Ralph Hagy, a/k/a Ronald Gene Hagy v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
RALPH HAGY, A/K/A
RONALD GENE HAGY
OPINION BY
v. 	Record No. 0859-00-2 	JUDGE SAM W. COLEMAN III
MARCH 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
David F. Berry, Judge Designate
Robert P. Dwoskin for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ralph Hagy was convicted in a bench trial of possession of
burglarious tools, in violation of Code § 18.2-94. 	On appeal,
Hagy argues the evidence is insufficient to support his
conviction. 	We disagree and affirm the conviction.
BACKGROUND
Albemarle County Police Detective Donald Allen Byers was
working as a part-time security guard at a shopping center. 	The
shopping center maintained a coin machine at which the public
could exchange coins for currency. 	On three separate occasions
during one month, Byers observed William Hagy bring a total of
over $200 in loose coins to the machine for exchange. 	On one
occasion, William Hagy carried the coins in a Kroger grocery bag.
On another occasion, he carried the coins in a baseball cap. 	On

- 2 -
each occasion, Byers observed the vehicle in which William Hagy
was traveling and noted the license plate number. 	After learning
that vending machines had been recently broken into in the
neighborhood, Byers notified the police that he had observed
William Hagy exchanging coins and advised them of the make, model,
and license number of the vehicle in which William Hagy was
traveling. 	The police determined that the car was registered to
Margaret Hagy.
Days later, while on patrol, Police Officer Timothy Seitz
observed Margaret Hagy's vehicle. 	Aware that arrest warrants were
outstanding for Margaret Hagy, Seitz stopped the vehicle and
arrested her. 	Margaret Hagy was driving the car, William Hagy
occupied the front passenger seat, and the defendant, Ralph Hagy,
was in the rear passenger seat. 	Seitz searched the car incident
to arresting Margaret Hagy and found a black bag on the floorboard
of the rear seat which contained yellow rubber dishwashing gloves,
a package of sandwich baggies, a can of Lysol, a bungee cord, and
a Kroger grocery bag. 	William Hagy acknowledged ownership of the
black bag. 	Seitz also found a black leather fanny pack on the
rear seat next to the defendant, which contained a pair of black
cotton work gloves and two screwdrivers. 	The defendant, Ralph
Hagy, claimed ownership of this bag and stated that he used the
tools and gloves to repair his chainsaw. 	Seitz also found in the
glove box of the car a "slim jim," which is a tool designed and

- 3 -
used to open locked vehicles without a key. 	In the rear cargo
area of the vehicle, Seitz found a large crowbar, a smaller
crowbar, and a set of pliers. 	William Hagy told Seitz that he and
Ralph Hagy used those tools in their construction business.
Finally, under the front passenger seat, Seitz found a pair of
brown and tan work gloves and another screwdriver that had red
paint marks on it, which Seitz testified was consistent with the
paint color that would be found on a Coca-Cola vending machine.
No one acknowledged ownership of those items. 	Another police
officer found a key on Margaret Hagy's key ring that is the type
used for opening vending machine locks.
ANALYSIS
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." 	Robertson v.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
263, 265 (1998)).
Code § 18.2-94 provides that it is unlawful for:
any person [to] have in his possession any
tools, implements or outfit, with intent to
commit burglary, robbery or larceny . . . .
The possession of such burglarious tools,
implements or outfit by any person other
than a licensed dealer, shall be prima facie
evidence of an intent to commit burglary,
robbery or larceny.

- 4 -
The mere possession of burglarious tools is
not a crime under the statute. 	It is
possession with intent to use them to commit
a crime [that is criminal]. 	The tools or
implements may be, and usually are, designed
and manufactured for lawful purposes. 	But
it is unusual for a person, on a lawful
mission, to have in his possession a
combination of tools and implements suitable
and appropriate to accomplish the
destruction of any ordinary hindrance of
access to any building . . . . 	All the
statute does is to create a presumption of a
criminal intent from proof of possession of
burglarious tools or implements. 	Such a
presumption is not conclusive; it cuts off
no defense. 	It interposes no obstacle to a
contest of all of the issues of fact, and
relieves neither the court nor the jury of
the duty to determine all of the questions
of fact from the weight of the whole
evidence. 	"It is merely a rule of evidence
and not the determination of a fact." 	When
possession is proven, the burden of going
forward with the evidence shifts to the
defendant, but this does not shift the
burden of ultimate proof . . . .
Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482,
485-86 (1953) (citation omitted).
This presumption [of criminal intent],
however, does not attach to all "tools,
implements, or outfit[s]" embraced by the
statute, but only to such offending articles
innately burglarious in character, those
"commonly used by burglars in house breaking
and safe cracking," particularly "suitable
and appropriate to accomplish the
destruction of any ordinary hindrance of
access to any building, . . . vault or
safe."
Moss v. Commonwealth, 29 Va. App. 1, 4, 509 S.E.2d 510, 511
(1999) (citations omitted).

- 5 -
Here, the trial judge convicted the defendant based upon a
finding that he constructively and jointly possessed all the
tools found in the automobile. 	The trial judge further reasoned
that when the nature and combination of the tools were
considered, together with the surrounding circumstances, the
facts supported the inference that the Hagys, including the
defendant, possessed the tools intending to use them to break
into and steal from vending machines. 	The trial judge stated,
"Now without undertaking to distinguish one tool from another,
but taking all of them together, when I put this array of tools
up here, I have this observation: 	It's about as impressive an
array of burglary tools as I've ever witnessed in 29
years. . . . 	Taken singly, they're absolutely innocent." 	The
trial judge found that, based on the "array of tools" and the
fact that William Hagy had recently been seen exchanging large
sums of coins for currency on three separate occasions, the
evidence was sufficient to prove that the tools were possessed
for burglarious purposes and were possessed jointly by the
occupants of the car for that purpose. 	Thus, the court
concluded that the defendant, Ralph Hagy, jointly possessed the
burglarious tools. 	We agree.
"'To support a conviction based upon constructive
possession, "the Commonwealth must point to evidence of acts,
statements, or conduct of the accused or other facts or

- 6 -
circumstances which tend to show that the defendant was aware of
both the presence and character of the [item] and that it was
subject to his dominion and control."'" 	McGee v. Commonwealth,
4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987) (citations
omitted). 	"Circumstantial evidence is sufficient to prove guilt
beyond a reasonable doubt so long as 'all necessary
circumstances proved . . . [are] consistent with guilt and
inconsistent with innocence and must exclude every reasonable
hypothesis of innocence.'" 	McNair v. Commonwealth, 31 Va. App.
76, 86, 521 S.E.2d 303, 308 (1999) (en banc) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
Here, the defendant admitted possession of the fanny pack,
which contained two screwdrivers and a pair of work gloves.
Further, William Hagy told Officer Seitz that the crowbars and
pliers located in the cargo area were used by both the defendant
and William Hagy in their employment. 	Although the defendant
denied possession of the other tools found throughout the car,
the fact finder did not have to accept his explanation that he
did not own or possess the other tools. 	See Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (stating that "fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt"). 	The defendant's
admitted ownership of some of the implements and William Hagy's

- 7 -
statement of ownership with the defendant of the two crowbars
and pliers in the cargo area provided sufficient evidence for
the fact finder to conclude that the defendant and William Hagy
exercised joint dominion and control over those tools found
throughout the car. 	See Carter v. Commonwealth, 209 Va. 317,
323, 163 S.E.2d 589, 594 (1968) (stating that "exclusive
possession includes joint possession by two or more persons");
Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832
(1997) (holding that evidence was sufficient to prove defendant
constructively possessed the gun where, although defendant
denied ownership of the gun, it was found near a knife of which
defendant claimed ownership and where defendant was aware of the
presence of the gun); Josephs v. Commonwealth, 10 Va. App. 87,
101-02, 390 S.E.2d 491, 498-99 (1990) (en banc) (holding that
defendant, who was a passenger in a car, had joint constructive
possession of drugs found next to the defendant's luggage in
truck of car even where she disclaimed ownership of the drugs);
Castaneda v. Commonwealth, 7 Va. App. 574, 583-84, 376 S.E.2d
82, 87 (1989) (en banc) (stating that occupancy of a vehicle and
proximity to drugs are factors to be considered in determining
whether defendant constructively possessed drugs). 	Thus, the
evidence is sufficient to prove that the defendant jointly
possessed the various tools found throughout the car.

- 8 -
The remaining question is whether the evidence supports a
finding that the defendant possessed burglarious tools with the
intent to commit burglary, robbery, or larceny, as required by
Code § 18.2-94. 	If the tools are found to be implements
possessed for the purpose of committing burglaries or larcenies,
even though the tools are also the type that can be used for a
legitimate purpose, the statute creates a prima facie case or
rebuttable presumption that the person possesses the tools with
the intent to commit a burglary, robbery, or larceny. 	Burnette,
194 Va. at 790-91, 75 S.E.2d at 485-86. 	The burden of proof to
establish that the tools are possessed with the intent to steal
always remains with the Commonwealth; however, once a prima
facie case has been established giving rise to a rebuttable
presumption that the tools are possessed with the intent to
commit a burglary, robbery, or larceny, the burden of going
forward with the evidence explaining the purpose of the
possession shifts to the defendant. 	Id. at 790-91, 75 S.E.2d at
486; see also Nance v. Commonwealth, 203 Va. 428, 432, 124
S.E.2d 900, 903-04 (1962). 	The intent required under the
statute need not be an intent to steal a particular item or to
break into a particular structure at the time, but need only be
a generalized intent to use the tools to commit a burglary,
robbery, or larceny wherever and whenever the opportunity may

- 9 -
present itself. 	See State v. MacDonald, 523 A.2d 35, 37-38
(N.H. 1986).
Here, all the tools -- consisting of various size crowbars,
screwdrivers, and pliers -- are of the type that can be used in
the construction trade. 	Although William Hagy stated that he
and the defendant used the tools in their construction trade,
noticeably absent from the "array" of tools found in the vehicle
were other types of tools that would be necessary and expected
in any construction trade -- tools such as hammers, saws,
wrenches, drills, levels, tape measures, squares, and tool belts
or aprons. 	Significantly, all the tools found in the vehicle
were prying implements or tools that could be used to forcibly
open vending machines or other structures. 	As such, the
combination of tools are the type commonly used by burglars; the
array of tools is innately burglarious. 	See Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)
(stating that, in order to be sufficient, circumstantial
evidence must be "consistent with guilt and inconsistent with
innocence and must exclude every reasonable hypothesis of
innocence").
The Commonwealth established that the combination of tools
was innately burglarious and such proof gave rise to a
rebuttable presumption that Ralph Hagy and his co-occupants of
the car possessed the tools with the intent to use them to

- 10 -
commit a burglary, robbery, or larceny. 	Such presumption was
not rebutted or adequately explained. 	In addition, the evidence
showed that William Hagy had been seen on three separate
occasions exchanging large amounts of coins for currency after
vending machines in the vicinity had been vandalized. 	Also,
Margaret Hagy had on her key chain a key used to enter vending
machines. 	One of the screwdrivers in the car was found to have
red paint on it that was of the same color that is on Coca-Cola
vending machines. 	See Poole v. State, 505 So.2d 1065, 1066-67
(Ala. Crim. App. 1986) (evidence sufficient to prove possession
of burglarious tool where big wrench "appeared to have paint
scratches matching the paint on the back door" of the burgled
building). 	A "slim jim," a device that is used to gain entry
into locked cars without keys and that is commonly known to gain
illegal entry into vehicles, was found in the glove box. 	These
additional suspicious circumstances, when considered with the
number and character of the tools in the vehicle and the lack of
other types of construction tools in the car, support the
conclusion that the tools were burglarious and were possessed
with the intent to commit larceny.
Accordingly, the evidence is sufficient to support the
conviction for possession of burglarious tools.
Affirmed.