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MARCH 6, 2001

Record No. 0090-00-1

Present: Chief Judge
Fitzpatrick, Judges Benton and Clements

Argued at Chesapeake,





Dean W. Sword, Jr., Judge


Joseph P. 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 value, this opinion
recites only those facts necessary to a disposition of this


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 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.
, 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 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. 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.

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

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.


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.
, 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 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.

For these reasons, we affirm
appellant’s convictions.



[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.


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