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Martin v. Commonwealth

Court of Appeals of Virginia

January 12, 1999

KIMBERLY P. MARTIN, S/K/A KIMBERLY PAIGE MARTIN
v.
COMMONWEALTH OF VIRGINIA

Lindsay G. Dorrier, Jr., for appellant.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, Elder, Bray, Annunziata, Overton, Bumgardner and Lemons.

MEMORANDUM OPINION [*]

JOHANNA L. FITZPATRICK CHIEF JUDGE

UPON A REHEARING EN BANC

Kimberly P. Martin (appellant) was convicted in a jury trial of grand larceny in violation of Code § 18.2-95 and statutory burglary in violation of Code § 18.2-91. On appeal, she contended that the trial judge erred in refusing to grant her motion to set aside the jury verdicts. In an unpublished opinion, Martin v. Commonwealth, No. 1556-97-2 (Va. Ct. App. June 9, 1998), a panel of this Court reversed and dismissed the convictions. On petition of the Commonwealth, we granted rehearing en banc to consider whether the evidence was sufficient to sustain the jury verdicts. On rehearing en banc, we affirm appellant's convictions.

I.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997). So viewed, the evidence established that appellant was employed at Brown's Cleaners until " a couple of months" before the store was burglarized in the early morning hours of January 8, 1996. One of the co-owners of the store, Harry Brown (Brown), had terminated appellant after learning that she had given false information in an employment statement. When appellant left her job, her key to the premises was recovered but the combination to the safe was not changed by Brown. At the time of the burglary, the co-owners of the store, four current employees, and appellant were the only individuals who knew the combination to the safe.

On the night of the burglary, Eddie Mawyer (Mawyer) was plowing snow from the parking lot of the shopping center in which Brown's Cleaners was located. Between 3:00 a.m. and 4:00 a.m., Mawyer observed a four-wheel drive vehicle enter the parking lot. He saw two women, one of whom was wearing a Chicago Bulls jacket, get out of the car and walk toward Brown's Cleaners. After five or ten minutes passed, the women failed to return and Mawyer suspected that " something must be going on." He approached the side of the dry cleaners, saw that the window had been broken, and noticed " a shadow of people inside." Earlier that night, the window to the store had been intact.

Mawyer went to a nearby telephone in the parking lot and called the police to report the burglary. As he was giving the license plate number of the vehicle to the police, a woman, whom Mawyer identified as appellant, approached him and began to speak with him.

Officer Michael Deeds (Deeds) was the first officer to arrive at the scene. He noted that the side glass window had been broken. There were also footprints, which appeared to be made from a " lug-soled" or " mountain climbing-type" boot or shoe, that led from the broken glass to the back of the cleaners and then to the back of Kmart, another store located in the shopping center.

Deeds spoke with appellant, who told him that she and her companion, Heather Mortenson, had been walking, sledding, and tubing in the snow. Mortenson was wearing a Chicago Bulls jacket, and appellant was wearing some other sports team jacket. Both women denied entering the cleaners. Deeds then examined the soles of appellant's shoes and noted that appellant and Mortenson were wearing " lug-soled" shoes. Deeds compared appellant's shoes, " as to size, " to the footprints in the snow, and they were " very similar." The footprints also appeared to be " the same impression [as] the bottom of [appellant's] tread."

Several other police officers arrived and the two women were later escorted from the scene. However, twenty or thirty minutes later both appellant and Mortenson were seen walking behind the Kmart store. When the officers asked them why they were in the area again, they replied that " they were just walking again." Both women denied involvement in the burglary and were released within a few minutes.

Officers Stephen Upman and Tom McKeen went to the rear of the Kmart store and saw two sets of footprints leading away from the cleaners along the rear alley. The officers followed these footprints and discovered underneath a pile of snow a pillowcase containing money, money pouches, a money box, a diskette case, and a brick. Officer Upman testified that thirty or forty minutes after the police released appellant ...


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