COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner 

Argued at Salem, Virginia 

RICHARD IRVIN HUDDLESTON 

 MEMORANDUM OPINION* BY 

v. Record No. 2335-98-3 JUDGE SAM W. COLEMAN III 

 OCTOBER 19, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 Wayne D. Inge for appellant. 

Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

Richard Huddleston was convicted in a bench trial of petit 

larceny in violation of Code § 18.2-96. On appeal, Huddleston 

argues the evidence is insufficient to prove he intended to 

permanently deprive the owner of his property. We agree and 

reverse the conviction. 

BACKGROUND

 Huddleston borrowed a drill from Martin Newton to make 

repairs on a trailer for a mutual friend. Newton told 

Huddleston to return the drill the next morning. Several days 

later when Huddleston had not returned the drill, Newton called 

him. Huddleston told Newton that he would return the drill, and 
Newton told him to return it "as soon as you can." Huddleston 

still did not return the drill, so Newton spoke with him again 

and told Huddleston to return it by a certain day or he would 

get a warrant. Huddleston again assured Newton that he would 

return the drill, but again Huddleston failed to do so. When 

Newton last talked with Huddleston demanding that the drill be 

returned, work on the trailer had not begun. 

 Newton reported the incident to the sheriff's office. An 

investigator went to Huddleston the next day and advised him 

that Newton had reported the drill stolen. Huddleston admitted 

that he had the drill and when told by the investigator to 

return it, Huddleston said he would. When Huddleston did not 

return the drill within four days, the investigator obtained a 

grand larceny warrant for Huddleston. Before Huddleston was 

arrested on the warrant, Huddleston's employer contacted Newton 

to determine his willingness to accept payment for the missing 

drill. As a result, Huddleston borrowed $100 from his employer 

which he paid to Newton for the drill, and which Newton accepted 

in satisfaction of the missing drill. Thereafter, Newton called 

the sheriff's office and requested that the warrant be 

"withdrawn." He was told that could not be done. Huddleston 

was arrested on the warrant. 

 At trial, Huddleston testified that the drill had been 

stolen from his truck either the day before or the same day the 

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investigator had talked with him. Huddleston had not reported 

the drill stolen. 

ANALYSIS

Huddleston denies that he intended permanently to deprive 

Newton of his property, and he argues that the circumstances do 

not support an inference that he so intended. He contends the 

evidence fails to establish he had a larcenous intent and at 

most establishes a civil claim against him for failing and being 

unable to return bailed property. We agree. 

 On review of a challenge to the sufficiency of the evidence, 

we view the evidence in the light most favorable to the 

Commonwealth and grant to it all reasonable inferences fairly 

deducible therefrom. See Commonwealth v. Jenkins, 255 Va. 516, 

521, 499 S.E.2d 263, 265 (1998). "The credibility of the 

witnesses and the weight accorded the evidence are matters solely 

for the fact finder who has the opportunity to see and hear that 

evidence as it is presented." Sandoval v. Commonwealth, 20 Va. 

App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted). 

The trial court's ruling will not be disturbed on appeal "unless 

plainly wrong or without evidence to support it." Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 Where the evidence "'is equally susceptible of two 

interpretations one of which is consistent with the innocence of 

the accused, [the trier of fact] cannot arbitrarily adopt that 

interpretation which incriminates [the accused].'" Harrell v. 

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Commonwealth, 11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990) 

(quoting Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 

251, 253 (1969)). Furthermore, when a conviction is based on 

circumstantial evidence, the evidence "must be consistent with 

guilt and inconsistent with innocence and must exclude every 

reasonable hypothesis of innocence." Bishop v. Commonwealth, 227 

Va. 164, 169, 313 S.E.2d 390, 393 (1984). Although the 

Commonwealth is not required to disprove every remote possibility 

of innocence, it must disprove those theories of innocence that 

"flow from the evidence itself." Black v. Commonwealth, 222 Va. 

838, 841, 284 S.E.2d 608, 609 (1981) (citation omitted). 

 "To prove that a defendant is guilty of larceny, the 

Commonwealth must present evidence that the defendant took the 

property with the intention to deprive the owner permanently of 

his possession of the goods." Welch v. Commonwealth, 15 Va. App. 

518, 524, 425 S.E.2d 101, 105 (1992). "Intent may, and most often 

must, be proven by circumstantial evidence and the reasonable 

inferences to be drawn from proven facts are within the province 

of the trier of fact." Fleming v. Commonwealth, 13 Va. App. 349, 

353, 412 S.E.2d 180, 183 (1991). Where the larceny is based upon 

the failure to return or account for bailed property, failure to 

perform the duty to return the property or the "'refusal to 

account or pay over on demand constitutes embezzlement, or is, at 

least, evidence from which a fraudulent conversion may be 

inferred.'" Stegall v. Commonwealth, 208 Va. 719, 721-22, 160 

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S.E.2d 566, 568 (1968) (quoting 29A C.J.S. Embezzlement § 11, at 

27-28). 

 Two cases are instructive on the principle controlling this 

case. Although both cases deal with statutory embezzlement 

charges, rather than larceny, the crucial issue in both cases is 

whether the element of failing to return bailed property, and the 

surrounding circumstances, constitutes sufficient circumstantial 

evidence to prove a larcenous intent or fraudulent conversion, 

which is the same issue before us here. In Stegall, supra, the 

defendant rented an automobile through a written agreement from a 

Virginia agency wherein he agreed to return the automobile two 

days later. Stegall did not return the vehicle. It was later 

found abandoned in Nashville, Tennessee. Stegall was arrested 

approximately seven months later in Michigan. At trial his 

explanation was that he had rented the car in Lynchburg for his 

employer, who had provided the rental deposit. After going to 

their hotel room, Stegall and his employer went to a Roanoke 

restaurant for dinner. The employer took the car for "a few 

minutes," and when he did not return in a reasonable time, Stegall 

hitchhiked back to Lynchburg. When the employer had not returned 

the next morning, Stegall testified that he checked out of the 

hotel and left the state and that he had not seen the employer 

since. 

 In holding that the failure to return the vehicle, "coupled 

with the surrounding circumstances," constituted sufficient 

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evidence for the fact finder to conclude that Stegall had formed 

an intent to wrongfully convert the automobile to his own use, the 

Court held that Stegall's explanation of why he did not return the 

vehicle was not plausible and a reasonable man could not be 

expected to believe it. See id. at 723, 160 S.E.2d at 569. The 

Court noted that 

[o]rdinarily, uncontradicted evidence should 

be accepted as true and cannot be wholly 

discredited or disregarded if not opposed to 

probabilities, even though the witness is an 

interested party. Uncontradicted evidence 

is not, however, necessarily binding on the 

court or the jury. It may be disbelieved 

where it is inherently improbable, 

inconsistent with circumstances in evidence, 

or somewhat contradictory in itself, 

especially where the witness is a party or 

is interested. Neither courts nor juries 

are required to believe that which they know 

from ordinary experience is incredible. 

Id. at 722, 160 S.E.2d at 568 (citations omitted). 

Because the trial judge was entitled to disregard Stegall's 

account of what occurred "as inherently improbable" and because 

his failure to return the vehicle, "when coupled with the 

surrounding circumstances," supports the inference that Stegall 

intended to permanently deprive the owner of possession of the 

vehicle, the evidence was sufficient to prove the specific 

intent as an element of the offense. 

 In Molash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868 

(1986), we held that the defendants' failure to return bailed 

property, under the surrounding circumstances of that case, 

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failed to prove that the defendants intended permanently to 

deprive the owners of the possession of their vehicle. In 

Molash, the explanation of why the bailed vehicle was not 

returned was uncontradicted, was not inherently incredible, was 

not internally inconsistent, and proved that the intent was not 

criminal. 

 The Molashes were long distance truck drivers who were 

employed on occasion by the Markhams to haul freight. No 

written contract of employment existed and apparently no term of 

employment was stated. At the Markhams' direction, the Molashes 

were to drive one of the Markhams' tractors to haul a trailer of 

freight owned by B & L Truck Lines, Inc. from Covington, 

Virginia to Chicago and then to pick up a return load of 

freight. When the Molashes arrived in Chicago, no return load 

was waiting. The Molashes called B & L's agent who gave them a 

telephone number to call in order to obtain a return shipment, 

which they did. They were able to secure another load to be 

returned to North Carolina. On the return trip, the Molashes 

visited a relative in Kentucky for Thanksgiving. While there, 

they decided to quit the job. According to the uncontradicted 

testimony, the Molashes called an agent for B & L Trucking to 

report that they had quit and to report the exact separate 

locations of the tractor and trailer. At trial, the agent of 

B & L testified and he did not refute that testimony. Mrs. 

Markham testified, however, that in a telephone conversation 

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with Mr. Molash, he told her that he didn't know where the 

tractor and trailer were located. 

 In finding the evidence insufficient in Molash to prove a 

fraudulent intent or intent to permanently deprive the owners of 

possession of their property, despite the testimony of Mrs. 

Markham, we held the uncontradicted material evidence of the 

Molashes was not implausible or inherently incredible and could 

not be disregarded. See id. at 248, 348 S.E.2d at 871. The 

uncontradicted material evidence proved that after the Molashes 

quit as truck drivers, they informed B & L Trucking's agent of 

the location of the tractor and trailer. Therefore, that 

evidence disproved that the Molashes intended to deprive the 

owners of possession of their property. Thus, the 

Commonwealth's evidence failed to exclude every reasonable 

hypothesis of innocence. In reaching that result in Molash, we 

reiterated and applied the principle from Stegall that 

"[o]rdinarily, uncontradicted evidence 

should be accepted as true and cannot be 

wholly discredited or disregarded if not 

opposed to probabilities, even though the 

witness is an interested party. . . . It 

may be disbelieved where it is inherently 

improbable, inconsistent with circumstances 

in evidence, or somewhat contradictory in 

itself, especially where the witness is a 

party." 

Id. at 247, 348 S.E.2d at 871 (quoting Stegall, 208 Va. at 722, 

160 S.E.2d at 568). 

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 Here, viewing the evidence in the light most favorable to 

the Commonwealth, it proved that Huddleston borrowed the drill 

from Newton in order to do repairs on a mutual friend's trailer. 

No circumstances exist that would support an inference that at 

the time Huddleston borrowed the drill he intended not to return 

it or to permanently deprive Newton of his lawful possession of 

the drill. When Newton demanded return of the drill, Huddleston 

never denied that he had the drill and repeatedly promised to 

return it. When contacted by the sheriff, Huddleston 

acknowledged that he had Newton's drill and again promised to 

return it. When confronted with a criminal warrant, Huddleston 

acknowledged that he had had Newton's drill, but stated that it 

apparently had been stolen from his truck and he was unable to 

return it. Huddleston never denied that he had the drill or 

that he was required to return or account for it to Newton. 

Huddleston arranged to borrow money from his employer and paid 

Newton $100 for the drill. Newton accepted the money in 

satisfaction of the drill and asked that the warrant be 

withdrawn. 

 The uncontradicted credible evidence of the Commonwealth in 

this case is as equally compelling as the evidence in Molash in 

establishing the lack of a fraudulent or criminal intent. The 

evidence shows that Huddleston borrowed Newton's drill; at all 

times Huddleston acknowledged that Newton was entitled to 

possession and that he intended to return it to Newton; and when 

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Huddleston was unable to do so, he accounted for the drill by 

paying Newton for it. Although Huddleston apparently did not 

tell the officers that the drill had been stolen or was missing 

from his truck, Huddleston's testimony that he was unable to 

return the drill because it was stolen or missing was 

uncontradicted, it was not inherently incredible or internally 

inconsistent, and could not be disbelieved. Accordingly, 

because the Commonwealth's evidence did not exclude every 

reasonable hypothesis of innocence, the evidence is insufficient 

to support the conviction. Thus, we reverse the conviction and 

dismiss the indictment. 

 Reversed and dismissed.

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