Damian Berggren, s/k/a Damian R. Berggren v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA Record No. 0580-25-1 DAMIAN BERGGREN, S/K/A DAMIAN R. BERGGREN v. COMMONWEALTH OF VIRGINIA Present: Chief Judge Decker, Judges Malveaux and Causey Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge1 (B. Thomas Reed, on brief), for appellant. Appellant submitting on brief. (Jason S. Miyares,2 Attorney General; Angelique Rogers, Assistant Attorney General, on brief), for appellee. MEMORANDUM OPINION PER CURIAM A jury convicted Damian R. Berggren of grand larceny and three counts of credit card theft. The trial court sentenced Berggren to 13 years’ incarceration, with 10 years and 8 months suspended. On appeal, Berggren argues that the trial court erred by denying his motions to suppress and to strike the evidence. Finding no error, we affirm the trial court’s judgment.3 * This opinion is not designated for publication. See Code § 17.1-413(A). 1 Judge Hall presided over the case before her retirement on April 1, 2025. 2 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 3 Having examined the briefs and record in this case, the panel unanimously agrees that oral argument is unnecessary because “the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.” See Code § 17.1-403(ii)(b); Rule 5A:27(b).  BACKGROUND4 Around 6:00 a.m. on November 15, 2022, Aaron Dykstra looked out his home’s window, saw a man later identified as Berggren approach his truck and rental car. He thought Berggren had pulled his rental car’s door handle. Dykstra banged on his window. Berggren told Dykstra that he was looking for work and did auto detailing and construction. Dykstra’s wife called police. Berggren left about five minutes later. Around 6:15 a.m., Raquelle Edwards, who lived on the same street as Dykstra, discovered that her 2012 Volkswagen Passat was missing. Her boyfriend had borrowed the car and left it outside of her home unlocked and with the key inside. She called police and notified them of the missing vehicle. Several items of personal property were in the car, including three of Edwards’s credit cards, her military and Washington state identification cards, her boyfriend’s jacket, a Camelbak backpack, an appointment folder, and another backpack. Around 1:10 p.m., police found Edwards’s car. Both airbags had been deployed; the car had suffered significant damage and was not capable of being driven. Around 3:30 p.m., Berggren approached Kevin Metzger’s home, which was a few blocks from where Edwards’s totaled car had been found. Metzger heard his dogs bark, so he went outside and encountered Berggren holding a catalytic converter, which he tried to sell to Metzger. Metzger declined the offer and called police. A few minutes later, Officers Tony Lee and Scott Ruggio went to Metzger’s home and spoke with him. Metzger told the officers that Berggren had tried to sell him a catalytic converter. Metzger played footage from his Ring 4 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard any evidence that conflicts with the Commonwealth’s evidence, and regard as true all the credible evidence favorable to the Commonwealth and all inferences that can be fairly drawn from that evidence. Cady, 300 Va. at 329. -2- doorbell for the officers, which showed Berggren. Metzger indicated the direction Berggren had gone when he left Metzger’s home. Around 3:45 p.m. and one block from Metzger’s home in the direction Metzger had indicated, Lee and Ruggio saw someone who matched “the exact description” of the person they had seen in the Ring doorbell footage. Lee introduced himself, and Berggren took steps backwards away from Lee. Lee asked Berggren what he had been doing in the previous 20 minutes. Berggren said that he had gone to McDonald’s and nothing else. Lee asked him if he was sure, and Berggren responded that he was. Lee informed Berggren that he had information to the contrary and was detaining Berggren. Lee twice asked him to put his bag down. Berggren disregarded the instruction and stated that he did not answer questions. Lee clarified that he was not asking any questions and again told Berggren to put his bag down. When Berggren failed to do so, Lee announced that Berggren was being arrested. Berggren then turned and ran from the officers. Lee and Ruggio caught up to Berggren and arrested him. They escorted him to their police car and searched him before placing him in the car. In Berggren’s right front pocket, Lee found a key fob, Edwards’s military and state identification cards, and her three credit cards. The backpack Berggren was wearing was one of the backpacks from Edwards’s car. Inside that backpack were Edwards’s boyfriend’s jacket, her binder, and her other backpack. A grand jury indicted Berggren for grand larceny and three counts of credit card theft. Berggren moved to dismiss the indictments and to suppress his statements to Lee and Ruggio and the physical evidence the officers recovered after his arrest. Berggren argued that the police lacked probable cause to arrest him because they merely had observed him walking, they had not found him in possession of a catalytic converter, and there was no evidence that the catalytic converter he was allegedly selling was stolen. At the suppression hearing, Lee testified that catalytic converters are often stolen in Norfolk. In his experience, individuals selling catalytic -3- converters to strangers have stolen them. The trial court denied Berggren’s motion. After another hearing, it also denied Berggren’s motion to reopen the suppression hearing. At trial, Dykstra identified Berggren as the person he had seen approach his truck and rental vehicle. Edwards testified that before the theft, her car had been in good condition with a small dent in the right rear door. She did not know Berggren and had not given him permission to drive her car. Lee testified that he responded to a call on West Gilpin Avenue and encountered Berggren at the corner of West Gilpin Avenue and Belgrave Avenue. He marked the locations on a map. When he approached Berggren, Berggren stepped away from him and seemed like he wanted to run. Detective Kevin Gross testified that Edwards’s car was found at 9100 Mace Arch and identified that location on the map. He testified that the key fob Berggren possessed when police arrested him operated Edwards’s Volkswagen. Detective Thomas Bowen testified that the average price paid for a car like Edwards’s was $9,800. The Commonwealth rested, and Berggren moved to strike. He argued that the Commonwealth had not shown how he came into possession of the car key or credit cards. Without explanation or elaboration, he contended that there were many possible explanations for his possession of those items. He also argued that he showed no signs of being injured when arrested despite the car being totaled and the air bags being deployed. The trial court denied the motion. Berggren rested without presenting evidence and renewed his motion to strike on the same grounds, which the trial court also denied. The jury convicted Berggren of grand larceny and three counts of credit card theft. Berggren appeals. -4-  ANALYSIS I. The trial court properly denied Berggren’s motion to suppress. “In reviewing the denial of a motion to suppress, we ‘consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial.’” Aponte v. Commonwealth, 68 Va. App. 146, 156 (2017) (quoting Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017)). “Appellant bears the burden of establishing that the denial of his suppression motion was reversible error.” Baskerville v. Commonwealth, 76 Va. App. 673, 684 (2023) (quoting Glenn v. Commonwealth, 275 Va. 123, 130 (2008) (internal quotation marks omitted)). In conducting our review, we are “bound by the trial court’s factual findings unless those findings are plainly wrong or unsupported by the evidence,” but we review the trial court’s application of the law de novo. Malbrough v. Commonwealth, 275 Va. 163, 168-69 (2008). We consider both the evidence admitted at the suppression hearing and at trial. Commonwealth v. White, 293 Va. 411, 414 (2017); Lewis v. Commonwealth, 26 Va. App. 113, 115 (1997). The Fourth Amendment protects people from “unreasonable searches and seizures.” U.S. Const. amend. IV. “[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” McArthur v. Commonwealth, 72 Va. App. 352, 362 (2020). Police officers “may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio, 392 U.S. 1, 22 (1968). They “can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). Here, the officers encountered Berggren a short distance from Metzger’s home after Metzger had summoned them to report that Berggren had tried to sell him a catalytic converter. -5- Based on Lee’s knowledge and experience, catalytic converters were often stolen in Norfolk, and individuals selling them have stolen them. The officers had no reason to doubt Metzger’s report, and Berggren matched the description of the person they had seen on the recording from Metzger’s doorbell camera. Accordingly, Berggren appropriately concedes that the officers had reasonable suspicion that he had committed a crime, which justified detaining him for questioning. When the officers questioned Berggren, he lied about his whereabouts and activities, claiming that he had only visited a McDonald’s during the preceding 20 minutes. But the officers knew he had tried to sell Metzger the catalytic converter during that time. Lee repeatedly asked him to put his bag down. After Berggren disregarded Lee’s instructions, Lee announced that Berggren was under arrest. Berggren contends that his arrest occurred at that instant and that the officers lacked probable cause to arrest him at that moment. Thus, we must determine when Berggren was arrested and whether the officers had probable cause at that time. “A Fourth Amendment seizure of a person occurs either by physical force or submission of the person to the assertion of law enforcement authority.” Hill v. Commonwealth, 297 Va. 804, 811 (2019). One must yield to the show of force to be seized. California v. Hodari D., 499 U.S. 621, 626 (1991). “An arrest ‘occurs when the officer actually restrains the individual or the individual submits to the authority of the officer.’” Hall v. Commonwealth, 280 Va. 566, 570 (2010) (quoting White v. Commonwealth, 267 Va. 96, 104 (2004)). “An officer may search after—or even before—an arrest so long as the search ‘is substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest.’” Parady v. Commonwealth, 78 Va. App. 18, 32 (2023) (quoting Stoner v. California, 376 U.S. 483, 486 (1964)). Although Lee announced his intention to arrest Berggren, the officers had not applied any physical force to Berggren. See Hall, 280 Va. at 571 (arrest occurs when officer applies physical -6- force and states the words of arrest); White, 267 Va. at 106 (arrest does not occur when officer lacks physical control over a suspect who flees). And Berggren plainly did not submit to Lee’s show of authority. He disregarded Lee’s repeated instructions to put down the backpack. See Hill, 297 Va. App. at 811 (no seizure when defendant disregarded instructions). In response to Lee’s stated intention to arrest him, Berggren sprinted away from the officers. The officers chased, restrained, and handcuffed Berggren. It was at that point that Berggren was arrested. A police officer “may arrest without a warrant any person . . . whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence.” Code § 19.2-81(B). “Probable cause exists if ‘at that moment the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’” Smith v. Commonwealth, 56 Va. App. 592, 600 (2010) (alterations in original) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). “Whether an officer has probable cause to arrest an individual in the absence of a warrant is determined under an objective test based on a reasonable and trained police officer’s view of the totality of the circumstances.” Brown v. Commonwealth, 270 Va. 414, 419 (2005). “When making a warrantless arrest, an officer ‘may rely upon information received through an informant, rather than upon direct observations,’ so long as the officer has reasonable grounds to believe the informant’s statement is true.” Byrd v. Commonwealth, 50 Va. App. 542, 551 (2007) (quoting McGuire v. Commonwealth, 31 Va. App. 584, 595 (2000)). “Trained and experienced police officers may be able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Yancey v. Commonwealth, 30 Va. App. 510, 516 (1999) (quoting Richards v. Commonwealth, 8 Va. App. 612, 616 (1989)). An officer may also consider a suspect’s dishonesty, “deliberately furtive actions[,] and flight at the approach of . . . law officers.” -7- District of Columbia v. Wesby, 583 U.S. 48, 59-60 (2018) (quoting Sibron v. New York, 392 U. S. 40, 66 (1968)). “Headlong flight—wherever it occurs—is the consummate act of evasion.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). By the time the officers arrested Berggren, they had credible information that, 15 minutes earlier and just a block away, someone had tried to sell a catalytic converter. Lee knew from his experience that catalytic converters sold by private individuals are usually stolen. Berggren physically matched the person the officers had seen on Metzger’s doorbell camera trying to sell the catalytic converter. When confronted, Berggren attempted to evade the officers and disregarded Lee’s instructions. He lied about his recent whereabouts. Then he fled. Based on the totality of these circumstances, the officers’ reasonable suspicion that Berggren had stolen a catalytic converter “ripened” into probable cause that he had committed the felony. See Williams v. Warden of the Sussex I State Prison, 278 Va. 641, 648 (2009); Code § 18.2-146. Thus, the officers had the authority to arrest Berggren and search him incident to the arrest. Accordingly, we affirm the trial court’s denial of Berggren’s motion to suppress the evidence collected during the search. II. The evidence supports the jury’s verdict. “When an appellate court reviews the sufficiency of the evidence underlying a criminal conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023) (alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). -8-  The only relevant question for this Court on review “is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v. Commonwealth, 280 Va. 672, 676 (2010)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). “It is firmly established that ‘[c]ircumstantial evidence is competent and is entitled to as much weight as direct evidence provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Kelley v. Commonwealth, 69 Va. App. 617, 629 (2019) (alteration in original) (quoting Pijor, 294 Va. at 512). For example, flight is circumstantial evidence “tending to show guilt.” Turman v. Commonwealth, 276 Va. 558, 565 (2008) (quoting Jenkins v. Commonwealth, 132 Va. 692, 694-95 (1922)). “Circumstantial evidence is not ‘viewed in isolation’ because the ‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable [fact finder]’ to conclude beyond a reasonable doubt that a defendant is guilty.” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)). A. The evidence was sufficient to convict Berggren of grand larceny. “Any person who . . . commits simple larceny not from the person of another of goods and chattels of the value of $1,000 or more . . . shall be guilty of grand larceny.” Code § 18.2-95(A). “An individual commits larceny by wrongfully taking the ‘goods of another without the owner’s consent and with the intention to permanently deprive the owner of -9- possession of the goods.’” Burton v. Commonwealth, 58 Va. App. 274, 282 (2011) (quoting Scott v. Commonwealth, 36 Va. App. 276, 282 (2001)). As to the intent to permanently deprive, “the very existence of a trespassory taking permits the inference (unless other circumstances negate it) that the taker intended to steal the property.” McEachern v. Commonwealth, 52 Va. App. 679, 685 (2008). The abandonment of a stolen car also provides evidence that the taking was intended to be permanent. Id. at 686. “It is well established that ‘once the [larceny] is established, the unexplained possession of recently stolen goods permits an inference of larceny by the possessor.’” Walker v. Commonwealth, 79 Va. App. 737, 744 (2024)) (alteration in original) (quoting Montague v. Commonwealth, 40 Va. App. 430, 437 (2003)). “For the ‘larceny inference’ to arise, the Commonwealth must establish that the accused was in exclusive possession of recently stolen property.” Id. (quoting Montague, 40 Va. App. at 437). That is, “there must be evidence that the defendant exercised dominion and control over the property.” Nelson v. Commonwealth, 12 Va. App. 268, 271 (1991). The accused then bears the burden of accounting for the possession. Burton v. Commonwealth, 58 Va. App. 274, 284 (2011). “Standing alone, this larceny inference is sufficient to support a finding of guilt.” Id. The evidence established that Edwards’s boyfriend had parked her car in front of her home on the night of November 14, 2022, and left the key inside for her. But the following morning, Edwards’s car (and the personal property inside it) was gone. The car was worth $9,800. Edwards had not given anyone other than her boyfriend permission to use the car. Edwards reported the theft as soon as she discovered it. Police found the totaled car abandoned several hours later. The evidence also established that Berggren had been in Edwards’s neighborhood around the time of the theft. And Dykstra had seen Berggren attempting to enter his rental car. When - 10 - police encountered Berggren that afternoon only a few blocks from where Edwards’s totaled car had been found, he disregarded their instructions and attempted to flee. The backpack he was wearing belonged to Edwards, and inside it was other items from her stolen car. Berggren had the key to Edwards’s car in his pocket. Berggren offered no explanation for how he came to be in exclusive possession of Edwards’s personal property. Thus, the jury could infer that Berggren stole Edwards’s car. B. The evidence was sufficient to convict Berggren of credit card theft. “A person is guilty of credit card or credit card number theft when . . . [h]e takes, obtains or withholds a credit card or credit card number from the person, possession, custody or control of another without the cardholder’s consent[.]” Code § 18.2-192(A)(1). Credit card theft “is completed where the card or number is unlawfully taken from its rightful owner.” Meeks v. Commonwealth, 274 Va. 798, 803 (2007). A defendant’s possession of stolen credit cards, in addition to other items stolen at the same time and place, provides evidence that the defendant took the credit cards. Sandoval v. Commonwealth, 20 Va. App. 133, 137 (1995). Here, Edwards’s credit cards were in her car when Berggren stole it. Edwards did not know Berggren and had not given him permission to possess her credit cards. When the officers arrested Berggren, they found the cards in his pocket. Thus, the evidence permitted the jury to conclude that Berggren took and withheld Edwards’s credit cards without her consent. CONCLUSION For the foregoing reasons, we affirm the trial court’s judgment. Affirmed. - 11 -