COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
ALBERT ANTONIO SAVAGE
MEMORANDUM OPINION * BY
v. Record No. 0889-00-1 JUDGE ROBERT P. FRANK
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Barrett R. Richardson (Richardson &
Rosenberg, LLC, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Albert Antonio Savage (appellant) was convicted in a bench
trial of burglary in violation of Code § 18.2-91, petit larceny
in violation of Code § 18.2-96, and destruction of property in
violation of Code § 18.2-137. On appeal, he contends the trial
court erred in finding the evidence sufficient to convict him of
these offenses. We agree and reverse the convictions.
I. BACKGROUND
On August 24, 1998, Frank Sheffer resided at 521 Butler
Avenue in Suffolk, Virginia. He left his house at 8:30 a.m.
that day. He returned home that evening at approximately
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
8:00 p.m. and found that the french door in his bedroom was
slightly ajar and that the glass in the door had been broken.
His cellular phone was missing. The cellular phone was kept in
the top dresser drawer in his bedroom. He also noticed that a
blood pressure kit was destroyed. The contents of a dresser
drawer were strewn all over the floor. Sheffer said he made no
calls on the cellular phone after 8:00 a.m. on August 24, 1998.
Brian McCullough, an employee of GTE Wireless testified
that two telephone calls were made on the afternoon of August
24, 1998 from Sheffer's cell phone. The first telephone call
was made at 4:21 p.m., and the second telephone call was made at
5:03 p.m. Both calls were made to the same telephone number,
539-0945. Mr. McCullough did not have firsthand knowledge of
who placed the calls.
Eric Woodley, the employee of a taxi service, testified
that he picked appellant up three times on August 24, 1998. The
first pick-up was a "walk-up," which occurs when the taxi is
flagged down, near the Riverview section of the city, a quarter
mile from Butler Road. Woodley testified he drove appellant to
Cedar Street. At 3:17 p.m., Woodley picked up appellant at 31
Stacey Drive as a result of a call to the taxi company. Woodley
drove appellant to 210 Cedar Street. At 4:21 p.m., Woodley
picked up appellant, as a result of a telephone call, at 210
Cedar Street and drove him to 31 Stacey Drive. A third call was
received at approximately 5:05 p.m., but Woodley testified he
- 2 -
did not pick up appellant after that call. Woodley testified
the taxi company's telephone number was 539-0945.
On cross-examination, Woodley said that he did not know who
made the telephone calls to the taxi dispatcher, did not know
who actually dialed the telephone number, and did not know who
communicated with the dispatcher. He said that he did not
notice anything unusual about appellant's behavior on August 24,
1998, and he did not notice whether appellant had a cell phone.
Appellant denied being involved in the burglary. Appellant
testified he "was no where in that neighborhood of Constance
Road, Butler Street, or wherever Mr. Woodley said I was."
Appellant indicated he only would call for a cab from 117 Morgan
Street, 31 Stacy Drive or 210 Cedar Street. Appellant denied
being picked up by Woodley near the Riverview location described
by Woodley.
Appellant testified he would occasionally send a woman
named Saundra to use a phone to call the cab company when he was
on Cedar Street. He said his father's girlfriend would be sent
to use a telephone to call the cab company if he was on Morgan
Street. Appellant testified that when he was at 31 Stacey
Drive, he would make the telephone call to the cab company or
his "old lady" would make the call from a neighbor's house. He
could not remember who placed the telephone calls to the cab
company on August 24, 1998. Appellant timely moved to strike
- 3 -
the evidence. The motion was denied. Appellant was convicted
of burglary, destruction of property, and petit larceny.
II. ANALYSIS
On review of a challenge to the
sufficiency of the evidence, we view the
evidence in the light most favorable to the
Commonwealth, the prevailing party, and
grant to it all reasonable inferences fairly
deducible therefrom. Commonwealth v.
Jenkins, 255 Va. 516, 521, 499 S.E.2d 263,
265 (1998). "The judgment of a trial court
sitting without a jury is entitled to the
same weight as a jury verdict, and will not
be disturbed on appeal unless plainly wrong
or without evidence to support it." Beck v.
Commonwealth, 2 Va. App. 170, 172, 342
S.E.2d 642, 643 (1986).
Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640,
643 (2000).
At trial, as well as on appeal, the Commonwealth relied
upon the presumption that unexplained possession of recently
stolen property creates a presumption of guilt.
[W]hen evidence has been introduced,
which, if believed, establishes that a house
has been broken and entered and goods stolen
therefrom, and warrants an inference beyond
a reasonable doubt that the breaking and
entering and the larceny of the goods were
committed at the same time, by the same
person or persons, as a part of the same
transaction, upon principle and authority,
the exclusive possession of the stolen goods
shortly thereafter, unexplained or falsely
denied, has the same efficiency to give rise
to an inference that the possessor is guilty
of the breaking and entering as to an
inference that he is guilty of the larceny.
- 4 -
Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28
(1935). "It is well settled that the unexplained possession of
recently stolen property creates a presumption of guilt, but
such possession must be exclusive on the part of the accused."
Leebrick v. Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214
(1956). Thus, "the evidence must reveal that the accused was
consciously asserting at least a possessory interest in or
exercising dominion over the stolen property." Ferrell v.
Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 618 (1990)
(citing Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16,
17 (1981)). Additionally, an accused can jointly possess stolen
property with another. Castle v. Commonwealth, 196 Va. 222,
227, 83 S.E.2d 360, 363 (1954). Therefore, the evidence must
prove beyond a reasonable doubt that appellant was in possession
of the stolen cell phone or jointly possessed the property with
another person.
The evidence established that on two occasions on the day
of the burglary the stolen cell phone was used to call a cab to
transport appellant. Appellant was at the location designated
by the caller. Appellant acknowledged the phone calls to the
cab were made on his behalf, although he did not recall who made
the actual calls. Further, appellant denied being picked up by
Woodley, the cab driver, at the location described by Woodley as
a quarter of a mile from the crime scene.
- 5 -
"'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.'" Byers v. Commonwealth, 23 Va. App. 146,
151, 474 S.E.2d 852, 855 (1996) (quoting Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).
"'[W]here the Commonwealth's evidence as to an element of an
offense is wholly circumstantial, "all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of
innocence."'" Id. (quoting Moran v. Commonwealth, 4 Va. App.
310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted)).
"However, '[w]hether the Commonwealth relies upon either direct
or circumstantial evidence, it is not required to disprove every
remote possibility of innocence, but is, instead, required only
to establish guilt of the accused to the exclusion of a
reasonable doubt.'" Cantrell v. Commonwealth, 7 Va. App. 269,
289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v.
Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986)
(citation omitted)). "'The hypotheses which the prosecution
must reasonably exclude are those "which flow from the evidence
itself, and not from the imagination of defendant's counsel."'"
Id. at 289-90, 373 S.E.2d at 338-39 (quoting Black v.
Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)
(citation omitted)).
- 6 -
In this case, while the suspicion of appellant's guilt is
strong, it is equally plausible that the phone calls were made
by a neighbor or appellant's girlfriend. While the fact finder
may conclude appellant lied to conceal his guilt, Black, 222 Va.
at 842, 284 S.E.2d at 610, we do not believe this alone is
sufficient to prove appellant's guilt.
For these reasons, we find the evidence was insufficient to
prove beyond a reasonable doubt that appellant committed the
offenses. Therefore, we reverse the judgment of the trial court
and dismiss the indictments.
Reversed and dismissed.
- 7 -