Sherman Jones v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
SHERMAN JONES
MEMORANDUM OPINION * BY
v. Record No. 2896-96-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Joseph A. Sadighian, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
On appeal from his conviction for petit larceny, in
violation of Code § 18.2-103, Sherman Jones contends that the
evidence was insufficient. We disagree and affirm the judgment
of the trial court.
At approximately 3:00 a.m., on November 8, 1995, Melody
Ferris, a 7-Eleven Store employee, saw William Wilson steal four
packs of cigarettes and leave the premises. She called the
police. Jones and a man named Diggs had entered the store
together a few minutes after Wilson.
Ferris noticed Diggs near the area containing luncheon meat
and fresh sandwiches. She observed Jones in the back of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
store near the canned goods section, handling containers of Spam
and sardines. When Jones noticed Ferris watching him, he turned
his back toward her but continued "picking up stuff, putting it
down, picking it up, putting it down." Jones walked to the
medicine section where he repeatedly handled packets of BC Powder
and Tylenol. Cigars were displayed adjacent to the medicine
section. While Ferris was calling the police, she saw Wilson
reenter the store. The three men then departed together without
purchasing anything.
Shortly after receiving a police dispatch concerning the
theft at the 7-Eleven, Sergeant Canady located the three men
walking away from the store, about a block away. Following a
consensual pat-down of Wilson, Sergeant Canady confiscated the
stolen cigarettes and arrested him. Sergeant Canady testified
that "[b]oth Mr. Jones and Mr. Diggs were carrying items which
would be purchased or could be purchased from the 7-Eleven." He
said that Jones was carrying a grocery bag and eating a sandwich
that had a plastic wrapper. Shortly thereafter, Officer Helms
arrived on the scene. He saw a bag on the ground next to Jones.
Officer Nicholson patted Jones down. He testified that he felt
a sandwich in one of Jones' pockets and that Jones was smoking a
cigar.
Upon returning to the 7-Eleven with Wilson, Sergeant Canady
interviewed Ferris about the items being carried by Jones and
Diggs. After he learned that neither Jones nor Diggs had
- 2 -
purchased anything, the police officers located and arrested
them. Officer Nicholson recovered two packs of cigars from
Jones. Neither man presented a purchase receipt.
By examining the 7-Eleven identification number on the
recovered items, Ferris verified that all of the items came from
her store, but acknowledged that she could not say with "one
hundred percent certainty" that the cigars were stolen. Ferris
viewed a videotape recorded by the store's surveillance camera
and testified that the three men had not been in the store
earlier that day or night.
The confiscated goods, which encompassed the items recovered
from a grocery bag, included two cans of Spam, one can of
sardines, approximately thirty packets of BC Powder, four packs
of cigarettes, and two packs of cigars. Also seized from the
three men were plastic wrappers from refrigerated sandwiches and
a bottle of wine.
Jones contends that the evidence is insufficient to sustain
his conviction. He argues that the Commonwealth failed to
disprove two reasonable hypotheses of innocence: (1) the cigars
recovered from his person were not stolen; and (2) the grocery
bag that he was seen holding was not the same grocery bag from
which the recovered items came.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
- 3 -
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). When the sufficiency of the evidence is challenged on
appeal, "it is our duty to look to that evidence which tends to
support the verdict and to permit the verdict to stand unless
plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121
S.E.2d 452, 457 (1961). See Johnson v. Commonwealth, 2 Va. App.
598, 604-05, 347 S.E.2d 163, 167 (1986) ("Circumstantial evidence
alone is sufficient to sustain a conviction.").
Ferris observed Jones acting in a suspicious manner in the
store, handling cans of sardines, Spam, as well as BC Powder.
The medicine was adjacent to an area containing cigars. Jones
left the store with two other individuals, one of whom had been
seen stealing cigarettes, and the other having been seen in the
sandwich section. No purchase was made. A short time later,
Jones was seen in the vicinity of the store in possession of a
plastic-wrapped sandwich, cigars, and a grocery bag. A store
clerk confirmed that the cigars and the goods in the grocery bag
brought to the store by the police came from that specific
7-Eleven. None of the three men had been in the store previously
that day, and no receipt for purchase was presented.
"Whether the Commonwealth relies upon either direct or
circumstantial evidence, it is not required to disprove every
remote possibility of innocence, but is, instead, required only
- 4 -
to establish guilt of the accused to the exclusion of a
reasonable doubt." Bridgeman v. Commonwealth, 3 Va. App. 523,
526-27, 351 S.E.2d 598, 600 (1986) (citation omitted). See Smith
v. Commonwealth, 185 Va. 800, 820, 40 S.E.2d 273, 282 (1946).
Indeed, "'[t]he hypotheses which the Commonwealth must reasonably
exclude are those "which flow from the evidence itself, and not
from the imagination of defendant's counsel."'" Cantrell v.
Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328, 338 (1988)
(citations omitted).
A theory of innocence based upon speculation that an
unidentified third party may have given Jones the cigars, that
Jones may have purchased the goods on a previous day or that a
mix-up may have occurred between his bag and the bag containing
the stolen goods does not flow from the evidence. The
credibility of the witnesses, the weight accorded the testimony
and the inferences to be drawn from proven facts are solely
within the province of the trier of fact, provided such
inferences are justified and reasonable. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989);
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29-30
(1963). We find that it was not error for the trial court,
having heard all the evidence, to infer that the grocery bag
possessed by Jones was the grocery bag containing stolen items
and that Jones participated in the theft of the items from the
7-Eleven.
- 5 -
The judgment of the trial court is affirmed.
Affirmed.
- 6 -