Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy and Koontz, S.JJ.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 101933 CHIEF JUSTICE CYNTHIA D. KINSER
JUNE 9, 2011
DAVID ELWOOD McNEAL, SR.
FROM THE COURT OF APPEALS OF VIRGINIA
David Elwood McNeal, Sr., was convicted in a bench trial in
the Circuit Court of Augusta County for failing to return rented
personal property valued at more than $200 within ten days after
expiration of the rental period in violation of Code § 18.2-118.
In this appeal, the Commonwealth challenges the Court of
Appeals' judgment holding that there was insufficient evidence
as a matter of law to sustain the conviction. Because the Court
of Appeals erred in finding that contradictory testimony
rendered the evidence insufficient to support the conviction, we
will reverse its judgment.
MATERIAL FACTS AND PROCEEDINGS
At trial, the Commonwealth offered the testimony of one
witness, Wenda Workman, the store manager of a rental business
known as "Central Virginia Rental." When asked whether she
"encounter[ed]" McNeal "on or about September 18, 2008," she
responded affirmatively, explaining that McNeal came into the
store and rented a 10-foot aluminum brake along with an extra
handle and a stand for a period of one week. According to
Workman, the aluminum brake, which is a device used by
construction contractors to bend aluminum, was valued at
approximately $2,500.
Workman testified that McNeal did not return the brake
after the one-week rental period ended and that she was unable
"to get ahold of [McNeal]" via mail. After "a couple of months"
elapsed, she contacted the Augusta County Sheriff's Office
regarding McNeal's failure to return the rented equipment. The
parties stipulated that a deputy with the sheriff's office would
testify that he recovered the aluminum brake and extra handle
from the residence of McNeal's sister on September 19, 2008, and
returned those items to the rental store. Workman testified
that the total rental charge for the time during which McNeal
had the equipment was $1,518.98, which sum included $300 for the
replacement of the stand that was not recovered.
When asked on cross-examination to confirm that the deputy
returned the brake and handle to the rental store on
September 19, 2008, Workman testified that "it was in
September," but that she did not "know the exact date." Workman
confirmed again on redirect examination that the equipment had
not been returned for "two to three months" prior to the
deputy's recovering part of it. Workman explained that she did
not "know [her] dates" at trial because her "papers [were] at
the store."
2
At the close of the Commonwealth's evidence, McNeal moved
to strike, arguing that "[t]here's nothing here to show criminal
intent" because the evidence showed that McNeal rented the
equipment for a week beginning on September 18th and the deputy
recovered it on September 19th. The circuit court denied the
motion to strike, noting that although Workman "testified,
obviously confused, that September 18 and 19 were the days that
the tool went out, and [the deputy] brought it in," she
nevertheless "subsequently testified . . . that [McNeal] had it
for two or three months." McNeal offered no evidence.
Considering all the evidence, the circuit court concluded
that although Workman "did agree with [the Commonwealth's
Attorney] that she first encountered Mr. McNeal . . . on
September the 18th, she testified that the item was gone for two
or three months." The circuit court expressly found that the
"equipment was gone for two or three months on a week's rental,
and that it was returned on September the 19th." The circuit
court thus held that there was "evidence sufficient for a
finding of guilt" and sentenced McNeal to a three-year term of
imprisonment, with one year suspended.
McNeal appealed the circuit court's judgment of conviction
to the Court of Appeals of Virginia. A three-judge panel of
that court reversed the circuit court's judgment and vacated
McNeal's conviction. McNeal v. Commonwealth, Record No. 2171-
3
09-3, slip op. at 4 (July 20, 2010) (unpublished). The Court of
Appeals explained that Workman's testimony about McNeal's
keeping the rented equipment for two to three months and
incurring a large rental expense "conflicted with the undisputed
evidence that the items were rented on September 18 and . . .
returned on September 19." Id., slip op. at 3. Viewing these
facts as " 'equally susceptible to more than one
interpretation,' " the Court of Appeals concluded that the
circuit court could not " 'arbitrarily adopt [the] inculpatory
interpretation,' " id., slip op. at 3-4 (quoting Moody v.
Commonwealth, 28 Va. App. 702, 706, 508 S.E.2d 354, 356 (1998)),
and that the evidence, therefore, "failed to prove beyond a
reasonable doubt that McNeal did not return the brake within ten
days of the expiration of the rental agreement." Id., slip op.
at 4.
The Commonwealth now appeals to this Court. The sole issue
is whether the Court of Appeals erred in concluding that the
evidence was insufficient as a matter of law to sustain McNeal's
conviction under Code § 18.2-118.
ANALYSIS
When the sufficiency of the evidence is challenged on
appeal, our review is guided by well-established principles.
This Court "must examine the evidence that supports the
conviction and allow the conviction to stand unless it is
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plainly wrong or without evidence to support it." Vincent v.
Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)
(citing Code § 8.01-680 and Commonwealth v. Jenkins, 255 Va.
516, 520, 499 S.E.2d 263, 265 (1998)). "[W]e review 'the
evidence in the light most favorable to the Commonwealth, the
prevailing party in the [trial] court' and 'accord the
Commonwealth the benefit of all reasonable inferences deducible
from the evidence.' " Noakes v. Commonwealth, 280 Va. 338, 345,
699 S.E.2d 284, 288 (2010) (second alteration in original)
(quoting Brown v. Commonwealth, 278 Va. 523, 527, 685 S.E.2d 43,
45 (2009)). After so viewing the evidence, the question is
whether "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
omitted); accord Maxwell v. Commonwealth, 275 Va. 437, 442, 657
S.E.2d 499, 502 (2008). In sum, "[i]f there is evidence to
support the conviction, the reviewing court is not permitted to
substitute its judgment, even if its view of the evidence might
differ from the conclusions reached by the finder of fact at the
trial." Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d
312, 314 (1998).
Pursuant to Code § 18.2-118(a), "[w]henever any person is
in possession or control of any personal property, by virtue of
or subject to a written lease of such property, . . . and such
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person so in possession or control shall, with intent to
defraud, . . . fail to return such property to the lessor
thereof within ten days after expiration of the lease or rental
period . . . stated in such written lease," that person "shall
be deemed guilty of the larceny" of the property. 1 McNeal
asserts that the evidence was insufficient to prove beyond a
reasonable doubt that he failed to return the equipment within
ten days after expiration of the rental period. Like the Court
of Appeals, McNeal points to the conflict between Workman's
testimony that McNeal leased the equipment on September 18, 2008
for a period of one week but kept the equipment for two to three
months, and the stipulation that the deputy would testify that
he recovered the aluminum brake and extra handle on
September 19, 2008.
Clearly, the circuit court had before it two, contradictory
factual accounts: either McNeal failed to return the equipment
for two or three months or the equipment was recovered one day
after McNeal first rented it. As relevant to resolving this
contradiction, the circuit court also heard Workman's testimony
that substantial rental charges accrued as a result of McNeal's
failure to return the equipment within ten days after the one-
1
If such personal property is valued at $200 or more, the
offense is classified as grand larceny, a felony, Code § 18.2-
95(ii); if it is valued at less than $200, the offense is
classified as petit larceny, a Class 1 misdemeanor. Code
§ 18.2-96(2).
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week rental period expired; Workman's testimony that she spent
many days, not one, attempting to contact McNeal and recover the
equipment, and when her attempts proved unsuccessful, she
contacted the police; and finally, Workman's concession that she
was uncertain regarding the date on which the equipment was
rented.
Upon considering all of Workman's testimony, the circuit
court credited those parts showing that McNeal rented the
equipment for a period of one week, that the equipment was not
returned for several months, and that the equipment was valued
at more than $200. Given Workman's admitted confusion about the
date on which McNeal rented the equipment and the evidence
supporting her testimony that McNeal failed to return the
equipment for several months, the circuit court rejected
Workman's statement that McNeal initially rented the equipment
on September 18, 2008. We conclude that the circuit court was
entitled to consider all the evidence and to resolve the
conflict in the evidence as it did. See Williams v.
Commonwealth, 278 Va. 190, 195, 677 S.E.2d 280, 283 (2009) (in
making credibility determinations and factual findings, "the
trial court [i]s entitled to consider all the evidence").
"The fact finder, who has the opportunity to see and hear
the witnesses, has the sole responsibility to determine their
credibility, the weight to be given their testimony, and the
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inferences to be drawn from proven facts." Taylor, 256 Va. at
518, 506 S.E.2d at 314 (emphasis added); accord Hamilton v.
Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175 (2010). That
responsibility lies with the fact finder because "[t]his
[C]ourt[,] sitting as an appellate court, and knowing nothing of
the evidence or of the witness, except as it appears on the
paper, feels itself very incompetent to decide on the
credibility of the testimony." Brown v. Commonwealth, 29 Va. (2
Leigh) 832, 841 (1830). Furthermore, a fact finder's
evaluations of credibility are not limited to choosing between
competing accounts offered by different witnesses, see, e.g.,
Hamilton, 279 Va. at 105, 688 S.E.2d at 174-75, but often
include, as in this case, resolving conflicts in a single
witness' testimony, accepting that part of the testimony it
deems credible and rejecting the portion it deems incredible.
See Hopkins v. Commonwealth, 230 Va. 280, 293, 337 S.E.2d 264,
272 (1985).
In sum, we conclude that a "rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson, 443 U.S. at 319. The circuit
court's judgment finding McNeal guilty of violating Code § 18.2-
8
118 thus was not "plainly wrong or without evidence to support
it." 2 Code § 8.01-680.
CONCLUSION
For these reasons, we will reverse the judgment of the
Court of Appeals of Virginia and reinstate McNeal's conviction
for violating Code § 18.2-118.
Reversed and final judgment.
2
The specific question whether the evidence was sufficient
to establish criminal intent is not before us. Although McNeal
raised the issue at trial, he did not challenge that aspect of
the circuit court's judgment on brief either in the Court of
Appeals or in this Court.
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