COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Willis
Argued at Richmond, Virginia
DAVID ELWOOD McNEAL, SR.
MEMORANDUM OPINION * BY
v. Record No. 2171-09-3 JUDGE JERE M. H. WILLIS, JR.
JULY 20, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Victor V. Ludwig, Judge
David C. Smith, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
On appeal from his conviction of violating Code § 18.2-118 by failing to return rental
property within ten days of the expiration of the rental agreement, David Elwood McNeal, Sr.,
contends the evidence was insufficient to support his conviction. We agree and reverse the
judgment of the trial court.
FACTS
Under familiar principles of appellate review, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999).
Wenda Workman, the manager at Central Virginia Rental, testified that on September 18,
2008, McNeal rented from her company an aluminum brake, a stand, and an extra handle. The
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
term of the rental was one week. She testified that McNeal kept the equipment for two to three
months, during which time she tried unsuccessfully to contact him and sent him letters, to which
he did not respond. She testified that the value of the brake and handle was $2,500 and the value
of the stand was $300. The total accrued rental charge was $1,518.98.
Workman testified that Deputy Pultz returned the brake and the handle to the business.
She could not recall the exact date of return, but thought it was in September. The stand was
never recovered. Workman testified she did not have with her the papers regarding the lease and
was unable to recall the relevant dates exactly. The written lease was not introduced into
evidence.
The Commonwealth and McNeal stipulated that Pultz recovered the brake and handle
from McNeal’s sister’s house on September 19, 2008.
DISCUSSION
Whenever 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 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
for such property stated in such written lease, he shall be deemed
guilty of the larceny thereof.
Code § 18.2-118(a).
The indictment charged that “[McNeal,] while in possession or control of an aluminum
brake, . . . by virtue of a written lease or rental agreement for said aluminum brake, . . .
unlawfully [and] feloniously . . . fail[ed] to return the aluminum brake . . . within ten days after
expiration of the lease or rental agreement . . . .” The trial court convicted McNeal “of the
[specified] offense as charged in the indictment.” The prosecution and the conviction were thus
limited to circumstances surrounding McNeal’s alleged retention of the brake, and embraced
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neither the handle nor the stand. We review the evidence with respect to its sufficiency to prove
that accusation.
When reviewing the sufficiency of the evidence to prove the elements of the crime, we
“‘presume the judgment of the trial court to be correct.’” Davis v. Commonwealth, 39 Va. App.
96, 99, 570 S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425
S.E.2d 90, 94 (1992)). We reverse only if the trial court’s judgment is “plainly wrong or without
evidence to support it.” Code § 8.01-680. A court considering a challenge to the sufficiency of
the evidence does not “‘ask itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (quoting
Woodby v. INS, 385 U.S. 276, 282 (1966)). Rather, the relevant question is whether “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. at 319. Pursuing this inquiry, we are mindful that “[g]reat deference must be given
to the fact finder who, having seen and heard the witnesses, assesses their credibility and weighs
their testimony.” Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1988).
The evidence proved McNeal rented the items from Central Virginia Rental on
September 18, 2008 for a period of one week. This was the only evidence establishing the
existence and the terms of the rental agreement. The parties stipulated that the police returned
the aluminum brake and the extra handle on September 19, 2008. This stipulation was binding
and conclusive. Although Workman testified McNeal kept the rented items for two to three
months and that a large rental obligation accrued, this testimony conflicted with the undisputed
evidence that the items were rented on September 18 and the stipulation that the brake and
handle were returned on September 19, 2008. “When facts are equally susceptible to more than
one interpretation, one which is consistent with the innocence of the accused, the trier of fact
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cannot arbitrarily adopt an inculpatory interpretation.” Moody v. Commonwealth, 28 Va. App.
702, 706, 508 S.E.2d 354, 356 (1998).
Thus, the evidence failed to prove beyond a reasonable doubt that McNeal did not return
the brake within ten days of the expiration of the rental agreement. Accordingly, we reverse the
judgment of the trial court.
Reversed.
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