COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatr ick, Judges Benton and Clements Argued at Ches apeake, Virginia

JEFFREY SCOTT BLANEY MEMORANDUM OPINION * BY v. Record No. 2571-99-1 JU DGE JEAN HARR ISON CLEMENTS APRIL 3, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge Carolyn V. Grady (Epp erly, Follis & Schork, P.C., on brief), for appellant. Amy L. Marshall, Assi stant Attorney General (Mark L. Earley, Attorn ey General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Appellant Jeffre y Scott Blaney was conv icted in a jury trial of statutory burg lary, grand larcen y, possession of burglary or larceny tools, and solici tation to commit mali cious bodily injury. On appeal, he contends (1) the eviden ce was not su fficient to sustain the convic tions and (2) the trial court er red in denying his motion to ap point new counsel or grant him a continuance of trial so he coul d represent himsel f. For the reas ons that follow, we affirm appell ant's conv ictions. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedentialvalue, this opinion recites only those fa cts necess ary to a disposition of this appeal. A. SUFFICIENCY OF THE EVIDENCE When the sufficiency of the evidence is ch allenged on appeal, we review the eviden ce "in the light most favorable to the Commonwealth, granting to it all reason able inferences fairly deducible th erefrom." Bright v. Commonwealth , 4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). We may not di sturb the conviction unless it is plainly wr ong or unsupported by the evidence. Sutphin v. Commonwealth , 1 Va. App. 24 1, 243, 337 S.E.2d 897, 898 (198 5). We are furthe r mindful that the "credibility of a witness, the weight acco rded the testimony, and the inferences to be drawn from proven facts are matt ers solely for the factfi nder's determination." Keyes v. City of Virginia Beach , 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). Blaney initially cont ends that the eviden ce was insufficient to support his la rceny and burglary convictions be cause there was no evidence that he broke into the vict ims' home and stole property. The evidence , he argues, merely showed that he was later in possession of the stolen bicycle, which alone was not sufficient to pe rmit the jury to infer that he co mmitted the burglary. He al so argues that even if such an in ference was permitted, his evidence was sufficient to rebut the inference of larceny and burglary.

- 2-"At common law, larc eny is the taking an d carrying away of the goods and chat tels of another with intent to deprive the owner of the possession ther eof, permanently." Lund v. Co mmonwealth , 217 Va. 688, 691, 232 S.E.2d 745, 748 (197 7). Code § 18.2-95 provides that gr and larceny includ es "larceny not from the person of another of goods and chattels of the value of $200.0 0 or more." Furthermore, "the unexplained poss ession of recently stolen goods permits an inference of la rceny by the possessor." Bright , 4 Va. App. at 251, 356 S.E.2d at 444. In other wo rds, "'[p]ossession of goods recentlystolen is prima facie evidence of guilt of the crime of larceny, an d throws upon the ac cused the bu rden of accounting for that possession.'" Hope v. Co mmonwealth , 10 Va. App. 381, 385, 392 S.E. 2d 830, 833 (1990) ( en banc ) (quoting Fout v. Commonwealth , 199 Va. 184, 190, 98 S.E.2d 817, 821 (1957)). For the larceny in ference to arise, the Co mmonwealth must prove that the accused was in exclusive po ssession of the recently stolen property. Best v. Co mmonwealth , 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981). In a burglary prosecution, th e Commonwealth can establish a violation of Code § 18.2-91 by "(1) proving that go ods were stolen from a house which was broken into; (2) just ifying the inference that both offenses we re committed at the sa me time, by the same person, as part of th e same criminal enterp rise; and (3 ) proving that the goods were foun d soon thereafter in the possessi on of the accused." Bright , 4 Va. App. at 251, 356 S.E.2d at 444. The - 3-unexplained or falsely denied exclusive posses sion of stolen goods shortly after the burglary "has th e same efficiency to give rise to an inference that the possesso r is guilty of the breaking and entering as to an inference that he is guilty of the larceny." Drinkard v. Commonwealth , 163 Va. 1074, 1083 , 178 S.E. 25, 28 (1935). To prove beyond a re asonable doubt that th e possession of the stolen property was ex clusive, the Commonweal th's evidence must show "that the accuse d was consciou sly asserting at least a possessory interest in the stolen property or was exercising dominion over the st olen property." Best , 222 Va. at 389, 282 S.E.2d at 17. In this case, Blan ey does not dispute on appeal that the Commonwealth's eviden ce was sufficient to establish that the victims' home was broken into without th e permission of the victims. Likewi se, he does not dispute that th e evidence was sufficient to sh ow that a larceny occurred as a result of the break-in and that bothoffenses were commit ted at the same time, by the same person, as part of the same cr iminal enterprise. Rather, Blaney argues solely that hi s recent possession of the stolen property was no t sufficient evidence to show he committed the burglary and larcen y. The issue, then , is whether it was proper for the jury to infer guilt from Blaney's rece nt possession of the stolen property.

- 4-Here, there is no direct evidence that links Blan ey to the burglary of the home and the larceny of the stolen property. However, the evidence did establish th at on October 30, 1996, the home of Lori Irvin and Jon Rowe in Vi rginia Beach wa s broken into between 12:05 p. m. and 12:15 p.m. A pair of pliers was outside on the front porch be fore the break-in. When Jon Rowe discovered the burglary, he found th e glass in the front door broken out and noticed that the pliers were lying just insi de the door on the floor amidst the broken glass. Jon Ro we also discovered that the mountain bicycle of his father, Mo rris Rowe, wa s missing and Irvin's room was ransac ked. Nothing other than the bicycle was taken. A short time after 1:00 p.m., Morris Ro we received a call from his son advising him of the burglary an d that his bicycle had been stolen. Suspecting that someone in one of the nearby apartment comp lexes might have committed the crimes, Mo rris Rowe took his camera and a gu n and drove near Chapel Lake Apartments on his way to his son's ho use. Mr. Rowe saw so meone, whom he later identified as Bl aney, coming out of the woods pushing Mr. Rowe's bicycle. The wooded area was ap proximately 150 feet from the Irvin/Rowe residence. Blaney then jumped on the bicycl e and rode off. Mr. Rowe followed Blaney to a trash du mpster where Blaney's car was parked. A teen age boy was in the pa ssenger seat of the car. Mr. Rowe parked his car diagon ally behind Blaney's car.

- 5-As Blaney was lift ing the bicycl e onto a bike rack on Blaney's car, Morr is Rowe told Blaney the bicycle was hi s. Blaney approached Rowe, at wh ich point Rowe picked up his gun and told Blaney not to come an y closer. Blaney th en got back on the bicycle and rode off through the Ch apel Lake Apartm ents complex. Rather than chase Bl aney, Rowe reposition ed his car directly behind Blaney's car, bl ocking it in. Blaney 's car was running and Rowe noticed the boy mo ve toward the driver's seat. Taking his gun, Rowe got out of hi s car and walkedto the driver 's side door of Blaney's car. He saw the teenager rummaging for what Mr. Rowe suspected might be a weapon. Mr. Rowe pu t the barrel of the gun to the teenager's he ad and told him to put his hands on the steering wheel, wh ich he did. Blaney then return ed, still ridi ng Rowe's bicycle. He screamed to the bo y in the car, "run over him, ram him, run over him, run over him." As the boy revved the en gine, Blaney shouted, "he won't shoot." Blaney then th rew down the bicy cle and started toward Mr. Rowe. In response Mr. Rowe cock ed his gun and pointed it at Blaney. Blaney stopped, told Mr. Ro we he could have his bicycle back, an d added: "Jus t let me go. I didn 't take anything else. I didn't take an ything else. If I did, you know, I'll make it up to you. I'll give you the money. I' ll give you anything. Just let me go." Mr. Rowe told him to get the bicycle. Blaney then took off his te e shirt, wiped the fi ngerprints off the bicycle, and set the bi cycle back down on th e ground. Mr. Rowe - 6-got back in his ca r and backed it up. Blaney got in his car, and the teenager an d he drove off. We find that this evidence established that Blaney was in exclusive poss ession of Morris Rowe's stolen bicycl e. Blaney alone was exercisi ng dominion over the st olen bicycle during his confrontation wi th Mr. Rowe. Furtherm ore, this exclusive possession, occurring approx imately one to one and a half hours after the commissi on of the crimes , was sufficient ly recent to establish a prima facie case of larceny an d burglary and to justify infere nces by the jury that Blaney was the thief and burglar who broke into the Irvin/Rowe home and stole Morr is Rowe's bicycle. Blaney, however, ar gues that the eviden ce he pres ented was sufficient to re but the inferences in this case. Blaney, who had been convicted of at least twelve felonies and one misd emeanor, testified on his own be half. He said that a young male, whose name he did no t know, called him and offered to sell him a bicycle. He was to me et the caller "somewhe re" on Laskin Road. As he drove down Lask in Road, he saw a guy near a trash dumpster with a bicycle. Blan ey took the bicycle fo r a test ride "to see if it was worth bu ying." When Morr is Rowe confront ed him, Blaney negotiated with him because he was scared . At trial, Blaney denied he stole th e bicycle or that he ever told Morris Rowe that he did. He explaine d that he wipe d his fingerpr ints off the

- 7-bicycle because he realized at that poin t that the bicycle was probably stolen an d he did not want to get involved. Blaney's sister-in- law also testified on his behalf. She stated that Blan ey, who was living with her and he r husband at the time, received a teleph one call that morning from a young male. Soon thereafter, Blaney left saying he was going to buy a bicycle. The trier of fact is not required to accept a party's evidence in its en tirety, but is fr ee to believe or disbelieve in part or in whole the test imony of any witness. Rollston v. Commonwealth , 11 Va. App. 535, 547, 39 9 S.E.2d 823, 830 (1991). Thus, the jury was not re quired to accept Blan ey's testimony as to why he had possessionof the recently stolen bicycle. Furthermore, the jury could reasonablyconclude th at Blaney's statement to Morris Ro we, "I didn't take an ything else," and his conduct in fleeing the scene and wiping off the bicycl e to remove fingerprints implicated him as the burglar and thief. "In its role of judging witness credib ility, the fact fi nder is entitled to disbelieve the self -serving testimony of the accused and to conclude that the ac cused is lying to co nceal his gu ilt." Marable v. Commonwealth , 27 Va. App. 505, 50 9-10, 500 S. E.2d 233, 235 (1998). We hold, therefor e, that the eviden ce was sufficient to prove beyond a re asonable doubt that Blaney committed the subject burglaryand larceny. Blaney next contends that the evidence was insuffic ient to support his convic tion for possession of burglary or larceny - 8-tools. Accordin g to him, there was no evidence that a tool was used in the brea k-in or that pliers are a tool of bu rglary or larceny. Furthermore, he argues , the Commonwe alth failed to prove his intent to co mmit burglary. To convict Blaney of a violation of Co de § 18.2-94, the Commonwealth was required to pr ove that he po ssessed "tools, implements or ou tfit, with intent to comm it burglary, robbery or larceny." Mere posses sion of a tool alone is not proh ibited, for such "'may be, and us ually are, designed and manufact ured for lawful purposes.' Th e gravamen of the offense aris es from the possessor's 'i ntent to use' thes e 'common, ordina ry' objects for a criminal purpose spec ified by statute, burglary , robbery , or larceny ." Moss v. Co mmonwealth , 29 Va. App. 1, 3, 509 S.E.2d 510, 511 (1999) (quoting Burnette v. Commonwealth , 194 Va. 785, 790, 75 S.E.2d 482, 486 (1953)). Irvin and Jon Ro we testified that a pair of pliers was kept outside on the front po rch before the break- in. Jon Rowe found them inside the house on the floor am idst the broken glass of the front door after the break-in. In this case, the jury could reasonably infer that the pliers were used by the possessor to effect the breaking and entry. Li kewise, the ev idence being sufficient to convict Blaney of burglary, it was also reasonable for the jury to in fer that the burglary was accomplished by Blaney with the use of the pl iers. We hold that this evidence was

- 9-sufficient to pr ove beyond a reasonable do ubt that Blaney was in possession of burglary or larc eny tools. Finally, Blaney cont ends that the eviden ce was insufficient to support his co nviction for solicitation to commit malicious bodily injury. Althou gh Blaney denies the statements attributed to him by Morris Rowe, he argues that any stat ements he made were caused by fear resultin g from the words and ac tions of Morris Rowe while he had his gun drawn. Ther efore, Blaney argues, the evidence was insufficient to show that he in tended to induce the teenage boy to commit a crime. 1 Code § 18.2-29 makes it unlawful for any person to command, entreat, or otherwise attempt to persuade another to commit a felony. Morris Rowe testified that, when Blaney returned to the scene, after having earlier fled, and saw Rowe pointing a gun at the teenager, Blaney screamed to the boy, "run over him, ram him, run over him, run over him," referring to the boy running over or ramming Rowe with the car. Then, as the boy revved the engine, Blaney shouted, "he won't shoot," referring to the gun pointed at the boy's head by Rowe. The jury, which had the opportunity to hear and observe the witnesses on the stand and weigh the evidence accordingly, could

1 Blaney also argues on appeal that he acted in self-defense. However, this argument was never presented to the trial court. Thus, it was not properly preserved, and Rule 5A:18 bars our consideration of it on appeal. Furthermore, we find no reason to invoke the "good cause" or "ends of justice" exceptions. - 10-reasonably infer from the testimony of Morris Rowe, whom it chose to believe, that Blaney intended to incite the boy to hit Rowe with the car and thereby cause him serious injury. We hold, therefore, that the evidence was sufficient to prove beyond a reasonable doubt that Blaney solicited another to commit malicious bodily injury. B. MOTION FOR NEW COUNSEL OR CONTINUANCE OF TRIAL In September 1998, Blaney was indicted on the charges of which he was subsequently convicted. Blaney and his court-appointed attorney appeared for trial with a jury on August 2, 1999. In some of his answers on the "Not Guilty Questionnaire," Blaney expressed dissatisfaction with his attorney and represented that he was not ready for trial. He requested that the court appoint a new attorney for him. The trial court conducted a hearing of approximately forty-five minutes. Blaney's motion for substitution of attorney was denied. Thereafter Blaney asked for a continuance so that he could represent himself. When the motion for a continuance was denied by the trial court, Blaney withdrew his motion to represent himself and proceeded to trial with his court-appointed attorney. Blaney contends that the trial court erred in denying his motions. Whether an indigent defendant's court-appointed attorney should be discharged is a matter that lies within the sound

- 11-discretion of the trial court, and its ruling will not be reversed on appeal unless it is plainly wrong. Kinard v. Commonwealth , 16 Va. App. 524, 526, 431 S.E.2d 84, 85 (1993) (citing with approval United States v. Gallop , 838 F.2d 105, 108 (4th Cir. 1988)). Furthermore, a defendant cannot have his court-appointed attorney replaced unless he shows "good cause." Id. Likewise, "[w]hether to grant a continuance of a trial is a matter that lies within the sound discretion of a trial court, and its ruling will not be reversed on appeal unless it is plainly wrong." Cardwell v. Commonwealth , 248 Va. 501, 508, 450 S.E.2d 146, 151 (1994). "Absent a showing of prejudice to a defendant by the denial of a continuance, an appellate court will not find that a trial court abused its discretion." Id. at 509, 450 S.E.2d at 151. The trial court chose not to believe or accept Blaney's stated complaints and reasons for seeking a new attorney and a continuance. Instead, the court made specific findings and ruled that there was no good cause for replacing Blaney's court-appointed attorney and that Blaney's motions, "at this late hour," were for the purpose of delay. The court's rulings were not plainly wrong. Moreover, Blaney made no showing that he was prejudiced by the denial of a continuance. We hold, therefore, that the trial court did not abuse its discretion.

- 12-Accordingly, we affirm appellant's convictions. Affirmed

.

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