Domenico O. Greene, Jr. v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
Argued at Norfolk, Virginia
UNPUBLISHED
DOMENICO O. GREENE, JR.
MEMORANDUM OPINION* BY
v. Record No. 0641-18-1 CHIEF JUDGE MARLA GRAFF DECKER
APRIL 23, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Stephen K. Smith for appellant.
John I. Jones, IV, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Domenico O. Greene, Jr., appeals his convictions for grand larceny, statutory burglary, and
conspiracy to commit statutory burglary, in violation of Code §§ 18.2-22, -91, and -95.1 On appeal,
he argues that the evidence was insufficient to support his convictions because it failed to prove that
he was one of the criminal agents or had any knowledge of the larceny and burglary. He also
contends that the evidence was insufficient to prove that he conspired with others to commit the
offenses. We hold that the direct and circumstantial evidence, viewed under the proper standard,
establishes that he committed the crimes. Accordingly, we affirm the convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The appellant was also convicted of the felony offense of eluding a police officer in
violation of Code § 46.2-817(B). This conviction is not before the Court.
I. BACKGROUND2
The appellant was indicted in pertinent part for “break[ing] and enter[ing] in the daytime
. . . the dwelling of Donna Ayotte and Steven Ayotte[] with the intent to commit larceny.” He
was also indicted for conspiracy to commit that offense and for grand larceny. The appellant
was tried jointly for these offenses with Ryan Taybron.3
At trial, the evidence established that Ms. Ayotte left her home at about 11:00 a.m. on
February 25, 2016. Mr. Ayotte was at work at that time. Around 12:15 p.m., Ms. Ayotte
received a call from the police on her cell phone reporting that her home had been burglarized.
Additional evidence reflected that Officer Mark Ramirez of the Hampton Police Division
“was dispatched to a burglary in progress” at the Ayotte address. Dispatch reported that four
males of a specified race were breaking into the residence and provided a description of their
vehicle “as a black Honda Civic displaying temporary tags.”4
When Officer Ramirez arrived in the area, he saw a vehicle that matched the description
he had received. He also noted that four men of the same race as the reported burglars were
inside the car. Believing that the car and its occupants had been involved in the burglary,
Ramirez activated his emergency equipment, and the car stopped in the middle of the road. As
Ramirez approached on foot, the passenger door behind the driver opened, and the officer
2
On appeal of the sufficiency of the evidence, the appellate court “view[s] the evidence
and all reasonable inferences in the light most favorable to the Commonwealth, the prevailing
party in the trial court.” Rowland v. Commonwealth, 281 Va. 396, 399 (2011).
3
Taybron also challenges his convictions on appeal. We resolve that appeal by separate
opinion issued this same day. See Taybron v. Commonwealth, No. 0623-18-1 (Va. Ct. App.
Apr. 23, 2019).
4
The Commonwealth did not offer any evidence regarding the source of the burglary
report, but the description of the burglars and their vehicle was admitted into evidence without
objection.
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commanded the person to stay in the vehicle and close the door. The passenger did as he was
told, and at that point, the vehicle sped away.
The officer immediately got back into his police car and pursued the Honda. He saw the
driver commit several traffic offenses, including traveling intermittently in the lane for oncoming
traffic, nearly striking another car, and driving at speeds of 50 miles per hour in a zone of 25 to
30 miles per hour. At the end of a street with no outlet, the Honda struck a pole and came to a
stop. The appellant got out of the driver’s seat and attempted to flee, but Officer Ramirez
restrained him beside the car and then placed him in the custody of another officer. A second
man, the appellant’s co-defendant Taybron, jumped out of the front passenger’s seat and ran
away but was apprehended nearby. The other two occupants, who were in the back seat, also
fled.
Police recovered a variety of electronics from the Honda, which Mr. Ayotte identified as
items stolen from his home. Ayotte identified photos of a tablet computer in a black-and-yellow
case, three televisions, a laptop computer, two video game consoles, a video game controller,
various video games, and a backpack as items taken from his home that day. The tablet
computer was found on the front passenger floorboard of the Honda. Some of the gaming items
were found in the pockets behind the front seats. The other items were found in the trunk.
Ayotte testified that the insurance company valued the stolen items at $3,300. He further
testified that he did not recognize the appellant or Taybron and did not give them permission to
enter his home or take the property at issue.
Several hours after the men were apprehended, Officer William Darden interviewed the
appellant about his involvement in the crimes.5 The appellant admitted that he was driving the
5
Officer Darden also interviewed Taybron. The trial court ruled that Taybron’s
statements to Darden were not admissible against the appellant. That ruling is not at issue in this
appeal.
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Honda at the time of the stop but claimed that he fled because he was driving without a license.6
He also said that he had been driving the car for thirty minutes to an hour before the stop. When
Darden asked if the appellant stopped anywhere while driving, he “responded with no.”
Additionally, the appellant said that he did not see anyone commit any crimes. He never
admitted any “knowledge” of the burglary or the stolen items in the car.
The appellant opted not to present any evidence and twice moved to strike the
Commonwealth’s evidence. After hearing argument, the trial court denied the motions to strike
and found the appellant guilty of the charged offenses. In doing so, the judge made numerous
relevant factual findings. He noted that the evidence was “very clear” that a break-in and theft
had occurred. He pointed out the report of a “burglary in progress” with a description of a car
and the “very quick sighting of this car” by a police officer, who stopped it. The judge opined
that it was “clear” that the appellant was the driver and that he fled twice, once by car and a
second time on foot. The judge also emphasized that “the variety of items” taken from the home
were found not only in the vehicle’s trunk but also on the “passenger floorboard” and that “the
possession of these items was immediately after this report[ed break-in], not hours or days” later.
The court expressly found that the appellant’s “action . . . as the driver” and “the speed with
which [he] left” the scene of the stop contributed to a finding that the appellant was guilty
beyond a reasonable doubt. Finally, the judge concluded that the circumstances established that
the breaking and entering and grand larceny were “not . . . completely spontaneous” and that the
men had “a sufficient prior agreement” to commit the offenses.
6
Officer Darden testified, “I’m not exactly sure what the status of [the appellant’s
license] was at the time.” He also said that he did not know whether the Honda was registered to
the appellant.
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The appellant was sentenced to five years of incarceration for each of the three offenses,
but the court suspended part of each sentence, leaving him with two years nine months to serve
concurrently on each one.
II. ANALYSIS
The appellant acknowledges that the grand larceny and burglary of the victims’ home
occurred. Nevertheless, he argues that the evidence is insufficient to prove that he was one of the
criminal agents or had any knowledge of the larceny and burglary. He also contends that the
evidence was insufficient to establish that he conspired with the other occupants of the car to
commit the crimes.
On appeal, we view the evidence “in the light most favorable to the Commonwealth, the
prevailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629 (2009) (quoting
Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). This deferential standard “requires us to
‘discard the evidence of the accused in conflict with that of the Commonwealth[] and regard as
true all the credible evidence favorable to the Commonwealth and all fair inferences to be
drawn’” from that evidence. Vasquez v. Commonwealth, 291 Va. 232, 236 (2016) (quoting
Bowman v. Commonwealth, 290 Va. 492, 494 (2015)). Additionally, the standard “applies not
only to the historical facts themselves, but [also to] the inferences from those facts.” Clanton v.
Commonwealth, 53 Va. App. 561, 566 (2009) (en banc) (quoting Crowder v. Commonwealth,
41 Va. App. 658, 663 n.2 (2003)). In drawing inferences from the evidence, the fact finder may
conclude regarding even a non-testifying defendant that his false statements establish that he lied
to conceal his guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209-10 (2001); Rollston
v. Commonwealth, 11 Va. App. 535, 547-48 (1991).
Additionally, circumstantial evidence “is as competent and is entitled to as much weight
as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis
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except that of guilt.” Breeden v. Commonwealth, 43 Va. App. 169, 177 (2004) (quoting
Coleman v. Commonwealth, 226 Va. 31, 53 (1983)). “The reasonable-hypothesis principle
‘merely echoes “the standard applicable to every criminal case.”’” Commonwealth v. Moseley,
293 Va. 455, 464 (2017) (quoting Vasquez, 291 Va. at 250). It is “simply another way of stating
that the Commonwealth has the burden of proof beyond a reasonable doubt.” Commonwealth v.
Hudson, 265 Va. 505, 513 (2003). Further, “[t]he Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those that spring from the imagination
of the defendant.” Archer v. Commonwealth, 26 Va. App. 1, 12 (1997) (alteration in original)
(quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755 (1993)). “Whether an alternative
hypothesis of innocence is reasonable is a question of fact” that will be reversed on appeal only
if plainly wrong. Id. at 12-13.
We consider the appellant’s arguments in the context of these guiding legal principles.
A. Grand Larceny and Burglary
The appellant does not contest that grand larceny of the victims’ personal property and a
burglary of their home occurred. Rather, he argues that the evidence was not sufficient to prove
that he participated in the crimes.
Larceny is the taking and carrying away of the property of another with intent to
permanently deprive the owner of the possession of that property. Williams v. Commonwealth,
53 Va. App. 50, 60 (2008) (quoting Lund v. Commonwealth, 217 Va. 688, 691 (1977)). A theft
is classified as either grand larceny or petit larceny depending on the value of the goods taken.
Compare Code § 18.2-95, with Code § 18.2-96.7 Under settled principles, once a larceny has
7
When the offenses at issue occurred in 2016, Code § 18.2-95 required proof of the theft
of $200 or more to constitute grand larceny. Compare 1998 Va. Acts ch. 821 (reflecting the
$200 requirement), with 2018 Va. Acts chs. 764-65 (amending the statute to require proof of the
theft of property valued at $500 or more).
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been established, the larceny inference applies to permit the fact finder to infer from the
“unexplained possession of recently stolen goods . . . that the possessor is the thief.” Archer, 26
Va. App. at 13; see Dobson v. Commonwealth, 260 Va. 71, 74-76 (2000) (recognizing the
constitutionality of this principle when treated as a permissive inference).
Statutory burglary, in pertinent part, requires proof of a breaking and entering in the
daytime with the intent to commit larceny. See Code §§ 18.2-90, -91; Grimes v.
Commonwealth, 288 Va. 314, 317 (2014). As with larceny, an inference may apply to prove a
charge of burglary. Cannady v. Commonwealth, 210 Va. 533, 535 (1970). “[U]pon proof of a
breaking and entering” coupled with a simultaneous theft, “possession of the stolen goods shortly
thereafter . . . has the same efficiency to give rise to an inference that the possessor is guilty of
the breaking and entering.” Id. (quoting Sullivan v. Commonwealth, 210 Va. 201, 203 (1969)).
For both larceny and statutory burglary, possession must be “exclusive” in order for the
inference to arise, but “[o]ne can be in exclusive possession of an item when he jointly possesses
it with another.” Archer, 26 Va. App. at 13 (alteration in original) (quoting Best v.
Commonwealth, 222 Va. 387, 389 (1981)). Proof of exclusive possession of recently stolen
goods “throws upon the accused the burden of accounting for that possession.” Hope v.
Commonwealth, 10 Va. App. 381, 385 (1990) (en banc) (quoting Fout v. Commonwealth, 199
Va. 184, 190 (1957)). Where the possession is “unexplained or falsely denied,” the inferences
apply. See Lunsford v. Commonwealth, 55 Va. App. 59, 63 (2009) (quoting Cannady, 210 Va.
at 535). “Whether the recent possession was sufficient to find a defendant guilty of the . . .
offense[s] is within the province of the fact finder.” Montague v. Commonwealth, 40 Va. App.
430, 438 (2003).
In this case, the location of the significant number of stolen goods throughout the vehicle
driven by the appellant, coupled with his behavior during the encounter with police, supported
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the conclusion that the appellant possessed the stolen goods. “Establishing constructive
possession requires proof ‘that the defendant was aware of both the presence and character of the
[item] and that it was subject to his dominion and control.’” Watts v. Commonwealth, 57
Va. App. 217, 232-33 (2010) (alteration in original) (quoting Powers v. Commonwealth, 227 Va.
474, 476 (1984)). The evidence, including the appellant’s flight, supports a finding that he had
knowledge of the very recently stolen goods in the passenger compartment and the trunk. See
Clagett v. Commonwealth, 252 Va. 79, 93 (1996) (observing that “[f]light following the
commission of a crime is evidence of guilt”). Further, as the driver of the vehicle, the appellant
also had access to both areas. See Castle v. Commonwealth, 196 Va. 222, 227 (1954) (noting
that a defendant may be convicted of “knowingly possess[ing]” items “found . . . in a place [to]
which he kept the key” (quoting Tyler v. Commonwealth, 120 Va. 868, 871 (1917))).
Consequently, he had dominion and control over the items. See Hunter v. Commonwealth, 56
Va. App. 50, 59-60 & n.4 (2010). This proof of knowledge as well as dominion and control
supports the finding that the appellant possessed the stolen goods, which in turn supports
application of the two inferences. See Carter v. Commonwealth, 209 Va. 317, 318-19, 323-24
(1968) (upholding application of the larceny inference where the defendant had joint exclusive
possession of stolen radios in the back floorboard of his car, which he had been driving in the
presence of a passenger); Hope, 10 Va. App. at 383-85 (upholding application of the larceny
inference where two people jointly possessed the stolen items in a bag inside a vehicle in which
they were traveling). Based upon the proof of the appellant’s joint possession of the stolen
items, the trial court, as the fact finder, was entitled to infer that the appellant was guilty of both
the grand larceny and the statutory burglary.
In addition to the effect of the inferences, the record contains ample other evidence
supporting the trial court’s findings that the appellant participated in the theft and entered the
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victims’ home with the necessary intent. The evidence established that Ms. Ayotte left her
residence and its contents intact on the day in question. Seventy-five minutes later, she received
a phone call from the police informing her that her residence had been burglarized. The
evidence demonstrates that the police received the report of a burglary in progress at the Ayotte
residence within an hour and fifteen minutes of when Ms. Ayotte left the home. The report
included evidence that both the breaking and entering and larceny were committed at the same
time, by the same people, as part of the same criminal enterprise. Further, the police officer
responding to the residence to investigate the burglary “in progress” quickly spotted a vehicle
matching the reported description of the burglars’ car—a black Honda Civic with temporary
license plates—driving away from the area of the Ayotte residence. See Cooper v.
Commonwealth, 54 Va. App. 558, 574 n.6 (2009) (explaining that hearsay evidence “‘admitted
without objection’ . . . may ‘properly be considered’ and ‘given its natural probative effect’”
(quoting Baughan v. Commonwealth, 206 Va. 28, 31 (1965))). Inside the described vehicle, the
officer saw four men of the same race as the four men reported to have just been seen stealing
from the home.
When Officer Ramirez activated his emergency equipment to stop the specific car, the
appellant, who was the driver, stopped in the middle of the road rather than pulling over to the
side. Then, when the officer yelled at the occupants to stay in the car and began to approach it
on foot, the appellant accelerated the car and fled. As the officer pursued the Honda, the
appellant drove erratically and at speeds close to twice the posted limit. Ultimately, when the car
hit a post, the appellant and its other occupants attempted to flee on foot.
The appellant, once apprehended, denied knowing that the items in the front passenger’s
floorboard, back seat pockets, and trunk were stolen and claimed that he fled twice merely
because he did not have a driver’s license. However, the trial court, as the finder of fact, was
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permitted to disbelieve him and conclude that he was lying to conceal his guilt. See Shackleford,
262 Va. at 209-10; Rollston, 11 Va. App. at 547-48. The court was also entitled to infer from the
totality of the circumstances that the appellant fled, at least in part, because he had participated in
the larceny of the stolen items in the car, as well as the burglary, along with the vehicle’s other
three occupants. See Ricks v. Commonwealth, 39 Va. App. 330, 337 (2002) (stating that when a
defendant’s “flight might have been attributable to several causes, ‘consciousness of guilt’ [can]
be inferred by the trial court if any one of those [possible] causes was the . . . offense [at issue]”).
Additionally, when the evidence is viewed in the light most favorable to the Commonwealth, the
appellant admitted that he had been driving the car for an hour prior to the stop, which further
supports the inference that he was driving it during the time period for the burglary and was one
of the individuals who illegally entered the Ayotte home and committed larceny.
On this record, the trial court was entitled to conclude that the only reasonable hypothesis
flowing from the evidence was that the four men who very recently burgled the house were the
same four men in the car that contained the stolen goods. Based on the appellant’s failure to
provide an explanation for his possession of the stolen items that the trial court believed, it was
entitled to apply the inferences to conclude, in combination with all of the evidence, that the
appellant was guilty of the larceny and burglary beyond a reasonable doubt.8
B. Conspiracy to Commit Burglary
The appellant also challenges the sufficiency of the evidence to prove that he entered into
a conspiracy to burglarize the victims’ home.
8
Because the evidence supports a finding that the appellant was an active participant in
the larceny and burglary, we do not address whether the evidence supports a finding that he was
guilty of larceny and burglary as a principal in the second degree. See, e.g., Salahuddin v.
Commonwealth, 67 Va. App. 190, 211 n.7 (2017) (applying “best and narrowest ground”
principles (quoting Abney v. Commonwealth, 51 Va. App. 337, 353-54 (2008))).
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A conspiracy is “an agreement between two or more persons by some concerted action to
commit an offense.” Speller v. Commonwealth, 69 Va. App. 378, 389 (2018) (quoting Wright v.
Commonwealth, 224 Va. 502, 505 (1982)); see id. at 390 (noting that proof of an overt act is not
required to establish a conspiracy in Virginia). The Commonwealth bears the burden to “prove
beyond a reasonable doubt that an agreement existed.” Feigley v. Commonwealth, 16 Va. App.
717, 722 (1993) (quoting Floyd v. Commonwealth, 219 Va. 575, 580 (1978)).
Nevertheless, the Commonwealth “need not prove an explicit agreement.” Gray v.
Commonwealth, 30 Va. App. 725, 736 (1999) (emphasis added). Instead, as with any crime, the
elements of a conspiracy, including the existence of an agreement, “may be proved by
circumstantial evidence.” Floyd, 219 Va. at 580. “[A] common purpose and plan may be
inferred from a ‘development and collocation of circumstances.’” Id. at 581 (quoting United
States v. Godel, 361 F.2d 21, 23 (4th Cir. 1966)). Although no overt act is required to prove the
existence of a conspiracy, when the evidence shows that the defendants “by their acts pursued
the same object, one performing one part and the others performing another part so as to
complete it or with a view to its attainment, the [fact finder] will be justified in concluding that
they were engaged in a conspiracy to effect that object.” Charity v. Commonwealth, 49
Va. App. 581, 586 (2007) (quoting Brown v. Commonwealth, 10 Va. App. 73, 78 (1990)).
“Because most conspiracies are ‘clandestine in nature,’ by ‘the very nature of the offense, it
often may be established only by indirect and circumstantial evidence.’” James v.
Commonwealth, 53 Va. App. 671, 678 (2009) (citation omitted) (first quoting 2 Wayne R.
LaFave, Substantive Criminal Law § 12.2(a), at 266 (2d ed. 2003); then quoting Wright, 224 Va.
at 505); see Williamson v. State, 685 S.E.2d 784, 793 (Ga. Ct. App. 2009) (holding that relevant
circumstantial evidence of conspiracy includes factors “such as presence, companionship[,] and
conduct before and after the commission of the . . . offense”).
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In light of these legal principles, the trial court was not plainly wrong in finding that the
acts of the appellant and his companions in breaking and entering and stealing from the victims’
residence were “not . . . completely spontaneous without a sufficient prior agreement to go in and
take these things.” The evidence supports the inference that the four men were traveling together
in the Honda and arrived at the Ayottes’ residence together at a time when no one was home. It
also supports a finding that they worked together to remove numerous items from the residence,
including three televisions, two video game consoles, and numerous smaller items, which were
recovered both from the trunk of the vehicle and throughout the interior. Finally, the evidence
establishes that the four men left the scene together in the Honda, were together when pulled
over by the police, and all fled, first by car and then on foot when the car crashed. See
Velez-Suarez v. Commonwealth, 64 Va. App. 269, 278-79 (2015) (affirming where
co-conspirators shoplifted together); Ladd v. State, 87 So. 3d 1108, 1113 (Miss. Ct. App. 2012)
(affirming where co-conspirators “worked in unison” to steal “lawn equipment”); cf. Wright, 224
Va. at 505-06 (affirming where robbery co-conspirators parked in a secluded area and moved
through “the weeds” toward a nearby restaurant with masks, gloves, and a loaded firearm);
Speller, 69 Va. App. at 390 (where the defendant conceded that the evidence proved that he
conspired with others to burglarize a home, holding that the evidence also established that they
conspired to burglarize a second home because they fled together and had stolen property from
both homes). This evidence, viewed under the appropriate standard, supports the trial court’s
finding of the collocation of circumstances necessary to establish a conspiracy to break and enter
with the intent to commit larceny.
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III. CONCLUSION
We hold that the evidence establishes that the appellant committed the grand larceny and
burglary and that he and his companions conspired to commit the offenses. Accordingly, we affirm
the challenged convictions.
Affirmed.
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