                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


JERRY LEE LEWIS, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 3064-01-1                JUDGE WILLIAM H. HODGES
                                            OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Louis R. Lerner, Judge

          Charles E. Haden for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Jerry Lee Lewis appeals his bench trial convictions for

breaking and entering with the intent to commit larceny and petit

larceny, third or subsequent offense.   He argues that the trial

court erred by (1) denying his motion to suppress evidence and (2)

finding the evidence sufficient to support his convictions.    Lewis

contends that the evidence was obtained as a result of an illegal

seizure, that the police failed to bring him before a magistrate

"forthwith," and that he was too intoxicated to make a knowing and

intelligent waiver of his Miranda rights.   For the reasons that

follow, we disagree and affirm his convictions.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             BACKGROUND

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"      Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     So viewed, the evidence proved that during the early

morning hours of March 23, 2001, Officer Ted Bednarski responded

to a report of a break-in at a restaurant.     When he arrived at

the scene he saw the restaurant's front window had been smashed

by a cinder block.    The only person Bednarski saw in the

immediate vicinity was Lewis, who was sitting on a curb across

the parking lot consuming alcohol.      Officer Anthony Bordeaux

testified that earlier that evening he had seen Lewis pushing a

shopping cart toward the shopping center where the restaurant is

located.   Bednarski observed a shopping cart outside the front

of the restaurant and broken glass scattered across the area.

     Officer Jeffrey Lawrence also arrived on the scene, and he

approached Lewis.    The officer asked Lewis a few questions and

then asked if he would display the bottoms of his shoes.     Lewis

complied, and Lawrence noted the soles of his shoes contained

glass fragments.    Lawrence then searched Lewis' person,

recovering nearly $200 in cash.   The officers placed Lewis in

the patrol car and asked him to remove his shoes.     They then



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transported him to the police station, advised him of his

Miranda rights, and proceeded to interrogate him.

     Detective Kimberly Brighton questioned Lewis.    She

testified he smelled of alcohol but he did not slur his words or

have trouble walking.   She determined Lewis was coherent and

able to answer her questions.    Lewis stated he understood his

rights and chose to talk to the detective.    Brighton asked

appellant to remove his outer layer of clothing.    Laboratory

testing of these garments revealed numerous glass fragments

consistent with the broken glass from the restaurant window.

Appellant provided inconsistent statements regarding his

involvement in the crime.

                              ANALYSIS

                                  I.

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party,

here the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.     See Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).    "[W]e are bound

by the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them[,] and we give due

weight to the inferences drawn from those facts by resident

judges and local law enforcement officers."     McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc) (citing Ornelas v. United States, 517 U.S. 690, 699

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(1996)).    However, we review de novo the trial court's

application of defined legal standards to the particular facts

of the case.    See Ornelas, 517 U.S. at 699.

                           Probable Cause

       Lewis argues the police lacked probable cause to detain

him.

       "'Probable cause exists where "the facts and circumstances

within [the arresting officers'] knowledge and of which they had

reasonably trustworthy information [are] sufficient in

themselves to warrant a man of reasonable caution in the belief

that" an offense has been or is being committed.'"    Jefferson v.

Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)

(citation omitted).   "[P]robable cause is a flexible,

common-sense standard."    Texas v. Brown, 460 U.S. 730, 742

(1983).    "[A]n investigating officer does not have to 'deal with

hard certainties, but with probabilities,' and is permitted to

make 'common-sense conclusions about human behavior' in

assessing a situation."    Carson v. Commonwealth, 12 Va. App.

497, 502, 404 S.E.2d 919, 922 (citation omitted), aff'd on reh'g

en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va.

293, 421 S.E.2d 415 (1992).   In determining the existence of

probable cause, we look to the totality of the circumstances

involved.    See Miles v. Commonwealth, 13 Va. App. 64, 68, 408

S.E.2d 602, 604 (1991), aff'd on reh'g en banc, 14 Va. App. 82,

414 S.E.2d 619 (1992).

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     The Commonwealth concedes Lewis was seized at the time the

police placed him in the patrol car and asked him to remove his

shoes.   Lewis' meeting with the police began as a consensual

encounter.   He willingly spoke with Lawrence near the scene of

the burglary.   He voluntarily provided identification and

revealed the soles of his shoes when asked to by the officer. 1

After Lawrence observed glass fragments in Lewis' shoes, he

detained the suspect.

     The police officers investigating the burglary found Lewis

at the shopping center where the break-in occurred.   Lewis

initially claimed he knew nothing about the incident, but he had

glass particles in the tread of his shoes.   He also stated he

had been at the shopping center since 12:20 a.m., well before

the restaurant's alarm activated.   "In determining whether

probable cause exists courts will test what the totality of the

circumstances meant to police officers trained in analyzing the

observed conduct for purposes of crime control."   Powell v.

Commonwealth, 27 Va. App. 173, 177, 497 S.E.2d 899, 900 (1998)

(citation omitted).   Lewis' location close to the crime scene

late at night combined with his responses to Lawrence's

questions and the presence of glass particles in his shoes,



     1
       We recently held "that an individual's expectation of
privacy in his or her shoes is an interest that society is
willing to accept as reasonable." Sheler v. Commonwealth, 38
Va. App. 465, 477, 566 S.E.2d 203, 208 (2002). However, unlike
Sheler, Lewis does not challenge the "search" of his shoes.

                               - 5 -
provided the police with probable cause to detain appellant at

the scene.

                               Forthwith

     Appellant also argues his motion to suppress should have

been granted because the police failed to take him to a

magistrate "forthwith" as required by Code § 19.2-80.

     The police arrested Lewis at approximately 4:20 a.m. on a

Friday morning.   Because of his high level of intoxication, the

officers decided not to bring him before a judge later that

morning.   Instead, the officers waited until Monday morning.    As

a result, over forty-eight hours elapsed between the time the

police took Lewis into custody and the time they brought him

before a magistrate.   We assume without deciding that the delay

in bringing Lewis before the magistrate violated Code § 19.2-80.

Nevertheless, a violation of the statute "does not require

exclusion of his statements.    This statutory violation does not

rise to the level of constitutional violation."    Alatishe v.

Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991)

(finding that a delay in taking the defendant before a

magistrate did not require exclusion of statements he made while

being questioned by the police following his arrest).

                                Miranda

     Lewis argues his waiver of his Miranda rights was not

freely and voluntarily given because he was extremely

intoxicated.

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     "Statements made during a custodial interrogation and while

intoxicated are not per se involuntary or inadmissible.    The

test is whether, by reason of the intoxication, the defendant's

'will was overborne' or whether the statements were the 'product

of a rational intellect and a free will.'"    Boggs v.

Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415-16 (1985)

(citations omitted).   "In assessing voluntariness, the court

must determine whether 'the statement is the "product of an

essentially free and unconstrained choice by its maker," or

. . . whether the maker's will "has been overborne and his

capacity for self-determination critically impaired."'"    Roberts

v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 711

(1994) (citations omitted).   When making such a determination,

"'courts look to the totality of all the surrounding

circumstances,' including the defendant's background,

experience, mental and physical condition and the conduct of the

police."   Commonwealth v. Peterson, 15 Va. App. 486, 488, 424

S.E.2d 722, 723 (1992) (citation omitted).

     Brighton testified Lewis smelled of alcohol and had

bloodshot eyes.   However, she further stated Lewis was coherent

and did not appear to have trouble understanding or answering

her questions.    Lewis admitted his high tolerance for alcohol.

He did not slur his words or have difficulty walking during his

encounter with the police.    The evidence supports the trial



                                - 7 -
court's conclusion that appellant understood his rights and

waived them freely and voluntarily.

                                 II.

     Lewis contends the evidence is insufficient to support his

convictions.    Specifically, he argues the Commonwealth failed to

prove he broke into the restaurant or took any property from the

business.

     "Guilt of breaking and entering a building may be established

by circumstantial evidence; eyewitnesses are not required."   Hope

v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990)

(en banc).    Kong Song Ni, the owner of the restaurant, testified

he closed the business at 10:00 p.m. and when he left the building

no windows were broken and the alarm was set.   He explained he

ordinarily kept approximately two hundred dollars in small bills

in the cash register.   The restaurant's alarm was activated around

2:00 a.m. and when the police arrived at the scene they discovered

the front window had been smashed with a cinder block.   The police

noted a shopping cart was located immediately outside the

restaurant.    Bordeaux testified he had seen Lewis less than two

hours before the break-in pushing a shopping cart near the

restaurant.    The officers found Lewis a short distance from the

scene of the crime with glass in the treads of his shoes and

with nearly two hundred dollars in small bills on his person.

Lewis provided the police with inconsistent statements regarding

what he knew about the burglary.    He later told Brighton that he

                                - 8 -
owed $132 to his wife for child support and that he did not have

enough money to meet the obligation.     The glass fragments found

on Lewis' clothing were consistent with the broken glass from

the restaurant.

     "When an accused is found in possession of goods of a type

recently stolen, strict proof of identity of the goods is not

required."     Henderson v. Commonwealth, 215 Va. 811, 812-13, 213

S.E.2d 782, 783 (1975).

             "It is not necessary that the identity of stolen
             property should be invariably established by
             positive evidence. In many such cases
             identification is impracticable, and yet the
             circumstances may render it impossible to doubt
             the identity of the property, or to account for
             the possession of it by the accused upon any
             reasonable hypothesis consistent with his
             innocence."

Reese v. Commonwealth, 219 Va. 671, 673, 250 S.E.2d 345, 346

(1979) (quoting Gravely v. Commonwealth, 86 Va. 396, 402, 10

S.E. 431, 433 (1889)).    Currency is not easily identified.    See

Cook v. Commonwealth, 214 Va. 686, 687-88, 204 S.E.2d 252, 253

(1974).   Lewis' possession of a similar amount of money in

similar denominations as the currency missing from the

restaurant, combined with Lewis' close proximity to the scene of

the crime a short time after the incident, allowed the trial

court to reasonably infer the money Lewis carried was taken from

the business.

     "When a conviction is based upon circumstantial evidence,

such evidence 'is as competent and is entitled to as much weight

                                 - 9 -
as direct evidence, provided it is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt.'"

Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400

(1994) (citation omitted).   "The Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993).   The Commonwealth excluded all reasonable hypotheses of

innocence and established beyond a reasonable doubt, through the

use of circumstantial evidence, that appellant broke into the

restaurant and stole the money found on his person.

     Accordingly, we affirm the decision of the trial court.

                                                          Affirmed.




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