Sufficient evidence that appellant committed theft

Appellant’s conviction for burglary is affirmed because there was sufficient evidence that he was the perpetrator.

Grab and go

Stroud was in a home she shared with several others. Boyles was outside cutting the lawn. Stroud’s 4-year-old child came from the kitchen and said, “stranger danger.” Stroud went into the kitchen and saw an individual who later was identified as appellant Lacey.

Stroud asked Lacey if she could help him. Lacey responded that Boyles told him he could go inside and grab something. Lacy walked past Stroud and grabbed Boyles’ wallet from her purse, which was on the dining room table.

Once Stroud realized Lacy took the wallet, she shoved him into a wall. “Stroud testified that she and Lacey were ‘right on top of each other’ during the struggle for Boyles’ wallet. Lacey grabbed Stroud’s left wrist and twisted it, allowing him to break free from her and escape through the back door.

“Lacey absconded with Boyles’ wallet, which contained $500 in cash that was never recovered.”

Stroud’s boyfriend and Boyles chased after the parked car Lacey entered to make his getaway. Boyles was within a foot of the care. “Boyles testified that she made eye contact with Lacey in the course of chasing him.”

Lacey was later arrested in connection with another robbery. Police seized Lacey’s car. At trial, Boyles and Stroud were shown pictures of the seized car. Both identified the car as the one that was parked in front of Stroud’s home when Lacey grabbed Boyle’s wallet. Both made in-court identifications of Lacey.

He appeals his burglary conviction.

Review standard

“Lacey challenges the sufficiency of the evidence establishing his identity as the offender. ‘At trial, the Commonwealth bears the burden of proving the identity of the accused as the perpetrator beyond a reasonable doubt.’ …

“Lacey did not move to suppress the in-court identifications. Because Lacey’s assignment of error alleges legal insufficiency of the evidence, Code § 19.2-324.1 is relevant and requires the reviewing court, in conducting a sufficiency analysis, to consider all evidence admitted at trial, regardless of whether its admission was proper, to determine whether sufficient evidence sustains the conviction.

“Given that statutory mandate, we review the trier-of-fact’s determination – here, the circuit court’s determination – regarding the legal sufficiency of Lacey’s in-court identification in the context of whether, given ‘the totality of the circumstances,’ a reasonable fact finder could conclude that Lacey was the person who committed these crimes. …

“The factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), are used to determine ‘whether the identification evidence is sufficient, standing alone or in combination with other evidence, to prove beyond a reasonable doubt’ the identity of the perpetrator. …

“‘[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’”

Application

“Lacey offers no specific arguments as to why the evidence was insufficient to establish his identity. In any event, assessing the Biggers factors, a reasonable fact finder could credit Stroud and Boyles’ eyewitness identifications.

“Both witnesses were close to Lacey at the time of the crime, which occurred during the day. Stroud in particular testified that she was a mere inch or two from Lacey’s face as they wrestled. Both witnesses paid close attention to Lacey as they attempted to stop him from committing the crime.

“Although the witnesses’ description of Lacey’s clothing differed slightly, their description of his vehicle matched the vehicle later recovered and registered in his name.

“At any rate, inconsistencies in the witnesses’ identifications of Lacey do not render their identifications unreliable; rather, these inconsistencies go toward the circuit court’s weighing of the credibility of the witnesses, a matter within its sound discretion. …

“Both witnesses maintained that they were completely sure in their identifications, and less than a month passed between the events and the witnesses identifying Lacey to the police.

“Under the totality of the circumstances, and in the absence of any specific argument to the contrary, we cannot say that the fact finder was plainly wrong in finding the evidence of Lacey’s identity as the perpetrator sufficient to convict him of burglary and grand larceny.”

Affirmed.

Lacey v. Commonwealth, Record No. 0730-21-1, May 24, 2022. CAV (Humphreys) From the Circuit Court of the City of Norfolk (Martin). Matthew P. Dullaghan for appellant. Victoria Johnson for appellee. VLW 022-7-161, 7 pp. Unpublished opinion.