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COBB v. COMMONWEALTH OF VIRGINIA


COBB v. COMMONWEALTH OF
VIRGINIA


JANUARY 27, 1998
Record No. 2681-96-1

TIMOTHY A. COBB, S/K/A
TIMOTHY ALLEN COBB

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE JOSEPH E. BAKER
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Russell I. Townsend, Jr., Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Jennifer T. Stanton (J. T. Stanton, P.C., on brief), for
appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


Timothy A. Cobb (appellant), sometimes known as Timothy Allen
Cobb, appeals from a judgment of the Circuit Court of the City of
Chesapeake (trial court) that approved a jury verdict convicting
him for breaking and entering into a business place in the
daytime with intent to commit larceny, in violation of Code ? 18.2?91. The sole
issue presented is whether the evidence is sufficient to support
appellant’s conviction.

Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, see Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), we find that on
the morning of September 26, 1995, Larry Miller, the parts and
warehouse manager at Virginia Air Distributors, discovered that
someone had broken into the company warehouse building, which
consisted of the warehouse and two offices. In the office area,
Miller "noticed [that] change was thrown all over the
place" and that the "petty cash box had been broken
into." Missing from the office area were (1) money from the
cash box and (2) a set of high?low pressure gauges, which had
been hanging behind the parts counter in the office. A hole big
enough for a person to crawl through had been cut into the sheet
metal wall of the warehouse. In the office of the operations
manager, Wayne Smith, the police found a pair of yellow?handled
tin snips bearing the name "T. Cobb." The tin snips
were the type used to cut sheet and various light metals. The
snips did not belong to Virginia Air Distributors, and Smith had
not left them there. Miller did not know appellant and had not
given him permission to be on the premises.

Smith’s office is normally locked at night; however, the
record fails to establish that it had been locked on the
break?in day. On the day prior to the break?in, Miller and
Smith had closed the business at the regular time of 5:30 p.m.
When Miller arrived the next morning, Smith was already present
on the premises and "in a panic" due to the break?in.

Several weeks after the break?in, Miller identified the
missing high?low gauge set at the Easy Pawn Shop. A pawn shop
employee, Harris Perry, testified that appellant had pawned that
gauge set on October 24, 1995. Miller testified that the set had
been hanging at eye level behind the counter at the warehouse
every day for two years. Miller had used the gauge set about a
week prior to the burglary and was absolutely certain that the
pawned gauge set was the one stolen from Virginia Air
Distributors.

Appellant denied committing the burglary, claiming that he had
obtained the gauge set from his former employer, but the former
employer failed specifically to corroborate appellant’s claim.
Appellant further claimed that the tin snips had been stolen from
him, but he did not report the alleged theft until he was
questioned about the subject burglary. Appellant admitted that he
previously had been convicted of five felonies.

Relying upon Williams v. Commonwealth, 193 Va. 764, 71
S.E.2d 73 (1952), appellant contends that evidence of his
possession of stolen property, coupled with evidence of his own
property having been stolen, is insufficient to convict him of
burglary. In Williams, however, no evidence of a break?in
was shown. Therefore, Williams is inapposite and is
clearly distinguishable from the case before us. In Hawley v.
Commonwealth
, 206 Va. 479, 485, 144 S.E.2d 314, 318 (1965),
the Supreme Court said:

Williams v. Commonwealth, 193 Va. 764, 71 S.E.2d 73
(1952), relied upon by the defendant, is not authority to the
contrary. In that case, we held that bare evidence of the
possession of stolen goods was not sufficient to support a
conviction of storebreaking, where there was no evidence of
breaking by force. Here, there was direct proof of breaking by
force.

The Commonwealth makes a prima facie case of
breaking and entering against an accused when it proves (1)
"a breaking and entering, and a theft of goods," (2)
"that both offenses were committed at the same time, by the
same person, as a part of the same criminal enterprise," and
(3) "that the stolen goods [were] found soon thereafter in
the possession of the accused." Schaum v. Commonwealth,
215 Va. 498, 501, 211 S.E.2d 73, 76 (1975). We find that the
evidence contained in this record meets those requirements.

For the reasons stated, the judgment of the trial court is
affirmed.

Affirmed.

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