Opinion
Record No. 0190-93-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS, Randolph T. West, Judge
Affirmed.
Edward I. Sarfan (Sarfan Nachman, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his convictions for burglary and grand larceny, Bobby Lee Smith (appellant) argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt. See Code Sections 18.2-91 and 18.2-95. We find the evidence sufficient to support appellant's convictions and affirm.
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 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) (citing Code Sec. 8.01-680). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
The evidence established that appellant came to the victim's apartment on the day of the burglary. When questioned by the victim about the break-in, appellant responded: "Well, if I did, you can't prove it." Five days after the burglary, the victim went to the department store where appellant worked. At that time, appellant was wearing a damaged gold necklace similar in appearance to one stolen from the victim's home and had in his possession a pager stolen from her home that she identified as belonging to her. Appellant denied possessing the pager and fled when confronted about the necklace and pager.
" '[P]ossession of goods recently stolen is prima facie evidence of guilt of the crime of larceny, and throws upon the accused the burden of accounting for that possession.' " Hope v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990) (citation omitted). See also Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (holding that items in accused's possession four weeks after theft considered "recently" stolen and reaffirming inference that possessor of recently stolen goods is thief is permissible absent credible, exculpatory explanation).
The trial judge did not believe appellant's denial regarding his possession of the stolen items. Moreover, "[t]he Commonwealth can establish a prima facie case that appellant broke and entered by (1) proving that goods were stolen from a house which was broken into, (2) justifying the inference that both offenses were committed at the same time, by the same person, as part of the same criminal enterprise, and (3) proving that the goods were found soon thereafter in the possession of the accused." Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987) (citations omitted). Here, the Commonwealth's evidence was sufficient to establish a prima facie case. Further, "evidence of flight may be considered as evidence of guilt along with other pertinent facts and circumstances. The flight need not immediately follow the commission of the crime since the defendant may be suspected and become aware of the suspicion at a later date." Hope, 10 Va. App. at 386, S.E.2d at 833-34 (citations omitted). The trial judge was entitled to find that appellant's decision to flee with stolen property was an additional indication of his guilt of the offenses charged.
The evidence is sufficient to sustain the convictions of burglary and grand larceny. The trial judge rejected the testimony of appellant and believed the testimony of the Commonwealth's witnesses. Accordingly, we cannot say that the judgments are plainly wrong or without evidence to support them.
Affirmed.