Common plan or scheme established

The trial court correctly granted appellant’s motion in limine to exclude evidence of unadjudicated bad acts in Warren County and Henrico County but correctly denied that part of the motion to exclude evidence of a similar robbery in Spotsylvania County that took place minutes after the one at issue in Stafford County.

The Spotsylvania offense was properly admitted to show a common plan or scheme to rob cell phone stores.

Overview

Appellant Wingfield and others were accused of entering cellphone stores, ripping display models from their security devices then running away with them. At issue is a grab and run theft from a cellphone store in Stafford County. Wingfield’s motion in limine sought to exclude any evidence of similar bad acts in three counties.

“The Commonwealth explained that, at both locations in Stafford and Spotsylvania on the very same day, the ‘[d]efendant and his accomplices walked into a cell phone store, grabbed display items, ripped them off any security apparatus, and ran out of the store’ while ‘wearing the same clothing’ for both offenses.

The trial court granted the motion with respect to bad acts at cellphone stores in Warren County and Henrico County but allowed evidence of the Spotsylvania offense. The court ruled that “the Commonwealth met its burden to identify a ‘common scheme or plan with regard to the Spotsylvania case.’”

During voir dire, juror 19 indicated she could not be fair and impartial. The commonwealth moved to dismiss her. Wingfield’s counsel did not object.

The jury convicted Wingfield of grand larceny, larceny with intent to sell for a 2018 cellphone theft and of petit larceny for a 2019 offense. He appeals.

Common plan or scheme

“[T]he trial court found that the Commonwealth met its burden to identify a ‘common scheme or plan with regard to the Spotsylvania case.’ The record shows that, on March 5, 2019, the Stafford crime and the Spotsylvania crime occurred within about twenty minutes of one another on the same evening with the same purpose of stealing cell phones at both locations.

“Both crimes involved three individuals wearing the same clothes and having the same modus operandi of going into the store, grabbing as many cell phones from the display case as quickly as possible, and fleeing the store immediately after ripping the cell phones from their displays.

“It is quite clear that the crimes bear a sufficient mark of similarity, given that the theft at the Spotsylvania store also happened on the same night only about twenty minutes after the theft at the Stafford store – and that the perpetrators ripped the cell phones off their displays and then fled the stores with them.

“Therefore, the evidence in the record clearly demonstrates that the trial court did not abuse its discretion in denying Wingfield’s motion in limine to exclude evidence from the March 5, 2019 theft of the cell phones at the AT&T store in Spotsylvania because that crime was so similar to the crime that had just occurred in Stafford – taking place only about twenty minutes later. …

“Consequently, this Court upholds the trial court’s decision to deny Wingfield’s motion in limine.”

Juror 19

Wingfield waived any issue regarding Juror 19’s dismissal because his counsel did not make a contemporaneous objection.

“Wingfield had two opportunities to object to the trial court’s ruling, but he failed to make any objection regarding the striking of Juror 19 for cause. First, at the end of voir dire, the Commonwealth moved to strike Juror 19 for cause.

“When the trial court subsequently granted the Commonwealth’s motion to strike Juror 19 for cause, Wingfield’s counsel responded to the ruling by saying ‘[a]ll right’ and made no objection.

“Second, when the jury was impaneled, the trial judge asked, ‘All right. Does either counsel have any objection to the selected panel?’ Wingfield’s counsel replied, ‘No, sir, not from the defense.’

“Therefore, Wingfield’s assignment of error regarding the striking of Juror 19 for cause is barred for failure to make a contemporaneous objection at the time of the trial court’s ruling. See Rule 5A:18.”

Sufficient evidence

“[T]he record provides sufficient evidentiary support for the jury to find that Wingfield was the perpetrator who stole cell phones at both the AT&T store in Stafford County on December 7, 2018, and at the Verizon store in Stafford County on March 5, 2019.

Regarding the December 7, 2018 theft, Johnson [who worked at the AT&T store] clearly identified Wingfield in court as one of the perpetrators, and he stated that Wingfield ‘has the same facial features and the same facial structure as the individual in the pictures.’

“Johnson did say that Wingfield’s hairstyle had changed since the day of the larceny, but Johnson confidently testified that Wingfield’s ‘eyes are the same; his nose is the same; everything about him is the same’ besides the hair. Therefore, the trial court was not plainly wrong in finding that Wingfield was a perpetrator in the thefts from the AT&T store in Stafford County on December 7, 2018.

“In addition, regarding the March 5, 2019 theft, Sanders clearly identified Wingfield as one of the perpetrators of the theft of cell phones that took place at her AT&T store in Spotsylvania only a few minutes after the thefts that took place at the nearby Verizon store in Stafford County that same day.

“Evidence in the record shows that at both stores in the two counties on the same evening, Wingfield and two other perpetrators ripped cell phones from their displays and then fled from the stores taking the cell phones with them, and Sanders confidently identified Wingfield as one of the perpetrators at her store.”

Finally, there was sufficient evidence that Wingfield intended to sell the cell phones. “Johnson testified that, on December 7, 2018, five cell phones valued at about $3,800 were stolen from the AT&T store where he worked.

“Given that the sheer number of cell phones stolen was plainly more than needed for Wingfield’s own personal use (or that of the other perpetrator), the jury could have reasonably inferred that Wingfield intended to sell the cell phones for profit.”

Affirmed.

Wingfield v. Commonwealth, Record No. 0892-21-4, July 12, 2022. CAV (Beales) From the Circuit Court of Stafford County (Strickland) Lauren Whitley for appellant. Leah A. Darron, Jason S. Miyares for appellee. VLW 022-7-256, 12 pp. Unpublished opinion.