COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata Argued at Rich mond, Virginia

ROBERT LEE FREEMAN MEMORANDUM OPINION * BY v. Record No. 0708-01-1 JUDGE RICHAR D S. BRAY MAY 7, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge S. Jane Chittom, Ap pellate Defend er (Public Defender Commission, on brief), for appellant. Jennifer R. Frankl in, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Robert Lee Freeman (defendant) was convicted in a bench trial for grand larcen y of a vehicle in violation of Code § 18 .2-95. On appeal, he contends th e evidence was insuffic ient to su pport the conviction. We agree and reverse the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.

I. In assessing su fficiency of the evidence on appeal, we view the record "'in the light most favorable to the Comm onwealth,giving it all reas onable inferences fairly deducible ther efrom.'" Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citation omitte d). The credib ility of the witnesses, the weight accorded testim ony, and the inferences drawn from proven facts are matters determined by th e fact finder. Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). The judgment of the trial court will not be di sturbed unless plainly wrong or unsuppor ted by the evidence. See Code § 8.01-680. Viewed accordingly, the eviden ce established th at a Dodge van belonging to Cynthia Br own was stolen from a Portsmouth street between 8:30 p.m. and 10:00 p.m. on October 14, 2000 . Police were notified and, wi thin an hour, Of ficer R.G. Suggs observed the van drive "past [him ] very slowly," "traveling on a flat tire." Suggs stopped the vehicl e and "ordered . . . all the individu als in the vehicle [to] exit." Defendan t, the front seat passenger, complied, but imme diately "began to walk away." Confronted with Suggs' "verbal commands to . . . stop," defe ndant "began running down [the] [s]treet ," only to be apprehended minutes late r. When "taken into custody," he protested to po lice, "I didn't do anything, I didn't do anything." At the time of the stop, the driver 's window of the van was "completely br oken out," with "glass on the floorboa rd on the passenger side" an d "a slight amount [of gl ass] on the passenger's seat." "[T]he steering column ignition" had been "popped out" and

- 2 -was resting "on the floorboard on the passenge r side of the vehicle." Defendant moved to strike the evid ence, arguing the Commonwealth failed to prove he had "exhibited any kind of dominion or cont rol over this car." The trial court ov erruled the motion and convicted de fendant of the larcen y, resulting in the instant appeal.

II. Challenging th e sufficiency of the evidence to support the conviction, de fendant argues on appeal that "pre sence and flight" do not establish the el ements of the offense. The Commonwealth counters that "p resence and flight ," together with "the location of the ignition," "the glass," "the recency [sic] of the theft" and defendant's co mment, "I didn't do anything," proved the offense beyond a reasonable doubt. "Larceny is the wr ongful taking of th e goods of another without the owner' s consent and with the intention to permanently deprive the owner of possession of the goods." Bright v. Commonwealth , 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987) (citation omitte d). "Once the crime is established, the unexplained poss ession of recently stolen go ods permits an inference of larceny by the possessor." Id. In order for the presumption to arise, the possession must be exclusive, but "[o]ne can be in exclusive possession of an item when he jointly possesses it with another," as long as "the accused was consciously - 3 -asserting at least a possessory interest in the stolen property or was exercising dominion over [it]." Archer v. Commonwealth , 26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997) (quoting Best v. Co mmonwealth , 222 Va. 387, 38 9, 282 S.E.2d 16, 17 (1981)). "Circumstantial evidence is as competen t and entitl ed to as much weight as direct evidence . . . ." Coleman v. Commonwealth , 226 Va. 31, 53, 30 7 S.E.2d 864, 87 6 (1983). Howe ver, where "a conviction is ba sed on circumstantial ev idence, 'all necessary circumstances pr oved must be consis tent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Garland v. Commonwealth , 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Co mmonwealth , 217 Va. 360, 366, 228 S.E. 2d 563, 567 (1 976)). Nevert heless, "[t]he Commonwealth need only exclude re asonable hypothes es of innocence that flow from the evidence, not th ose that spring from the imagination of the defendant." Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonable is a questi on of fact, Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E.2d 32 8, 339 (1988), and a finding by the trial court is binding on appeal unless plainly

wrong. Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Here, unaided by the larceny inference arising from possession of the stolen van, the evidence was clearly

- 4 -insufficient to sustain the conviction. The record does not establish that defendant assisted, abetted or otherwise facilitated the crime, before, during or after the initial taking. His presence in the van, together with the shattered glass, broken ignition and protestation to police, do not exclude the reasonable hypothes is that he entered th e vehicle, free of involvement in the larc eny. Thus, wh ile defendant's "conduct does raise a suspicio n of guilt, . . . it is not sufficient to establish beyo nd a reasonable doubt th at [he] comm itted grand larceny." Moehring v. Commonwealth , 223 Va. 564, 56 8, 290 S.E.2d 891, 893 (1982); see Reese v. Commonwealth , 230 Va. 172, 174-75, 335 S.E.2d 266, 268 (1985); Burgess v. Commonwealth , 14 Va. App. 1018, 1023-24, 421 S.E. 2d 664, 667 (1992); Nelson v. Commonwealth , 12 Va. App. 268, 271, 40 3 S.E.2d 384, 386 (1991). The Commonweal th's reliance upon th e possession /larceny inference is similarly misplaced. Th e record does not suggest defendant, a passenge r, exercised any meas ure of dominion or control over the van or otherwise asse rted a possessory interest in the vehicle. The evidence does not establish th at he drove the van, directed the driver or was otherw ise in custody of the stolen property. Neither de fendant's flig ht from the scene nor his statement to police, "I didn't do an ything," are as sertions of a possessory interest in the vehicle. Absent such evidence, the inference clea rly does not pertain. See Reese , 230 Va. at 175, 335 S.E.2d at 267-68 (holding "evide nce of joint control"

- 5 -necessary to convict passen ger in stolen vehicle); Moehring , 223 Va. at 568, 290 S. E.2d at 893 (hol ding "mere accept ance . . . of a ride in a stolen ve hicle" by pa ssenger fails to establish involvement in initial taking or requ isite dominion and control); Burgess , 14 Va. App. at 10 23, 421 S.E.2d at 667 (holding presence in stolen vehicle wi th knowledge of thef t does not establish dominion and control ne cessary to inference); Nelson , 12 Va. App. at 270-71, 403 S.E. 2d at 386 (holdi ng presence in a stolen vehicle does not establish do minion and control). Accordingly, we find the evidence insuffic ient to su pport the conviction and revers e the trial court. Reversed and dismissed.

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