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Wilson v. Commonwealth5/28/2002
Argued at Richmond, Virginia
MEMORANDUM OPINION
Itemus Wilson appeals his jury trial convictions for burglary, petit larceny, and tampering. He argues that the trial court erred by 1) denying his motion to suppress evidence, 2) instructing the jury on the permissible inferences to be drawn from the possession of recently stolen goods, and 3) denying his motion to strike the evidence for insufficiency. For the reasons that follow, we disagree and affirm his convictions.
BACKGROUND
Police officers received notice that a silent alarm had been triggered at a rural lodge at 5:29 a.m. on January 1, 2000. The police officers contacted Johnny Strickland, a lodge employee , and responded to the scene. Strickland met the officers at the lodge and noted that several pieces of equipment had been damaged. The coin boxes on several pinball and arcade machines had been pried open and the money removed. Strickland testified that when he closed the lodge following the previous evening's party he inspected the building, locked its doors, and activated the motion detecting security system. He stated that when he left the lodge at approximately 3:15 a.m., there was no damage to any of the doors, the juke box, pinball machines, or pool tables. The pinball machines and pool tables accepted only quarters; the juke box accepted quarters and bills. The machines had been serviced one week earlier and contained quarters at the time. Stickland testified he had also observed patrons inserting coins into the machines during the New Year's Eve party.
When Strickland returned to the lodge to meet the officers, he noted the outside door had been broken open. Inside the lodge he saw that the money receptacles had been pried off the juke box and pool tables. On the floor he saw the broken locks and several quarters near the pool tables. During the ensuing investigation, Investigator Drew Darby located one of the missing coin boxes near a path along the road close to the lodge.
At 6:50 a.m. approximately three-tenths of a mile from the lodge, Sergeant Michael Anthony saw two males walking alongside the road. Anthony approached the men and immediately noticed an odor of alcohol emanating from Itemus Wilson, one of the two men. Anthony testified Wilson's eyes were bloodshot and dilated, that his speech was slurred, and that he swayed from side to side. Anthony informed the men he was investigating a break-in of the lodge. He stated the suspects might be on foot and they likely would be carrying a large number of quarters. Anthony asked Wilson if he would consent to being searched, which Wilson refused. Wilson admitted to the officer that he had been drinking. Wilson said he had been playing poker all night at nearby apartments. Anthony testified Wilson appeared nervous, that he attempted to back away from the officer, that his pockets had large bulges, and that Wilson repeatedly put his hands in his pockets. Anthony stated he was concerned Wilson was carrying a weapon. He patted Wilson down, felt a hard object in his pocket and felt what appeared to be a large number of quarters. Anthony then arrested Wilson for being drunk in public and searched him incident to the public drunkenness arrest. Anthony recovered $174.75 (699) in quarters from Wilson's pants pocket. Among the quarters he also had a metal cam or circular metal disc similar to a piece missing from one of the lodge's machines. Wilson also carried a flashlight.
ANALYSIS
I.
Wilson challenges his arrest and the resulting search of his person incidental to the arrest. He argues the arrest for public drunkenness was merely a pretext to allow Anthony to conduct a search of his
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