                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Chafin
UNPUBLISHED


              Argued at Chesapeake, Virginia


              DE’ANTE LAVON JOHNSON
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1137-13-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  APRIL 29, 2014
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                              Wilford Taylor, Jr., Judge

                               Charles E. Haden for appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     De’ante Lavon Johnson (“Johnson”) was convicted at a bench trial in the Circuit Court

              for the City of Hampton (“trial court”) of three counts of breaking and entering, in violation of

              Code § 18.2-91, and three counts of grand larceny, in violation of Code § 18.2-95. On appeal,

              Johnson argues that the evidence was insufficient to prove that Johnson committed these

              offenses. Specifically, he argues that,

                               The trial court erred in denying [his] motion to strike the three
                               counts of breaking and entering and the three counts of grand
                               larceny, where no evidence at all linked Johnson to the break-ins
                               and thefts at 13 Golden Willow Circle or 55 Treasure Key, and the
                               Commonwealth’s evidence merely showed Johnson to be in
                               possession of stolen property from 63 Michael’s Woods Drive but
                               did not establish that [he] participated in the break-in at 63
                               Michael’s Woods Drive or the carrying away of property from that
                               address.




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

       When the sufficiency of the evidence is challenged on appeal, this Court must “‘examine

the evidence that supports the conviction and allow the conviction to stand unless it is plainly

wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710

S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137,

139-40 (2008)). We review the evidence in the light most favorable to the Commonwealth, as

the prevailing party below, and determine whether “‘any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “Furthermore, we ‘accord the Commonwealth the benefit

of all inferences fairly deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90,

95, 712 S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d

910, 923 (2008)). However, “[i]n order for inferences to amount to evidence they must be

inferences based on facts that are proved, and not inferences based on other inferences.” Smith

v. Commonwealth, 185 Va. 800, 819, 40 S.E.2d 273, 282 (1946).

       “The unexplained possession of recently stolen goods permits the fact finder to infer that

the possessor is the thief.” Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832

(1997). In certain circumstances, the same inference can extend to proving a charge of breaking

and entering. “The guilt of one breaking into a building may be established by circumstantial

evidence. Direct testimony on the part of someone who saw him in the commission of the act or

near the scene of the crime is not necessary, and it is unusual in cases of this character.” Fout v.

Commonwealth, 199 Va. 184, 189, 98 S.E.2d 817, 821 (1957).

               “[W]hen evidence has been introduced, which, if believed,
               establishes that a house has been broken and entered and goods
               stolen therefrom, and warrants an inference beyond a reasonable
               doubt that the breaking and entering and the larceny of the goods
               were committed at the same time, by the same person or persons,
               as a part of the same transaction, upon principle and authority, the
                                                -2-
               exclusive possession of the stolen goods shortly thereafter,
               unexplained or falsely denied, has the same efficiency to give rise
               to an inference that the possessor is guilty of the breaking and
               entering as to an inference that he is guilty of the larceny.”

Id. at 190-91, 98 S.E.2d at 822 (quoting Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178

S.E. 25, 28 (1935)).

       In order for the larceny inference to arise, “the possession must be exclusive, but ‘one can

be in exclusive possession of an item when he jointly possesses it with another,’ as long as ‘the

accused was consciously asserting at least a possessory interest in the stolen property or was

exercising dominion over [it].’” Archer, 26 Va. App. at 13, 492 S.E.2d at 832 (quoting Best v.

Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981)); see also Montague v.

Commonwealth, 40 Va. App. 430, 437, 579 S.E.2d 667, 670 (2003). To raise an inference of

guilt from the possession of the fruits of crime by the defendant,

               “it is necessary that they be found in his exclusive possession. A
               constructive possession . . . is not sufficient to hold the prisoner to
               a criminal charge. He can only be required to account for the
               possession of things which he actually and knowingly possessed,
               as, for example, where they are found upon his person, or in his
               private apartment, or in a place of which he kept the key. If they
               are found upon premises owned or occupied as well by others as
               himself, or in a place to which others had equal facility and right of
               access, there seems no good reason why he, rather than they,
               should be charged upon this evidence alone.”

Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 363 (1954) (quoting Tyler v.

Commonwealth, 120 Va. 868, 871, 91 S.E. 171, 172 (1917)).

               The mere fact that stolen articles are found on the premises of a
               man of a family or in a place to which others have free access,
               without a showing of his actual conscious possession thereof,
               discloses no more than a prima facie constructive possession
               which alone is not sufficient to justify an inference of guilt.

Id. at 228, 83 S.E.2d at 364. “[T]here must be evidence that the defendant exercised dominion

and control over the property.” Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d

                                                -3-
384, 386 (1991). “[M]ere proximity to a controlled item, such as a gun or narcotics, is not

legally sufficient by itself to establish dominion and control.” Myers v. Commonwealth, 43

Va. App. 113, 121, 596 S.E.2d 536, 540 (2004).

                        A. 63 Michael’s Woods Drive (Pronia Residence)

       While Brittany Pronia (“Pronia”) was out of town for thirteen days, someone broke into

her house through the back door. The intruder wrote on the wall in the master bedroom, “where

is the money and jewelry,” and at the bottom of the stairs he wrote, “thank you.” When Pronia

returned home from her trip she reported the break in and missing property. Among other items

missing were two personalized United States Navy commissioning rings. Three days later,

police apprehended Johnson. At that time Johnson was wearing one of the rings and he admitted

to possession of the other ring, which he lost while running from police. Thus, Johnson was

found in possession of recently stolen property from the Pronia residence. See Montgomery v.

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (“Four weeks is not, as a matter

of law, so long a time that goods may not be considered recently stolen.”).

       The evidence supports a finding that the breaking and entering and the grand larceny

from the Pronia residence occurred at the same time and that the same person or persons

committed the offenses as part of the same transaction. The perpetrator broke into the house and

was looking for jewelry, as evidenced by the writing on the wall. Johnson exclusively possessed

the stolen rings from the Pronia residence shortly after the breaking and entering and the grand

larceny from that residence. These facts give rise to a fair inference that Johnson committed

these acts. While Johnson said that he bought the rings from an unknown subject at a bar, as the

fact finder, the trial court was not obligated to accept his explanation as credible. Roberts v.

Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985). Therefore, we do not disturb




                                                -4-
Johnson’s convictions for the breaking and entering and grand larceny related to the Pronia

residence.

 B. 13 Golden Willow Circle (McMillian Residence) and 55 Treasure Key (Cherry Residence)

       On September 12, 2012, Todd McMillian (“McMillian”) returned to his home at 13

Golden Willow Circle to find the front door kicked in and the inside of his home destroyed. A

neighbor reported seeing a young black male, possibly about 5’10” in height, and a black Toyota

4-Runner sport utility vehicle (“S.U.V.”) in front of McMillian’s home that morning. McMillian

reported property missing from his home.1

       On September 13, 2012, Jason Cherry (“Cherry”) returned to his home at 55 Treasure

Key to find his back door open and his house “ransacked” inside. Cherry’s neighbor had noticed

a dark green or black S.U.V. backed into Cherry’s driveway that morning and she also noticed a

gentleman in the S.U.V. “rocking side-to-side” in the backseat behind the passenger’s seat. She

wrote down the license plate number of the S.U.V. Among many other items missing from

Cherry’s home were a “Kimber .45,” an “H&K USP .40 handgun,” an “H&K P7 handgun,” a

“Raven .25,” and a “Mossberg breeching shotgun.”

       Only one black male was seen at both of these residences. Some of the stolen property

from the McMillian and Cherry residences was found a few days after the dates of the offenses

in the back of a black Toyota 4-Runner, the S.U.V. used in both offenses. A video found in a

camcorder in the back of the S.U.V. shows De’ante Johnson driving the vehicle, but Terrell

Daniels and Marquan Johnson are also in the vehicle, and all three are young black males. There

is no evidence as to when the video was taken. Marquan Johnson was driving the S.U.V. and

was the sole occupant of the vehicle moments before an officer found the stolen property in the


       1
         Johnson does not contest the sufficiency of the evidence to prove the value of the
property stolen in any of the three grand larceny charges.

                                               -5-
S.U.V. on September 17, 2012. On these facts, there is at most only a suspicion that De’ante

Johnson, and not Marquan Johnson or Terrell Daniels, committed the offenses at the McMillian

and Cherry residences. “Suspicion, however, no matter how strong, is insufficient to sustain a

criminal conviction.” Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).

       The Commonwealth argues that its case is stronger with regard to the Cherry residence at

55 Treasure Key because police found an H&K .40 handgun in the vicinity where Johnson was

hiding from police just prior to his arrest on September 26, 2012—this was the same type of

handgun taken from Cherry’s home and the evidence supports that it was Cherry’s handgun.

       Pursuant to the investigation of and search for Johnson on September 26, Officer Steve

Carpenter searched an alleyway where another officer had observed the two suspects, Johnson

and a codefendant, hunched down. Officer Carpenter testified, “The area was checked and I was

unable to locate the two subjects, but while I was back there I was just kicking around leaves and

branches that were [lying] down and located two firearms.” One firearm was an H&K .40

handgun. Officer Carpenter found the firearms behind the backyard of 112 Hickory Hill.

Officer Carpenter also found Pronia’s commissioning ring in the backyard of 113 Aspenwood

Drive. Johnson was detained behind 112 Aspenwood Drive. The record fails to establish the

distance between the location of the firearms and the location of the ring, or the distance between

the location of the firearms and the location where police detained Johnson. Officer Carpenter

only testified that he found the ring in the “general vicinity” after he found the firearms.

       Johnson denied possession of the handgun. Johnson’s unidentified codefendant, who

also hid in the area where the handgun was found, denied knowledge and possession of the

handgun as well. The handgun was found in the general area of a backyard apparently not

owned by Johnson or his codefendant. Thus, the handgun was found in an area to which others

had equal facility and right of access as Johnson. See Castle, 196 Va. at 227, 83 S.E.2d at 363.

                                                -6-
There was no evidence that Johnson was consciously asserting a possessory interest in the stolen

property or was exercising dominion over it—the evidence only establishes that the handgun was

found in the general vicinity where Johnson lost the stolen ring and hid or ran from the police

with his codefendant. Mere proximity to the handgun, even if it were clear that it existed in this

case, is not enough to establish that Johnson exercised dominion and control over it. Myers, 43

Va. App. at 121, 596 S.E.2d at 540.

       “‘There must be an unbroken chain of circumstances proving the guilt of the accused to

the exclusion of any other rational hypothesis and to a moral certainty.’” Id. at 123-24, 596

S.E.2d at 541 (quoting Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737

(1971)). In Gordon, the Supreme Court found that the Commonwealth failed to exclude all

reasonable hypotheses of innocence where “a break in the chain” occurred because no witness

testified to seeing Gordon dispose of the drugs that a detective found in a grass plot near a public

street. Gordon, 212 Va. at 301, 183 S.E.2d at 737. “Because of the fatal gap in the

circumstantial evidence adduced against Gordon,” the Supreme Court reversed Gordon’s

conviction for possession of heroin. Id.

       Here, no witness testified to seeing Johnson with the handgun or disposing of it; nor was

there any DNA or fingerprint evidence linking Johnson to the handgun. Johnson was not in the

immediate area of the handgun when it was found, and the evidence does not establish the

distance between where Johnson was apprehended, the backyard of 112 Aspenwood Drive, and

the location of the handgun, behind the backyard of 112 Hickory Hill. From this scant record a

reasonable fact finder could not conclude beyond a reasonable doubt that Johnson exercised

dominion and control over the handgun, as required to support a finding that he was in

possession of recently stolen property and thus the burglar and thief. Therefore, we hold that the




                                                -7-
evidence is insufficient to prove that Johnson committed the breaking and entering and grand

larceny offenses at the McMillian and Cherry residences.

                      C. Revocation and Suspension of Previous Sentence

        At Johnson’s sentencing on the three breaking and entering convictions and the three

grand larceny convictions, the trial court revoked the suspension of a sentence imposed on

Johnson for prior offenses—five years suspended for a burglary and four years suspended on a

theft of a firearm charge, both committed in 2009. The trial court resuspended the nine-year

sentence for a period of five years from the May 28, 2013 sentencing date. Johnson argues that

if his recent breaking and entering and grand larceny convictions are set aside on appeal, then

there is “no basis” for concluding that he violated his probation condition that he obey all

federal, state, and local laws, which appeared to be the sole ground for revoking his suspended

sentences, and thus his probation violations should be reversed as well.

        The Virginia Supreme Court has reversed a probation revocation judgment and remanded

it to the trial court for reconsideration when “it cannot be determined from the record the extent

to which the trial court’s judgment revoking [the defendant’s] probation and previously

suspended sentence was based upon the [improper conviction].” Milteer v. Commonwealth, 267

Va. 732, 741-42, 595 S.E.2d 275, 280-81 (2004). Here, as in Milteer, the trial court did not

specify which of Johnson’s convictions were the bases of its probation revocation and

resuspension judgment and therefore we remand for reconsideration of the probation violation as

well.

                                        II. CONCLUSION

        We hold that Johnson’s convictions for the breaking and entering and grand larceny

related to the Pronia residence were supported by the evidence but that his four other convictions

were improper for lack of sufficient evidence to support them. Therefore, we reverse the

                                                -8-
probation revocation judgment and remand to the trial court for reconsideration in view of this

Court’s opinion.

                                                                                Affirmed in part;
                                                                  reversed and dismissed in part;
                                                                           and remanded in part.




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