COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
FELICIA MAE SHEARIN
MEMORANDUM OPINION * BY
v. Record No. 1942-97-1 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
David H. Moyer (Bashara & Hubbard, on brief),
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Felicia Mae Shearin was convicted of unauthorized use of a
motor vehicle. On appeal she argues that the evidence was
insufficient to prove that she intended to deprive temporarily
the owner of possession of the vehicle. Finding that the
evidence was sufficient, we affirm.
The owner's husband borrowed the vehicle and went out
drinking beer with a friend on October 8, 1996. Later in the
evening he lent it to two acquaintances of his friend. When they
did not return the vehicle as promised, he reported the vehicle
stolen. Later he told the police the truth that the vehicle had
been lent and not stolen. Meanwhile, on October 11, 1996, a
Norfolk police officer recognized the car at a school parking
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
lot.
The passenger in the vehicle told the officer that the
defendant was the driver and gave him her description. Just then
the officer saw the defendant, who fit the description, walking
toward the car from the school. On seeing the officer, she
stopped, turned and started walking at a fast pace back to the
school. A backup officer, who had arrived, ordered the defendant
to come back, but she did not respond. He stopped her in the
school building. The defendant first denied having any
identification, but the officer retrieved her identification from
her pocket.
After being advised of her rights, the defendant gave a
confusing and vague story of how she got the car. She said that
she had just obtained the car fifteen minutes earlier from a man
whose name she did not know. Later she said his name was Desmond
and described him. Then she maintained that she had known
Desmond about two months and that he had rented the car and had
permission to use it until the next day. The defendant professed
that she did not know the car was stolen.
Where an appellant challenges the sufficiency of the
evidence, we must view the evidence in the light most favorable
to the Commonwealth, granting it all reasonable inferences fairly
deducible from it. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). We may not disturb a
verdict unless it is "plainly wrong or without evidence to
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support it." Stockton v. Commonwealth, 227 Va. 124, 145, 314
S.E.2d 371, 385, cert. denied, 469 U.S. 873 (1984).
The Commonwealth has the burden of proving that the
defendant used the owner's vehicle, that the owner did not
consent to the use, and that the defendant intended to keep the
property temporarily from the owner. See Code § 18.2-102; Reese
v. Commonwealth, 230 Va. 172, 174, 335 S.E.2d 266, 267 (1985);
Blanks v. Gordon, 202 Va. 295, 298, 117 S.E.2d 82, 84-85 (1960).
Unauthorized use of a vehicle is a lesser-included offense of
larceny. See Overstreet v. Commonwealth, 17 Va. App. 234, 236,
435 S.E.2d 906, 908 (1993).
The only issue in this case is whether the Commonwealth
proved that the defendant intended to keep the property
temporarily from the owner. The defendant was found in recent,
exclusive possession of the stolen vehicle. The inference of
recent possession of stolen goods arises from proof of those two
facts. This inference permits the trier of fact to find that the
person found in possession was the thief of those goods. The
inference is sufficient to convict unless other evidence or a
credible explanation refutes it. The evidence shows that the
defendant was not the thief. She was not one of the bailees who
obtained the vehicle from the owner's husband and then failed to
return it as promised. See Overstreet, 17 Va. App. at 237-38,
435 S.E.2d at 908-09. However, recent possession of stolen goods
gives rise to a related inference.
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When the Commonwealth charges someone with receiving stolen
property, it must prove that the person in possession knew that
the goods were stolen. The trier of fact may infer that the
person found in possession of recently stolen goods knew that the
goods were stolen and that they were received with a dishonest
intent. See Reaves v. Commonwealth, 192 Va. 443, 451, 65 S.E.2d
559, 564 (1951).
The inference of guilty knowledge that arises would prove
the intent necessary to establish the crime of unauthorized use.
The crime of receiving stolen property requires possession with
knowledge the property is stolen. The crime of unauthorized use
requires use with the intent to keep the property temporarily
from the owner. The act of possession necessary for the one
would embody the act of use necessary in the other. Using a
vehicle must mean that the person possessed the vehicle during
use. If the defendant used the vehicle, she possessed the
vehicle. The defendant used the vehicle, so she had to possess
it while she used it.
The inference permits a finding that the defendant possessed
the car with knowledge that it was stolen. Possessing stolen
property while knowing it is stolen must include the concept of
keeping that item from the owner during the period it is
possessed. Possessing with guilty knowledge established that the
defendant was keeping the car from the owner.
In this case, the inference that arises from the defendant's
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possession of the recently stolen car is sufficient evidence of
the intent element of this crime. The trier of fact may find
that the element is proven unless the recent possession is
explained. Other evidence or testimony by the defendant may
supply the explanation. Here no evidence refutes the inference
of guilty knowledge. The trial judge found that the defendant's
explanations given to the police were incredible. She offered
nothing at trial to explain or clarify her statements at the
scene. Once the Commonwealth proves recent possession of stolen
property, it falls to the defendant to explain her possession.
If she fails to do so, the trier of fact may accept the inference
as proof of the fact. See Roberts v. Commonwealth, 230 Va. 264,
271-72, 337 S.E.2d 255, 260 (1985).
The defendant's actions and statements at the scene
permitted two additional inferences that support a finding of
guilt. The defendant turned and tried to elude the police when
she saw them at the vehicle. She ignored their calls to return,
and when finally stopped, she stated falsely that she had no
identification. The trier of fact may reasonably interpret these
actions as flight, and an inference of guilt may arise from that
finding. See Jones v. Commonwealth, 208 Va. 370, 374, 157 S.E.2d
907, 910 (1967).
The defendant gave conflicting and inherently incredible
explanations to the police. At first, she had just obtained the
vehicle from someone she did not know. Then she gave his first
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name, and finally she volunteered some detail of her relation to
him. The trier of fact may reasonably view as false these
statements along with the false statements about her own identity
and may draw an inference of guilt from them. See Black v.
Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981).
The actions and statements of the defendant while she was in
possession of the recently stolen vehicle are circumstantial
evidence that she possessed the car with the intent to keep it
temporarily from the owner. Though circumstantial evidence of
guilt, it is evidence that is legally sufficient to sustain a
conviction. The inferences are reasonable, and no hypothesis of
innocence arises from the facts as found by the trial judge.
Accordingly, we affirm the conviction.
Affirmed.
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