COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Bray and 

 Retired Judge Whitehurst*

Argued at Norfolk, Virginia 

DENNIS G. CACCIOPPO 

v. Record No. 2209-93-1 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA JUNE 27, 1995 

 

FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY 

Glen A. Tyler, Judge 

 Carl H. Bundick (Mapp, Mapp & Klein, on 

brief), for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Dennis G. Caccioppo appeals his jury trial convictions for 

breaking and entering a storehouse with the intent to commit 

larceny therein and for grand larceny, in violation of Code 

§§ 18.2-91 and 18.2-95, respectively. Caccioppo argues that the 

trial judge erred in allowing the Commonwealth's witnesses to 

testify because the Commonwealth's attorney in issuing its 

summons for witnesses failed to file with the clerk of the court 

the names and addresses of such witnesses pursuant to Code 

§ 19.2-267. Because such filing is a directory rather than a 

mandatory requirement, we hold that failure to file the names and 

addresses of such witnesses with the clerk does not prevent the 

witnesses from being called to testify. Caccioppo also contends 

 

 * Retired Judge Alfred W. Whitehurst took part in 

consideration of this case by designation pursuant to Code 

§ 17-116.01. 
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that the trial judge erred in failing to exclude evidence that 

Caccioppo possessed stolen property which was not the subject of 

the grand larceny indictment and erred in refusing to grant his 

motion to strike the Commonwealth's evidence as being 

insufficient to support the convictions. We disagree and affirm. 

 I. 

 Code § 19.2-267 reads, in pertinent part, as follows: 

 In a criminal case a summons for a witness may be 

issued by the attorney for the Commonwealth . . . ; 

[provided,] however, [that] any attorney [for the 

Commonwealth] who issues such summons shall, at the 

time of the issuance, file with the clerk of the court 

the names and addresses of such witnesses. 

 The Commonwealth's attorney issued summonses for its 

witnesses but did not file the names and addresses of the 

witnesses with the clerk of the court "at the time of the 

issuance"; rather, such information was filed the day of trial. 

After the jury was sworn and opening statements concluded, 

Caccioppo moved to prohibit the Commonwealth's witnesses from 

testifying based on the Commonwealth's failure to timely file 

such information. Caccioppo conceded to the trial judge that he 

knew the names of witnesses, but argued that the use of the word 

"shall" in Code § 19.2-267 makes the Commonwealth's compliance 

mandatory. 

 We hold that the use of "shall" in Code § 19.2-267 is 

"directory and not mandatory." See Jamborsky v. Baskins, 247 Va. 

506, 511, 442 S.E.2d 636, 638 (1994). Such provisions are 

"procedural in nature" and "precise compliance is not to be 
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deemed essential to the validity of the proceedings," absent 

infringement of a substantive right. Id. (citations omitted). 

The procedural nature of this requirement is underscored by the 

Supreme Court's repeated holding that the use of "shall," in a 

statute requiring action by a public official, is directory and 

not mandatory unless the statute manifests a contrary intent. 

See Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991); 

Fox v. Custis, 236 Va. 69, 372 S.E.2d 373 (1988); Moore v. 

Commonwealth, 218 Va. 388, 237 S.E.2d 187 (1977); Huffman v. Kite

 198 Va. 196, 93 S.E.2d 328 (1956); Nelms v. Vaughan, 84 Va. 696, 

5 S.E. 704 (1888). 

 As we said in West v. Commonwealth, 16 Va. App. 679, 432 

S.E.2d 730 (1993): While 

violations of state procedural statutes are viewed with disfavor, 

. . . neither the Virginia Supreme Court nor the legislature has 

adopted an exclusionary rule for such violations. . . . where no 

deprivation of the defendant's constitutional rights occurred. 

Id. at 692, 432 S.E.2d at 738 (citations omitted) (holding that 

because Code § 19.2-57, a procedural statute requiring the filing 

of an inventory following the execution of a search warrant, did 

not expressly provide a right of suppression of evidence, a 

violation of that provision does not require application of the 

exclusionary rule). 

 Nothing in Code § 19.2-267 prohibits the Commonwealth's 

witnesses from testifying nor is there any suggestion in the 
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statute that such a remedy was intended by the legislature. 

Caccioppo's substantive rights were not affected by the 

Commonwealth's failure to file the information at the time of the 

issuance of the summons. 

 II. 

 At trial, Caccioppo objected on relevancy grounds to the 

trial judge allowing in evidence a list of items missing from the 

store other than the outboard motor that was the subject of the 

grand larceny indictment. Among those items were ice chests, 

which were never recovered. 

 The Commonwealth presented evidence that when Caccioppo 

needed money he would break into the storehouse owned by his 

former employer and take items which he would then sell. A 

friend of Caccioppo's testified that Caccioppo sold him the 

property charged in the indictment, an outboard motor. As part 

of its case, the Commonwealth also offered testimony about other 

items of property stolen from the storehouse at the same time, in 

"mid April" 1993, as the outboard motor. This property was never 

recovered. However, a witness testified that about the same time 

that Caccioppo sold the outboard motor, Caccioppo offered to sell 

him some ice chests. 

 "[E]very fact, however remote or insignificant, that tends 

to establish the probability or improbability of a fact in issue, 

is admissible." Epperly v. Commonwealth, 224 Va. 214, 230, 294 

S.E.2d 882, 891 (1982). In addition, evidence that adds "force 

and strength to other evidence bearing upon" an issue presented 
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is admissible. McNeir v. Greer-Hale Chinchilla Ranch, 194 Va. 

623, 628, 74 S.E.2d 165, 169 (1953). 

 [U]pon proof of breaking and entering and a theft of 

goods, if the evidence warrants an inference that the 

breaking and entering and theft were committed at the 

same time by the same person as a part of the same 

transaction, the exclusive possession of stolen goods 

shortly thereafter gives rise to an inference that the 

possessor is guilty of the breaking and entering. 

Ferrell v. Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 

618 (1990) (citation omitted). 

 The evidence proved that the breaking and entering occurred 

in "mid April" 1993. The fact that Caccioppo had in "mid April" 

sold the outboard motor stolen in the burglary was evidence that 

tended to prove he committed the larceny and burglary at the same 

time. See id. The further fact that he offered to sell ice 

chests, items that were also stolen, was a circumstance that 

tended to prove he had possessed property stolen in the burglary, 

and was therefore admissible because the proof increased the 

probability that he had committed the burglary. Thus, the trial 

court did not err in overruling Caccioppo's motion to exclude 

testimony concerning other items of property stolen at the time 

of the burglary, even though such items were not the subject of 

the grand larceny indictment. 

 III. 

 Finally, we find no merit in Caccioppo's argument that the 

Commonwealth's evidence was insufficient. The evidence proved 

that Caccioppo had worked for the victim of the theft and that on 

previous occasions when he needed money he had broken and entered 
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and stolen property which he sold. These facts, together with 

the fact that he possessed shortly thereafter, some of the 

property stolen in the burglary, were sufficient evidence to give 

rise to an inference that he was both the thief and the burglar. 

See id.; see also Best v. Commonwealth, 222 Va. 387, 389, 282 

S.E.2d 16, 17 (1981); Fout v. Commonwealth, 199 Va. 184, 190, 98 

S.E.2d 817, 821 (1957). 

 Therefore, the trial judge did not err in overruling 

Caccioppo's motion to strike the Commonwealth's evidence. 

 For all of the above-stated reasons, Caccioppo's convictions 

are affirmed. 

 Affirmed.