inconsistent statements
to the police, he admitted to previous felony convictions, and
he admitted he was under a protective order to stay away from
his wife's residence. In addition, Filby had exclusive
possession of the vehicle for at least a month before the
incident. He also admitted that the items in the trunk were
similar to what he would keep there. This evidence, together
with the presence of the ski mask in the trunk and the other
items, is evidence from which dominion and control can be
reasonably inferred.
The mere possession of burglarious tools is
not a crime under the statute. It is
possession with intent to use them to commit
a crime [that is criminal]. The tools or
implements may be, and usually are, designed
and manufactured for lawful purposes. But
it is unusual for a person, on a lawful
mission, to have in his possession a
combination of tools and implements suitable
and appropriate to accomplish the
destruction of any ordinary hindrance of
access to any building . . . . All the
statute does is to create a presumption of a
criminal intent from proof of possession of
burglarious tools or implements. Such a
presumption is not conclusive; it cuts off
no defense. It interposes no obstacle to a
contest of all of the issues of fact, and
relieves neither the court nor the jury of
the duty to determine all of the questions
of fact from the weight of the whole
evidence. "It is merely a rule of evidence
and not the determination of a fact." When
possession is proven, the burden of going
forward with the evidence shifts to the
defendant, but this does not shift the
burden of ultimate proof . . . .
- 8 -
Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482,
485-86 (1953).
Filby cites Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d
510 (1999), in support of his argument that the trial court's
reliance on the statutory presumption that possession of
burglary tools is evidence of intent is erroneous. However,
Filby's reliance on Moss is misplaced. In Moss, we held
[t]his presumption . . . does not attach to
all "tools, implements, or outfit[s]"
embraced by the statute, but only to such
offending articles innately burglarious in
character, those "commonly used by burglars
in house breaking and safe cracking,"
particularly "suitable and appropriate to
accomplish the destruction of any ordinary
hindrance of access to any building . . . ."
Id. at 4, 509 S.E.2d at 511.
The statute in question punishes the "possession [of] any
tools, implements or outfit, with intent to commit burglary
. . . ." Code § 18.2-94. We find no error in the trial court
concluding that, in the aggregate, Filby's possession of a ski
mask, dark clothing, duct tape, a glass cutter and a long
screwdriver constituted "tools, implements, or outfit[s]
innately burglarious in character." Moss, 29 Va. App. at 4, 509
S.E.2d at 511.
In addition, although the trial court noted the existence
of the statutory presumption, it did not indicate that the
presumption represented the only evidence it relied upon as
evidence of Filby's criminal intent. In fact, the presence of
- 9 -
Filby standing atop an air conditioning unit peering into his
estranged wife's kitchen window in violation of a protective
order, when coupled with his possession of items such as dark
clothing, gloves, a glass cutter, duct tape, a lock-blade knife
and a long screwdriver are clearly circumstances from which a
fact finder could determine beyond a reasonable doubt that he
intended to commit a burglary of his wife's home.
IV. Sentencing
Finally, Filby complains that the trial court erred in
sentencing him to the statutory maximum of five years for the
"lesser offense" of wearing a mask and suspending a majority of
the sentence on "the greater offense" of possession of
burglarious tools. He asserts that by sentencing him in this
fashion, the trial court insured that Filby would serve the
amount of time suggested by the sentencing guidelines even if
his conviction for the more serious crime were reversed on
appeal.
First, and most importantly, Filby did not raise any
objection to the sentence in the trial court, and his claim is
thus procedurally barred. See Rule 5A:18. In any event, "when
a statute prescribes a maximum imprisonment penalty and the
sentence does not exceed that maximum, the sentence will not be
overturned as being an abuse of discretion." Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). The
sentencing guidelines are advisory only and do not require trial
- 10 -
courts to impose specific sentences. See Runyon v.
Commonwealth, 29 Va. App. 573, 577-78, 513 S.E.2d 872, 874
(1999).
Affirmed.
- 11 -