COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
WARREN LEWIS BAKER
MEMORANDUM OPINION * BY
v. Record No. 2391-01-2 JUDGE RICHARD S. BRAY
JUNE 18, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Robert P. Geary for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Warren Lewis Baker (defendant) was convicted in a bench trial
for grand larceny of an automobile in violation of Code § 18.2-95.
On appeal, he contends the evidence was insufficient to identify
him as the criminal actor. 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 reviewing the sufficiency of the evidence, we consider the
record "'in the light most favorable to the Commonwealth, giving
it all reasonable inferences fairly deducible therefrom." Watkins
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 the proven facts
are matters to be determined by the fact finder. See 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 evidence. See Code § 8.01-680.
Viewed accordingly, the record establishes that, on the
morning of April 10, 2000, Jackson Hudson, an employee of Southern
States Cooperative (Southern States), arrived at work and
discovered a "gold-tan" "Ford wagon," "VIN number
1FAFP58U4XG295654," property of Southern States, missing from the
parking area. Hudson testified the keys to the car were "kept on
a pegboard in the office adjacent to [his] office," and the "last
time [the car] was driven was around the 31st of March, 1st of
April," although the vehicle was seen on the premises "around the
4th or 5th [of April]." Several days thereafter, Hudson recovered
the car, then repainted black, from a "Maaco paint and body shop."
James Smith, owner and manager of the Maaco facility,
testified that the stolen car was brought to his "shop" on April
10, 2000, by a "young ["black"] male" identifying himself as
"Warren Baker." The man instructed Smith to "sand some chips out
of the front bumper" and "[c]hange the color," a request that
"surprised" Smith because the vehicle was "practically new." Upon
completion of the work, the individual returned to Maaco and "put
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a partial payment down," but never "pick[ed] the car up,"
prompting Smith to "call[] the police." Asked by the prosecutor
"whether or not that individual is in the courtroom," Smith
answered, "I'm going to be honest with you. I couldn't say
because at that time he had hair."
Henrico County Police Investigator L.C. Tyler investigated
the subject offense and obtained a warrant for defendant's related
arrest on April 17, 2000. Aware defendant was then an "employee"
of Southern States, working on an "evening" "cleaning crew," Tyler
and another officer "served th[e] warrant on him at his work."
At the close of the Commonwealth's case-in-chief and, again,
after resting without presenting evidence, defendant moved to
strike, arguing "there was no identification made that the person,
in fact, who brought the car [to the Maaco shop] was . . .
defendant." The trial court denied the motion and convicted
defendant of grand larceny, resulting in this appeal.
II.
Defendant challenges the sufficiency of the evidence, arguing
the Commonwealth failed to establish defendant's identity as the
offender. We agree.
"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).
"Once the crime is established, the unexplained possession of
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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
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)).
When "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)). 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). 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).
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Here, the evidence established that "a young ["black"] male,"
identifying himself as "Warren Baker," appeared at Maaco in
possession of the stolen vehicle and ordered the car repainted,
together with additional cosmetic work. However, no evidence
otherwise identified defendant as the Maaco customer. Thus, the
record doesn't sufficiently prove possession of the stolen
property in defendant, evidence necessary to support the inference
that he committed larceny of the vehicle. Unaided by the
inference, the Commonwealth's evidence was clearly insufficient to
support the conviction. Investigator Tyler testified defendant
was employed by Southern States at the time of arrest, a week
following the offense. However, nothing suggests defendant had
prior access to the premises, the keys to the vehicle or the
vehicle.
Accordingly, we find the evidence insufficient to prove
beyond a reasonable doubt defendant was the perpetrator of the
larceny and reverse the conviction.
Reversed and dismissed.
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