Robert Lee Freeman v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
ROBERT LEE FREEMAN
MEMORANDUM OPINION * BY
v. Record No. 0708-01-1 JUDGE RICHARD S. BRAY
MAY 7, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Robert Lee Freeman (defendant) was convicted in a bench trial
for grand larceny of a vehicle in violation of Code § 18.2-95. On
appeal, he contends the evidence was insufficient to support the
conviction. We agree and reverse the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In assessing sufficiency of the evidence on appeal, we view
the record "'in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
giving it all reasonable inferences fairly deducible therefrom.'"
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998) (citation omitted). The credibility of the witnesses, the
weight accorded testimony, and the inferences drawn from proven
facts are matters determined by the fact finder. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The judgment of the trial court will not be disturbed unless
plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
Viewed accordingly, the evidence established that a Dodge van
belonging to Cynthia Brown was stolen from a Portsmouth street
between 8:30 p.m. and 10:00 p.m. on October 14, 2000. Police were
notified and, within an hour, Officer R.G. Suggs observed the van
drive "past [him] very slowly," "traveling on a flat tire." Suggs
stopped the vehicle and "ordered . . . all the individuals in the
vehicle [to] exit." Defendant, the front seat passenger,
complied, but immediately "began to walk away." Confronted with
Suggs' "verbal commands to . . . stop," defendant "began running
down [the] [s]treet," only to be apprehended minutes later. When
"taken into custody," he protested to police, "I didn't do
anything, I didn't do anything."
At the time of the stop, the driver's window of the van was
"completely broken out," with "glass on the floorboard on the
passenger side" and "a slight amount [of glass] on the passenger's
seat." "[T]he steering column ignition" had been "popped out" and
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was resting "on the floorboard on the passenger side of the
vehicle."
Defendant moved to strike the evidence, arguing the
Commonwealth failed to prove he had "exhibited any kind of
dominion or control over this car." The trial court overruled the
motion and convicted defendant of the larceny, resulting in the
instant appeal.
II.
Challenging the sufficiency of the evidence to support the
conviction, defendant argues on appeal that "presence and flight"
do not establish the elements of the offense. The Commonwealth
counters that "presence and flight," together with "the location
of the ignition," "the glass," "the recency [sic] of the theft"
and defendant's comment, "I didn't do anything," proved the
offense beyond a reasonable doubt.
"Larceny is the wrongful taking of the goods of another
without the owner's consent and with the intention to permanently
deprive the owner of possession of the goods." Bright v.
Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987)
(citation omitted). "Once the crime is established, the
unexplained possession of recently stolen goods permits an
inference of larceny by the possessor." Id.
In order for the presumption to arise, the
possession must be exclusive, but "[o]ne can
be in exclusive possession of an item when
he jointly possesses it with another," as
long as "the accused was consciously
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asserting at least a possessory interest in
the stolen property or was exercising
dominion over [it]."
Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832
(1997) (quoting Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d
16, 17 (1981)).
"Circumstantial evidence is as competent and entitled to as
much weight as direct evidence . . . ." Coleman v. Commonwealth,
226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). However, where "a
conviction is based on circumstantial evidence, 'all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182,
184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217
Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Nevertheless, "[t]he
Commonwealth need only exclude reasonable hypotheses of innocence
that flow from the evidence, not those that spring from the
imagination of the defendant." Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis
of innocence is reasonable is a question of fact, Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and
a finding by the trial court is binding on appeal unless plainly
wrong. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987).
Here, unaided by the larceny inference arising from
possession of the stolen van, the evidence was clearly
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insufficient to sustain the conviction. The record does not
establish that defendant assisted, abetted or otherwise
facilitated the crime, before, during or after the initial
taking. His presence in the van, together with the shattered
glass, broken ignition and protestation to police, do not exclude
the reasonable hypothesis that he entered the vehicle, free of
involvement in the larceny. Thus, while defendant's "conduct does
raise a suspicion of guilt, . . . it is not sufficient to
establish beyond a reasonable doubt that [he] committed grand
larceny." Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d
891, 893 (1982); see Reese v. Commonwealth, 230 Va. 172, 174-75,
335 S.E.2d 266, 268 (1985); Burgess v. Commonwealth, 14 Va. App.
1018, 1023-24, 421 S.E.2d 664, 667 (1992); Nelson v. Commonwealth,
12 Va. App. 268, 271, 403 S.E.2d 384, 386 (1991).
The Commonwealth's reliance upon the possession/larceny
inference is similarly misplaced. The record does not suggest
defendant, a passenger, exercised any measure of dominion or
control over the van or otherwise asserted a possessory interest
in the vehicle. The evidence does not establish that he drove the
van, directed the driver or was otherwise in custody of the stolen
property. Neither defendant's flight from the scene nor his
statement to police, "I didn't do anything," are assertions of a
possessory interest in the vehicle. Absent such evidence, the
inference clearly does not pertain. See Reese, 230 Va. at 175,
335 S.E.2d at 267-68 (holding "evidence of joint control"
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necessary to convict passenger in stolen vehicle); Moehring, 223
Va. at 568, 290 S.E.2d at 893 (holding "mere acceptance . . . of a
ride in a stolen vehicle" by passenger fails to establish
involvement in initial taking or requisite dominion and control);
Burgess, 14 Va. App. at 1023, 421 S.E.2d at 667 (holding presence
in stolen vehicle with knowledge of theft does not establish
dominion and control necessary to inference); Nelson, 12 Va. App.
at 270-71, 403 S.E.2d at 386 (holding presence in a stolen vehicle
does not establish dominion and control).
Accordingly, we find the evidence insufficient to support the
conviction and reverse the trial court.
Reversed and dismissed.
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