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Property destruction and burglary convictions affirmed

Virginia Lawyers Weekly//January 8, 2021

Property destruction and burglary convictions affirmed

Virginia Lawyers Weekly//January 8, 2021

The trial court correctly denied appellant’s motion to strike the commonwealth’s evidence of burglary and destruction of property. There is sufficient evidence to affirm the court’s guilty verdicts on both charges.


Price went to a shed on his property to get a ladder. The lock had been broken off and the door was open. A high-end beach cruiser bicycle, a power washer and a 6-foot ladder were missing. Price was at the shed four days earlier. The shed had been on the property for 28 years. It sat on concrete piers and had running electricity.

Two days later, appellant went to a pawn shop and asked Lawrence, the attendant, to come outside and look at the bike. Lawrence did so and saw another man in appellant’s vehicle. Lawrence did not speak to him.

Appellant presented his identification and signed the sales receipt, which certified he was “legally empowered” to sell the bike. Lawrence paid appellant $40. The bike’s serial number on the sales receipt matched the serial number on Price’s bike shop purchase receipt.

Appellant move to strike the commonwealth’s evidence. The trial court denied the motion. Appellant did not present any evidence. He argued that the commonwealth did not prove he committed the charged offenses.

“Regarding the burglary charge, appellant argued that the shed was not permanently affixed to realty as required by the statute, so the Commonwealth failed to establish all the elements for the burglary charge. Appellant also argued that the inference of guilt based on possession of recently stolen property did not apply to the burglary or destruction of property charges.

“The trial court found that the evidence was sufficient regarding the burglary and destruction of property charges and convicted appellant.”


Appellant argues that the shed was not permanently affixed to the land, which is a statutory element of burglary from a structure. “The evidence in the record indicates that the shed was built on cinder-block piers, had not been moved in the twenty-eight years since it was built, and was equipped with electricity. This evidence is sufficient to establish that the trial court did not err in determining that the shed was permanently affixed to realty.”

Appellant asserts that the inference of guilt based on his possession of the stolen bike “was rebutted because he was with another individual when he sold the bicycle. Noting that the Commonwealth’s evidence was circumstantial, appellant contends that the mere presence of another individual created a reasonable hypothesis that the other individual was the thief. …

“The evidence established that appellant possessed the bicycle and exercised dominion and control over it when he sold it to Lawrence for $40. Although Lawrence saw someone in appellant’s car, Lawrence did not speak to that individual and that individual did not participate in the sales transaction; rather, that individual remained in the car.

“Identification is required to make a sale, and sometimes, Lawrence sees individuals without identification who sell items through friends. The Commonwealth specifically asked Lawrence whether appellant was selling the item on behalf of another person, and Lawrence indicated appellant was selling the bicycle. The Commonwealth excluded appellant’s reasonable hypothesis of innocence with this testimony. …

“Appellant argues that even if the inference was not rebutted, the trial court erred in applying the inference to the burglary charge in this case because there was no evidence establishing when the shed was broken into or when the items were taken. …

“[I]t is uncontroverted that an actual breaking occurred on Price’s shed because the lock was broken. Four days had passed before Price realized someone had broken into the shed and taken items. However, Price immediately knew that only three items were missing.

“There is no evidence that the items were taken by more than one person, and as discussed above, nothing in the record supports appellant’s contention that he was selling the bicycle for someone else. …

“Appellant correctly argues that his possession of recently stolen goods is, by itself, insufficient to support a conviction for burglary; however, the record does not show that the trial court relied solely on appellant’s bare possession of the stolen bicycle. The Commonwealth proved all three elements to establish a prima facie case that appellant broke and entered Price’s shed. …

“The Commonwealth established that the lock had been damaged and the bike, ladder, and power washer were missing from the shed. The evidence justified the inference that appellant committed both the breaking and entering and the theft at the same time, as part of a criminal enterprise.

“Finally, the Commonwealth proved that appellant possessed the bicycle when he sold it to the pawn shop, two days after Price discovered it was missing. No evidence provided an innocent explanation for appellant’s possession of the stolen bicycle. Thus, credible evidence supports the trial court’s finding.

Destruction of property

“Appellant argues that the trial court erred in applying the inference [of guilt] to the destruction of property charge in this case because this doctrine has not been applied specifically to destruction of property charges. …

“Appellant was charged with the underlying statutory burglary and larceny crimes related to the original incident. The destruction of property logically occurred simultaneously with the breaking and entering, as the lock was destroyed when the shed was broken into.

“The Commonwealth alleged that appellant committed the burglary, larceny, and destruction of property at the same time, as part of a criminal enterprise. The Commonwealth presented evidence that the lock to the shed was damaged and had to be replaced.

“As discussed above, the evidence was sufficient to support the finding that appellant committed the burglary of the shed. Considering the evidence, it was reasonable for the trial court to infer that appellant broke into the shed. Consequently, it was equally reasonable for the trial court to infer that he destroyed the lock, which permitted his entry.”


Smith v. Commonwealth, Record No. 0228-20-1, Dec. 22, 2020. CAV (Clements) from Chesapeake City Cir. Ct. (Arrington). Erik A. Mussoni for appellant, Rachel L. Yates for appellee. VLW 020-7-237, 9 pp. Unpublished.

VLW 020-7-237

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