Giles Braxton, s/k/a Giles E. Braxton v. CW ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
GILES BRAXTON, S/K/A
GILES E. BRAXTON
MEMORANDUM OPINION * BY
v. Record No. 1953-98-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
V. James Ventura (Brinton T. Warren, on
briefs), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Giles E. Braxton appeals his conviction by jury in the
Circuit Court of Arlington County for statutory burglary and
grand larceny. Braxton contends the evidence was insufficient
to support the convictions. Finding no error, we affirm the
convictions.
BACKGROUND
On August 9, 1995, the Arlington home of Rosemarie Bowie
was burglarized between 2:30 p.m. and 3:45 p.m. Bowie was away
during this period, but upon her return at 3:45, she found one
of her basement windows smashed and the interior of her house
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
ransacked. She also discovered a number of items missing. Soon
thereafter Bowie received her billing statement from Bell
Atlantic, and she discovered a number of unauthorized calls
billed to her Bell Atlantic "IQ" card ("calling card").
Realizing that her telephone calling card had also been stolen
during the August 9 burglary, she informed the police of the
unauthorized calls.
Detective Linda Alcorta of the Arlington County Police
Department investigated the unauthorized calls. She found that
many of the calls had been placed at the Burning Tree Country
Club in Bethesda, Maryland. Upon further investigation, she
learned that Braxton had been employed there at the time of the
burglary. Braxton was charged with the theft of the calling
card and other items from Bowie's home.
At trial, Braxton and the Commonwealth stipulated that "the
defendant, Giles Braxton, used a telephone calling card (703 -
[number deleted]) belonging to Rosemarie G. Bowie to place
[nine] telephone calls" on August 14, 15, 24, and 31,
respectively. Braxton denied breaking into Bowie's house, and
he denied stealing any of her property. Although he stipulated
to using Bowie's calling card, Braxton denied that he ever
possessed the plastic calling card. Rather, Braxton claimed
that one of his co-workers, whose name he could not recall, "had
given [him] authorized use of the [personal identification]
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number" on the dates in question. Braxton did not write down
the calling card's number, stating he had a good memory and was
able to recall it accurately on the dates he used it. Detective
Alcorta testified that when she asked Braxton on October 20,
1997 how he had come into possession of the calling card, he
replied that he "could have borrowed it or found it," but that
he did not remember. Braxton disputed Detective Alcorta's
recollection of the statements he made to her on October 20,
1997.
On April 2, 1998, the jury found Braxton guilty of
statutory burglary and grand larceny and sentenced him to twelve
months in jail on each conviction, with a recommendation that
the sentences run consecutively. The jury also recommended a
fine of $650. On August 11, 1998, the trial court entered an
order consistent with the jury's verdict and recommendations.
Braxton noted this appeal, raising the sole issue of whether the
evidence at trial was sufficient as a matter of law to convict
him of the charges of burglary and grand larceny. He argues
that evidence that he used Bowie's calling card number to place
calls on the dates in question does not suffice to prove he
possessed the calling card; lacking such proof, he contends that
no inference may reasonably be drawn that he committed the
crimes charged on the theory of recent possession of stolen
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goods, the theory which the Commonwealth advanced at trial. We
disagree and affirm his convictions.
ANALYSIS
Larceny is "'the wrongful or fraudulent taking of personal
goods of some intrinsic value, belonging to another, without his
assent, and with the intention to deprive the owner thereof
permanently.'" Bryant v. Commonwealth, 248 Va. 179, 183, 445
S.E.2d 667, 670 (1994) (quoting Skeeter v. Commonwealth, 217 Va.
722, 725, 232 S.E.2d 756, 758 (1977)). In every larceny, there
must be an actual taking or severance of the goods from the
possession of the owner. See Jones v. Commonwealth, 3 Va. App.
295, 300-01, 349 S.E.2d 414, 417-18 (1986). "'There is a
[taking] when the defendant takes possession; he takes
possession when he exercises dominion and control over the
property. . . .'" Bryant, 248 Va. at 183, 445 S.E.2d at 670(quoting 3 C. Torcia, Wharton's Criminal Law § 378 (14th ed.
1980)). "'[T]o raise the presumption of guilt from the
possession of the fruits . . . of crime . . . it is necessary
that they be found in his exclusive possession. A constructive
possession is not sufficient to hold the [accused] to a criminal
charge. He can only be required to account for the possession
of things which he actually and knowingly possessed . . . .'"
Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 363
(1954) (quoting Tyler v. Commonwealth, 120 Va. 868, 871, 91 S.E.
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171, 172 (1917)). "Possession of goods recently stolen is prima
facie evidence of guilt . . . and throws upon the accused the
burden of accounting for that possession." Hackney v.
Commonwealth, 26 Va. App. 159, 168, 493 S.E.2d 679, 684 (1997).
Braxton did not contest that the burglary occurred.
Asserting that the evidence proved only "that he made telephone
calls utilizing the PIN number from the . . . calling card,"
Braxton contends that the Commonwealth failed to prove he
actually possessed the stolen telephone card.
The evidence proved, however, that when Braxton was
questioned by a police detective concerning the stolen telephone
card, Braxton "said he could have borrowed it or found it or
said he couldn't remember." Braxton and the Commonwealth also
made the following stipulation at trial:
It is agreed and stipulated that the
defendant, Giles Braxton, used a telephone
calling card (703 – [number deleted])
belonging to Rosemarie G. Bowie to place
telephone calls at the following times and
dates:
14 August 1995 @ 12:54 PM
15 August 1995 @ 8:17 AM
15 August 1995 @ 8:23 AM
15 August 1995 @ 10:37 AM
15 August 1995 @ 3:45 PM
24 August 1995 @ 4:45 PM
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31 August 1995 @ 1:05 PM
31 August 1995 @ 1:06 PM
It is further agreed that this stipulation
may be entered as evidence in the trial of
the above case.
This evidence, which was believed by the jury, was
sufficient to prove beyond a reasonable doubt Braxton's actual
possession of the card. Although Braxton could have limited his
stipulation to the fact that he merely used the calling card's
number, he did not. The ordinary meaning of "used a telephone
calling card" and the testimony of the detective were sufficient
to prove beyond a reasonable doubt that Braxton possessed the
actual card.
Accordingly, we affirm Braxton's convictions.
Affirmed.
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