COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, McCullough and Senior Judge Clements

Argued at Chesapeake, Virginia

PHILLIP HOWELL DELAIN

MEMORANDUM OPINION*

v. Record No. 1961-11-1 BY JUDGE D. ARTHUR KELSEY

OCTOBER 23, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

Johnny E. Morrison, Judge

Gregory K. Matthews (Office of the Public Defender, on 

brief), for appellant.

John W. Blanton, Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee.

The trial court convicted Phillip Howell Delain of various charges including statutory 

burglary. On appeal, Delain challenges the sufficiency of the evidence supporting his burglary 

conviction. Finding the evidence sufficient, we affirm.

I.

When presented with a sufficiency challenge 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). This principle 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) (emphasis and citation omitted).

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

UNPUBLISHED
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In addition, our appellate review “is not limited to the evidence mentioned by a party in 

trial argument or by the trial court in its ruling.” Perry v. Commonwealth, 280 Va. 572, 580, 701 

S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 

586 (2008)). Instead, “an appellate court must consider all the evidence admitted at trial that is 

contained in the record.” Id. (quoting Bolden, 275 Va. at 147, 654 S.E.2d at 586); see also

Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).

The record shows that Cornetta Reeves was at her home in Portsmouth on or about 

January 10, 2011, when she was admitted into a local hospital. The paramedics who transported 

her to the hospital locked the doors to her home and gave Reeves her pocketbook and keys. She 

remained in the hospital for several weeks. On or about January 20, 2011, Reeves’s son went to 

her home and noticed some items had fallen from a table onto the floor. A week or two later, he

discovered his mother’s television and microwave oven were missing. He had seen both items

during his prior visit. He also found that some of his mother’s jewelry was missing. Upon a 

closer inspection of the home, Reeves’s son observed a kitchen window was broken and its 

screen removed. He promptly called the police.

A police detective checked with a local pawn shop in Portsmouth and learned someone 

had recently pawned several pieces of jewelry fitting the description of the jewelry taken from 

Reeves’s home. The detective did not recover the jewelry, but obtained copies of the pawn 

tickets describing the jewelry and identifying Delain as the seller. Delain lived across the street 

from Reeves. Delain pawned the jewelry items on January 20, 22, and 24, 2011. When the 

detective later questioned Delain, Delain mentioned a man he knew as “Weezie” but offered no

further details about the man. App. at 66. Police databases revealed no information regarding 

anyone using the nickname “Weezie.”
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A teller from a local branch of Wachovia Bank testified that on January 26, 2011, Delain 

cashed a $200 check drawn on Reeves’s checking account. The same teller also said Delain 

returned on February 14, 2011, seeking to cash another $200 check from Reeves’s account. 

Reeves’s son happened to be at the bank branch, standing in line, when Delain presented the 

second check. The teller cashed the check and, after Delain left, the teller asked Reeves’s son if 

he knew Delain. The son said he did not. The teller told Reeves’s son that Delain had said he 

was doing some work for Reeves. Her son replied that could not be so, as his mother was in the 

hospital. Later that afternoon, Delain appeared at the same bank branch and cashed a third check 

drawn on Reeves’s account for $200.

All three checks indicated they were payment for housework. At trial, however, Reeves’s 

son testified he had power of attorney for his mother and shared the checking account with her. 

He did not authorize Delain to perform any work on his mother’s house or give him any of his 

mother’s checks. The three checks Delain cashed, Reeves’s son added, had come from his 

mother’s checkbook.

Reeves testified she kept her checkbook on top of a chest of drawers in her bedroom, next 

to the dresser where she kept her jewelry.1

 She did not give anyone access to her checkbook or 

authorize anyone, except her son, to write checks from her account. Nor did she sign any of the 

 1 Delain notes that, at one point in her testimony, Reeves suggested she took her 

checkbook with her in her purse when she went to the hospital. App. at 46. In other places, 

however, she insisted the checkbook remained in her home while she was in the hospital. Id. at 

38 (“My checkbook is on my chest of drawers.”), 46 (clarifying that the checkbook and bank 

book “were still in [her] house” while she was in the hospital). The trial court was free to believe 

Reeves did, in fact, leave her checkbook in her home. The power to segregate evidence “into the 

believable, partly believable, or wholly unbelievable is an exercise of decisional discretion 

intrinsic to the factfinding task and essential to its proper performance.” James v. 

Commonwealth, 53 Va. App. 671, 679 n.2, 674 S.E.2d 571, 575 n.2 (2009) (citation omitted); 

Coleman v. Commonwealth, 52 Va. App. 19, 22 n.1, 660 S.E.2d 687, 689 n.1 (2008).
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three checks cashed by Delain. Reeves also stated she neither gave anyone permission to enter 

her home nor hired anyone to do any housework. She did not know Delain, hire him to do 

housework, give him access to her home, or write any checks to him.

Sitting as factfinder, the trial court found Delain guilty of statutory burglary, forgery, 

uttering forged checks, and obtaining money by false pretenses. On appeal, Delain challenges 

only the sufficiency of the evidence supporting his burglary conviction.

II.

In a bench trial, a trial judge’s “major role is the determination of fact, and with 

experience in fulfilling that role comes expertise.” Haskins v. Commonwealth, 44 Va. App. 1, 

11, 602 S.E.2d 402, 407 (2004) (citation omitted). For this reason, we examine trial court 

factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 

Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). We neither “reweigh the evidence,” Nusbaum 

v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), nor “preside de novo over a second 

trial” on appeal, Haskins, 44 Va. App. at 11, 602 S.E.2d at 407.

Instead, the only “relevant question is, after reviewing the evidence in the light most 

favorable to the prosecution, whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 

676, 701 S.E.2d 61, 63 (2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also

Cavazos v. Smith, 132 S. Ct. 2, 3 (2011). “This deferential standard of review applies not only 

to the historical facts themselves, but the inferences from those facts as well. Thus, a factfinder 

may draw reasonable inferences from basic facts to ultimate facts, unless doing so would push 

into the realm of non sequitur.” McEachern v. Commonwealth, 52 Va. App. 679, 684 n.2, 667 

S.E.2d 343, 345 n.2 (2008) (citations and internal quotation marks omitted).
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In this case, a rational factfinder could conclude Delain was guilty of burglary. He was 

found in possession of the stolen checks shortly after Reeves’s son discovered the burglary of his 

mother’s home. This fact gives rise to the reasonable inference that Delain broke into Reeves’s 

home and took the checks from her checkbook. “Virginia law permits the trier of fact to infer 

from possession of recently stolen goods that the possessor has committed burglary.” Ronald J. 

Bacigal, Criminal Offenses and Defenses 91-92 (2011-12).

2

 Under this approach, 

proof of breaking and entering and theft of goods justifies an 

inference that both offenses were committed at the same time by 

the same person as a part of the same enterprise if there is further 

proof that the goods stolen were found soon thereafter in the 

possession of the accused.

Cook v. Commonwealth, 214 Va. 686, 687, 204 S.E.2d 252, 253 (1974).3

Delain’s false explanation for possessing the checks — that he received them from 

Reeves for doing housework — provided further evidence incriminating him in the burglary. 

When the recent possession inference applies, as it does here,

although the ultimate burden of proof remains with the 

Commonwealth, the burden of going forward with the evidence 

shifts to the accused. If the accused fails to go forward with 

evidence in justification of possession, his failure is an inculpatory 

circumstance which, considered with the circumstance of 

possession, is sufficient to support a conviction of breaking and 

 2 On brief, Delain argues the evidence did not specifically link the jewelry stolen from 

Reeves to the jewelry pawned by Delain. Given the direct link between the checks stolen from 

Reeves and the checks forged and uttered by Delain, however, we need not examine in detail the 

evidence surrounding the theft of the pawned jewelry. See generally Bunch v. Commonwealth, 

225 Va. 423, 437, 304 S.E.2d 271, 279 (1983) (holding “strict proof of identity” of stolen 

jewelry was not required where the defendant was in recent possession of “goods of the type 

stolen” (citation omitted)); Henderson v. Commonwealth, 215 Va. 811, 812-13, 213 S.E.2d 782, 

783 (1975) (“When an accused is found in possession of goods of a type recently stolen, strict 

proof of identity of the goods is not required.”); Burton v. Commonwealth, 58 Va. App. 274, 

284, 708 S.E.2d 444, 449 (2011) (applying recent possession inference when the “goods in 

question match the general description of the recently stolen items”).

3 See also Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24 (1979); 

Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987).
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entering. If the accused elects to go forward with the evidence, he 

bears the burden of proving the truth of his evidence in 

justification of possession, and if he fails, his failure is another 

such inculpatory circumstance.

Brown v. Commonwealth, 213 Va. 748, 750, 195 S.E.2d 703, 705 (1973).

4

 At trial, Delain did 

not present an explanation for his possession of the stolen checks. His pretrial explanation to the 

bank teller, moreover, was clearly proven to be false. This prevarication serves to confirm his 

guilt.

Finally, Delain notes that others, including Reeves’s caregiver, might have had access to 

her home while she was in the hospital. “However, the law does not require that the 

Commonwealth negate this remote possibility.” Christian v. Commonwealth, 210 Va. 117, 120, 

168 S.E.2d 112, 114 (1969). The reasonable doubt standard, as stringent as it is, does not ignore 

the axiom that “[e]vidence is seldom sufficient to establish any fact as demonstrated and beyond 

all doubt.” Harris v. Commonwealth, 206 Va. 882, 887, 147 S.E.2d 88, 92 (1966) (quoting Toler 

v. Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)). “‘Anything is possible,’ as 

Judge Posner has observed, ‘but a merely metaphysical doubt . . . is not a reasonable doubt for 

purposes of the criminal law. If it were, no one could be convicted.’” Joyce v. Commonwealth, 

56 Va. App. 646, 666, 696 S.E.2d 237, 247 (2010) (quoting United States v. Ytem, 255 F.3d 394, 

397 (7th Cir. 2001)).

III.

Finding the evidence sufficient to support Delain’s burglary conviction, we affirm.

Affirmed.

 4 Under settled principles, “the Due Process Clause does not prohibit the use of a 

permissive inference as a procedural device that shifts to a defendant the burden of producing 

some evidence contesting a fact that may otherwise be inferred, provided that the prosecution 

retains the ultimate burden of proof beyond a reasonable doubt.” Yap v. Commonwealth, 49 

Va. App. 622, 632, 643 S.E.2d 523, 527 (2007) (citation omitted).