Lester v. CommonwealthLester v. Commonwealth
Lead Opinion
Paul Bryan Lester was convicted of burglary and grand larceny. Lester contends that the trial court erred (1) in denying his motion to suppress, (2) in finding the evidence of value sufficient to prove grand larceny, and (3) in finding the evidence sufficient
I.
Katharina Bergdoll testified that on Oсtober 22, 1997, she returned to her home on South Pine Street and discovered that someone had broken into her home. The burglar had taken stereo equipment, a shotgun, a pistol, a flintlock rifle, and a jewelry box containing several items of jewelry. The rifle was handmade and had Bergdoll’s name engraved into it.
Within a week, Detective VanBuren received information from a “concerned citizen” about Paul Bryan Lester. Based on that information, the detective obtained a warrant to search a dwelling located one block from Bergdoll’s home. He described the dwelling as a “rooming house” with a family living downstairs and several persons living in three bedrooms upstairs. When the detective and other officers went upstairs to search for the property, they encountered and detained Lester in one bedroom, several people in a second bedroom, and Amy Donovant in a third bedroom. The officers read to Lester the Miranda warnings and, after questioning him, determined that Lester and Donovant, whom Lester identified as his girlfriend, resided in the bedroom where Lester was found. Donovant’s mother resided in another bedroom, and “a young lady” resided in the third bedroom.
In the bedroom where Lester and Donovant resided, the officers recovered from atop a dresser Bergdоll’s jewelry case and a number of items of jewelry, such as earrings, beads, and rings, some of which had been stolen from Bergdoll’s home. A music box that did not belong to Bergdoll was also on the dresser. Asked how the stolen property came to be in his room, Lester responded that he did not know and said, “[a] lot of people come in and out of the house.” When the officers found one of Bergdoll’s rings on Donovant’s finger and informed Lеster that Donovant was wearing one of the stolen rings, Lester denied knowing where the ring came from. None of Bergdoll’s other property was recovered from the dwelling. The shotgun was later recovered by the police from another person who was not identified on the record.
Lester was arrested and indicted for burglary and grand larceny. The trial judge convicted Lester on both indictments. Lester appeals the convictions.
II.
Prior to trial, Lester moved to suppress the stolen property recovered from his bedroom. He contends the search was conducted without probable cause or his consent in violation of the Fourth and Fourteenth Amendments.
“[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. “The existence of probable cause is determined by examining the ‘tоtality of the circumstances,’ ” Gwinn v. Commonwealth,
Citizen-informants do not carry the same presumption of reliability as police officers, but less evidence is required to establish their veracity than that of criminal informants. A citizen-informant’s veracity maybe estаblished by the absence of an apparent motive to falsify or independent police corroboration of the details provided by the informant. Where a citizen-informant reports a crime committed in his presence, but in which he was not involved, or one in which he was a victim, police officers may act upon such a report if the reliability of the report is enhanced by a police interview with the viсtim or other corroborating information.
Corey v. Commonwealth,
At the suppression hearing, the detective’s affidavit for the search warrant was entered in evidence. It recited the following facts as constituting probable cause:
Your affiant spoke with a concerned citizen (CC) and received the following information: Within the past 24 hours from 1400 hours on October 26, 1997, the CC saw a subject known to them as “Paul Lester” with a flintlock rifle. The name Katharinа Bergdoll was engraved on the rifle. The CC saw “Lester” carry the rifle into the residence mentioned in section two of this affidavit. “Lester” told the CC he was trying to sell the rifle and some unidentified jewelry. The CC is acquainted with “Lester” and said that “Lester” is a thief and sells stolen property.
To establish the concerned citizen’s credibility and the reliability of the information, the detective reported the following facts:
The concerned citizen is a registered voter, has never been arrested, is a long time resident in the community, attends church, and is gainfully employed. The citizen provided information because of an interest in the community and wishes to remain anonymous out of fear of retaliation. On October 22, 1997 at approximately 2030 hours, Ms. Katharina C. Bergdoll reported her home ... had been burglarized. She reported the items mentioned in section three of this аffidavit had been stolen.... She had been told by a local resident that her property had been stolen by a white male known as “Paul Lester.”
In the past two weeks from October 26, 1997, Sergeant Roger A. Russell ... spoke with a source who said a white male known as “Paul” was selling stolen property at the location described in section two of this affidavit. The items “Paul” was selling matched the items stolen in an unrelated burglary.
In the past two wеeks from October 26, 1997, Officer Chester Roberts received information from a source that stolen property was being kept at the location described in section two of this affidavit.
The trial court denied Lester’s motion, finding “that the magistrate had substantial basis for the issuance of the warrant and probable cause for the warrant to issue for the search of that residence.” In our review of the denial of the motion tо suppress, “ ‘[t]he burden [is] upon [the appellant] to show that this ruling, when the evidence 'is considered most favorably to the Commonwealth, constituted reversible error.’” Lewis v. Commonwealth,
Applying these principles, we conclude that the trial court did not err. Although the informant was never identified, the affidavit described the informant as a “concerned citizen” who “wish[ed] to remain anonymous out of fear of retaliation.” According to the affidavit, the informant stated that he or she was acquainted with Lester, knew Lester to be a thief who sells stolen property, personally observed Lester carrying into the residence the rifle engraved with Bergdoll’s name, and was told by Lester that Lester “was trying to sell the rifle and some ... jewelry.” “[E]ven if we entertain some doubt as to an informant’s motives, [thе informant’s] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the informant’s] tip to greater weight than might otherwise be the case.” Id. at 234,
The police corroborated the informant’s tip through their own investigation. Bergdoll informed the police she had received information that the person who robbed her home was known as “Paul Lester.” Two other
III.
Lester argues that Bergdoll’s testimony about the value of the stolen property amounted to guessing and failed to reveal the true value of the property. We disagree.
On an appeal challenging the sufficiency of the evidence, we view the evidence “in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom.” Higginbotham v. Commonwealth,
Jewelry case: $25-$30
1 pair of lapis and silver earrings: $30
1 pair of multiple beaded earrings: $30
Handmade gold and bloodstone ring: $150
5 pairs of earrings: $50
Bergdoll conceded on cross-examination that she did not know the current market value of the jewelry case. Rather, she testified that the $25-$30 value represented what she would currently pay for the jewelry case if she purchased it at a store. She also testified that she bought the handmade gold and bloodstоne ring in 1974 for $120 and that $150 was “a conservative estimate” of the ring’s current value. The trial judge accepted Bergdoll’s valuations and found that the stolen property’s value was sufficient to prove grand larceny.
“Any person who ... commits simple larceny not from the person of another of goods and chattels of the value of $200 or more ... shall be guilty of grand larceny.” Code § 18.2-95. “The value of the goods specified in the stаtute is an essential element of the crime, and the Commonwealth must prove that element beyond a reasonable doubt.” Walls v. Commonwealth, 248 Va. 480, 481,
The value of the stolen property is measured as of the time of the theft, and the original purchase price may be admitted as evidence of its current value. The opinion testimony of the owner of the stolen item generally is competent and admissible on the issue of the value of that property.
Parker v. Commonwealth,
Relying on the Supreme Court’s decision in Dunn v. Commonwealth,
While the original purchase price of an item may be admittеd as evidence of its current value, there must also be “due allowance for elements of depreciation.” Without a showing of the effect of age and wear and tear on the value of an item such as a typewriter, the [fact finder] might be misled to believe that original price equals current value.
Id. at 705,
The use of the words “such as a typewriter” in the above quotation is significant. It is common knowledge that technical equipment generally depreciates in value over time and that equipment which does not operate properly has significantly reduced value. However, in this case, the item was jewelry that the fact finder was able to observe. Lester was able to cross-examine Bergdoll concerning the condition and value of the jewelry. No evidence proved the condition of the jewelry had significantly deteriorated
Lester аlso challenges the relevance of Bergdoll’s testimony that several years prior to the larceny, she paid $30 each for the lapis and silver and the multiple beaded earrings. However, “it is generally held that evidence of value a reasonable time prior and subsequent to the [larceny] is admissible, its weight being for the trier of fact.” Haynes v. Glenn,
Because the evidence, as accepted by the trier of fact, sufficiently proved that the value of the jewelry exceeded $200, the evidence was sufficient to sustain the conviction of larceny. Thus, we need not address Lester’s argument that Bergdoll’s testimony concerning the replacement value of the jewelry case was inadmissible.
IV.
No direct evidence proved that Lester burglarized Bergdoll’s home. On appeal, he argues that the evidence is insufficient to show that he possessed the recently stolen property found in his room. The defendant did not make this argument to the trial court. There he argued that the items found in his possession did not give rise to a presumption of breaking and entering, only to a presumption of larceny. He did not challenge the sufficiency of the evidence establishing the basic fact of the presumption, possession; indeed, he conceded the point. He did not preserve the argument he now raises, and he is barred from doing so by Rule 5A:18. See Taylor v. Commonwealth,
For the reasons stated, the convictions are affirmed.
Affirmed.
Concurrence Opinion
dissenting, in part, and concurring, in part.
I concur in Parts I, II, and III of the majority opinion. I do not join in Part IV because I believe Paul B. Lester preserved for appeal the issue of sufficiency of the evidence to prove burglary. I also agree with Lester’s contention that the evidence failed to prove he exclusively possessed the stolen property.
At the conclusion of all the evidence, Lester’s counsel moved to strike the evidence regarding the burglary charge. In pertinent part, counsel argued as follows:
Incorporаting the motion to strike in regard to the close of all of the evidence. In terms of the breaking and entering, Your Honor, I would submit to the Court there has been no evidence tying Mr. Lester to that location on October 22nd. We have a detective who has testified that there were no fingerprints recovered, nothing to show he was actually there. And the mere possession of recently stolen property has no presumption in regard to a break and enter.
On this appeal, Lester contends the evidence was insufficient to prove the burglary charge because the evidence neither proved he was present at the burgled residence nor proved he had exclusive possession of the stolen property.
No direct evidence proved that Lester burgled Katharina Bergdoll’s home. We are guided by the following principles concerning the circumstantial evidence in this case:
[W]hen evidence has been introduced, which, if believed, establishes that a house has been broken and entered and goods stolen therefrom, and warrants an inference beyond a reasonable doubt that the breaking and entering and the larceny ofthe goods were committed at the same time, by the same person or persons, as a part of the sаme transaction, upon principle and authority, the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the 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,
Viewed in the light most favorable to the Commonwealth, the evidence proved that property recently stolen from Berg-doll’s home was found by police in the bedroom where Lester and Amy Donovant resided. The officers recovered from atop a dresser Bergdoll’s jewelry case and a number of items of women’s jewelry, such as еarrings, beads, and rings, some of which had been stolen from BergdoU’s home. A music box that did not belong to Bergdoll was also on the dresser. Asked how the stolen property came to be in the room, Lester responded that he did not know and said, “[a] lot of people come in and out of the house.” When the officers found one of Bergdoll’s rings on Donovant’s finger and informed Lester that Donovant was wearing one of the stolen rings, Lester denied knowing the origin of the ring. None of Bergdoll’s other property was recovered from the dwelling.
Proof that Donovant resided in the room where the jewelry was located and was wearing one of the stolen rings creates a reasonable doubt that Lester exclusively possessed the stolen property. See Best v. Commonwealth,
“[T]o raise the presumption of guilt from the possession of the fruits of [or] the instruments of crime by the [accused] it is necessary that they be found in his exclusive possession. A constructive possession, like constructive notice or knowledge, though sufficient to create a civil liability, is not sufficient to hold the [accused] to a criminal сharge. He can only be required to account for the possession of things which he actually and knowingly possessed, as, for example, where they are found upon his person, or in his private apartment, or in a place of which he kept the key. If they are found upon premises owned or occupied as well by others as himself, or in a place to which others had equal facility and right of access, there seems no good reason why he, rather than they, should be charged upon this evidence alone.”
Furthermore, the Commonwealth’s claim that Lester jointly possessed the jewelry with Donovant was not proved beyond a reasonable doubt. As the Court observed in Reese v. Commonwealth,
These facts fail to establish that Lester possessed the woman’s jewelry. “To establish ‘possession’ in a legal sense it is not sufficient to simply show actual or constructive possession of the [stolen property] ... by the defendant [because the] Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.” Buono v. Commonwealth,
Because no evidence proved beyond a reasonable doubt that Lester exclusively or jointly possessed the jewelry or exercised any dominion or control over it, the evidence was insufficient to prove that he burgled Bergdoll’s home. Therefore, I would reverse the burglary conviction.