COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Richmond, Virginia 

ROBERT LEE FREEMAN 

 MEMORANDUM OPINION* BY 

v. Record No. 0708-01-1 JUDGE RICHARD 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, Appellate Defender (Public 

Defender Commission, on brief), for 

appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney 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 larceny of a vehicle in violation of Code § 18.2-95. On 

appeal, he contends the evidence was insufficient to support the 

conviction. We agree and reverse the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

I. 

 In assessing sufficiency of the evidence on appeal, we view 

the record "'in the light most favorable to the Commonwealth, 
giving it all reasonable inferences fairly deducible therefrom.'" 

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 

(1998) (citation omitted). The credibility of the witnesses, the 

weight accorded testimony, and the inferences drawn from proven 

facts are matters determined by the fact finder. Long v. 

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 

The judgment of the trial court will not be disturbed unless 

plainly wrong or unsupported by the evidence. See Code 

§ 8.01-680. 

 Viewed accordingly, the evidence established that a Dodge van 

belonging to Cynthia Brown was stolen from a Portsmouth street 

between 8:30 p.m. and 10:00 p.m. on October 14, 2000. Police were 

notified and, within an hour, Officer R.G. Suggs observed the van 

drive "past [him] very slowly," "traveling on a flat tire." Suggs 

stopped the vehicle and "ordered . . . all the individuals in the 

vehicle [to] exit." Defendant, the front seat passenger, 

complied, but immediately "began to walk away." Confronted with 

Suggs' "verbal commands to . . . stop," defendant "began running 

down [the] [s]treet," only to be apprehended minutes later. When 

"taken into custody," he protested to police, "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 broken out," with "glass on the floorboard on the 

passenger side" and "a slight amount [of glass] on the passenger's 

seat." "[T]he steering column ignition" had been "popped out" and 

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was resting "on the floorboard on the passenger side of the 

vehicle." 

 Defendant moved to strike the evidence, arguing the 

Commonwealth failed to prove he had "exhibited any kind of 

dominion or control over this car." The trial court overruled the 

motion and convicted defendant of the larceny, resulting in the 

instant appeal. 

II. 

 Challenging the sufficiency of the evidence to support the 

conviction, defendant argues on appeal that "presence and flight" 

do not establish the elements of the offense. The Commonwealth 

counters that "presence and flight," together with "the location 

of the ignition," "the glass," "the recency [sic] of the theft" 

and defendant's comment, "I didn't do anything," proved the 

offense beyond a reasonable doubt. 

 "Larceny is the wrongful taking of the 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 omitted). "Once the crime is established, the 

unexplained possession of recently stolen goods 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 

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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. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 

16, 17 (1981)). 

 "Circumstantial evidence is as competent and entitled to as 

much weight as direct evidence . . . ." Coleman v. Commonwealth, 

226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). However, where "a 

conviction is based on circumstantial evidence, 'all necessary 

circumstances proved must be consistent 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. Commonwealth, 217 

Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Nevertheless, "[t]he 

Commonwealth need only exclude reasonable hypotheses of innocence 

that flow from the evidence, not those 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 question of fact, Cantrell v. 

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 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 

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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 hypothesis that he entered the vehicle, free of 

involvement in the larceny. Thus, while defendant's "conduct does 

raise a suspicion of guilt, . . . it is not sufficient to 

establish beyond a reasonable doubt that [he] committed grand 

larceny." Moehring v. Commonwealth, 223 Va. 564, 568, 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, 403 S.E.2d 384, 386 (1991). 

 The Commonwealth's reliance upon the possession/larceny 

inference is similarly misplaced. The record does not suggest 

defendant, a passenger, exercised any measure of dominion or 

control over the van or otherwise asserted a possessory interest 

in the vehicle. The evidence does not establish that he drove the 

van, directed the driver or was otherwise in custody of the stolen 

property. Neither defendant's flight from the scene nor his 

statement to police, "I didn't do anything," are assertions of a 

possessory interest in the vehicle. Absent such evidence, the 

inference clearly does not pertain. See Reese, 230 Va. at 175, 

335 S.E.2d at 267-68 (holding "evidence of joint control" 

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necessary to convict passenger in stolen vehicle); Moehring, 223 

Va. at 568, 290 S.E.2d at 893 (holding "mere acceptance . . . of a 

ride in a stolen vehicle" by passenger fails to establish 

involvement in initial taking or requisite dominion and control); 

Burgess, 14 Va. App. at 1023, 421 S.E.2d at 667 (holding presence 

in stolen vehicle with knowledge of theft does not establish 

dominion and control necessary to inference); Nelson, 12 Va. App. 

at 270-71, 403 S.E.2d at 386 (holding presence in a stolen vehicle 

does not establish dominion and control). 

 Accordingly, we find the evidence insufficient to support the 

conviction and reverse the trial court. 

 Reversed and dismissed.

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