Present: All the Justices 

CHARLENE MARIE WHITEHEAD 

v. Record No. 080775 OPINION BY JUSTICE DONALD W. LEMONS 

 JUNE 4, 2009*

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the Court of Appeals 

erred in affirming the multiple convictions of Charlene Marie 

Whitehead (“Whitehead”) for receiving stolen property and the 

revocation of Whitehead’s prior suspended sentences on 

unrelated offenses based in part upon the convictions at issue 

in this appeal. 

I. Facts and Proceedings Below 

 On December 22, 2005, police officers from the City of 

Danville entered an apartment in Danville with warrants to 

arrest Whitehead and Jamil A. Walden (“Walden”), the father of 

Whitehead’s child. The officers had also received a tip from 

an informant indicating that property stolen from numerous 

motor vehicles was being kept in the apartment. After forcing 

entry into the apartment, the officers arrested Whitehead and 

Walden. Upon entry, they observed a variety of computer 

equipment, cellular telephones, and compact discs in plain 

view around the apartment, and discovered numerous bags 

 *

 Revised October 22, 2009. 
containing miscellaneous other personal property in a closet 

and in dresser drawers. 

 Five days after her arrest, Whitehead gave police a 

signed statement, in which she described the thefts committed 

by Walden. Whitehead said she knew Walden was breaking into 

cars, stealing property, and bringing it back to the 

apartment, and that Walden “was stealing to try and support me 

and our daughter.” The statement also listed some of the 

stolen items, with comments from Whitehead as to their 

ownership or origins, and Whitehead’s admission that Walden 

was helping pay the rent and bills at the house. 

I knew that Jamil stealing was wrong. I used to 

fuss and yell at Jamil about stealing and 

bringing the stuff in the house, but it seemed 

like the only way we could get by. My only 

concern is taking care of and being with my 

daughter, and that’s the only reason I allowed 

this to go on in my house. I was scared that 

social services would take my child if I could 

not keep a roof over her head. 

 While the rental agreement for the apartment listed both 

Whitehead and Walden as co-tenants, Walden’s was the only 

signature on the agreement. Mack R. Eatmon, Sr., the 

“maintenance man” for the apartment complex, confirmed that 

Whitehead resided at the apartment, was present there “mostly 

everyday” or “off and on everyday,” and that on one or two 

occasions he had collected rent payments for the apartment 

from Whitehead. 

2
 At trial in the Circuit Court for the City of Danville, 

Whitehead recanted the substance of her statement, claiming 

she did not know Walden was “breaking into cars,” and that all 

she knew was that Walden “use to come back [to the apartment] 

with a bunch of stuff. Sometimes he come back with money.” 

However, on cross-examination, Whitehead conceded she knew 

that the items Walden brought back to the apartment did not 

belong to him. Walden, who pled guilty to the thefts and 

testified on Whitehead’s behalf, claimed she was not involved 

in the thefts and that he never gave her any of the stolen 

items. However, Whitehead did stipulate that these items were 

all stolen from various owners’ vehicles and had been 

identified by their respective owners when the items were 

claimed at the police station. 

 The trial court “merged” Whitehead’s 40 indictments into 

32 counts of receiving stolen property,1 and convicted her on 

each of the 32 counts. At a later sentencing hearing, 

Whitehead was sentenced under the first six counts to five 

years’ imprisonment with four years suspended on each count, 

for a total of 30 years’ imprisonment with 24 years suspended, 

and the trial court withheld sentencing on the other 26 counts 

conditioned on 25 years of good behavior. 

 1

 The trial court combined several of the indictments for 

thefts that were part of the same transaction. 

3
 On the same day as her sentencing hearing, Whitehead 

appeared before a different judge of the Danville Circuit 

Court, who was asked by the Commonwealth to revoke the 

suspension of Whitehead’s prior sentences for previous 

convictions of receiving stolen property.2 Whitehead pled 

guilty to violating her probation, and the court received 

evidence of her new convictions and heard evidence of other 

probation violations, including the failure to maintain 

contact with her probation officer and the failure to make 

restitution for her prior offenses. The trial court revoked 

its prior suspension, and sentenced her to 17 years, 4 months 

of imprisonment with 12 years, 4 months suspended, for a total 

of 5 years in addition to her sentences on her new 

convictions. 

 The Court of Appeals affirmed both the new convictions 

and the revocation order in an unpublished opinion. Whitehead 

v. Commonwealth, Record No. 1699-06-3 (Mar. 25, 2008). Citing 

Whitehead’s statement to police, her testimony at trial, and 

the affidavits of the theft victims, the Court of Appeals held 

that the evidence was sufficient to support the trial court’s 

 2

 Whitehead had previously been convicted of receiving 

stolen property under 13 indictments, and on May 9, 2005 had 

been sentenced on those convictions to a total of 18 years’ 

imprisonment, with all 18 years suspended. The suspension was 

conditioned on Whitehead’s completion of three years of 

probation, payment of restitution, and maintenance of good 

behavior for five years. 

4
finding that Whitehead received the stolen property. Id., 

slip op. at 5. Additionally, the Court of Appeals held that 

the evidence of the stolen items found in the apartment and 

Whitehead’s admission that she knew the items did not belong 

to Walden supported the conclusion that “a rational trier of 

fact could conclude that [Whitehead] either received stolen 

property from Walden or aided in concealing property he 

stole.” Id. Finally, because Whitehead conceded the 

propriety of the trial court’s revocation assuming her new 

convictions were affirmed, the Court of Appeals also affirmed 

the revocation order. Id., slip op. at 6. 

We awarded Whitehead an appeal, limited to the following 

three assignments of error: 

1. The Court of Appeals erred in ruling the trial court 

was not clearly erroneous in finding the evidence 

sufficient to prove Whitehead received the stolen 

property. 

2. The Court of Appeals erred in ruling the trial court 

was not clearly erroneous in finding the evidence 

sufficient to prove Whitehead aided in concealing 

stolen property. 

3. The Court of Appeals erred in ruling the trial court 

did not abuse its discretion in finding reasonable 

cause to violate. 

II. Analysis 

A. Receipt of Stolen Property 

5
 Whitehead first contends that the evidence introduced by 

the Commonwealth at trial was insufficient to convict her of 

receiving stolen property. 

When analyzing a challenge to the sufficiency 

of the evidence, this Court reviews the 

evidence in the light most favorable to the 

prevailing party at trial and considers any 

reasonable inferences from the facts proved. 

The judgment of the trial court will only be 

reversed upon a showing that it “is plainly 

wrong or without evidence to support it.” 

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 

(2006) (quoting Code § 8.01-680) (citation omitted). 

 Whitehead was found guilty of 32 counts of violating Code 

§ 18.2-108, which at the time of Whitehead’s convictions3

stated: “If any person buy or receive from another person 

. . . any stolen goods or other thing, knowing the same to 

have been stolen, he shall be deemed guilty of larceny 

thereof, and may be proceeded against, although the principal 

offender be not convicted.” Code § 18.2-108 (2004). This 

Court has previously established that to prove this offense by 

showing receipt, the Commonwealth must demonstrate that the 

property was “previously stolen by some person other than the 

accused; that the accused received the [property] from such 

other person; that at the time he received [the property] he 

 3

 Whitehead was convicted at a hearing on May 24, 2006. 

Subsequent amendments to Code § 18.2-108 in 2008 made 

additions and alterations not relevant to this appeal. See

2008 Acts ch. 578. 

6
knew [it] had been stolen; and that he received [it] with 

dishonest intent.” Reaves v. Commonwealth, 192 Va. 443, 449, 

65 S.E.2d 559, 563 (1951). Whitehead does not challenge the 

Commonwealth’s proof that the property was stolen, but assigns 

error to the trial court’s holding that the evidence was 

sufficient to prove she received the stolen property or aided 

in its concealment. 

The Commonwealth has never contended that Whitehead was 

involved in the actual theft of items from the various 

vehicles, or that she physically received the stolen items 

from Walden. Instead, the Commonwealth premised its argument 

as to receipt upon a concept of “constructive receipt,” 

because Whitehead received benefits flowing from the sale of 

the stolen goods. In her statement to police, Whitehead 

conceded that Walden was “stealing to try to support me and 

our daughter,” and that Walden “was helping pay the rent and 

bills at the house” with money he obtained by selling the 

property he had stolen. Based on this evidence, the 

Commonwealth argued, 

this is a case in reference not to her actually 

stealing the items but receiving those items as 

Mr. Walden was bringing them back to the 

apartment and then not only allowing it to go 

on, but I guess getting fruit in reference to 

that, having her bills paid as toward whatever 

items was stolen and they could get any money 

for it. 

7
 On appeal, the Court of Appeals accepted this 

proposition, noting that Whitehead admitted that “the proceeds 

of the thefts were used to support her and the couple’s 

child.” Whitehead, Record No. 1699-06-3, slip op. at 5. 

Based on this admission, the Court of Appeals concluded that 

“[t]he trial court had sufficient information to find 

[Whitehead] knew that the items she received from Walden were 

stolen.” Id. (emphasis added). 

 On appeal before this Court, the Commonwealth maintains 

that Whitehead’s acceptance of the proceeds of the thefts 

committed by Walden constituted receipt for the purposes of 

Code § 18.2-108. In support of this theory of constructive 

receipt, the Commonwealth cites People ex rel. Briggs v. 

Hanley, 123 N.E. 663, 664 (N.Y. 1919), in which the Court of 

Appeals of New York sustained a conviction for receiving 

stolen property when the defendant accepted loan proceeds she 

knew her boyfriend had obtained using stolen stock 

certificates as collateral. 

 However, we have never recognized this manner of receipt 

for the purposes of this offense in our decisions. 

Furthermore, such a manner of receipt does not fall within the 

plain meaning of Code § 18.2-108. On this point, the 

distinction between the Virginia statute and the New York 

statute is significant. While the version of Virginia Code 

8
§ 18.2-108 in effect at the time of the alleged offenses made 

it a crime to “buy or receive from another person . . . any 

stolen goods or other thing,” the relevant New York statute 

addresses “Criminal possession of stolen property,” and 

provides that a person commits that offense “when he knowingly 

possesses stolen property, with intent to benefit himself or a 

person other than an owner thereof.” N.Y. Penal Law § 165.40 

(Consol. 2009) (emphasis added).4 The “benefit” element of the 

New York statute is not a part of the Virginia statute. The 

Court of Appeals was plainly wrong in holding that Whitehead 

“received” the property merely because she benefited from the 

proceeds of its sale. 

In addition to its reliance on Whitehead’s “constructive 

receipt” of benefits, the Commonwealth argues, for the first 

time on appeal, that Whitehead received the stolen property 

itself under the doctrine of constructive possession. With 

regard to the receipt element of the offense of receiving 

stolen property, we have established that “[w]hile reception 

of the stolen goods by the accused must be substantially 

proven, actual physical handling by [her] is not necessary. 

It is well settled that constructive possession is 

 4

 The language of the New York statute applied in People 

ex rel. Briggs is different from that featured in current N.Y. 

Penal Law § 165.40. See 123 N.E. at 664 (quoting former N.Y. 

Penal Law § 1308). However, the legislative history notes to 

N.Y. Penal Law § 165.40 state that the substance of that 

statute is derived in part from former N.Y. Penal Law § 1308. 

9
sufficient.” Longman v. Commonwealth, 167 Va. 461, 465, 188 

S.E. 144, 145 (1936). To establish constructive possession, 

the Commonwealth is required to “present evidence of acts, 

statements, or conduct by the defendant or other facts and 

circumstances proving that the defendant was aware of the 

presence and character of the [property] and that the 

[property] was subject to [her] dominion and control." Bolden 

v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). 

However, whether Whitehead received the stolen property 

here by constructively possessing it is not properly before 

us, because the Commonwealth makes this argument for the first 

time on appeal. It is true that “[w]e do not hesitate, in a 

proper case, where the correct conclusion has been reached but 

the wrong reason given, to sustain the result and assign the 

right ground.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 

280, 283 (1963). However, cases in which the party seeking 

affirmance failed to present the argument in the trial court, 

such that the trial court did not have an opportunity to rule 

on the argument, are not “proper cases” for the application of 

the doctrine. Id. This principle applies in criminal as well 

as civil cases. Brown v. Commonwealth, 270 Va. 414, 421 n.2, 

620 S.E.2d 760, 764 n.2 (2005). Here, the Commonwealth did 

not argue constructive possession in the trial court or before 

10
the Court of Appeals. Consequently, we will not consider the 

Commonwealth’s constructive possession argument here. 

B. Concealment of Stolen Property 

 Whitehead next argues that the Court of Appeals erred in 

holding that the evidence was sufficient to convict her based 

upon aiding in the concealment of the stolen property. After 

reviewing the trial record, the Court of Appeals held that in 

addition to proving Whitehead’s receipt of the property, the 

evidence introduced at trial “further supports the trial 

court’s finding of guilt” because it demonstrated that 

Whitehead, “who lived in an apartment filled with items she 

knew did not belong to Walden, was helping to conceal property 

that she knew was stolen.” Whitehead, Record No. 1699-06-3, 

slip op. at 5. 

 Proving that a defendant helped to conceal stolen 

property is an alternate means of establishing guilt under 

Code § 18.2-108. To prove the offense by this method, the 

Commonwealth must show beyond a reasonable doubt that (1) the 

property was previously stolen and (2) the defendant aided in 

concealing it (3) with knowledge that it was stolen and (4) 

with a dishonest intent. Starks v. Commonwealth, 225 Va. 48, 

54, 301 S.E.2d 152, 156 (1983). 

 However, the record reveals that the Commonwealth failed 

to make any argument as to concealment at trial or before the 

11
Court of Appeals. The first appearance of the concealment 

theory in the record is in the opinion of the Court of 

Appeals. Because this argument was not made at trial, the 

Court of Appeals erred when it held that the evidence provided 

this additional rationale to support Whitehead’s convictions. 

Brown, 270 Va. at 421 n.2, 620 S.E.2d at 764 n.2, Eason, 204 

Va. at 352, 131 S.E.2d at 283; see also Commonwealth v. 

Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999) (Court 

of Appeals may not “recast” the evidence to support an 

argument not made at trial). 

 The Court of Appeals has previously observed that: 

An appellate court may affirm the judgment of a 

trial court when it has reached the right 

result for the wrong reason. However, 

[t]he rule does not always 

apply. . . . [T]he proper 

application of this rule does not 

include those cases where, because 

the trial court has rejected the 

right reason or confined its decision 

to a specific ground, further factual 

resolution is needed before the right 

reason may be assigned to support the 

trial court's decision. 

Harris v. Commonwealth, 39 Va. App. 670, 675-676, 576 S.E.2d 

228, 231 (2003), Blackman v. Commonwealth, 45 Va. App. 633, 

642-643, 613 S.E.2d 460, 465 (2005) (“an appellee may argue 

for the first time on appeal any legal ground in support of a 

judgment so long as it does not require new factual 

12
determinations.”) We agree with these holdings by the Court 

of Appeals. 

 In this case, the offense of receiving stolen property 

may be proven in a number of different ways. However, the 

proof requirements of each method are different. A conviction 

based upon actual possession or constructive possession or 

aiding in concealment is predicated upon presentation of 

different facts that support the elements of the offense 

according to the method of proof selected by the Commonwealth. 

The method of proof selected by the Commonwealth in this case 

was a theory of “constructive receipt” based upon benefit 

received – in this case, the proceeds from Walden’s sale of 

the stolen property. Such a method of proof is not available 

under Code § 18.2-108. No other method of proof was the 

subject of argument or presentation of evidence at trial. 

Both the constructive possession and concealment methods 

of proof require presentation of facts that would not be 

necessary under other methods of proof supporting conviction 

for receipt of stolen property. The Commonwealth clearly 

articulated its case for prosecuting Whitehead – constructive 

receipt. Because the Commonwealth limited its method of proof 

at trial, Whitehead was not on notice to present evidence to 

rebut any other method of proof possible. The Constitution of 

Virginia provides in pertinent part: “in criminal prosecutions 

13
a man hath a right to demand the cause and nature of his 

accusation, to be confronted with the accusers and witnesses, 

and to call for evidence in his favor.” VA. CONST. art. I, 

§ 8. To allow the Commonwealth to advance alternative methods 

of proof and conviction never argued in the trial court and 

requiring different elements of proof for the first time on 

appeal would deny Whitehead these rights. 

 Because the evidence was insufficient to support 

Whitehead’s convictions under Code § 18.2-108, we will reverse 

the judgment of the Court of Appeals affirming her 

convictions. 

C. Revocation of Suspended Sentence 

 Finally, Whitehead challenges the trial court’s 

revocation of her suspended sentence for prior convictions of 

receiving stolen property, arguing that the trial court based 

its revocation upon the new convictions at issue in this 

appeal. The Commonwealth responds by asserting that even 

without the new convictions, Whitehead was guilty of other 

probation violations that provided the trial court with 

sufficient grounds for revocation. The Court of Appeals, 

noting that Whitehead conceded the propriety of the revocation 

should the new convictions be held valid, affirmed the 

revocation order based on its affirmance of the convictions. 

Whitehead, Record No. 1699-06-3, slip op. at 6. 

14
 A trial court’s discretion to revoke the suspension of a 

previously imposed sentence is governed by Code § 19.2-306, 

which grants a trial court the authority to “revoke the 

suspension of sentence for any cause the court deems 

sufficient that occurred at any time within the probation 

period, or within the period of suspension fixed by the 

court.” However, we have noted that 

[t]he cause deemed by the court to be sufficient 

for revoking a suspension must be a reasonable 

cause. The sufficiency of the evidence to 

sustain an order of revocation is a matter 

within the sound discretion of the trial court. 

Its finding of fact and judgment thereon are 

reversible only upon a clear showing of abuse of 

such discretion. The discretion required is a 

judicial discretion, the exercise of which 

implies conscientious judgment, not arbitrary 

action. 

Hamilton v. Commonwealth, 217 Va. 325, 327, 228 S.E.2d 555, 

556 (1976) (citation and quotation marks omitted). 

 Here, the record indicates that the trial court placed 

significant weight upon Whitehead’s new convictions in the 

revocation of the suspension of her prior sentences. At the 

revocation hearing, the trial court stated, “I mean I fell all 

over myself giving you a break a year and a-half ago or a year 

ago, and you just started up within two months. I mean I’m 

not personally offended. It doesn’t surprise me that people 

do that, but you’ve done this to yourself and I’m sorry.” It 

is clear that Whitehead’s new convictions played a substantial 

15
role in the trial court’s decision to revoke her suspended 

sentences and impose additional incarceration. 

 It is true, as the Commonwealth contends, that the trial 

court had before it evidence of other probation violations by 

Whitehead, including failing to make restitution for the 

earlier thefts and failing to maintain contact with her 

probation officer. However, because we have reversed her new 

convictions, and because those convictions were obviously 

influential at her revocation hearing, she is entitled to a 

new hearing. 

III. Conclusion 

We hold that the Court of Appeals erred in affirming 

Whitehead’s convictions and consequently erred in affirming 

the trial court’s order of revocation of her probation. 

Accordingly, we will reverse the judgment of the Court of 

Appeals as to the 32 convictions for receiving stolen property 

and dismiss the indictments. With regard to the revocation of 

previously suspended sentences, we will reverse the judgment 

of the Court of Appeals and the trial court and remand to the 

Court of Appeals with instructions to remand the matter to the 

trial court for a new revocation hearing. 

 Reversed and final judgment

in part, and remanded in part. 

16