Edward William Coles, Jr. v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Athey and Fulton
UNPUBLISHED
Argued by videoconference
EDWARD WILLIAM COLES, JR.
MEMORANDUM OPINION * BY
v. Record No. 0930-21-2 JUDGE GLEN A. HUFF
APRIL 19, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Sarah L. Deneke, Judge
Maureen L. White for appellant.
Justin B. Hill, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Edward William Coles, Jr., appeals his convictions, from a bench trial, of statutory burglary
and robbery, in violation of Code §§ 18.2-91 and 18.2-58. 1 Appellant asserts that the Caroline
County Circuit Court (the “trial court”) erred in finding the evidence sufficient to convict him of
statutory burglary and robbery. For the following reasons, this Court disagrees and affirms his
convictions.
BACKGROUND
On appeal, this Court “review[s] the evidence in the light most favorable to the
Commonwealth,” the prevailing party at trial. Clanton v. Commonwealth, 53 Va. App. 561, 564
(2009) (en banc). Accordingly, the Court must “discard the evidence of the accused in conflict with
that of the Commonwealth, and regard as true all the credible evidence favorable to the
*Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1 Appellant was also convicted of felony property damage and possession of a firearm
after having been convicted of a felony. He does not challenge those convictions.
Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41
Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348
(1998)).
In the afternoon on May 13, 2020, Susan Zeller was sitting in her living room when
appellant opened her front door. Susan did not know appellant and yelled at him to “get out of [her]
house.” Appellant said, “[Y]ou’re just tripping,” and left. Susan locked the door behind him,
grabbed her phone, and fled out the back door to the garden where her husband, Frederick Zeller,
was working.
Susan told Frederick that a man had just come into their home. Frederick told Susan to call
911, and he went inside to investigate. Frederick did not see anyone at the house, and he retrieved
his nine-millimeter Ruger from their first-floor bedroom. The Ruger was loaded with Remington
target ammunition and holstered. After retrieving his gun, Frederick heard a noise. He ventured
into the living room and saw that the door had been broken. The molding was cracked and the
door-jam and frame torn.
Frederick heard noises upstairs so he went to the staircase and shouted for the person to get
out. Frederick heard movement and saw appellant descend the stairs. Frederick repeatedly
demanded that appellant leave, but appellant refused. Appellant then asked Frederick if he had a
gun and began to walk toward Frederick. Frederick recently had been hospitalized and was unable
to run, but he turned and walked away as fast as he could. Appellant followed and continued
yelling at Frederick as they traveled out of the house. Eventually, appellant caught up with
Frederick and grabbed him from behind. A struggle for the gun ensued. When appellant disarmed
Frederick, Frederick believed he was going to die.
While Frederick was inside the house, Susan spoke with a 911 dispatcher who asked Susan
what kind of car appellant drove. As Susan approached the vehicle, she saw Frederick and
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appellant leave the house and appellant disarm Frederick. Moments later, Frederick reached Susan.
Frederick began to relate to the 911 dispatcher what just occurred. As Frederick was relating his
encounter, he heard multiple gunshots.
When Caroline County Sheriff’s Deputy Michael Dan Holmes arrived at the Zellers’
residence, Frederick explained to him that he had been in a physical altercation with a large man,
who had taken his firearm and was now in the residence. Deputy Holmes told Frederick to go to the
wood line at the back of the residence, and he waited behind his patrol car until other units arrived.
As Deputy Holmes waited, appellant appeared in the entry way to the porch area of the
residence and had a small black firearm in his hand. Deputy Holmes ordered appellant to drop the
handgun and come outside. After twenty to thirty seconds, appellant retreated inside. Deputy
Holmes testified that appellant stood ten to fifteen yards away from him at the time of this
exchange.
Caroline County Sheriff’s Deputy Jason Miller arrived shortly thereafter as backup.
Moments later, appellant exited the residence naked. After the officers arrested appellant, Deputy
Miller spoke with Susan and Frederick and began investigating the scene.
Appellant’s black sedan was parked outside the residence. There was a large hole in the
car’s front passenger-side window and several spent Remington nine-millimeter shell casings in the
seats. There was also a bullet hole in the center of the sedan’s dashboard
Inside the house, deputies retrieved a Ruger nine-millimeter handgun and a magazine on the
floor of a small room downstairs. In the living room, deputies found bullet-entry holes and
recovered spent nine-millimeter bullets. Deputy Miller testified that “[i]f you were to draw a line
from the hole in [the car’s passenger-side] window to the house where the bullet holes were entering
the house, it would be a straight line.” Police found appellant’s clothes in a small room upstairs.
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Upon the conclusion of the Commonwealth’s evidence, appellant made a motion to strike,
arguing that the Commonwealth failed to prove his intent to steal as to the robbery charge. He
claimed no evidence showed he intended to flee with the gun. He emphasized that the gun was
recovered in a separate room from where his clothes were and nothing else was missing from the
house. As to the statutory burglary charge, appellant argued the Commonwealth failed to show that
he intended to commit larceny, assault and battery, or some other felony. He noted again that
nothing was missing in the house. Additionally, the struggle for the gun occurred outside the home
and he claimed that he only took the firearm because he feared he would be shot. The trial court
denied the motions to strike as to the burglary and robbery charges.
Appellant then testified in his own defense, giving his own version of the events. He stated
that he was traveling from Washington, D.C., to Henrico County, Virginia, on business. Having
never traveled that far south, he relied completely on his phone’s GPS. As he was driving, he
realized that his phone was not charging but was in fact dead. He got off Interstate 95 and looked
for a place where he could charge his phone. First he stopped at a McDonald’s, but because of the
COVID-19 pandemic, the dining room was closed. Then appellant tried to charge his phone at the
Exxon gas station across the street, but the store was closed. While pumping gas at the Exxon, a
woman informed appellant that he could charge his phone at a guard post to a gated community not
far from the gas station. He tried to follow the woman’s directions but almost immediately got lost,
and he pulled off onto a gravel driveway.
As he sat in the driveway attempting to charge his phone, a man knocked on his window.
Thinking that the man may be able to help him, he rolled down his window. The man, who he
claimed was Frederick, asked appellant what he was doing. Appellant began to explain that he was
lost and needed to charge his phone. But before he could finish Frederick unholstered the gun on
his hip and pointed it at appellant. Appellant, who was afraid of guns after being shot in 2014,
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jumped over to the passenger seat and grabbed the passenger door. At the same time, appellant
heard the first shot hit his dashboard, and he jumped out of the car. The second shot broke the
passenger window.
Appellant further claimed that he hurried to a nearby house to ask for help. Susan opened
the door but when appellant told her that Frederick was shooting and asked her to call the police,
she immediately started screaming and ran past appellant. Appellant entered the house and began
looking for a phone. Appellant looked back and saw that Frederick was coming into the house, so
he ran upstairs. Frederick was yelling, but appellant could not understand what he was saying.
Appellant then came back downstairs and saw no one. He looked out the front door and saw the
police, who were telling him to drop the gun and come out with his hands up. Appellant testified
that he did not have a gun and held only his cell phone in his hand. Appellant decided that he
should take off all his clothes to show the officers that he was not armed and ensure that he did not
get shot. Appellant testified that he entered the house because he feared for his life.
On cross-examination, appellant acknowledged that the police found a rolled-up cigarette
containing marijuana in his car. He denied that he smoked it while driving or that it was dipped in
anything and further claimed that he had not consumed any drugs.
On rebuttal, the Commonwealth called Caroline County Sheriff’s Deputy Erin Cardoso.
Deputy Cardoso testified that she witnessed appellant exit the Zellers’ house naked. She checked
on appellant’s welfare after the police placed him in a car. When she asked him what had
happened, he responded that “it was the drugs.”
The trial court denied appellant’s renewed motion to strike. The trial court found
Frederick’s and Susan’s testimony more credible than appellant’s testimony. It also found that
appellant first walked through an unlocked door and then, after being asked to leave, he returned
and broke through the door Susan had locked behind him. Despite appellant’s claim that he took
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the gun only to protect himself, the trial court found the evidence “contrary” to the story. The court
noted that appellant did not attempt to disassemble the gun or make it unusable by tossing it away.
Ultimately, the trial court convicted appellant of statutory burglary, robbery, felony property
damage, and possession of a firearm and sentenced him to seventeen years’ incarceration, with
nine years suspended. This appeal followed.
ANALYSIS
Appellant challenges the sufficiency of the evidence to convict him of statutory burglary and
robbery. “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support
it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting
Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting
Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the
conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion
might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72
Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
“[T]he credibility of a witness, the weight accorded the testimony, and the inferences to
be drawn from proven facts are matters solely for the fact finder’s determination.” Fletcher v.
Commonwealth, 72 Va. App. 493, 502 (2020) (quoting Crawley v. Commonwealth, 29 Va. App.
372, 375 (1999)). “In its role of judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to
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conceal his guilt.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable
v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).
“[T]he ‘fact finder may infer that a person intends the immediate, direct, and necessary
consequences of his voluntary acts.’” Brown v. Commonwealth, 68 Va. App. 746, 788 (2018)
(quoting Robertson v. Commonwealth, 31 Va. App. 814, 820 (2000)). “[W]hether the required
intent exists is generally a question of fact for the trier of fact.” Smith v. Commonwealth, 72
Va. App. 523, 536 (2020) (quoting Brown, 68 Va. App. at 787).
A. Burglary
Appellant asserts that the evidence was insufficient to convict him of statutory burglary. He
argues that the Commonwealth failed to prove he entered the Zellers’ home with the intent to
commit larceny or any other felony. Instead, he claims, his testimony proved that he entered the
house because he was fleeing from Frederick, who threatened him with a gun. He says, under his
version of events, he made no threats upon entering the house, demanded nothing from the Zellers,
and left immediately when asked. He further argues that the drugs he consumed triggered a state of
paranoia, causing him to act erratically, so he entered the home to obtain assistance. Consequently,
appellant concludes, the evidence was insufficient to convict him of statutory burglary. But
appellant’s actions—and the trial court’s rejection of his version of the events—demand the
opposite conclusion.
“If any person . . . in the daytime breaks and enters or enters and conceals himself in a
dwelling house . . . with intent to commit murder, rape, robbery or arson . . . he shall be deemed
guilty of statutory burglary.” Code § 18.2-90. “If any person commits any of the acts mentioned in
§ 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson . . .
he shall be guilty of statutory burglary.” Code § 18.2-91.
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The accused’s “intent is usually proved by circumstantial evidence.” Slaughter v.
Commonwealth, 49 Va. App. 659, 667 (2007). “In burglary cases, the fact finder may infer from
the entry that the purpose of the illegal entry was unlawful.” Id. “Further, ‘[i]n the absence of
evidence showing a contrary intent, the trier of fact may infer that a person’s unauthorized presence
in another’s house was with the intent to commit larceny.’” Id. (quoting Sandoval v.
Commonwealth, 20 Va. App. 133, 138 (1995)).
Under appellant’s version of events, he never intended to commit any felony. The trial
court, however, rejected his version of events as incredible. Flanagan, 58 Va. App. at 702 (“In its
role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to conceal his guilt.” (quoting Marable, 27
Va. App. at 509-10)). The trial court instead found that appellant initially entered the home through
an unlocked door. When Susan asked appellant to leave, he did, and she immediately locked the
door behind him. Moments later, however, appellant broke through the now locked door and again
entered the house. He initially went upstairs but then came downstairs, got in a physical altercation
with Frederick, and took his gun. This evidence was sufficient to establish appellant entered the
Zellers’ home illegally and for the trial court to infer that appellant entered with unlawful intent.
Thus, this Court will not disturb this finding of fact on appeal.
B. Robbery
Appellant asserts that the evidence was insufficient to convict him of robbery. He argues
that the Commonwealth failed to prove that he intended to permanently deprive Frederick of his
firearm. Rather, he says he intended only to temporarily deprive Frederick of his firearm for his
own safety. He emphasizes that he did not attempt to leave with the firearm and instead left the gun
in the house when he exited naked. Accordingly, appellant argues, the robbery conviction should be
reversed.
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“In Virginia, robbery is a common law crime proscribed statutorily by Code § 18.2-58
and defined as the taking, with intent to steal, of the personal property of another, from his
person or in his presence, against his will, by violence or intimidation.” Anderson v.
Commonwealth, 52 Va. App. 501, 507 (2008) (quoting Jay v. Commonwealth, 275 Va. 510, 524
(2008)).
The intent to steal—or animus furandi—“is an intent to feloniously deprive the owner
permanently of his property.” Pierce v. Commonwealth, 205 Va. 528, 533 (1964). A factfinder
may divine that intent by inferring it “from the [accused’s] asportation and conversion of the
property, in the absence of satisfactory countervailing evidence introduced by the defendant.”
Clay v. Commonwealth, 30 Va. App. 254, 261 (1999). Moreover, “[i]ntent is the purpose formed
in a person’s mind at the time an act is committed.” Carter v. Commonwealth, 280 Va. 100, 105
(2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 519 (1998)). Intent “may occur
momentarily” and “does not have to exist for any particular length of time.” Commonwealth v.
Jones, 267 Va. 284, 289 (2004) (quoting Durham v. Commonwealth, 214 Va. 166, 169 (1973)).
“Intent may, and often must, be inferred from the facts and circumstances of the case, including
the actions of the accused and any statements made by him.” Carter, 280 Va. at 105 (quoting
Stanley v. Webber, 260 Va. 90, 96 (2000)).
Crucial here, a person may act with multiple intents or purposes. See Holley v.
Commonwealth, 44 Va. App. 228, 237-38 (2004). For example, an assailant in a tussle with a
victim over a firearm may intend to “deprive the [victim] wholly of the [victim’s] pistol,”
indicating a robbery, even while “the assailant[,] on snatching the pistol[,] may also have
intended to prevent its being used against [him].” See, e.g., Jordan v. Commonwealth, 66 Va.
943, 948 (1874). “Both intents may have existed at the time.” Id. Appellant’s argument misses
this point.
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Although appellant says he took the gun only to prevent Frederick from using it against
him, the trial court found the facts contradicted that argument. Appellant walked down the stairs
and found Frederick with a holstered gun. Appellant asked Frederick about the gun, approached
him, and subsequently disarmed him. Appellant did not throw the gun away or simply keep
Frederick from using it. Instead, appellant kept the gun until police arrived—and even fired the
gun into the Zellers’ home. Because a rational factfinder could conclude this evidence was
sufficient to show appellant intended to keep the firearm when he disarmed Frederick, this Court
will not disturb the trial court’s judgment on appeal.
CONCLUSION
The evidence at trial was sufficient to prove appellant entered the home with the intent to
commit a larceny or felony therein and to prove that appellant intended to permanently deprive
Frederick of his firearm. Accordingly, this Court affirms appellant’s burglary and robbery
convictions.
Affirmed.
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