Shawn Lamont Lunsford v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Felton, Judges Frank and Powell
Argued at Chesapeake, Virginia
SHAWN LAMONT LUNSFORD
OPINION BY
v. 	Record No. 2383-08-1 	CHIEF JUDGE WALTER S. FELTON, JR.
OCTOBER 13, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Ben Pavek (Office of the Public Defender, on briefs), for appellant.
Erin M. Kulpa, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
Following a bench trial, Shawn Lamont Lunsford (“appellant”) was convicted of breaking
and entering in violation of Code § 18.2-91 and grand larceny in violation of Code § 18.2-95. He
contends the trial court erred in finding the evidence sufficient to prove that he committed either
offense. For the following reasons, we affirm the judgment of the trial court.
BACKGROUND
On appeal, “[w]here the issue is whether the evidence is sufficient, we view the evidence
in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom.” Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731
(1995). “The judgment of the trial court is presumed to be correct and will be reversed only upon a
showing that it is ‘plainly wrong or without evidence to support it.’” Viney v. Commonwealth, 269
Va. 296, 299, 609 S.E.2d 26, 28 (2005) (quoting Code § 8.01-680). “The credibility of the
witnesses and the weight accorded the evidence are matters solely for the fact finder who has the

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opportunity to see and hear that evidence as it is presented.” Sandoval, 20 Va. App. at 138, 455
S.E.2d at 732.
The evidence at trial proved that on January 30, 2008, police responded to a series of
burglaries that occurred in the apartment complex where the victim lived. A window of the
victim’s apartment had been pried open and his apartment “ransacked.” When the victim
returned home later that day,1 he reported that his Epiphone guitar and 30-inch Samsung
high-definition television, as well as several other items, were missing from his apartment.2
Laura Epstein, an employee of the Best Loan Company, testified that on January 28,
2008, appellant sold an Epiphone guitar to that business. She testified she personally conducted
that transaction with appellant whom she recognized from prior visits. She stated that when the
Best Loan Company purchases an item, the seller is required to present a picture identification
and to sign a purchase agreement acknowledging ownership of the item being sold. She further
stated that the purchase agreement records the seller’s full name and “all the information from
the merchandise, . . . its make, model, serial and description.” The purchase agreement for the
Epiphone guitar, which appellant signed in Epstein’s presence, was admitted into evidence. In
addition to the guitar’s brand name, Epiphone, that purchase agreement showed the number,
“F500288.”
At trial, the victim identified the shipping box in which he received the Epiphone guitar,
with its original shipping label still affixed. The victim testified that “[t]his is the shipping card
for the guitar. I purchased it. . . . That is the serial number for the guitar.” The trial court
admitted the shipping label into evidence, which showed, in part, “SERIAL #: F500288.”
1 The victim left his apartment on January 18, 2008 and returned on January 30, 2008.
2 These items were never recovered. The Epiphone guitar was valued at $650 and the
Samsung television at $632.

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The victim also testified that the serial number of the Samsung television missing from
his apartment was “AG2K3CAL901944K.” He stated that when he purchased the television, he
registered its serial number on Samsung’s website for warranty purposes. Later, at the
investigating officer’s request, he retrieved that serial number from Samsung’s website using his
password to access that website. That serial number is identical to written information shown on
the Best Loan Company purchase agreement for its purchase of a Samsung television from
appellant on January 31, 2008.
ANALYSIS
Appellant argued in his brief on appeal, and at oral argument, that the trial court erred in
admitting the stolen items’ serial numbers into evidence, asserting that those numbers were
inadmissible hearsay. However, the question presented in appellant’s petition for appeal on
which this Court granted his appeal, as well as in his opening brief, was: “Has the
Commonwealth established that the appellant was in recent possession of the stolen property, in that
has the evidence proven that the items that were pawned were in fact pawned by the appellant, or
that they were the same items that were taken from the victim?” Appellant’s question presented
challenges the sufficiency of the evidence at trial, not the admissibility of that evidence. See
Banks v. Mario Indus., 274 Va. 438, 455, 650 S.E.2d 687, 696 (2007) (“admissibility of evidence
and the sufficiency of evidence are distinct issues”). Rule 5A:12(c) provides, “Only questions
presented in the petition for appeal will be noticed by the Court of Appeals.”
Appellant, in essence, asks this Court to accept his argument that the serial numbers for
the items stolen were inadmissible hearsay, and asks that we then consider the sufficiency of the
evidence to convict absent that evidence. When determining the sufficiency of the evidence, we
consider all admitted evidence, including the evidence appellant here asserts was inadmissible.
See Sprouse v. Commonwealth, 53 Va. App. 488, 493, 673 S.E.2d 481, 483 (2009). Because

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appellant framed his question as one of sufficiency of the evidence, and not one of admissibility
of the victim’s testimony regarding the serial numbers of his missing guitar and television, we
consider only whether a rational fact finder could determine beyond a reasonable doubt from the
evidence presented that appellant broke into the victim’s apartment and stole his guitar and
television.
Appellant does not contest that the victim’s home was broken into, that the victim’s
Epiphone guitar and Samsung television were stolen from his apartment, and that he sold an
Epiphone guitar to the Best Loan Company. He argues, however, that the evidence presented at
trial was not sufficient to prove that the Epiphone guitar he sold to the Best Loan Company was
the same guitar stolen from the victim and that it was not sufficient to establish that he sold a
Samsung television to the Best Loan Company. He also argues that the evidence was not
sufficient to prove he broke into the victim’s apartment.
Our Supreme Court has previously held that
“upon proof of a breaking and entering and a theft of goods, and if
the evidence warrants an inference that the breaking and entering
and the theft were committed at the same time by the same person
and as part of the same transaction, the exclusive possession of the
stolen goods shortly thereafter, unexplained or falsely denied, has
the same efficiency to give rise to an inference that the possessor is
guilty of the breaking and entering as to an inference that he is
guilty of the larceny.”
Cannady v. Commonwealth, 210 Va. 533, 535, 172 S.E.2d 780, 781 (1970) (quoting Sullivan v.
Commonwealth, 210 Va. 201, 203, 169 S.E.2d 577, 579 (1969)).
The trial court reasonably concluded from the evidence that the items stolen and those
appellant sold to the Best Loan Company were the same items. See id.; see also Foster v.
Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d 547, 549 (2002) (“inferences to be drawn
from proven facts are matters to be determined by the fact finder”). Epstein, an employee of the
Best Loan Company, was familiar with appellant because of his previous transactions there. The

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Best Loan Company required a picture identification prior to purchasing property from a
customer. The purchase agreements issued for the purchase of the guitar and television listed the
serial numbers of the items purchased. The number on the shipping label affixed to the box in
which the victim received his Epiphone guitar was identical to the number recorded on the
purchase agreement prepared by the Best Loan Company when appellant sold an Epiphone
guitar to it. The serial number on the Best Loan Company purchase agreement, recorded from
the Samsung television sold by appellant just days after he sold the stolen guitar, was identical to
the serial number that the victim obtained directly from the password protected Samsung website
on which he registered the television’s serial number when he purchased it.
From the record on appeal, we conclude the trial court did not err in finding that the
evidence was sufficient to convict appellant of breaking and entering the victim’s apartment and
grand larceny of a guitar and television from that apartment.
For the foregoing reasons, we affirm appellant’s convictions.
Affirmed.