Weldon BUNN, a/k/a Wendall Bunn, s/k/a Weldon L. Bunn v. COMMONWEALTH of Virginia.
Record No. 2152-94-2.
Court of Appeals of Virginia, Richmond.
Feb. 6, 1996.
466 S.E.2d 744
After the trial court denied the motion to withdraw, appellant‘s counsel presented several witnesses, including appellant. At trial, counsel did not argue that it would be prejudicial to appellant‘s defense if Lambert was not permitted to testify. Counsel appeared to be concerned with her personal professional responsibility, not with the fact that her continued representation of appellant would be prejudicial to him.1 We hold that under the facts presented here, the trial court did not erroneously refuse to permit counsel to withdraw.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
Present: BENTON, COLEMAN, JJ., and COLE, Senior Judge.
COLEMAN, Judge.
Weldon Bunn was convicted by a jury of grand larceny and sentenced to the maximum punishment of twenty years in the penitentiary. He contends that the trial court erred in its application of the bifurcated sentencing statute,
I.
The defendant asserts that because penal statutes are to be construed narrowly against the Commonwealth, Frere v. Commonwealth, 19 Va.App. 460, 464, 452 S.E.2d 682, 685 (1995), the trial court and this Court should construe the phrase, “prior criminal convictions,” to mean convictions obtained prior to the date the charged offense was committed. He argues that to construe and apply the statute otherwise would, in effect, give ex post facto application to the statute by allowing
We will not construe a penal statute in a manner that requires us to disregard the clear and obvious meaning of the statute. Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1271-72, 39 L.Ed.2d 782 (1974). “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). The obvious purpose of
Furthermore, we reject the defendant‘s contention that this construction of the statute violates constitutional protections against ex post facto laws. The enactment of does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with [a] crime of any defense available according to law at the time when the act was committed. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). The defendant contends that the trial court erred by refusing to give a jury instruction on the lesser included offense of petit larceny. “If any credible evidence in the record supports a proffered instruction on a lesser included offense, failure to give the instruction is reversible error.” Brandau v. Commonwealth, 16 Va.App. 408, 411, 430 S.E.2d 563, 564 (1993) (quoting Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). We are bound by the principle that the accused is entitled, on request, to have the jury instructed on a lesser included offense that is supported by more than a “scintilla of evidence” in the record. Id. In considering whether the evidence requires giving the lesser included instruction, the evidence relevant to the refused instruction must be viewed in the light most favorable to the defendant. Martin v. Commonwealth, 13 Va.App. 524, 526, 414 S.E.2d 401, 401 (1992) (en banc). The facts pertinent to this issue, and the sufficiency of the evidence issue in Part III, are that sixteen days after someone stole items from David Harlan‘s locked car, the police searched Weldon Bunn incidental to his arrest on unrelated charges and found Harlan‘s Nationsbank Visa credit card, which had been stolen from the car, “in his [Bunn‘s] left inside pocket.” Bunn lived three-tenths of a mile from where the larceny occurred. Eric Townes, who was arrested along with Bunn, was wearing at the time David Harlan‘s leather jacket, which had also been stolen from Harlan‘s car. The credit card and jacket were the only two stolen items accounted for from among the twenty-five compact discs, an AT & T phone card, a calculator, a book bag, and an amplifier that were also stolen. David Harlan testified that the total value of the stolen items was about $500. The evidence showed that after the theft and after Bunn‘s arrest, someone had used the stolen AT The argument is not supported by the evidence. Although the fact finder could infer from Bunn‘s possession of the recently stolen credit card that he stole all the property from Harlan‘s car, at a minimum, the evidence supported the inference that Bunn stole the Visa credit card. No evidence suggests that Bunn selectively stole only some of the items from Harlan‘s car that were valued at less than $200. Accordingly, the trial court did not err by refusing to give the jury an instruction on petit larceny. “Once the crime [of larceny] is established, the unexplained possession of recently stolen goods permits an inference of larceny by the possessor.” Bright v. Commonwealth, 4 Va.App. 248, 251, 356 S.E.2d 443, 444 (1987). Bunn contends that the “recently stolen” inference should not apply on these facts because the nature and size of a credit card make it easily lost and found and, thus, provide a reasonable explanation or hypothesis for possession by someone other than the owner. He argues that the inference should not apply on these facts and, therefore, the evidence is insufficient to support the grand larceny conviction. We reject Bunn‘s argument. Whether the recently stolen inference is permissible does not depend on the physical characteristics of the stolen item, but upon whether the possession was knowing and recent. See Montgomery v. Com-monwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (holding that the recently stolen inference applied when the evidence showed that the defendant possessed the goods approximately four weeks after they were stolen). Furthermore, the fact that the stolen AT & T phone credit card was apparently being used by someone other than Bunn and the fact that Eric Townes, who was with Bunn when arrested, also possessed recently stolen property do not prevent the fact finder from drawing the permissible inference that Bunn stole Harlan‘s Visa credit card and was involved in stealing the other items from Harlan‘s car. See Fout v. Commonwealth, 199 Va. 184, 185-86, 190-91, 98 S.E.2d 817, 819, 821-22 (1957) (upholding the application of the recently stolen inference to both defendants even though only one of the defendants had actual possession of the stolen guns); Hope v. Commonwealth 10 Va.App. 381, 383-85, 392 S.E.2d 830, 832-33 (1990) (en banc) (holding that the inference of larceny from recent possession applies even though under the facts, two people possessed the stolen items). In determining whether the evidence is sufficient to prove Bunn‘s guilt beyond a reasonable doubt, we consider the evidence and any reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth. See Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988). “The jury‘s verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.” Id. The evidence proved that Bunn possessed Harlan‘s Visa credit card sixteen days after it was stolen from Harlan‘s locked car. Bunn lived three-tenths of a mile from where the larceny occurred. Because the jury could infer from Bunn‘s unexplained possession of the recently stolen credit card that he stole it, the jury‘s verdict was not “plainly wrong or without evidence to support it.” We find no error and affirm the defendant‘s conviction. Affirmed. Bunn raises two distinct sufficiency issues. He argues that the evidence failed to prove that the property he possessed was recently stolen and, thus, contends the evidence provides no basis upon which an inference could be drawn that he was the thief. He also argues that the evidence as a whole failed to prove beyond a reasonable doubt that he was the thief. Bunn cites no case law in support of his argument that the trial judge erred in refusing to strike the evidence as to the larceny charge because the property was not “recently stolen.” The narrative argument raises the question “what is ‘recently stolen‘” and whether the inference of theft from Bunn‘s possession of the stolen property was “applicable to this situation.” Distilled to its core, the issue raised and posed to the trial judge was whether “as a matter of law, passage of more than two weeks has taken us beyond the realm of recently stolen.” I agree with the majority that the Supreme Court has held that “[f]our weeks is not, as a matter of law, so long a time that goods may not be considered recently stolen.” Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980). That holding was based, however, upon the case of Wilborne v. Commonwealth, 182 Va. 63, 28 S.E.2d 1 (1943), where the accused, charged with the offense of “house breaking,” id. at 64, 28 S.E.2d at 1, was: in possession of the identical tool which had been used in breaking into the building, . . . was also in possession of firearms, flashlights, gloves, and other articles commonly employed by burglars [, and] . . . had in his possession . . . a tire similar in make, design and type to one which had been stolen [and from which] . . . the serial number, the only means of exact identification, had been obliterated—a device commonly used by malefactors to obscure the source of their acquisition of stolen property. Id. at 67-68, 28 S.E.2d at 3. The Supreme Court concluded that “the accused‘s possession of the burglarious tool, three months after the commission of the crime, under the circum- The evidence proved that Bunn possessed a credit card issued to a person he did not know. No explanation for his possession was given. Without any explanation, the jury could have inferred that Bunn must have known or been aware of the high probability that the credit card he possessed had been either lost by its holder or stolen. However, Bunn was not indicted or tried for “receiv[ing] . . . or . . . concealing any stolen goods or other thing, knowing the same to have been stolen.” See Although Bunn raised the matter of the inference arising from “unexplained” possession and alluded in his narrative to a constitutional issue regarding his “right to remain silent at trial,” he did not specify the authority upon which he relied. Moreover, Bunn did not specifically challenge the constitutionality of the inference. See Barnes v. United States, 412 U.S. 837, 846 n. 11, 93 S.Ct. 2357, 2363 n. 11, 37 L.Ed.2d 380 (1973). We must assume for purposes of this appeal that no constitutional defect exists. See Benderson Development Co. v. Sciortino, 236 Va. 136, 148, 372 S.E.2d 751, 757 (1988). The sufficiency of the evidence remains, however, an issue to be decided because “determining that a permissive inference instruction is valid does not settle whether the verdict is supported by sufficient evidence.” Cosby v. Jones, 682 F.2d 1373, 1377 (11th Cir.1982). An inference is a permissible conclusion that may be drawn from a proven fact or set of facts. The inference of larceny that the jury was instructed that it could draw is not a presumed, conclusive test of guilt. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). It is only one circumstance from which the The conviction rested solely upon the inference that Bunn was the thief which was drawn from proof that Bunn possessed the stolen property. Absent other evidence, that inference does not follow beyond a reasonable doubt from the proven fact. See In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1070-73, 25 L.Ed.2d 368 (1970). Nothing in the evidence concerning the circumstances of the theft or Bunn‘s possession of the credit card added any probative force to the Commonwealth‘s hypothesis that Bunn was present when the card was stolen or that he was the thief. Of the more than thirty-one items taken from the victim‘s automobile, Bunn possessed only the credit card. In contrast to Bunn‘s mere possession of the card, the evidence proved that another credit card taken from the victim‘s automobile was used in a city one hundred miles distant from Bunn‘s residence and continued to be used after Bunn‘s arrest. In addition, the evidence proved that another person possessed a coat that was taken from the victim‘s automobile. Those facts tend to weaken the inference that Bunn was the thief. Although as a matter of law, the fact that the items had been removed from the automobile sixteen days earlier does not negate application of the “recent” possession inference, remoteness in time certainly reflects upon the strength of the inference. See United States v. Jones, 418 F.2d 818, 821 (8th Cir.1969). The likelihood that stolen items will be discarded or found in the possession of persons who were not the thief greatly increases with the passage of time. Thus, even the “[e]arly English cases . . . [where] [t]he rule was well stated [recognize that] . . . ‘[t]he strength of the presumption, which arises from such possession, is in proportion to the shortness of the interval which has elapsed.‘” Id. (quoting Reg v. Exall, The evidence in this case that the Commonwealth points to as implicating Bunn as the thief arises solely from the permissive inference. I would hold that, under the circumstances, the evidence was insufficient to support the conviction. ”Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] requires that a reasonable juror be able to find the defendant guilty beyond a reasonable doubt, and if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.” Cosby, 682 F.2d at 1383. For these reasons, I would reverse the conviction. Therefore, I dissent.
II.
III.