JUDGE RUDOLPH BUMGARDNER, III.
Christian Lamar Sweat appeals his conviction of obtaining money by false pretenses, Code § 18.2-178. He maintains the evidence was insufficient to prove an intent to defraud because the Commonwealth failed to prove he knew the items sold were stolen. Finding the evidence supports the finding that he had the intent to defraud, we affirm.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record through this evidentiary prism 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 therefrom.'" Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)) (emphasis omitted). As an appellate court, moreover, our examination of the record "is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling."Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008), aff'g, 49 Va. App. 285, 640 S.E.2d 526 (2007); Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009).
A Wii video game console, games for it, and other items were stolen during a breaking and entering. The next day, the defendant, aged 24, his two minor brothers, aged 13 and 12, and one or two others went to the Game Stop store and exchanged the stolen property for similar video game equipment. The store manager testified the defendant entered the store with three others and all four approached the counter. The two younger brothers placed the items they wanted to trade on the counter. They were the items stolen the prior day and included the Wii game system. The younger brothers said they wanted to trade for another Wii game system. The manager told them the store was sold out of the Wii system, so they traded for an Xbox 360, which is a rival brand to the Wii game system.
Store policy required a picture ID from someone 18 years or older who would take responsibility for the exchange because the store could not trade with minors. The store clerk obtained the defendant's driver's license and entered his identifying information from the license into the store computer. The defendant also had to furnish a telephone number, which he did using his mother's cellular phone number rather than his own.
The clerk entered in the store's computer a list of the serial numbers of the items traded and the values assigned to them. The store gave a total credit of $268 for the items traded and acknowledged receipt of $45 cash in payment of a balance of $41.21 owed in exchange for the Xbox 360. The clerk printed a receipt that contained all the data related to the exchange. Just above the signature block, at the bottom of the print out, the receipt affirmatively stated that the person signing and completing the transaction was the sole owner of the property. The defendant signed in the signature block at the bottom of the receipt.
Four days later, Detective Vernon Ryder while investigating the burglary went to the Game Stop and learned the serial numbers on the receipt matched the serial numbers provided by the owners of the stolen property. He then interviewed the defendant who denied having ever sold a Wii game system. When the detective said he would be checking with certain pawnshops, the defendant changed his story. He then admitted he sold a Wii game system for his brothers though he claimed he did not know who had the Wii or who asked him to sell it. The defendant maintained he was in another part of the store looking at merchandise and the receipt was brought to him and signed there. The detective doubted that the defendant did not go to the counter to sign the receipt. As he explained to the defendant, the explanation did not comport with the procedures the store had to follow.
The defendant made a motion to strike the evidence at the conclusion of the Commonwealth's case-in-chief. The trial court denied the motion stating, "looking at it in the light most favorable to the Commonwealth, there is a prima facie case."
In order to convict one of larceny by false pretenses, however, the Commonwealth must prove four elements of the offense charged: (1) an intent to defraud; (2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud; and (4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is, the false pretenses to some degree must have induced the owner to part with his property.
Bourgeois v. Commonwealth,
217 Va. 268, 272, 227 S.E.2d 714, 717 (1976).
There was sufficient evidence proving the defendant intended to defraud the Game Stop store. When the defendant signed the receipt at the Game Stop store, he represented that he was the sole owner of the items being traded. In his statements to the police, the defendant admitted that he was not the owner. But for this misrepresentation, the store would not have parted with its merchandise. He initially lied to the detective when he said that he had never sold a Wii game system and only admitted doing so when the detective said he was going to check at pawnshops. The defendant was in recent possession of stolen property, which he traded at a pawnshop. Signing the Game Stop receipt was an out-of-court admission of his possession of stolen property, and the sale was an exercise of dominion and control over the property.
In Roberts v. Commonwealth, 230 Va. 264, 337 S.E.2d 255 (1985), the defendant also argued that the Commonwealth failed to show he knew the property in question was stolen. The Court held:
It is true, of course, that an essential element of the offense of receiving stolen property is guilty knowledge. It is also true that no witness testified directly that the defendant knew the property in question was stolen. But the element of guilty knowledge may be supplied by circumstantial evidence, including the circumstance that the accused was in possession of recently stolen property.
Id. at 270,
337 S.E.2d at 259 (citations omitted).
The mother, the two youngest brothers, and the defendant testified for the defense. The youngest brother, Josh, aged 12, testified that he and his brother Kyle had stolen the games. He maintained that he had placed all the stolen items in a book bag that he carried to the counter. He stated that the defendant did not know what he had in the bag or that they were stolen. Josh stated that he purchased some games and then went and got the defendant to sign the receipt. After that, Josh said he had purchased additional games.
On cross-examination, Josh stated that he was trading the Wii system because he was bored with it, but the defendant did not know he was going to exchange items at the store. Josh admitted he initially told the detective that he had informed the defendant he had bought the items for $10, but he maintained that he had not really told that story to the defendant. Josh said he did not give the clerk $45 in cash and did not think Kyle had done so. He knew the defendant did not provide the cash. At first, Josh said Jaquan, a friend who had accompanied them, did not provide the cash but on re-direct he became pretty sure that Jaquan had done so. Josh maintained he went to the store because he wanted an Xbox 360, but he could not remember if he had first asked for a Wii system.
Kyle, aged 13, also testified. He maintained that he had not taken part in the breaking and entering but had learned of it from Josh. He also maintained the defendant did not know the games were stolen and had not gone to the counter. When asked if cash was needed to complete the trade, he replied that maybe a couple of dollars were paid. He testified that Josh had paid $3. Kyle also claimed that after the trade he had separately bought a second controller for the Xbox 360 with $30 cash that he had with him. Kyle testified that the defendant did not have to sign for the purchase of the second controller and that purchase had nothing to do with the trade the defendant completed. Kyle was positive they did not try first to trade for another Wii system.
The defendant testified in his own defense. He stated he was called to the front of the store to sign the receipt because he was over 18. He denied telling the detective that his brother had brought the receipt to him to sign while he was in another part of the store. The defendant took his younger brothers to the Game Stop, but he did not ask them what they planned to do and the brothers did not tell him why they were going there. The defendant maintained his younger brothers picked out the precise system they wanted to buy and paid the cash balance after the defendant had signed the receipt and left the counter.
The defendant and his brothers asserted broadly that the defendant had no reason to suspect the items were stolen, took no part in the transaction at the counter, and other than signing the receipt, did not even know what the brothers were doing. However, many inherent and indispensable details of their separate accounts were internally contradictory, inconsistent with other defense testimony, and irreconcilable with uncontested factual details.
At the conclusion of all the evidence, the trial court found the defendant guilty beyond a reasonable doubt. The judge explained her reasoning:
[A]t the close of the Commonwealth's case and the reason I would not strike the evidence is there was a
prima facie case, but I don't know from a reasonable doubt standard, at the end of all the evidence, if I could say there was no reasonable hypothesis of innocence until you put those witnesses on.
This statement is an accurate recital of the sequential evaluations of evidence made as a trial court first rules on a motion to strike at the conclusion of the Commonwealth's case-in-chief before a subsequent ruling on guilt or innocence at the conclusion of all the evidence.
The standard applied to a motion to strike after the Commonwealth rests is stated in Limbaugh v. Commonwealth, 149 Va. 383, 140 S.E. 133 (1927).
The trial court can strike out evidence that is relevant only where, after giving full faith and credit to the witnesses and drawing all inferences from their testimony that a jury might fairly draw therefrom, it plainly appears that the trial court would feel compelled to set aside a verdict found in accordance therewith.
Id. at 393,
140 S.E. at 135. The trial court accepts the evidence of the Commonwealth and draws all inferences that a reasonable jury might draw.
The trial court next explained its evaluation of the evidence and the reasoning it applied at the conclusion of all the evidence. "I became very clear and convinced he was guilty after the testimony of the witnesses, his brothers, who I thought were the cutest thing, Mom, but they were not telling the truth here."
The trial court then directed its comments to the defendant who had testified last:
I find it incredible you would not know — you are 24. Do you know how many guys your age there are, 24, 25, and 50 still playing those games as if they were kids? They know the difference between Wii and everything else, and you don't have to know — they are your brothers, but they went through so much to say you did not know. Shakespeare writes about they protest too much.
The trial court then concluded its evaluation of the evidence and pronounced judgment: "I'm the trier of fact, and I state for the record that I don't believe the testimony of the witnesses, and because of that, that is enough now for me to be convinced beyond a reasonable doubt that you are guilty and I so find."
The defense argues that the Commonwealth never proved the defendant knew the game system and the games were stolen. He maintains that taking the Commonwealth's evidence alone, there was nothing to establish the defendant's knowledge that the items his brothers traded were stolen. His argument concludes that the trial judge's disbelief of the defense witnesses was not sufficient to prove an affirmative element of the crime, knowledge the items were stolen. In his argument the defendant stresses the testimony of the defense witnesses that the defendant did not know the items were stolen.
The defense argument miscasts the procedural posture of the case and misconstrues the trial judge's rulings.
When a defendant in a civil or criminal case proceeds to introduce evidence in his own behalf, after the trial court has overruled his motion to strike, made at the conclusion of the introduction of plaintiff's evidence in chief, he waives his right to stand upon such motion. Plaintiff's case may be strengthened by defendant's evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the court must consider the entire record in reaching its conclusion.
Spangler v. Commonwealth,
188 Va. 436, 438, 50 S.E.2d 265, 266 (1948) (citations omitted).
The trial court had ruled at the conclusion of the Commonwealth's evidence that there was sufficient evidence to permit a finding of guilty. As the trial court said, there was a prima facie case, but establishing prima facie does not mandate a finding of guilt. It only means there could be a finding of guilt beyond a reasonable doubt. At the conclusion of all the evidence, the trial court assessed the Commonwealth's evidence and the defense evidence. For reasons that are obvious from the transcript even without the benefit that the trial judge had of hearing and observing the witnesses, the defense witnesses need not be believed. When the trial court did decide that the defense witnesses were not credible, there remained nothing that refuted or contradicted the affirmative evidence of the Commonwealth nor did any reasonable inferences of innocence arise from the evidence that countered the reasonable inferences of guilt.
The situation is similar to that in Carter v. Commonwealth, 223 Va. 528, 290 S.E.2d 865 (1982), where the defendant and his witness gave statements that conflicted.
Defendant asserts his evidence presents an hypothesis consistent with innocence. The trial court, however, was free to weigh Carter's and Braxton's testimony and to judge their credibility. Their stories conflicted with other evidence in the case, with the statements they gave the police at the time of the incident, and, in some respects, with each other. Further, Carter was a convicted felon. "The fact finder need not believe the accused's explanation and may infer that he is trying to conceal his guilt."
Id. at 532,
290 S.E.2d at 867 (quoting
Black v. Commonwealth,
222 Va. 838, 842, 284 S.E.2d 608, 610 (1981)).
The defendant gave inconsistent stories to the detective and in his testimony. When the trial court found the statements false, it could infer they were indicative of guilt. Rollston v. Commonwealth, 11 Va. App. 535, 399 S.E.2d 823 (1991). "Rollston's multiple inconsistent stories to Lisa Morey and the police are further evidence of his guilt. A defendant's false statements are probative to show he is trying to conceal his guilt, and thus are evidence of his guilt." Id. at 548, 399 S.E.2d at 831.
The inference of guilty knowledge arising from an accused's possession of recently stolen property may be repelled by a credible explanation, but the trier of fact is under no obligation to accept an account it finds unworthy of belief. In cases of this kind, when a defendant's "hypothesis of innocence" is rejected as unreasonable, evidence of his possession of recently stolen goods is sufficient to support a conviction. Further, a fact-finder, having rejected a defendant's attempted explanation as untrue, may draw the reasonable inference that his explanation was made falsely in an effort to conceal his guilt. A false or evasive account is a
circumstance, similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge.
Covil v. Commonwealth,
268 Va. 692, 695-96, 604 S.E.2d 79, 82 (2004) (citations omitted).
"`Intent is a state of mind that may be proved by an accused's acts or by his statements and that may be shown by circumstantial evidence.'" Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995) (quotingWright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993)). "[I]t was for the [fact finder] to decide whether the defendant acted with criminal intent in the commission of the crimes." Griggs v. Commonwealth, 220 Va. 46, 51, 255 S.E.2d 475, 478 (1979). "The issue upon appellate review is `whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quotingJackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original); Jones v. Commonwealth, 277 Va. 171, 182-83, 670 S.E.2d 727, 734 (2009).
In this case at the conclusion of the evidence, the trial judge reviewed the testimony of the evidence and determined that the defendant and his witnesses were lying and there was sufficient evidence proving the defendant intended to defraud the Game Stop shop. The trial court could properly infer the defendant knew that the Wii was stolen. It defies reason to believe the defendant, an adult, would escort his two brothers, aged 13 and 12, to a pawnshop, knowing they had a valuable electronic game, without inquiring or knowing how they obtained it. A rational trier of fact could determine that the defendant intended to defraud from the evidence presented at this trial. Accordingly, we affirm.
Affirmed.