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Dunne v. Commonwealth

Court of Appeals of Virginia

February 23, 2016

JUSTINA ALICE DUNNE
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY. Michael S. Irvine, Judge.

Affirmed.

Robert C. Hagan, Jr., for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Decker and AtLee.

OPINION

Page 171

[66 Va.App. 26] RICHARD Y. ATLEE, JR. JUDGE

A Rockbridge County jury convicted Justina Alice Dunne of knowingly giving a false report of a crime to a law enforcement official with the intent to mislead, a misdemeanor in violation of Code § 18.2-461. Dunne asserts that the evidence was insufficient because (1) her allegation did not describe the commission of a " crime," and (2) her communication of such allegation did not constitute a " report." For the reasons that follow, we disagree and affirm.

I. Background

" When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008).

In February of 2014, Conner Sullivan, a student at the Virginia Military Institute (" VMI" ), reported to the VMI Police Department that someone had stolen $120 from a lockbox in her dorm room. Sullivan shared her room with Dunne and one other student. Dunne was in the room during the time the money was believed to have been stolen. Dunne reported to VMI police that someone had stolen $20 from her as well. Dunne said that her money had been in her wallet, which was in the room. Officer Coffey, of the VMI Police Department, responded and spoke with Sullivan and Dunne. Officer Coffey was called away to another incident, but returned later that evening and took Sullivan's lockbox and Dunne's wallet for fingerprinting. After Officer Coffey left the second time, Dunne left the room to go to the bathroom, and was gone approximately five minutes. At trial, Sullivan testified that she did not notice Dunne to be ill at ease later that night, nor did Dunne mention any inappropriate interaction with the officer.

The next month, Detective Sergeant Hunt of the VMI Police Department interviewed Dunne and confronted her with several inconsistencies in her previous statement concerning the [66 Va.App. 27] missing money. Dunne appeared nervous. She said nothing about any inappropriate interaction with Officer Coffey. However, in a separate conversation with a man named Tobias Philbin (described at trial as " a resident of Lexington who often hosted VMI students for meals and recreation" ), Dunne claimed that Officer Coffey had placed his fingers inside of her anus and vagina during a search for evidence of the crime of petit larceny.[1] Philbin reported the allegation to the Inspector General of VMI. Ultimately the Virginia State Police began investigating Dunne's allegation.

Virginia State Police Special Agent Carl Snead asked to interview Dunne. Dunne initially declined, but ultimately, in April of 2014, she agreed to speak with Special Agent Snead. The recorded interview took place in the presence of Dunne's attorney. Special Agent Snead advised Dunne that he was not there " to investigate the theft of that money," but rather to investigate what happened after the officer responded. Special Agent Snead told Dunne: " What we are here to find out today is the truth, so I caution you to . . . provide the truth." Dunne then described the following[2]:

I got changed into my robe and I went out on the stoop and the officer was there. And he asked me um, he said that he could clear me as a suspect right then and there because if I were a suspect then I would have been taking the money and moving it somewhere else right then. . . . [S]o I asked him what would you have to do to clear me as a suspect so we can get on with this investigation? . . . [H]e said he would need to do a search and I was [sic] ok. . . . So he ...

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