                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


ITEMUS WILSON
                                            MEMORANDUM OPINION * BY
v.   Record No. 2850-00-2                  JUDGE SAM W. COLEMAN III
                                                 MAY 28, 2002
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF HANOVER COUNTY
                        John R. Alderman, Judge

          Craig S. Cooley for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Randolph A. Beales,
          Attorney General, on brief), for appellee.


     Itemus Wilson appeals his jury trial convictions for

burglary, petit larceny, and tampering.    He argues that the trial

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

instructing the jury on the permissible inferences to be drawn

from the possession of recently stolen goods, and 3) denying his

motion to strike the evidence for insufficiency.    For the reasons

that follow, we disagree and affirm his convictions.

                              BACKGROUND

     Police officers received notice that a silent alarm had

been triggered at a rural lodge at 5:29 a.m. on January 1, 2000.

The police officers contacted Johnny Strickland, a lodge

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
employee, and responded to the scene.   Strickland met the

officers at the lodge and noted that several pieces of equipment

had been damaged.   The coin boxes on several pinball and arcade

machines had been pried open and the money removed.   Strickland

testified that when he closed the lodge following the previous

evening's party he inspected the building, locked its doors, and

activated the motion detecting security system.   He stated that

when he left the lodge at approximately 3:15 a.m., there was no

damage to any of the doors, the juke box, pinball machines, or

pool tables.   The pinball machines and pool tables accepted only

quarters; the juke box accepted quarters and bills.   The

machines had been serviced one week earlier and contained

quarters at the time.   Stickland testified he had also observed

patrons inserting coins into the machines during the New Year's

Eve party.

     When Strickland returned to the lodge to meet the officers,

he noted the outside door had been broken open.   Inside the

lodge he saw that the money receptacles had been pried off the

juke box and pool tables.   On the floor he saw the broken locks

and several quarters near the pool tables.   During the ensuing

investigation, Investigator Drew Darby located one of the

missing coin boxes near a path along the road close to the

lodge.

     At 6:50 a.m. approximately three-tenths of a mile from the

lodge, Sergeant Michael Anthony saw two males walking alongside

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the road.   Anthony approached the men and immediately noticed an

odor of alcohol emanating from Itemus Wilson, one of the two

men.   Anthony testified Wilson's eyes were bloodshot and

dilated, that his speech was slurred, and that he swayed from

side to side.   Anthony informed the men he was investigating a

break-in of the lodge.   He stated the suspects might be on foot

and they likely would be carrying a large number of quarters.

Anthony asked Wilson if he would consent to being searched,

which Wilson refused.    Wilson admitted to the officer that he

had been drinking.   Wilson said he had been playing poker all

night at nearby apartments.   Anthony testified Wilson appeared

nervous, that he attempted to back away from the officer, that

his pockets had large bulges, and that Wilson repeatedly put his

hands in his pockets.    Anthony stated he was concerned Wilson

was carrying a weapon.   He patted Wilson down, felt a hard

object in his pocket and felt what appeared to be a large number

of quarters.    Anthony then arrested Wilson for being drunk in

public and searched him incident to the public drunkenness

arrest.   Anthony recovered $174.75 (699) in quarters from

Wilson's pants pocket.   Among the quarters he also had a metal

cam or circular metal disc similar to a piece missing from one

of the lodge's machines.   Wilson also carried a flashlight.




                                - 3 -
                             ANALYSIS

                                   I.

     Wilson challenges his arrest and the resulting search of his

person incidental to the arrest.    He argues the arrest for public

drunkenness was merely a pretext to allow Anthony to conduct a

search of his person.

     "The police may use the opportunity presented by a legal

arrest to learn more about crimes for which they have no

probable cause to arrest."   James v. Commonwealth, 8 Va. App.

98, 102, 379 S.E.2d 378, 380 (1989).    Therefore, provided

Anthony had probable cause to arrest Wilson for public

drunkenness, we do not explore the officer's subjective motive

for arresting Wilson.   See Horne v. Commonwealth, 230 Va. 512,

517, 339 S.E.2d 186, 189-90 (1986).

     The constitutional validity of a warrantless arrest depends

on whether, at the time of the arrest, the officers had probable

cause to believe that the defendant had engaged or was engaging

in criminal activity.   See McGuire v. Commonwealth, 31 Va. App.

584, 592, 525 S.E.2d 43, 47 (2000).     "'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)

                               - 4 -
(citation omitted).   "If any person . . . is intoxicated in

public, whether such intoxication results from alcohol, narcotic

drug or other intoxicant or drug of whatever nature, he shall be

deemed guilty of a Class 4 misdemeanor."    Code § 18.2-388. 1

"'Intoxicated' means a condition in which a person has drunk

enough alcoholic beverages to observably affect his manner,

disposition, speech, muscular movement, general appearance or

behavior."   Code § 4.1-100.

     Anthony testified that Wilson slurred his speech and swayed

from side to side.    Wilson also smelled of alcohol, and his eyes

were bloodshot and glassy.     Darby testified that he saw Wilson

shortly after his arrest and also noticed that he slurred his

speech, stumbled, and smelled of alcohol.    "The evidence was

sufficient to support a finding that the defendant had drunk

enough alcoholic beverage to so affect his manner, disposition,

speech, muscular movement, general appearance or behavior as to

be apparent to observation."     Farren v. Commonwealth, 30 Va.

App. 234, 240, 516 S.E.2d 253, 256 (1999), see also Leake v.

Commonwealth, 27 Va. App. 101, 110-11, 497 S.E.2d 522, 526-27

(1998) (holding that factors such as odor of alcohol, slurred

speech, unsteadiness in walking, and poor balance demonstrated

intoxication within the definition of Code § 4.1-100).     Thus,


     1
       Although public drunkenness is a Class 4 misdemeanor,
pursuant to Code § 19.2-74(A)(2), the police are authorized to
arrest an accused and not merely issue a summons.


                                 - 5 -
the evidence was sufficient to support a finding that Anthony

possessed probable cause to believe that Wilson was drunk in

public.

     "One of the established exceptions to the Fourth

Amendment's warrant requirement is for a 'search incident to a

lawful arrest.'"   Commonwealth v. Gilmore, 27 Va. App. 320, 327,

498 S.E.2d 464, 468 (1998) (quoting United States v. Robinson,

414 U.S. 218, 224 (1973)).   Anthony lawfully arrested Wilson for

public drunkenness and properly searched him incident to that

arrest.   The trial court did not err in denying Wilson's motion

to suppress.

                                II.

     Next, Wilson argues the trial court erred by instructing the

jury that "[p]roof of the exclusive personal possession . . . of

recently-stolen goods is a circumstance from which you may

reasonably infer that the defendant was the thief."   He contends

the evidence did not support the trial court's conclusion that

the items he possessed were "recently stolen."

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).

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

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

                               - 6 -
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)).    The trial judge concluded the evidence

supported the granting of the inference instruction.

     The undisputed evidence is that Wilson was walking near the

lodge shortly after the burglary carrying a flashlight, an

unusually large number of quarters, and a metal cam or disc

similar to a piece missing from the lodge's pinball machine.

The presence of the metal cam or disc found among the inordinate

number of quarters that Wilson possessed, which were the only

denomination of coins recently stolen from the lodge, was

sufficient for the fact finder to consider whether these were

the recently stolen items, from which they could infer that

Wilson was the thief.    Accordingly, the trial court did not err

by instructing the jury on recently stolen property.

                                 III.

     Finally, Wilson contends the evidence is insufficient to

support his convictions.    "On appeal, 'we review the evidence in

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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 Strickland secured the

lodge at approximately 3:15 a.m. on January 1, 2000.     He stated

that the lodge had a motion detector alarm system that was

triggered at 5:29 a.m.    When Stickland met the police at the

lodge he observed that the coin boxes from several of the

machines had been pried open.    Richard Mundy, president of the

company that owned the machines, testified that no one had

permission to tamper with the machines.    He also noted that the

machines accepted only quarters and bills.    Darby testified that

he recovered a coin box from one of the machines in the woods

along the road where Wilson was walking.    At the time of his

arrest, Wilson carried 699 quarters or $174.75 in quarters.      He

also had a metal cam or disc among the quarters that was similar

to ones on the metal lock on one of the lodge's pinball

machines.   Anthony found Wilson three-tenths of a mile from the

lodge a short time after the burglary.

     In a criminal prosecution for larceny, evidence showing

"[p]ossession of goods recently stolen is prima facie evidence of

guilt . . . 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) (en banc) (citation omitted).

                                - 8 -
     While it is often said that unexplained possession of

recently stolen property supports an inference that the possessor

is the thief, this same inference applies where the defendant's

explanation for how he came into possession of the property is

"patently incredible and totally unsupported."   Catterton v.

Commonwealth, 23 Va. App. 407, 411, 477 S.E.2d 748, 750 (1996).

Wilson claimed that he won the 699 quarters in a poker game at a

nearby apartment.   He gave no details about the claimed poker

game or who was in the game.   Furthermore, he gave no

explanation for where he got the metal cam or disc like the one

from the lodge's pinball machine.   The presence of the metal cam

found in Wilson's pocket among the large number of quarters was

sufficient for the fact finder to conclude that these items were

the ones recently stolen from the machines at the lodge.

Wilson's bare assertion that he had won the money in a poker

game, when considered with the lack of detail about the game or

its participants, the fact that Wilson had a metal cam like that

from the lodge's pinball machine among the quarters, and the

unlikelihood that these quarters had come from a poker game was

sufficient to permit the fact finder to reject Wilson's account

as not credible.    "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."    Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).    The Commonwealth's evidence

                                - 9 -
was competent, was not inherently incredible, and was sufficient

to prove beyond a reasonable doubt that Wilson was guilty of

burglary, third offense petit larceny, and tampering.

     Accordingly, we affirm the convictions.

                                                        Affirmed.




                             - 10 -
Benton, J., dissenting.

     I dissent from the majority's holding that the evidence was

sufficient to establish probable cause to arrest Itemus Wilson

for public drunkenness.   I would, therefore, hold that the money

discovered in Sergeant Anthony's search incident to that arrest

was unlawfully seized.

     Probable cause to arrest requires more than a showing that

an officer had a "suspicion" that the suspect was engaged in

criminal activity.   Bass v. Commonwealth, 259 Va. 470, 475, 525

S.E.2d 921, 923 (2000).

          The test of constitutional validity is
          whether at the moment of arrest the
          arresting officer had knowledge of
          sufficient facts and circumstances to
          warrant a reasonable man in believing that
          an offense ha[d] been committed. If the
          arresting officer had no probable cause to
          arrest then he could not lawfully search the
          defendant's person.

Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250

(1970) (citations omitted).

     The evidence proved that an hour and a half after learning

of a burglary on New Year's Day, Sergeant Anthony was going home

when he approached Wilson, who was walking along a road,

three-tenths of a mile from the building.   Before stopping to

question Wilson, the sergeant did not observe anything about his

gait that suggested Wilson was intoxicated.   He testified that

he saw Wilson walking on the shoulder of the road and that

Wilson was not impeding traffic.   After the sergeant stopped his

                              - 11 -
car, Wilson continued to walk past the car.    In fact, the

sergeant testified that Wilson walked on the shoulder of the

road, not the street, as he passed the sergeant's car.   He did

not testify that Wilson swayed or staggered as he walked.

Rather, he acknowledged that Wilson appeared to recognize the

lack of wisdom of walking in the roadway.

       The sergeant stopped Wilson, told him about the burglary,

and asked him whether he knew anything about it.   When the

sergeant asked Wilson where he had been, Wilson said he had been

playing poker all night and had won some money.    At one point in

the conversation, the sergeant asked if he could search Wilson.

Wilson told the sergeant he did not want the sergeant to search

him.   The sergeant testified that after further conversation

with Wilson, he arrested Wilson for being drunk in public.    He

then searched Wilson incident to the arrest.

       According to Code § 4-1.100, "intoxicated" means "a

condition in which a person has drunk enough alcoholic beverages

to observably affect his manner, disposition, speech, muscular

movement, general appearance or behavior."    The sergeant

testified that he arrested Wilson because Wilson smelled of

alcohol, Wilson's eyes appeared dilated and bloodshot, his

speech was slurred and mumbled, and Wilson was staggering from

side to side.   The sergeant testified, however, that he had not

met Wilson before this occasion and therefore was not familiar

with the normal appearance of Wilson's eyes or speech pattern of

                               - 12 -
Wilson's voice.   Indeed, the trial judge noticed that Wilson's

eyes were bloodshot at trial.

     Although the sergeant testified that Wilson was continually

swaying from one leg to the other, he admitted that Wilson

remained in a stationary position and that people often are

nervous when stopped by police.    He also admitted that Wilson

never fell or stumbled while walking and that Wilson was not

verbally or physically unruly.    The sergeant further testified

that he asked Wilson several questions and that Wilson gave a

reasonable response to every question posed to him.

     Unlike the appellant in Debroux v. Commonwealth, 32 Va.

App. 364, 368, 528 S.E.2d 151, 153 (2000), Wilson was not "loud

and disorderly" and did not respond as if he "didn't know where

he was, [or] what was going on."    Further, unlike the appellant

in Leake v. Commonwealth, 27 Va. App. 101, 110, 497 S.E.2d 522,

527 (1998), who stopped his truck "in the travel portion of a

. . . highway" to clean it even though there was a usable

shoulder on the road, Wilson had not behaved strangely and

engaged in no conduct on the roadway that indicated he was not

aware of where he was.   When the sergeant stopped Wilson, Wilson

was simply walking on the shoulder of a two-lane road.   Wilson's

gait was unremarkable and his responses to the sergeant's

initial questions, in which he indicated he had been up all

night, provided a justifiable reason why his eyes may have

appeared dilated and bloodshot.    In addition, Wilson's response

                                - 13 -
to the sergeant that he had had an alcoholic drink did not

indicate that Wilson was "intoxicated" to a degree prohibited by

the statute.   The law does not prohibit walking along a street

after drinking alcohol.

     Critically, the sergeant did not request that Wilson

perform any field sobriety test, which could have confirmed or

dispelled his suspicion that Wilson was intoxicated.    In Weaver

v. Commonwealth, 29 Va. App. 487, 513 S.E.2d 423 (1999), we

affirmed a conviction for driving while intoxicated where the

appellant's eyes appeared watery and glassy, the appellant had

open beer bottles in his car, the appellant admitted that he had

drunk 3 or 4 beers, the last of which had been 30 minutes

earlier, and the appellant "failed several field sobriety

tests."   29 Va. App. at 490, 513 S.E.2d at 425.   Although the

sergeant may have been justified under the totality of these

circumstances to further investigate his suspicion by sobriety

tests or breath tests to ascertain whether Wilson was

"intoxicated," the facts known to the sergeant fall short of

probable cause to arrest for public intoxication.    The evidence

strongly suggests the arrest occurred solely because Wilson

refused to consent to a search of his person.

     Based on the totality of these circumstances, I would hold

that the sergeant did not have probable cause to arrest Wilson

for being "intoxicated" in public.     For these reasons, the trial



                              - 14 -
judge should have granted the motion to suppress.   Accordingly,

I would reverse and remand for a new trial.




                             - 15 -
