Benjamin Brothers, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
BENJAMIN BROTHERS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0325-96-1 JUDGE NELSON T. OVERTON
NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Michael J. Lutke, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Benjamin Brothers, Jr., appeals his conviction of grand
larceny in violation of Code § 18.2-95. We find that the
evidence is insufficient to support the conviction and we
reverse.
The parties are fully conversant with the record in this
cause, and a recitation of the facts is unnecessary to this
memorandum opinion.
When the evidence against the defendant is entirely
circumstantial, "all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence, and must
exclude any reasonable hypothesis of innocence." Reynolds v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, 9 Va. App. 430, 440, 388 S.E.2d 659, 665 (1990)
(quoting Inge v. Commonwealth, 217 Va. 360, 366, 288 S.E.2d 563,
567 (1976)). The evidence against Brothers, even in the light
most favorable to the Commonwealth, showed merely that Brothers
was present in the store the same day that the necklace was
missing and that he showed some interest in the necklace. None
of the defendant's actions indicates any criminal activity.
Under these facts, we hold that the evidence is insufficient to
prove beyond a reasonable doubt that Brothers committed a
larceny.
Reversed and dismissed.
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