819 S.E.2d 848
Va. Ct. App.2018Background
- On Feb. 26, 2016, witnesses observed three hooded men enter and remove property from C. Bare’s house and place items into a silver Buick; the car later was seen near the neighborhood.
- S. Fry and N. Cobb identified the burglars’ clothing and observed long black guns being carried; Fry photographed the Buick’s license plate.
- Homeowners Bare and N. Blanco (Blanco) returned to find forced entries, homes in disarray, and firearms, ammunition, medications, and jewelry missing.
- Police stopped the silver Buick; three men exited and fled. Officer Eavey identified Speller among the fleeing men. Speller was later found nearby in underwear and one sock.
- Firearms, ammunition, jewelry, and medication belonging to the victims were recovered in the Buick; a latent fingerprint from a Springfield pistol in the car matched Speller’s left ring finger.
- A judge (bench trial) convicted Speller of two counts of burglary, two counts of conspiracy to commit burglary, and two counts of grand larceny of a firearm; Speller appealed challenging sufficiency of the evidence and the definition of “firearm.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for burglary (entry/breaking) | Commonwealth: facts (forced doors, eyewitnesses, stolen property found in car, flight, possession of recently stolen goods) establish breaking and entry with intent to steal | Speller: insufficient evidence he actually broke into or entered the homes | Held: Evidence sufficient for burglary of both Bare’s and Blanco’s homes (breaking can be actual or constructive; possession of stolen goods + flight supports inference of guilt) |
| Sufficiency of evidence for conspiracy to burglarize Blanco’s home (agreement) | Commonwealth: circumstantial evidence — same actors, same day, proximity, joint flight, possession of both victims’ property — supports an inferred conspiratorial agreement | Speller: Commonwealth only proved the three entered Bare’s home; no proof he agreed to burglarize Blanco’s home; he may have merely ridden in the car and innocently touched a gun | Held: Evidence was sufficient to infer a conspiracy including Blanco’s burglary (agreement may be inferred from overt acts and common objective) |
| Whether items stolen qualified as "firearms" under Code § 18.2-95 | Commonwealth: statutory definitions reflected in related statutes apply; victims identified specific makes/models and photographs of guns were introduced | Speller: court should have used narrower definition from Code § 18.2-308.2 jurisprudence or demanded proof of operability; evidence did not prove the objects were firearms | Held: "Firearm" includes any instrument designed, made, and intended to fire/expel a projectile by explosion; operability not required; circumstantial proof (victim IDs, brands, photos, ammo, gun safe) was sufficient |
| Effect of acquittal on separate firearm-possession charge (issue raised in brief) | Speller: trial court’s acquittal on felon-in-possession/possession charge implied findings that preclude larceny convictions for firearms | Commonwealth: not directly argued below; trial court’s decision stands | Held: Argument not preserved in assignment of error; Court declined to consider it on appeal |
Key Cases Cited
- Wells v. Commonwealth, 65 Va. App. 722 (standard for reviewing evidence in favor of the Commonwealth)
- Jackson v. Virginia, 443 U.S. 307 (standard whether any rational trier of fact could find guilt beyond a reasonable doubt)
- Armstrong v. Commonwealth, 263 Va. 573 (defining "firearm" by reference to related statutes; operability not required)
- Jordan v. Commonwealth, 286 Va. 153 (circumstantial/victim identification may establish an object is a firearm)
- Clagett v. Commonwealth, 252 Va. 79 (flight after a crime is evidence of guilt)
- Redd v. Commonwealth, 29 Va. App. 256 (victim description of a gun can establish it was a firearm)