Carey Karron Davis v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
CAREY KARRON DAVIS
MEMORANDUM OPINION * BY
v. Record No. 2918-95-1 JUDGE RICHARD S. BRAY
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Denise Winborne, Assistant Public Defender,
for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Carey Karron Davis (defendant) was convicted in a bench
trial of receiving stolen property valued in excess of $200. On
appeal, he challenges the sufficiency of the evidence to
establish that the property was stolen and that he was aware of
such circumstance, both necessary elements of the offense. We
affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the issue on appeal.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. Id. The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely within the province of the fact
finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d
473, 476 (1989).
Conviction for a violation of Code § 18.2-108 requires proof
that the property was (1) previously stolen by another, and (2)
received by defendant, (3) with knowledge of the theft, and (4) a
dishonest intent. Starks v. Commonwealth, 225 Va. 48, 54, 301
S.E.2d 152, 156 (1983); see Code § 18.2-108. Lost or misplaced
property may become the subject of larceny if the finder is aware
or has the means of ascertaining the owner, or has reason to
believe the owner may be discovered, but, nevertheless, intends
to appropriate it to his own use. Hutchinson v. Commonwealth,
133 Va. 710, 719-20, 112 S.E. 624, 627 (1922). The requisite
guilty knowledge "is sufficiently shown if the circumstances
proven are such as must have made or caused the recipient of
stolen goods to believe they were stolen." Lewis v.
Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983)
(quoting Reaves v. Commonwealth, 192 Va. 443, 451, 65 S.E.2d 559,
564 (1951)).
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Circumstantial evidence "is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983), cert. denied, 465 U.S. 1109 (1984). However, "[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).
Here, although Officer Panton could not testify that someone
actually removed the radio from his belt during the fray, it
could not be located in the immediate area thereafter, and no one
made any related report or inquiry to police. Such evidence
supports the inference that the radio was either stolen directly
from the officer or otherwise removed from the proximity of the
struggle with a larcenous intent.
The circumstantial evidence in the record is also sufficient
to establish defendant's guilty knowledge. Possession of
recently stolen property "constitute[s] prima facie evidence that
the defendant received the stolen goods with guilty knowledge and
cast[s] upon him the burden of going forward with evidence in
explanation." Roberts v. Commonwealth, 230 Va. 264, 271, 337
S.E.2d 255, 260 (1985). The trial court was
"not obliged to accept" what it obviously
found was an unreasonable explanation. . . .
[I]n the prosecution of this type of case,
when a defendant's "hypothesis of innocence
is [rejected as] unreasonable, evidence of
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possession of recently stolen goods is
sufficient to support a conviction." This
proposition is especially true where . . .
the prima facie case . . . is buttressed by
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other strong circumstantial evidence of
guilt.
Id. at 272, 337 S.E.2d at 260 (quoting Wescott v. Commonwealth,
216 Va. 123, 127, 216 S.E.2d 60, 64 (1975)).
Additional circumstantial evidence of defendant's guilty
knowledge included flight, see, e.g., Spitzer v. Commonwealth,
233 Va. 7, 9, 353 S.E.2d 711, 713 (1987); Roberts, 230 Va. at
270-72, 337 S.E.2d at 259-60, and his equivocal statements to
police and testimony at trial. See Speight v. Commonwealth, 4
Va. App. 83, 88-89, 354 S.E.2d 95, 98-99 (1987) (en banc).
Moreover, defendant was present during the disturbance, was seen
shortly thereafter within one-half block of the scene, in the
vicinity of a "beeping sound" produced by the radio's "alert"
feature, and initially concealed the radio from police.
Such evidence supports the reasonable hypothesis that
defendant came into possession of the radio near in time and
space to the theft, subsequently secreted it and ran from police,
aware that it had been stolen and with a larcenous intent.
Accordingly, we affirm the conviction.
Affirmed.
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