COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

JERRY LEE LEWIS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 3064-01-1 JUDGE WILLIAM H. HODGES 

 OCTOBER 22, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Charles E. Haden for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Jerry Lee Lewis appeals his bench trial convictions for 

breaking and entering with the intent to commit larceny and petit 

larceny, third or subsequent offense. He argues that the trial 

court erred by (1) denying his motion to suppress evidence and (2) 

finding the evidence sufficient to support his convictions. Lewis 

contends that the evidence was obtained as a result of an illegal 

seizure, that the police failed to bring him before a magistrate 

"forthwith," and that he was too intoxicated to make a knowing and 

intelligent waiver of his Miranda rights. For the reasons that 

follow, we disagree and affirm his convictions. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
BACKGROUND

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 So viewed, the evidence proved that during the early 

morning hours of March 23, 2001, Officer Ted Bednarski responded 

to a report of a break-in at a restaurant. When he arrived at 

the scene he saw the restaurant's front window had been smashed 

by a cinder block. The only person Bednarski saw in the 

immediate vicinity was Lewis, who was sitting on a curb across 

the parking lot consuming alcohol. Officer Anthony Bordeaux 

testified that earlier that evening he had seen Lewis pushing a 

shopping cart toward the shopping center where the restaurant is 

located. Bednarski observed a shopping cart outside the front 

of the restaurant and broken glass scattered across the area. 

 Officer Jeffrey Lawrence also arrived on the scene, and he 

approached Lewis. The officer asked Lewis a few questions and 

then asked if he would display the bottoms of his shoes. Lewis 

complied, and Lawrence noted the soles of his shoes contained 

glass fragments. Lawrence then searched Lewis' person, 

recovering nearly $200 in cash. The officers placed Lewis in 

the patrol car and asked him to remove his shoes. They then 

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transported him to the police station, advised him of his 

Miranda rights, and proceeded to interrogate him. 

 Detective Kimberly Brighton questioned Lewis. She 

testified he smelled of alcohol but he did not slur his words or 

have trouble walking. She determined Lewis was coherent and 

able to answer her questions. Lewis stated he understood his 

rights and chose to talk to the detective. Brighton asked 

appellant to remove his outer layer of clothing. Laboratory 

testing of these garments revealed numerous glass fragments 

consistent with the broken glass from the restaurant window. 

Appellant provided inconsistent statements regarding his 

involvement in the crime. 

ANALYSIS

I. 

 On appeal of a ruling on a motion to suppress, we view the 

evidence in the light most favorable to the prevailing party, 

here the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. See Commonwealth v. Grimstead, 12 

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound 

by the trial court's findings of historical fact unless 'plainly 

wrong' or without evidence to support them[,] and we give due 

weight to the inferences drawn from those facts by resident 

judges and local law enforcement officers." McGee v. 

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) 

(en banc) (citing Ornelas v. United States, 517 U.S. 690, 699 

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(1996)). However, we review de novo the trial court's 

application of defined legal standards to the particular facts 

of the case. See Ornelas, 517 U.S. at 699. 

Probable Cause

 Lewis argues the police lacked probable cause to detain 

him. 

 "'Probable cause exists where "the facts and circumstances 

within [the arresting officers'] knowledge and of which they had 

reasonably trustworthy information [are] sufficient in 

themselves to warrant a man of reasonable caution in the belief 

that" an offense has been or is being committed.'" Jefferson v. 

Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998) 

(citation omitted). "[P]robable cause is a flexible, 

common-sense standard." Texas v. Brown, 460 U.S. 730, 742 

(1983). "[A]n investigating officer does not have to 'deal with 

hard certainties, but with probabilities,' and is permitted to 

make 'common-sense conclusions about human behavior' in 

assessing a situation." Carson v. Commonwealth, 12 Va. App. 

497, 502, 404 S.E.2d 919, 922 (citation omitted), aff'd on reh'g 

en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 

293, 421 S.E.2d 415 (1992). In determining the existence of 

probable cause, we look to the totality of the circumstances 

involved. See Miles v. Commonwealth, 13 Va. App. 64, 68, 408 

S.E.2d 602, 604 (1991), aff'd on reh'g en banc, 14 Va. App. 82, 

414 S.E.2d 619 (1992). 

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 The Commonwealth concedes Lewis was seized at the time the 

police placed him in the patrol car and asked him to remove his 

shoes. Lewis' meeting with the police began as a consensual 

encounter. He willingly spoke with Lawrence near the scene of 

the burglary. He voluntarily provided identification and 

revealed the soles of his shoes when asked to by the officer.1 

After Lawrence observed glass fragments in Lewis' shoes, he 

detained the suspect. 

 The police officers investigating the burglary found Lewis 

at the shopping center where the break-in occurred. Lewis 

initially claimed he knew nothing about the incident, but he had 

glass particles in the tread of his shoes. He also stated he 

had been at the shopping center since 12:20 a.m., well before 

the restaurant's alarm activated. "In determining whether 

probable cause exists courts will test what the totality of the 

circumstances meant to police officers trained in analyzing the 

observed conduct for purposes of crime control." Powell v. 

Commonwealth, 27 Va. App. 173, 177, 497 S.E.2d 899, 900 (1998) 

(citation omitted). Lewis' location close to the crime scene 

late at night combined with his responses to Lawrence's 

questions and the presence of glass particles in his shoes, 

 1

 We recently held "that an individual's expectation of 

privacy in his or her shoes is an interest that society is 

willing to accept as reasonable." Sheler v. Commonwealth, 38 

Va. App. 465, 477, 566 S.E.2d 203, 208 (2002). However, unlike 

Sheler, Lewis does not challenge the "search" of his shoes. 

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provided the police with probable cause to detain appellant at 

the scene. 

Forthwith

 Appellant also argues his motion to suppress should have 

been granted because the police failed to take him to a 

magistrate "forthwith" as required by Code § 19.2-80. 

 The police arrested Lewis at approximately 4:20 a.m. on a 

Friday morning. Because of his high level of intoxication, the 

officers decided not to bring him before a judge later that 

morning. Instead, the officers waited until Monday morning. As 

a result, over forty-eight hours elapsed between the time the 

police took Lewis into custody and the time they brought him 

before a magistrate. We assume without deciding that the delay 

in bringing Lewis before the magistrate violated Code § 19.2-80. 

Nevertheless, a violation of the statute "does not require 

exclusion of his statements. This statutory violation does not 

rise to the level of constitutional violation." Alatishe v. 

Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991) 

(finding that a delay in taking the defendant before a 

magistrate did not require exclusion of statements he made while 

being questioned by the police following his arrest). 

Miranda

 Lewis argues his waiver of his Miranda rights was not 

freely and voluntarily given because he was extremely 

intoxicated. 

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 "Statements made during a custodial interrogation and while 

intoxicated are not per se involuntary or inadmissible. The 

test is whether, by reason of the intoxication, the defendant's 

'will was overborne' or whether the statements were the 'product 

of a rational intellect and a free will.'" Boggs v. 

Commonwealth, 229 Va. 501, 512, 331 S.E.2d 407, 415-16 (1985) 

(citations omitted). "In assessing voluntariness, the court 

must determine whether 'the statement is the "product of an 

essentially free and unconstrained choice by its maker," or 

. . . whether the maker's will "has been overborne and his 

capacity for self-determination critically impaired."'" Roberts 

v. Commonwealth, 18 Va. App. 554, 557, 445 S.E.2d 709, 711 

(1994) (citations omitted). When making such a determination, 

"'courts look to the totality of all the surrounding 

circumstances,' including the defendant's background, 

experience, mental and physical condition and the conduct of the 

police." Commonwealth v. Peterson, 15 Va. App. 486, 488, 424 

S.E.2d 722, 723 (1992) (citation omitted). 

 Brighton testified Lewis smelled of alcohol and had 

bloodshot eyes. However, she further stated Lewis was coherent 

and did not appear to have trouble understanding or answering 

her questions. Lewis admitted his high tolerance for alcohol. 

He did not slur his words or have difficulty walking during his 

encounter with the police. The evidence supports the trial 

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court's conclusion that appellant understood his rights and 

waived them freely and voluntarily. 

II. 

 Lewis contends the evidence is insufficient to support his 

convictions. Specifically, he argues the Commonwealth failed to 

prove he broke into the restaurant or took any property from the 

business. 

 "Guilt of breaking and entering a building may be established 

by circumstantial evidence; eyewitnesses are not required." Hope 

v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990) 

(en banc). Kong Song Ni, the owner of the restaurant, testified 

he closed the business at 10:00 p.m. and when he left the building 

no windows were broken and the alarm was set. He explained he 

ordinarily kept approximately two hundred dollars in small bills 

in the cash register. The restaurant's alarm was activated around 

2:00 a.m. and when the police arrived at the scene they discovered 

the front window had been smashed with a cinder block. The police 

noted a shopping cart was located immediately outside the 

restaurant. Bordeaux testified he had seen Lewis less than two 

hours before the break-in pushing a shopping cart near the 

restaurant. The officers found Lewis a short distance from the 

scene of the crime with glass in the treads of his shoes and 

with nearly two hundred dollars in small bills on his person. 

Lewis provided the police with inconsistent statements regarding 

what he knew about the burglary. He later told Brighton that he 

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owed $132 to his wife for child support and that he did not have 

enough money to meet the obligation. The glass fragments found 

on Lewis' clothing were consistent with the broken glass from 

the restaurant. 

 "When an accused is found in possession of goods of a type 

recently stolen, strict proof of identity of the goods is not 

required." Henderson v. Commonwealth, 215 Va. 811, 812-13, 213 

S.E.2d 782, 783 (1975). 

"It is not necessary that the identity of stolen 

property should be invariably established by 

positive evidence. In many such cases 

identification is impracticable, and yet the 

circumstances may render it impossible to doubt 

the identity of the property, or to account for 

the possession of it by the accused upon any 

reasonable hypothesis consistent with his 

innocence." 

Reese v. Commonwealth, 219 Va. 671, 673, 250 S.E.2d 345, 346 

(1979) (quoting Gravely v. Commonwealth, 86 Va. 396, 402, 10 

S.E. 431, 433 (1889)). Currency is not easily identified. See

Cook v. Commonwealth, 214 Va. 686, 687-88, 204 S.E.2d 252, 253 

(1974). Lewis' possession of a similar amount of money in 

similar denominations as the currency missing from the 

restaurant, combined with Lewis' close proximity to the scene of 

the crime a short time after the incident, allowed the trial 

court to reasonably infer the money Lewis carried was taken from 

the business. 

 "When a conviction is based upon circumstantial evidence, 

such evidence 'is as competent and is entitled to as much weight 

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as direct evidence, provided it is sufficiently convincing to 

exclude every reasonable hypothesis except that of guilt.'" 

Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400 

(1994) (citation omitted). "The Commonwealth need only exclude 

reasonable hypotheses of innocence that flow from the evidence, 

not those that spring from the imagination of the defendant." 

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 

(1993). The Commonwealth excluded all reasonable hypotheses of 

innocence and established beyond a reasonable doubt, through the 

use of circumstantial evidence, that appellant broke into the 

restaurant and stole the money found on his person. 

 Accordingly, we affirm the decision of the trial court. 

Affirmed. 

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