Dennis Wayne Mahoney Ramsey v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia
DENNIS WAYNE MAHONEY RAMSEY
MEMORANDUM OPINION * BY
v. Record No. 1588-07-1 JUDGE ROBERT P. FRANK
JULY 8, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
Dennis Wayne Mahoney Ramsey, appellant, was convicted, by a jury, of receiving stolen
property, in violation of Code § 18.2-108. On appeal, he contends that the evidence was insufficient
to prove venue in Virginia Beach, that the evidence was insufficient to prove he was in possession
of stolen property in Virginia Beach, and that the trial court erred in instructing the jury on receiving
stolen property. For the reasons stated, we reverse the judgment of the trial court.
BACKGROUND
On December 7, 2005, the victim had driven her silver 1995 Honda Accord home from
work. At that time, the car was in good condition. The steering column, the windows, and the
driver’s side door handle were all intact, showing no damage. The next morning, the victim, when
leaving her house in Virginia Beach, noticed her Honda was missing. She called the police and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
filed a report. The victim had retained possession of the car keys. At trial, the victim testified she
did not know appellant nor did she give him permission to drive her car.
When the Honda was later recovered and returned to the victim, the steering column was
“messed up,” the radio and other personal property were missing, the door handle was broken, and
the ignition key would not operate the car.
Four days after the theft, City of Williamsburg Police Officer Brian Carlsen spotted
appellant driving a silver Honda, registered as stolen, in Williamsburg around 2:00 a.m. Ultimately,
Officer Carlsen stopped the vehicle and appellant. Officer Carlsen testified the Honda’s steering
column was “disabled,” so that an ignition key was unnecessary to start the vehicle. Further, the
driver’s side door handle was damaged, and there were two flathead screwdrivers on the passenger
seat.
Appellant was tried for grand larceny of the vehicle in Virginia Beach. At trial Lorrie
Summer, appellant’s former girlfriend, testified for appellant. On an unspecified day in December
of 2005, Summer met appellant at a gas station in Virginia Beach. Appellant entered the passenger
side of a “gray four-door” vehicle. She could not identify the model or make of the vehicle.
Another man was in the driver’s seat. When shown a photograph of the victim’s car, Summer
testified the photo looked like the car appellant entered. When asked on cross-examination was she
“sure” it was the same car, Summer responded, “It looked like that one, yes,” but she then testified
she was not sure it was the exact car.
Summer then admitted telling the Commonwealth’s attorney on the morning of the trial that
appellant entered a Nissan, but again testified she did not know “makes and models of cars.” She
further admitted telling the Commonwealth’s attorney the incident occurred “around
Thanksgiving,” but cautioned she really did not know the date.
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At the conclusion of the evidence, the prosecutor offered an instruction on the
lesser-included offense of receiving stolen goods, under Code § 18.2-108. Defense counsel
objected to the instruction:
I’m not sure if they’ve shown venue because the argument is that
the car is not the same car that was in Virginia Beach. Then the
only – the only time they’ve shown him in possession of the stolen
goods is in Williamsburg, not in Virginia Beach. And even if the
court feels the evidence is sufficient on that issue, that this is the
same car that he was seen in in Virginia Beach, the testimony was
clear that he got in the passenger side of the car and not in the
driver’s side.
So, Judge, I would submit to you . . . there’s a venue problem with
having a receiving stolen property charge.
Additionally, appellant argued that if the jury found appellant did not steal the car, but
was in possession of a stolen car, there is no evidence appellant possessed the car in Virginia
Beach.
Without abandoning his objection to the instruction, appellant asked the trial court to add
an additional element to the finding instruction, i.e., “That at the time of the receipt the defendant
was in Virginia Beach.” The trial court added that element, and the jury was so instructed.
The trial court overruled appellant’s objection to the receiving of stolen goods
instruction, concluding:
But if [the jury] do[es] not believe that there’s sufficient evidence
beyond a reasonable doubt to find that he stole the vehicle, at least
based on his own evidence, they could find him guilty of receiving
it.
The jury found appellant guilty of receiving a stolen vehicle. This appeal follows.
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ANALYSIS
We first address appellant’s contention that the evidence was insufficient to prove he
received or possessed a stolen vehicle in Virginia Beach in violation of Code § 18.2-108. 1
When considering on appeal the sufficiency of the evidence presented below, we
“presume the judgment of the trial court to be correct” and reverse only if the trial court’s
decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39
Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). This means the jury’s verdict cannot be
overturned on appeal unless no “‘rational trier of fact’” could have come to the conclusion it did.
Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Pease v. Commonwealth, 39 Va. App. 342, 355,
573 S.E.2d 272, 278 (2002) (en banc) (“We let the decision stand unless we conclude no rational
juror could have reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003).
Under this standard, “a reviewing court does not ‘ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.’” Myers v. Commonwealth, 43
Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (quoting Jackson, 443 U.S. at 318-19) (emphasis
in original). It asks instead whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447(quoting Jackson, 443 U.S. at 319). ‘“This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.’” Id. at 257-58, 584 S.E.2d at 447
1
Code § 18.2-108 states:
If any person buys or receive from another person, or aid in
concealing, any stolen goods or other thing, knowing the same to
have been stolen, he shall be deemed guilty of larceny thereof, and
may be proceeded against, although the principal offender be not
convicted.
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(quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for that of the trier
of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002).
Additionally, where, as here, there is a question as to whether the evidence was sufficient
to convict appellant in a particular jurisdiction, we must determine whether there was sufficient
evidence to prove that all of the elements of the offense were committed in that particular
jurisdiction. See Green v. Commonwealth, 32 Va. App. 438, 449, 528 S.E.2d 187, 192 (2000)
(holding that “venue is appropriate in any jurisdiction where the required elements of the offense
have been established” and that the completed offense must have occurred in a particular
jurisdiction in order to sustain the conviction in that jurisdiction). Thus, in the instant case, we
must find that the evidence was sufficient to establish that all of the elements of receiving stolen
property were committed in Virginia Beach.
Appellant argues that simply being in the vehicle as a passenger is not sufficient to prove
he either possessed the vehicle or knew the vehicle was stolen. We agree. The evidence in the
light most favorable to the Commonwealth indicates that sometime in December of 2005,
appellant entered the passenger side of the stolen vehicle. He was not the driver, nor is there any
evidence appellant exercised any dominion or control over the vehicle in Virginia Beach.
To convict an accused of violating Code § 18.2-108, the Commonwealth must prove that
property ‘“was (1) previously stolen by another, and (2) received by defendant, (3) with
knowledge of the theft, and (4) a dishonest intent.’” 2 Shaver v. Commonwealth, 30 Va. App.
789, 800-01, 520 S.E.2d 393, 399 (1999) (quoting Bynum v. Commonwealth, 23 Va. App. 412,
419, 477 S.E.2d 750, 754 (1996)).
2
Appellant only contests that elements (2) and (3) were not proven in this case.
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Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992), controls our
analysis. In that case Burgess was standing outside a stolen vehicle. Id. at 1023, 421 S.E.2d at
667. Another man was seated behind the steering wheel. Id. Burgess admitted he had earlier
been picked up by the driver and had ridden in the vehicle, but denied that he knew the vehicle
had been stolen despite the ignition being altered or “punched.” Id. Burgess also had given the
police a false name. Id. at 1020, 421 S.E.2d at 665. He appealed his conviction of grand
larceny. This Court reversed the conviction, holding:
That Burgess was in the stolen Mazda nine days after the theft does
not prove that Burgess either stole the Mazda on December 3 or
exercised dominion or control over the vehicle at any time. See
Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384,
386 (1991).
Id. at 1023, 421 S.E.2d at 667. The Court concluded that “proof that a defendant knew that an
automobile is stolen and was in the automobile as a passenger does not suffice to prove the
defendant guilty of larceny of the automobile.” Id. Finally, the Court quoted a passage from
Reese v. Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 268 (1985), explaining that there
was not joint exclusive possession because Burgess was not present in the stolen vehicle.
“The Commonwealth relies on the theory of joint exclusive
possession of recently stolen property. But, giving the
Commonwealth the benefit of all reasonable inferences, as we
must, we conclude that the evidence fails to establish joint
exclusive possession. There must be evidence of joint control to
justify the inference of joint possession. The Commonwealth
presented no evidence that [Burgess] exercised any degree of
dominion or control over the [stolen vehicle]. The evidence of
[Burgess’] mere presence in the stolen vehicle is not enough to
support a conviction of [Burgess] as a principal in the second
degree.”
Id.Similarly, in Moehring v. Commonwealth, 223 Va. 564, 290 S.E.2d 891 (1982), the
Supreme Court reversed the conviction of a hitchhiker who had accepted a ride in a vehicle that
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he knew was stolen. The Court found no evidence that Moehring exercised “any degree of
dominion or control over the stolen truck or from which the court could have inferred that
defendant possessed the truck jointly with [the driver].” Id. at 568, 290 S.E.2d at 893. The
Court further found Moehring was not a principal in the second degree because no evidence
indicated Moehring committed any overt act to aid or abet the thief. Id.; see also Nelson, 12
Va. App. at 271, 403 S.E.2d at 386 (holding that Nelson’s presence in truck after it had been
stolen did not show dominion and control over the vehicle).
We see no principled distinction between Burgess, Nelson, and Moehring, all which
considered the proof required for a grand larceny conviction based on the presumption of being
in possession of recently stolen property and the lesser-included offense of receiving stolen
goods. Just as those decisions analyze “possession,” our inquiry focuses on whether appellant
possessed the stolen vehicle. We conclude that the record does not suggest that appellant, a
passenger, exercised any measure of dominion or control over the Honda or otherwise asserted a
possessory interest in the vehicle. The evidence does not establish that he drove the car, directed
the driver or was otherwise in custody of the stolen property while in Virginia Beach. Thus we
find the evidence insufficient to sustain a conviction for possessing or receiving stolen goods in
Virginia Beach.
While he clearly exercised dominion and control over the stolen vehicle in Williamsburg,
we conclude that to consider the Williamsburg facts to show dominion and control over the
vehicle in Virginia Beach is too speculative and attenuated. Appellant’s activity in
Williamsburg, as described by Officer Carlsen, was remote in time and place from his behavior
in Virginia Beach, the two events being separated by approximately four days and a number of
miles. While each incident, arguably, involved the same Honda, the record leaves unanswered
the questions of when, where, and how appellant came into possession of the vehicle. Thus,
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appellant’s dominion and control over the vehicle in Williamsburg does not prove that he had
dominion and control over the vehicle in Virginia Beach. 3
CONCLUSION
For the foregoing reasons, we find the evidence insufficient to establish appellant
possessed stolen property in Virginia Beach. We therefore reverse the conviction and dismiss
the indictment.
Reversed and dismissed.
3
Appellant argues that the Commonwealth did not establish venue in Virginia Beach.
Because we find the evidence insufficient to sustain the conviction, we need not address venue
beyond that discussed in the context of sufficiency of the evidence. Appellant further challenges
the trial court’s granting of a jury instruction on the lesser-included offence of receiving stolen
property. Again, because we find the evidence insufficient to sustain a conviction for receiving
stolen property in Virginia Beach, we need not address this argument.
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