COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Elder 

Argued at Richmond, Virginia 

ALVIN B. TURNER 

v. Record No. 2473-94-2 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA JANUARY 23, 1996 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Angela D. Whitley for appellant. 

 Steven A. Witmer, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 Alvin B. Turner was convicted in a bench trial of statutory 

burglary. Turner contends that the evidence was insufficient to 

sustain the conviction. We agree and reverse the conviction. 

 The Commonwealth asserts that the defendant failed to 

properly object to the sufficiency of the evidence as to the 

burglary charge, and is barred from raising this issue on appeal. 

 Rule 5A:18. Defense counsel moved to strike the evidence at the 

conclusion of the Commonwealth's case as to the statutory 

burglary charge, and the trial court overruled the motion. The 

defendant then testified in his own behalf. He did not renew the 

motion to strike at the conclusion of all the evidence. See

McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 424, 

425 (1995) (by presenting evidence a defendant waives the motion 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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to strike the evidence made at the conclusion of the 

Commonwealth's case). However, he did move to set aside the 

guilty verdict as to statutory burglary on the grounds that 

"there's no evidence -- that [Wendy Hankins] gave the check to 

[the defendant] or that he gave the check to her or that he knew 

the other codefendant gave her the check." 

 "A proper motion to set aside a verdict will preserve for 

appeal a sufficiency of the evidence question." Brown v. 

Commonwealth, 8 Va. App. 474, 480, 382 S.E.2d 296, 300 (1989). 

In deciding whether the motion to set aside the verdict was 

proper to preserve the sufficiency issue for appeal, we must 

determine whether the trial court had "opportunity to address the 

issue and prevent unnecessary appeals." Id.; see Rule 5A:18. 

 Here, the defendant, in requesting the court to set aside 

the verdict, argued that "[t]here's no evidence that he knew 

anything about [the stolen check], no evidence that he encouraged 

and abetted or anything else. . . . The evidence is completely 

silent." The trial court responded, "I'm satisfied with the 

decision I made." It is clear from the exchange that the 

defendant was contesting the sufficiency of the evidence to prove 

statutory burglary and was arguing that the evidence failed to 

prove that the defendant possessed or even knew about the check 

or that it was stolen. The trial court considered and rejected 

the defendant's argument. Accordingly, the defendant properly 

preserved the sufficiency of the evidence question for appeal and 
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the trial court clearly considered the issue. 

 In determining whether the evidence is sufficient to sustain 

the defendant's statutory burglary conviction, "we view the 

evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom." Brown, 8 Va. App. at 480-81, 382 S.E.2d at 300. To 

establish a prima facie case of statutory burglary based on 

constructive or actual possession of recently stolen property, 

the Commonwealth must prove (1) that goods were stolen from a 

house that was broken into; (2) that both the breaking and 

entering and the larceny were committed at the same time, by the 

same person, as part of the same criminal enterprise; and (3) 

that the stolen goods were found soon thereafter in the 

possession of the accused. Bright v. Commonwealth, 4 Va. App. 

248, 251, 356 S.E.2d 443, 444 (1987). 

 The evidence showed that the codefendant gave Wendy Hankins 

a check that had been recently stolen in a burglary and he asked 

her to cash it. Hankins endorsed the check, and the defendant 

drove Hankins and the codefendant to a grocery store. After 

cashing the check, Hankins gave the proceeds to the codefendant. 

 The record does not show that the defendant ever handled the 

check, or that the codefendant gave the defendant any of the 

proceeds. The evidence fails to prove that the defendant 

actually or constructively possessed the check. Hankins 

testified that the codefendant gave her the check in a hotel 
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room. It is not clear from Hankins' testimony whether the 

defendant was present at that time. Nevertheless, the defendant 

drove Hankins and the codefendant to the grocery store where 

Hankins cashed the check and he was present when Hankins gave the 

proceeds to the codefendant. However, mere proximity to the 

stolen check is not sufficient to prove that the defendant 

actually or constructively possessed the check. See Nelson v. 

Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384, 386 (1991) 

(holding that presence inside stolen vehicle is not sufficient to 

show that the accused "exercised dominion and control over the 

vehicle"). No evidence proves that the defendant exercised 

dominion or control over the check or that he knew that it had 

been stolen. 

 We hold that the evidence was insufficient to prove that the 

defendant exercised joint control with the codefendant or Hankins 

over the stolen check. See Reese v. Commonwealth, 230 Va. 172, 

175, 335 S.E.2d 266, 268 (1985) (stating that "[t]here must be 

evidence of joint control to justify the inference of joint 

possession"). Accordingly, the Commonwealth failed to establish 

a prima facie case of statutory burglary, and we reverse the 

defendant's conviction and dismiss the charge against him. 

Reversed and dismissed.