COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
TRAVIS MAXWELL ELLINGTON
MEMORANDUM OPINION * BY
v. Record No. 2370-97-2 JUDGE LARRY G. ELDER
OCTOBER 20, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D'Alton, Jr., Judge
P. George Eliades, II (Eliades & Butterworth,
on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Travis Maxwell Ellington (appellant) appeals from his bench
trial conviction for petit larceny. On appeal, he contends the
evidence was insufficient to support his conviction. For the
reasons that follow, we agree and reverse his conviction.
I.
FACTS
On March 21, 1997, Gary DiGuardi was doing construction work
with appellant, whom he had known for only a few weeks. At about
3:30 p.m., DiGuardi took appellant home from work, and the two
men stopped at a house in Hopewell where appellant thought they
could get some marijuana. They were unable to obtain any
marijuana there, but they remained, talking and drinking with a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
female occupant of the home. About 4:30 p.m., appellant asked
DiGuardi if he could borrow his truck for "a few minutes," and
DiGuardi said yes. DiGuardi testified that appellant did not say
why he wanted the truck or where he planned to go, but the trial
court did not believe his testimony and found that "[DiGuardi]
lent [appellant] the truck as an open-ended loan to get drugs."
DiGuardi waited at the house for hours, but appellant did not
return. Sometime after midnight, DiGuardi left the residence,
found a telephone and called his wife, who had expected him to
return home at 5:30 p.m. She picked him up, and they went to the
police station to complete an offense report and went home. As
they returned to the police station the next day, they saw
DiGuardi's truck being driven by a person they had never seen
before. When DiGuardi's wife confronted the driver and asked him
where he got the car, he said that appellant had lent it to him, 1
and the driver fled.
Missing from the truck were a variety of items, including
$140 in cash, a pair of binoculars and a CB radio. In addition,
the car's antenna and ashtray had been ripped out.
Appellant failed to appear at work the following week. When
DiGuardi got appellant's telephone number and called him,
appellant said that the police had been following him and that,
because he had a suspended operator's license, he had parked the
1
The court ruled that the driver's statement was not
admissible as substantive evidence.
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truck and left it around the corner all night. He claimed not to
know anything about the items missing from DiGuardi's truck, but
he agreed to make restitution. When the matter came up in
general district court, appellant had it continued so that he
could make restitution. Although the matter was continued, the
record gives no indication that appellant ever made restitution.
Appellant was tried for unauthorized use of a vehicle and
grand larceny. At the close of the Commonwealth's evidence,
appellant moved to strike both charges. He contended that the
testimony of DiGuardi and his wife was not sufficiently credible
because DiGuardi admitted he and appellant tried to buy drugs
after work, a fact he earlier had failed to admit, and because he
was in trouble with his wife and was "looking for a scapegoat."
The court granted the motion to strike the charge of unauthorized
use:
At this point in the evidence, I see in
the light most favorable to the Commonwealth.
[Victim] lent the truck as an open-ended
loan to get drugs, regardless of what he
said. [Drugs] weren't at the house. The man
went out, and I think the unauthorized use
falls on that basis. He didn't have any time
frame where he spent the night, and wandered
around.
The court denied the motion to strike the grand larceny charge
but reduced it to petit larceny. It also stated that it
"accepted the majority of the investigation."
Appellant presented testimony from Stacy Ellington, his
ex-wife, that DiGuardi dropped appellant off at her house at
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about 4:00 p.m. on the date in question and drove off. Appellant
delivered her child support payment and remained at her home with
their children until 9:30 or 10:00 p.m. that evening.
Appellant moved to strike the petit larceny charge, arguing
that the court had already found the testimony of the
Commonwealth's witnesses to be incredible and that this fact,
coupled with Stacy Ellington's testimony that appellant left
DiGuardi in the truck and spent the evening at her house,
provided reasonable doubt as to appellant's guilt. The trial
judge denied the motion and found appellant guilty of petit
larceny.
II.
ANALYSIS
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
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
sufficient to prove guilt beyond a reasonable
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986). "Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
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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).
Larceny requires proof of "the wrongful or fraudulent taking
of personal goods of some intrinsic value, belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently." Bryant v. Commonwealth, 248 Va. 179, 183,
445 S.E.2d 667, 670 (1994) (quoting Skeeter v. Commonwealth, 217
Va. 722, 725, 232 S.E.2d 756, 758 (1977)) (other citation
omitted).
The circumstantial evidence in this case does not exclude
all reasonable hypotheses of innocence. The evidence, viewed in
the light most favorable to the Commonwealth, proved only that
the money and other items were in DiGuardi's truck when he loaned
it to appellant and that they were missing when DiGuardi and his
wife found an unknown third person driving the truck the
following day. None of the items were ever seen in appellant's
possession, and appellant made no statements permitting the
inference that he took the items. This circumstantial evidence
left the reasonable hypothesis that this third person or some
other unknown individual took the items during the time the truck
was out of DiGuardi's possession. Although appellant agreed to
pay restitution to DiGuardi, this agreement did not constitute an
admission that appellant took the items, and he, in fact, told
DiGuardi he did not take the items. Although the trial court was
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not required to believe appellant's out-of-court denial, see,
e.g., Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95,
98 (1987) (en banc), the court's disbelief nevertheless did not
provide substantive evidence of appellant's guilt.
For these reasons, we reverse and dismiss appellant's
conviction.
Reversed and dismissed.
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