COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Clements and Senior Judge Coleman 

Argued at Richmond, Virginia 

RALPH HAGY, A/K/A 

 RONALD GENE HAGY 

 OPINION BY 

v. Record No. 0859-00-2 JUDGE SAM W. COLEMAN III 

 MARCH 27, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

 David F. Berry, Judge Designate 

 Robert P. Dwoskin for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Ralph Hagy was convicted in a bench trial of possession of 

burglarious tools, in violation of Code § 18.2-94. On appeal, 

Hagy argues the evidence is insufficient to support his 

conviction. We disagree and affirm the conviction. 

BACKGROUND

 Albemarle County Police Detective Donald Allen Byers was 

working as a part-time security guard at a shopping center. The 

shopping center maintained a coin machine at which the public 

could exchange coins for currency. On three separate occasions 

during one month, Byers observed William Hagy bring a total of 

over $200 in loose coins to the machine for exchange. On one 

occasion, William Hagy carried the coins in a Kroger grocery bag. 

On another occasion, he carried the coins in a baseball cap. On 
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each occasion, Byers observed the vehicle in which William Hagy 

was traveling and noted the license plate number. After learning 

that vending machines had been recently broken into in the 

neighborhood, Byers notified the police that he had observed 

William Hagy exchanging coins and advised them of the make, model, 

and license number of the vehicle in which William Hagy was 

traveling. The police determined that the car was registered to 

Margaret Hagy. 

 Days later, while on patrol, Police Officer Timothy Seitz 

observed Margaret Hagy's vehicle. Aware that arrest warrants were 

outstanding for Margaret Hagy, Seitz stopped the vehicle and 

arrested her. Margaret Hagy was driving the car, William Hagy 

occupied the front passenger seat, and the defendant, Ralph Hagy, 

was in the rear passenger seat. Seitz searched the car incident 

to arresting Margaret Hagy and found a black bag on the floorboard 

of the rear seat which contained yellow rubber dishwashing gloves, 

a package of sandwich baggies, a can of Lysol, a bungee cord, and 

a Kroger grocery bag. William Hagy acknowledged ownership of the 

black bag. Seitz also found a black leather fanny pack on the 

rear seat next to the defendant, which contained a pair of black 

cotton work gloves and two screwdrivers. The defendant, Ralph 

Hagy, claimed ownership of this bag and stated that he used the 

tools and gloves to repair his chainsaw. Seitz also found in the 

glove box of the car a "slim jim," which is a tool designed and 
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used to open locked vehicles without a key. In the rear cargo 

area of the vehicle, Seitz found a large crowbar, a smaller 

crowbar, and a set of pliers. William Hagy told Seitz that he and 

Ralph Hagy used those tools in their construction business. 

Finally, under the front passenger seat, Seitz found a pair of 

brown and tan work gloves and another screwdriver that had red 

paint marks on it, which Seitz testified was consistent with the 

paint color that would be found on a Coca-Cola vending machine. 

No one acknowledged ownership of those items. Another police 

officer found a key on Margaret Hagy's key ring that is the type 

used for opening vending machine locks. 

ANALYSIS

 "On review of a challenge to the sufficiency of the 

evidence, we view the evidence in the light most favorable to 

the Commonwealth, the prevailing party, and grant to it all 

reasonable inferences fairly deducible therefrom." Robertson v. 

Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000) 

(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 

263, 265 (1998)). 

 Code § 18.2-94 provides that it is unlawful for: 

any person [to] have in his possession any 

tools, implements or outfit, with intent to 

commit burglary, robbery or larceny . . . . 

The possession of such burglarious tools, 

implements or outfit by any person other 

than a licensed dealer, shall be prima facie 

evidence of an intent to commit burglary, 

robbery or larceny. 
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The mere possession of burglarious tools is 

not a crime under the statute. It is 

possession with intent to use them to commit 

a crime [that is criminal]. The tools or 

implements may be, and usually are, designed 

and manufactured for lawful purposes. But 

it is unusual for a person, on a lawful 

mission, to have in his possession a 

combination of tools and implements suitable 

and appropriate to accomplish the 

destruction of any ordinary hindrance of 

access to any building . . . . All the 

statute does is to create a presumption of a 

criminal intent from proof of possession of 

burglarious tools or implements. Such a 

presumption is not conclusive; it cuts off 

no defense. It interposes no obstacle to a 

contest of all of the issues of fact, and 

relieves neither the court nor the jury of 

the duty to determine all of the questions 

of fact from the weight of the whole 

evidence. "It is merely a rule of evidence 

and not the determination of a fact." When 

possession is proven, the burden of going 

forward with the evidence shifts to the 

defendant, but this does not shift the 

burden of ultimate proof . . . . 

Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482, 

485-86 (1953) (citation omitted). 

This presumption [of criminal intent], 

however, does not attach to all "tools, 

implements, or outfit[s]" embraced by the 

statute, but only to such offending articles 

innately burglarious in character, those 

"commonly used by burglars in house breaking 

and safe cracking," particularly "suitable 

and appropriate to accomplish the 

destruction of any ordinary hindrance of 

access to any building, . . . vault or 

safe." 

Moss v. Commonwealth, 29 Va. App. 1, 4, 509 S.E.2d 510, 511 

(1999) (citations omitted). 
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 Here, the trial judge convicted the defendant based upon a 

finding that he constructively and jointly possessed all the 

tools found in the automobile. The trial judge further reasoned 

that when the nature and combination of the tools were 

considered, together with the surrounding circumstances, the 

facts supported the inference that the Hagys, including the 

defendant, possessed the tools intending to use them to break 

into and steal from vending machines. The trial judge stated, 

"Now without undertaking to distinguish one tool from another, 

but taking all of them together, when I put this array of tools 

up here, I have this observation: It's about as impressive an 

array of burglary tools as I've ever witnessed in 29 

years. . . . Taken singly, they're absolutely innocent." The 

trial judge found that, based on the "array of tools" and the 

fact that William Hagy had recently been seen exchanging large 

sums of coins for currency on three separate occasions, the 

evidence was sufficient to prove that the tools were possessed 

for burglarious purposes and were possessed jointly by the 

occupants of the car for that purpose. Thus, the court 

concluded that the defendant, Ralph Hagy, jointly possessed the 

burglarious tools. We agree. 

 "'To support a conviction based upon constructive 

possession, "the Commonwealth must point to evidence of acts, 

statements, or conduct of the accused or other facts or 
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circumstances which tend to show that the defendant was aware of 

both the presence and character of the [item] and that it was 

subject to his dominion and control."'" McGee v. Commonwealth, 

4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (citations 

omitted). "Circumstantial evidence is sufficient to prove guilt 

beyond a reasonable doubt so long as 'all necessary 

circumstances proved . . . [are] consistent with guilt and 

inconsistent with innocence and must exclude every reasonable 

hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App. 

76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (quoting Bishop v. 

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)). 

 Here, the defendant admitted possession of the fanny pack, 

which contained two screwdrivers and a pair of work gloves. 

Further, William Hagy told Officer Seitz that the crowbars and 

pliers located in the cargo area were used by both the defendant 

and William Hagy in their employment. Although the defendant 

denied possession of the other tools found throughout the car, 

the fact finder did not have to accept his explanation that he 

did not own or possess the other tools. See Marable v. 

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 

(1998) (stating that "fact finder is entitled to disbelieve the 

self-serving testimony of the accused and to conclude that the 

accused is lying to conceal his guilt"). The defendant's 

admitted ownership of some of the implements and William Hagy's 
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statement of ownership with the defendant of the two crowbars 

and pliers in the cargo area provided sufficient evidence for 

the fact finder to conclude that the defendant and William Hagy 

exercised joint dominion and control over those tools found 

throughout the car. See Carter v. Commonwealth, 209 Va. 317, 

323, 163 S.E.2d 589, 594 (1968) (stating that "exclusive 

possession includes joint possession by two or more persons"); 

Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832 

(1997) (holding that evidence was sufficient to prove defendant 

constructively possessed the gun where, although defendant 

denied ownership of the gun, it was found near a knife of which 

defendant claimed ownership and where defendant was aware of the 

presence of the gun); Josephs v. Commonwealth, 10 Va. App. 87, 

101-02, 390 S.E.2d 491, 498-99 (1990) (en banc) (holding that 

defendant, who was a passenger in a car, had joint constructive 

possession of drugs found next to the defendant's luggage in 

truck of car even where she disclaimed ownership of the drugs); 

Castaneda v. Commonwealth, 7 Va. App. 574, 583-84, 376 S.E.2d 

82, 87 (1989) (en banc) (stating that occupancy of a vehicle and 

proximity to drugs are factors to be considered in determining 

whether defendant constructively possessed drugs). Thus, the 

evidence is sufficient to prove that the defendant jointly 

possessed the various tools found throughout the car. 
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 The remaining question is whether the evidence supports a 

finding that the defendant possessed burglarious tools with the 

intent to commit burglary, robbery, or larceny, as required by 

Code § 18.2-94. If the tools are found to be implements 

possessed for the purpose of committing burglaries or larcenies, 

even though the tools are also the type that can be used for a 

legitimate purpose, the statute creates a prima facie case or 

rebuttable presumption that the person possesses the tools with 

the intent to commit a burglary, robbery, or larceny. Burnette, 

194 Va. at 790-91, 75 S.E.2d at 485-86. The burden of proof to 

establish that the tools are possessed with the intent to steal 

always remains with the Commonwealth; however, once a prima

facie case has been established giving rise to a rebuttable 

presumption that the tools are possessed with the intent to 

commit a burglary, robbery, or larceny, the burden of going 

forward with the evidence explaining the purpose of the 

possession shifts to the defendant. Id. at 790-91, 75 S.E.2d at 

486; see also Nance v. Commonwealth, 203 Va. 428, 432, 124 

S.E.2d 900, 903-04 (1962). The intent required under the 

statute need not be an intent to steal a particular item or to 

break into a particular structure at the time, but need only be 

a generalized intent to use the tools to commit a burglary, 

robbery, or larceny wherever and whenever the opportunity may 
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present itself. See State v. MacDonald, 523 A.2d 35, 37-38 

(N.H. 1986). 

 Here, all the tools -- consisting of various size crowbars, 

screwdrivers, and pliers -- are of the type that can be used in 

the construction trade. Although William Hagy stated that he 

and the defendant used the tools in their construction trade, 

noticeably absent from the "array" of tools found in the vehicle 

were other types of tools that would be necessary and expected 

in any construction trade -- tools such as hammers, saws, 

wrenches, drills, levels, tape measures, squares, and tool belts 

or aprons. Significantly, all the tools found in the vehicle 

were prying implements or tools that could be used to forcibly 

open vending machines or other structures. As such, the 

combination of tools are the type commonly used by burglars; the 

array of tools is innately burglarious. See Bishop v. 

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984) 

(stating that, in order to be sufficient, circumstantial 

evidence must be "consistent with guilt and inconsistent with 

innocence and must exclude every reasonable hypothesis of 

innocence"). 

 The Commonwealth established that the combination of tools 

was innately burglarious and such proof gave rise to a 

rebuttable presumption that Ralph Hagy and his co-occupants of 

the car possessed the tools with the intent to use them to 
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commit a burglary, robbery, or larceny. Such presumption was 

not rebutted or adequately explained. In addition, the evidence 

showed that William Hagy had been seen on three separate 

occasions exchanging large amounts of coins for currency after 

vending machines in the vicinity had been vandalized. Also, 

Margaret Hagy had on her key chain a key used to enter vending 

machines. One of the screwdrivers in the car was found to have 

red paint on it that was of the same color that is on Coca-Cola 

vending machines. See Poole v. State, 505 So.2d 1065, 1066-67 

(Ala. Crim. App. 1986) (evidence sufficient to prove possession 

of burglarious tool where big wrench "appeared to have paint 

scratches matching the paint on the back door" of the burgled 

building). A "slim jim," a device that is used to gain entry 

into locked cars without keys and that is commonly known to gain 

illegal entry into vehicles, was found in the glove box. These 

additional suspicious circumstances, when considered with the 

number and character of the tools in the vehicle and the lack of 

other types of construction tools in the car, support the 

conclusion that the tools were burglarious and were possessed 

with the intent to commit larceny. 

 Accordingly, the evidence is sufficient to support the 

conviction for possession of burglarious tools. 

Affirmed.