                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia


JAMES READ DAVIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2985-98-3                JUDGE WILLIAM H. HODGES
                                            JANUARY 18, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                  J. Samuel Johnston, Jr., Judge

           Thomas S. Leebrick (Thomas S. Leebrick, P.C.,
           on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on
           brief), for appellee.


     James Read Davis, appellant, was convicted in a bench trial

of being an accessory after the fact to grand larceny.     On appeal,

appellant contends the trial court erred by denying his motion to

suppress evidence obtained as a result of a warrantless search and

seizure.   Appellant also contends the evidence was insufficient to

support his conviction and the trial court erroneously admitted

hearsay evidence.   Finding no error, we affirm.

                               FACTS

     Between the late hours of April 21, 1998 and the early hours

of April 22, 1998, someone broke into Phillips Equipment


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Corporation (Phillips Equipment) and stole six riding lawn mowers

valued at $12,675.   Five of the riding mowers were green and

yellow John Deere brand mowers, and one was a red and white mower

manufactured by Gravely.   Someone had cut through a fence to gain

access to the lawn mowers.   Police recovered a license plate lying

on the ground inside the fence.

     Theodore Lee Lawrence testified that the license plate

belonged to a utility trailer owned by him and registered with DMV

in his name.   Lawrence loaned the trailer to appellant "two and a

half, three years" earlier because Lawrence had no trailer hitch

on his truck enabling him to use the trailer.    Appellant operated

a landscaping business, involving grading, seeding and the cutting

of lawns.

     Investigator Robert Thompson investigated the theft.      He

contacted DMV and learned that the license plate recovered at the

crime scene belonged to Lawrence's trailer.    Lawrence told

Thompson that appellant had the trailer, so Thompson proceeded to

appellant's house.   Thompson drove to appellant's house and saw

the trailer parked in appellant's yard.   He parked in a driveway

on appellant's property leading to a garage.    The trailer was

parked between the driveway and appellant's house.   On his way to

appellant's house, Thompson noticed that the trailer had no

license plate.   He verified that the VIN number on the trailer

matched that of the trailer owned by Lawrence, and he "saw what

appeared to be [lawn mower] tire tracks" going from the trailer to

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a garage.   The garage was large enough to house the stolen lawn

mowers.   He then proceeded to appellant's house, knocked on the

front door and side door but got no response.    Seeing no one in

the backyard, Thompson called a deputy to remain at the scene

while he, Thompson, obtained a search warrant.    While outside

waiting for the deputy, appellant came out of his house and asked

Thompson what he wanted.   Thompson identified himself and advised

appellant that he was investigating the theft of lawn mowers.

Thompson told appellant "he wasn't under arrest and he wasn't

obligated to talk to [him]."   Appellant "said he didn't know

anything about any lawn mowers or anything about anyone having his

trailer."   Appellant "said he thought [the trailer] had the tag on

it the night . . . before."    Thompson asked appellant "if he had

any objection if [he] searched his garage to see" if the stolen

lawn mowers were inside, and appellant "stated no."   Thompson then

had appellant sign a permission to search form.   The form

contained the following:

            I, James Davis [and] Beverly Anderson, have
            bee[n] informed by Inv. Thompson and
            _____________ who made proper identification
            as (an) authorized law enforcement
            officer(s) of the Campbell Co. Sheriff's
            Office of my CONSTITUTIONAL RIGHT not to
            have a search made of the premises and
            property owned by me and/or under my care,
            custody and control, without a search
            warrant. Knowing of my lawful right to
            refuse to consent to such a search, I
            willingly give my permission to the above
            named officer(s) to conduct a complete
            search of the premises and property,
            including all buildings and vehicles, both

                                - 3 -
          inside and outside of the property located
          at RT 3 Box 250 J Lybg. (Wheeler RD). The
          above said officer(s) further have my
          permission to take from my premises and
          property, any letters, papers, materials or
          any other property or things which they
          desire as evidence for criminal prosecution
          in the case or cases under investigation.
          This written permission to search without a
          warrant is given by me to the above
          officer(s) voluntarily and without any
          threats or promises of any kind at 12:30
          P.M. on this 22 day of April 1998, at RT 3
          BOX 250 J Lybg.

     After Thompson read the contents of the form to appellant,

appellant signed it.   Deputy Jones and Beverly Anderson,

appellant's girlfriend, signed the form as witnesses.   Appellant

then unlocked the garage, allowing Thompson to enter.   Inside,

Thompson found the stolen lawn mowers.   He asked appellant about

them, and appellant "said that was the first time he'd seen them"

and he did not know how they got in there.   He told Thompson that

the last time he had been in the garage was around 9:00 p.m. the

night before (April 21, 1998).    Appellant went to the other side

of the garage and made a telephone call on a cellular telephone.

Thompson testified that, earlier, before appellant exited his

house, he "heard what appeared to be [a] cellular phone ring

inside the garage."    Thompson kept his attention on appellant the

entire time they were inside the garage and testified that

appellant did not touch any of the lawn mowers.

     Thompson, Investigator Staton and Deputy Jones processed the

stolen lawn mowers for fingerprints, after which they arrested


                                 - 4 -
appellant.    Appellant waived his Miranda rights, and Thompson

asked appellant if they would find any of appellant's fingerprints

on the stolen lawn mowers.    Appellant "said maybe the Gravely

[mower], that he had walked over and touched it."

        Thompson testified that he had earlier looked through an

opening in the garage door and saw a green John Deere tractor.      On

cross-examination, Thompson was unsure whether he had looked into

the opening in the garage door before or after knocking on

appellant's door.    However, Thompson reiterated that he did not

tell appellant that he had looked through the garage door or that

he had seen a John Deere lawn mower inside.

        Defense witness Joey Keyes testified that he and Lawrence

Agee took the trailer between 1:00 a.m. and 3:00 a.m. without

appellant's permission and stole the lawn mowers from Phillips

Equipment without appellant's knowledge.    Believing appellant was

out of town, he and Agee stored them in appellant's garage.    Keyes

said the garage was unlocked when he and Agee placed the lawn

mowers inside.    Afterwards, he padlocked the chain on the garage

door.    Keyes testified that neither he nor Agee possessed a key to

open the padlock.    When asked how he intended to take the lawn

mowers from the garage, Keyes said he "hadn't thought of that."

Keyes denied telling Investigator Guthrie that Agee called

appellant the night of the theft, and he denied telling Guthrie

that he suspected appellant knew about the theft.



                                 - 5 -
        Beverly Anderson lives in appellant's house and is

appellant's girlfriend.    She testified that she and appellant did

not hear Thompson knock on the door on April 22, 1998.       They first

became aware of Thompson's presence when Anderson went upstairs

from the basement sleeping area and saw Thompson outside in the

yard.

        Guthrie testified in rebuttal about a conversation he had

with Keyes.    Keyes told Guthrie that Agee made a telephone call

after they loaded the lawn mowers on the trailer and left Phillips

Equipment, after which they took the stolen property to

appellant's garage.    Keyes did not know if Agee spoke with

appellant, but Guthrie recalled that Keyes said "he assumed [Agee}

did, because that's where they took" the stolen lawn mowers and

stored them.

                           MOTION TO SUPPRESS

        The trial judge denied appellant's motion to suppress,

finding that the Commonwealth showed that consent to search was

obtained independent of any possibly illegal search of the

curtilage.    The trial judge found "no evidence" that appellant

knew that the officer may have looked into the garage "when his

consent was given freely and voluntarily."

        On appeal, appellant asserts Investigator Thompson "illegally

developed probable cause for a search prior to obtaining consent,"

and "[t]he knowledge learned by his illegal methods was then used

to obtain the defendant's consent to search."    Therefore,

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appellant argues, the evidence obtained from the garage was the

"fruit of the poisonous tree."     Appellant also contends his

consent "was a product of implied or constructive duress or

coercion."

                         A.   Exclusionary Rule

     Generally, the exclusionary rule bars the admission of

"evidence seized and information acquired during an unlawful

search or seizure [and] also . . . derivative evidence

discovered because of the unlawful act."      Warlick v.

Commonwealth, 215 Va. 263, 265, 208 S.E.2d 746, 748 (1974).      In

determining whether the evidence is derivative and therefore

barred as "fruit of the poisonous tree," the question is

"'whether[,] granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at

by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary

taint.'"     Wong Sun v. United States, 371 U.S. 471, 488 (1963)

(citation omitted).    Evidence is obtained by means "sufficiently

distinguishable" to be admissible despite illegality if it is

"evidence attributed to an independent source" or "evidence

where the connection has become so attenuated as to dissipate

the taint."     Warlick, 215 Va. at 266, 208 S.E.2d at 748.

     The purpose of the exclusionary rule is "'to deter police

misconduct.'"     Johnson v. Commonwealth, 21 Va. App. 172, 175,

462 S.E.2d 907, 909 (1995) (citation omitted).      Where the illegal

                                  - 7 -
activity of the police did not lead to discovery of evidence a

party seeks to exclude, the exclusion of that evidence does not

meet the purpose of the exclusionary rule, which is to deter

future unlawful police conduct.    See id.   "A . . . consent to

search obtained subsequent to an unlawful search may be an

independent source if such . . . consent is not obtained by

exploitation of the unlawful search or is so attenuated as to

dissipate the taint of the unlawful search."     Commonwealth v.

Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685 (1991).

     "In reviewing a trial court's denial of a motion to

suppress, '[t]he burden is upon [the defendant] to show that

th[e] ruling, when the evidence is considered most favorably to

the Commonwealth, constituted reversible error.'"     McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).     So viewed, the evidence proved

that appellant met with Thompson in appellant's yard, at which

time Thompson informed appellant he was investigating a theft of

lawn mowers.   Thompson advised appellant he was not under arrest

and was not obligated to speak with him.     Appellant denied

knowledge of the theft, and Thompson asked for appellant's

consent to search the garage.     Thompson testified that he did

not inform appellant that he looked into the garage.      Following

a detailed reading of the consent to search form advising

appellant of his constitutional rights, appellant signed the

form and consented to a search of his garage.

                                - 8 -
        Anderson testified that she and appellant were not aware of

Thompson's presence until she came upstairs and saw him in the

yard.     Thus, there was no evidence that Anderson or appellant

were aware that Thompson looked in the garage.

        Assuming arguendo that Thompson's act of peering through

the garage was an unlawful search, we find that appellant's

subsequent consent to search was "not obtained by exploitation of

the [allegedly] unlawful search."      Ealy, 12 Va. App. at 755, 407

S.E.2d at 688.

                              B.    Consent

        Appellant contends his consent to search was given under

duress and coercion and was, therefore, invalid because Thompson

obtained appellant's consent based on his "exploitation of his

illegal search" of the garage.      That argument assumes that

appellant was aware that Thompson looked in the garage and saw one

of the lawn mowers; however, as explained in Part A., above, there

was no evidence that appellant was aware of Thompson's search or

that Thompson informed appellant that he looked in the garage.

        When the Commonwealth seeks to justify a warrantless search

on the basis of consent, it bears the burden of proving by a

preponderance of the evidence that the consent was voluntary.      See

Camden v. Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39

(1994); see also Bumper v. North Carolina, 391 U.S. 543, 548

(1968).    In order to determine whether consent to a particular

search was "voluntary," the test is whether the search is "the

                                   - 9 -
product of an essentially free and unconstrained choice" or

whether the consenter's "will has been overborne and his capacity

for self-determination critically impaired."    Schneckloth v.

Bustamonte, 412 U.S. 218, 225-26 (1973); see also Lowe v.

Commonwealth, 218 Va. 670, 678, 239 S.E.2d 112, 117 (1977).       "The

question whether a consent to a search was in fact 'voluntary' or

was the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all the

circumstances."   Schneckloth, 412 U.S. at 227.

     Thompson carefully advised appellant of his constitutional

right "not to have a search made" of his garage and his "lawful

right to refuse to consent to such a search."     Moreover, the

evidence established that Thompson did not tell appellant that he

looked into the garage and what he saw when he looked inside.

"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 fact finder believed Thompson's testimony that he

did not tell appellant that he looked in the garage and saw a John

Deere lawn mower.   The Commonwealth presented credible, competent

and sufficient evidence to prove by a preponderance of the

evidence that appellant freely and voluntarily consented to the

search.   Accordingly, the trial court did not err in refusing to

suppress the evidence on that basis.

                               - 10 -
                   SUFFICIENCY OF THE EVIDENCE

     After the Commonwealth presented its case-in-chief, counsel

for appellant moved to strike the evidence on the basis that

there was insufficient evidence that he stole the lawn mowers.

Defense counsel argued "at most their evidence would show I

suppose, and not conceding the point, but I would say at most a

misdemeanor of accessory after the fact."   After the parties

rested, defense counsel argued there was no proof of "guilty

knowledge" or mens rea to support a conviction for grand larceny

or accessory after the fact.

     "Absent proof of an admission against interest, knowledge

necessarily must be shown by circumstantial evidence."    Lewis v.

Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983)

(guilty knowledge of receiving stolen goods can be proven by

circumstantial evidence).   See also Campbell v. Commonwealth, 12

Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc) (intent must

often be proven by circumstantial evidence).   Whether appellant

acted with the requisite mens rea was a question of fact to be

determined by the fact finder.   See Branch v. Commonwealth, 14

Va. App. 836, 841, 419 S.E.2d 422, 426 (1992).

     The five stolen lawn mowers were found in appellant's

padlocked garage less than twenty-four hours after the theft.

Appellant possessed the key to open the garage.   Appellant told

Thompson the last time he entered the garage was 9:00 p.m. on

April 21, 1998, four to six hours before the theft occurred.

                               - 11 -
However, after Thompson asked appellant if the police would find

his fingerprints on any of the stolen property, appellant said he

might have touched one of the stolen lawn mowers.   Thompson

testified he carefully observed appellant inside the garage and

appellant did not touch any of the lawn mowers.   Immediately after

the theft, Keyes and Agee drove to appellant's house, hid the lawn

mowers in the garage, and locked the garage door.   Keyes testified

that Agee telephoned someone after the theft.   Although Keyes

denied that appellant knew about the theft, the Commonwealth

impeached his credibility regarding his earlier denial that he

suspected that his accomplice, Agee, telephoned appellant just

before they stored the stolen goods in appellant's garage.

Finally, Keyes testified that neither he nor Agee possessed the

key to open the padlock and get into appellant's garage.

     The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt

that appellant possessed guilty knowledge that stolen property was

stored in his garage.

                 ADMISSION OF GUTHRIE'S TESTIMONY

     During the cross-examination of Keyes, the Commonwealth's

attorney questioned Keyes about a telephone call made by Agee

immediately after the crime.   She then asked Keyes whether he

told Investigator Guthrie that he suspected appellant knew about

the crime.   Keyes denied telling Guthrie that he thought Agee



                               - 12 -
had called appellant, and he denied having any suspicion that

appellant knew about the completed theft.

     During rebuttal, Guthrie testified that, in his

conversation with Keyes, Keyes "assumed that" Agee "spoke to"

appellant "because that's where they took" the property

immediately after the theft.

     "'If a witness denies or is unable to recall a prior

statement, a party may impeach him by introducing other

evidence, such as another witness who heard the inconsistent

statement.'"   Newton v. Commonwealth, 29 Va. App. 433, 443, 512

S.E.2d 846, 850 (1999) (quoting Edwards v. Commonwealth, 19 Va.

App. 568, 572, 454 S.E.2d 1, 2-3 (1995)).   Although Keyes'

"assumption" that Agee called appellant may not have been

admissible in the first instance, by denying that he made a

statement indicating his "suspicion" or "assumption" that

appellant was aware of the crime, Keyes subjected himself to

impeachment through Guthrie's testimony.    See id.   Thus, Keyes'

statement to Guthrie that he assumed Agee spoke with appellant

necessarily indicated a suspicion that appellant was aware of

the completed crime.   Accordingly, the trial judge did not

commit reversible error in allowing the testimony.

     For the reasons stated, appellant's conviction is affirmed.

                                                      Affirmed.




                               - 13 -
