COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
KEITH MARVELLE TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 1301-97-2 JUDGE LARRY G. ELDER
MAY 26, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
J. Kelly Haley for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Keith Marvelle Taylor (appellant) appeals his conviction of
grand larceny. He contends that the evidence was insufficient to
support his conviction. For the reasons that follow, we affirm.
The evidence proved that the victim's car was stolen from
outside her residence around 7:30 in the morning of November 29,
1996. No direct evidence established that appellant was the
individual who stole the victim's car or that he was present when
it was stolen. Appellant was spotted riding in the passenger
seat of the victim's car as it was driven by another person
shortly after 11:00 a.m. on November 29. After the car was
stopped, appellant told a police officer that he first entered
the victim's car around 10:45 that morning at his residence.
Appellant stated that "some dude" whose name was "Mike or Mic or
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
something" was driving the victim's car. According to appellant,
"Mike or Mic" drove him and the car's current driver to "Mike's
or Mic's" residence. Appellant told the police officer that,
upon their arrival at "Mike's or Mic's" residence, "the man told
them to keep the car."
Appellant argues that the evidence regarding his presence in
the victim's car a few hours after it was stolen was insufficient
to support the reasonable inference that he was the thief. We
disagree.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). This Court does
not substitute its judgment for that of the trier of fact. See
Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220
(1992). Instead, the trial court's judgment will not be set
aside unless it appears that it is plainly wrong or without
supporting evidence. Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990) (en banc).
"[L]arceny is the taking and carrying away of the goods and
chattels of another with intent to deprive the owner of the
possession thereof permanently." Lund v. Commonwealth, 217 Va.
688, 691, 232 S.E.2d 745, 748 (1977). Under the larceny
inference, "[o]nce the [larceny] is established, the unexplained
possession of recently stolen goods permits an inference of
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larceny by the possessor." Bright v. Commonwealth, 4 Va. App.
248, 251, 356 S.E.2d 443, 444 (1987); see also Castle v.
Commonwealth, 196 Va. 222, 226-27, 83 S.E.2d 360, 363 (1954).
For the "larceny inference" to arise, the Commonwealth must
establish that the accused was in exclusive possession of
recently stolen property. See Best v. Commonwealth, 222 Va. 387,
389, 282 S.E.2d 16, 17 (1981). "Exclusive possession," which may
be joint with other persons, requires either (1) the conscious
assertion of at least a possessory interest in the stolen
property or (2) the exercise of dominion over the stolen
property. See id. Mere constructive possession of stolen
property is not enough to support the larceny inference. See
Castle, 196 Va. at 229, 83 S.E.2d at 364-65.
We hold that the evidence in this case was sufficient to
trigger the inference that appellant committed the larceny of the
victim's car. It is uncontested that the victim's car was
"recently stolen" at the time appellant was spotted riding in its
passenger seat. In addition, credible evidence in the record
supports the trial court's conclusion that appellant was in
"joint exclusive possession" of the car with its driver.
Although nothing in the record indicates that appellant, who was
a passenger in the car, exercised dominion over it, his statement
that he and the car's driver had been told they could "keep the
car," when viewed, as is required, in the light most favorable to
the Commonwealth, amounted to a conscious assertion of a
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possessory interest in the car. Put another way, appellant's
statement could reasonably be viewed by the trial court as a
proclamation that the victim's car was his (and the driver's) to
keep. Cf. Crews v. Commonwealth, 3 Va. App. 531, 537, 352 S.E.2d
1, 4 (1987) (holding that the defendant's attempt to sell
recently stolen goods amounted to a "conscious assertion of a
possessory interest" in the property for the purpose of
establishing the larceny inference). Although appellant also
told the officer that he did not enter the car until more than
three hours after it was stolen, the trial court, as the finder
of fact, was entitled to "reject that which it [found]
implausable, but accept other parts [of appellant's account]
which it [found] to be believable." Pugliese v. Commonwealth, 16
Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
This case is distinguishable from the line of cases in which
a suspect's mere presence in a recently stolen vehicle was not
enough to trigger the larceny inference. See Reese v.
Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 267-68 (1985);
Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893
(1982); Burgess v. Commonwealth, 14 Va. App. 1018, 1023, 421
S.E.2d 664, 667 (1992); Nelson v. Commonwealth, 12 Va. App. 268,
270-71, 403 S.E.2d 384, 386 (1991). In each of those cases,
there was no credible evidence establishing that the suspect had
"exclusive possession" of the vehicle in question. See Reese,
230 Va. at 175, 335 S.E.2d at 267 (holding that "the evidence
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fail[ed] to establish joint exclusive possession"); Moehring, 223
Va. at 568, 290 S.E.2d at 893 (holding that there was no evidence
"from which the court could have inferred that [the] defendant
possessed the truck jointly with [the driver]"); Burgess, 14 Va.
App. at 1023, 421 S.E.2d at 667 (holding that "the evidence
fail[ed] to establish joint exclusive possession"); Nelson, 12
Va. App. at 271, 403 S.E.2d at 386 (holding that the evidence
"[did] not show that [the defendant] ever exercised dominion or
control over the vehicle"). The evidence here, however, was
sufficient to support the conclusion that appellant was
"consciously asserting at least a possessory interest in the
[victim's car]," an act that falls under the legal umbrella of
"exclusive possession." See Best, 222 Va. at 389, 282 S.E.2d at
17; Crews, 3 Va. App. at 537, 352 S.E.2d at 4.
For the foregoing reasons, we affirm the conviction of grand
larceny.
Affirmed.
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Benton, J., dissenting.
I would hold that the evidence was insufficient to trigger
the "larceny inference" because the evidence failed to prove that
Keith Marvelle Taylor had exclusive possession of either the
stolen car or the personal property in the stolen car. Taylor,
who was fourteen years of age when these events occurred, was a
passenger in the stolen car when the police stopped it. The
record contains no information concerning the driver of the
stolen car.
The police officer testified that Taylor explained his
"association with the stolen car" as follows:
[Taylor] stated that he got in the car around
10:45 that morning . . . at his residence.
And, I asked him who was driving the vehicle.
He said some dude, he didn't know his name,
either Mike or Mic or something. . . . They
then drove to an apartment over in San Souci
Apartments. And, that was the gentleman's
other guys residence Mike, Mic, whoever.
And, when they were at that residence the man
told them to keep the car. And Mr. Taylor
and the other gentleman left that residence
at about 11:00 he told me. . . .
[Taylor] said when he left the apartment,
which was about 11:00, the 30 day tags were
already on the vehicle is what he stated to
me. And then he stated it was about 20
minutes later, saw the other officer behind
me, which would be Officer Giles. And, the
items in the vehicle the phone and tapes he
stated he never saw any items.
The trial judge found that Taylor was presumed to be the thief
because Taylor's possession "hasn't been adequately explained."
The majority agrees that nothing in the record indicates
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Taylor exercised dominion over the stolen vehicle. See Moehring
v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893 (1982) (an
accused who accepts a ride from a person who he knows is driving
a stolen car has not exercised dominion or control); Burgess v.
Commonwealth, 14 Va. App. 1018, 1023, 421 S.E.2d 664, 667 (1992)
(the fact that an accused was a passenger in a stolen car does
not prove the accused exercised dominion or control over it).
See also Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d
384, 386 (1991) (an accused's mere presence in a stolen vehicle
is not enough to establish that the accused exercised dominion
and control over the vehicle). Instead, the majority holds that
Taylor's statement to the police explaining his presence in the
car proved a conscious assertion of a possessory interest in the
car. I disagree.
"One can be in exclusive possession of an item . . . [if the
evidence] reveal[s] . . . that the accused was consciously
asserting at least a possessory interest in the stolen property
or was exercising dominion over the stolen property." Best v.
Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981).
However, no evidence proves that Taylor made a conscious
assertion that he had a possessory interest in the car. Taylor
was a passenger in the vehicle. No evidence proved that he ever
drove the vehicle or directed the driver's conduct. Furthermore,
nothing in Taylor's statement indicates that he consciously
asserted any type of interest in the vehicle. He merely
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recounted the statement of the man who originally drove the car
when Taylor first entered it. That statement of another person
proves nothing about Taylor's state of mind. When Taylor
re-entered the car, he was not the driver. He again was riding
as a passenger.
When the Commonwealth's evidence "is wholly circumstantial,
'all necessary circumstances proved must be consistent with guilt
and inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (quoting Inge v. Commonwealth, 217 Va.
360, 366, 228 S.E.2d 563, 567 (1976)). Thus, whenever
"'inferences are relied upon to establish guilt, they must point
to guilt so clearly that any other conclusion would be
inconsistent therewith.'" Moran v. Commonwealth, 4 Va. App. 310,
314, 357 S.E.2d 551, 553 (1987) (quoting Dotson v. Commonwealth,
171 Va. 514, 518, 199 S.E. 471, 473 (1938)). The inferences that
could have been drawn from Taylor's conduct are vastly different
than the inferences that can be drawn from the conduct of one
that attempts to sell a recently stolen item. Compare Moehring,
223 Va. at 568, 290 S.E.2d at 893, with Crews v. Commonwealth, 3
Va. App. 531, 537, 352 S.E.2d 1, 4 (1987). The most that can be
inferred from Taylor's statement is that when he re-entered the
car with the second driver he should have known that the car was
stolen. However, that knowledge is insufficient to prove either
dominion or control. See Moehring, 223 Va. at 568, 290 S.E.2d at
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893. Taylor's knowledge of the driver's conduct does not prove
that Taylor asserted a possessory interest in the car.
I would also hold that the Commonwealth's evidence, apart
from the inference of larceny, was insufficient to prove that
Taylor was the person who stole the car and the personal property
in the car. No direct evidence established either that Taylor
was the individual who stole the car or that he was present when
it was stolen. Instead, the Commonwealth relied upon both
Taylor's presence in the car three hours after it was stolen and
other circumstantial evidence to prove that Taylor was the thief.
However, that evidence does not exclude the reasonable
hypothesis that Taylor entered the car after the theft without
knowledge of events that occurred before he entered the car. See
Reese v. Commonwealth, 230 Va. 172, 174-75, 335 S.E.2d 266, 268
(1985).
Even if we assume that Taylor's statement to the police
officer was untruthful, no evidence justified the inference that
Taylor was present when the car was stolen. The evidence in the
record merely proved that Taylor was a passenger in the car while
it was driven by another person more than three hours after it
was stolen. The most that can be said with reasonable certainty
is that Taylor accepted a ride and was a passenger in a stolen
vehicle. "This conduct does raise a suspicion of guilt.
However, it is not sufficient to establish beyond a reasonable
doubt that the defendant committed grand larceny." Moehring, 223
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Va. at 568, 290 S.E.2d at 893.
Although the Commonwealth's circumstantial evidence raised a
suspicion about Taylor's conduct, it did not exclude the
reasonable hypothesis that Taylor became a passenger in the car
after it was stolen by another person. Cf. Reese, 230 Va. at
174-75, 335 S.E.2d at 268; Burgess, 14 Va. App. at 1023-24, 421
S.E.2d at 667; Nelson, 12 Va. App. at 271, 403 S.E.2d at 386.
"[A] suspicion of guilt, however strong, or even a probability of
guilt, is insufficient to support a criminal conviction." Bishop
v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984);
see Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197
(1981); Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22,
25 (1944).
Therefore, I dissent.
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