COURT OF APPEALS OF VIRGINIA
Present: Judges Humphr eys, Beales and O’Brien Argued at Norfolk, Virginia

KENYATTA FE RRELL JONES MEMORANDUM OPINION * BY v. Record No. 0351-16-1 J UDGE RANDOLPH A. BEALES FEBRUARY 14, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Everett A. Mar tin, Jr., Judge Joseph W. Myers (Myers & My ers, on brief), for appellant. Aaron J. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Kenyatta Ferrell Jones (“appell ant”) was convicted in a bench trial of receiving stolen property in violation of Code § 18.2-108. On ap peal, appellant argues th at the evidence presented by the Commonwealth failed to establish that he know ingly received stolen property – and failed to show that he had a “dishonest in tent” when driving the vehicle. For the reasons that follow, we disagree and affirm his conviction.
I. B ACKGROUND We consider the evidence on appeal “in the light most favorable to the Commonwealth as we must since it was the prevailing party” in the trial court. Beasle y v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Comm onwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence at trial showed that on November 20, 2014, Fernando Morales (“Morales”) parked his vehicle (a 1999 Nissan Se ntra) in a parking lot while he was working.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - He left his car in the parking lot between 1:00 p. m. and 3:30 p.m. When he returned to get his car around 3:30 p.m., he found that his car and hi s keys to the car were missing. Morales’s mother called the police to inform them that the car was stolen because she was the titled owner. After she reported the theft of th e vehicle, Officers Peyton Wosk (“Wosk”) and Robert Anderson (“Anderson”) of the Norfolk Police Department received a “be on the lookout” warning for the vehicle that afternoon. The o fficers went to the Lexington Pa rk neighborhood because it was known to them as a “dumping ground” for stolen cars. Around 5:40 p.m. (about two hours after they received the “be on the lookou t” warning), the officers observed a vehicle backing out of a parking spot and beginning to travel through the parking lot where the officers were driving. The officers confirmed that the vehicle descriptio n and license plate matched that of the stolen vehicle. As they watched the vehicle, they observed the driver park the vehicle in another parking spot in front of a group of people. O fficer Wosk testified, “[T]here was a group of individuals on the sidewalk that appeared to be waiting for this vehicle to show up. As this vehicle showed up, an individual from the side walk actually ran up and jumped onto the hood of the car kind of laughing and joking around.” As the officers pulled up behind the driver’s side of the car, the individual on the hood ran away. Th e passenger in the vehicle also fled. He was later identified as Mike Clemons (“Clemons”). The driver then attempted to flee as well although he fell and was apprehende d. The officers identified appe llant as the driver of the vehicle. Officer Wosk testified that the vehi cle’s ignition switch wa s not damaged although the keys to the vehicle were not recovered. Appellant, who had previously been convicted of two misd emeanors involving crimes of moral turpitude, testified at tr ial. He testified that, on November 20, 2014, Clemons told him, “he had a fiend whip for the day,” which he sa id meant “a car you can rent out without having a driver’s license or anything like that.” When asked further about how to rent a “fiend whip,”- 3 - appellant testified, “Money, drugs, any type of way.” Appellant testified that Clemons came to his apartment with the “fiend whip” and told appe llant that Clemons could not drive because he did not have a valid driver’s lic ense. Appellant – who did have a valid driver’s license at the time – testified that he agreed to drive the vehi cle for Clemons. Appellant testified that Clemons handed him the key and that appellant drove “deepe r into the parking lot.” Appellant testified that once the car was parked, the police drove up behind the car and Clemons said, “Oh, shit,” took the key, jumped out of the vehicle, and ran. Appellant testified that he then decided to run away because he “knew something wasn’t right when [Clemons] took the key out of the ignition and ran.” Clemons did not testify at trial because he was by then deceased. However, before he died, Clemons had actually been subpoenaed to c ourt for a hearing in this case but had failed to
appear. The trial judge expressed his disbelief about appellant’s story that the reason he was driving the vehicle was because Clemons did not ha ve a current driver’s license. The trial judge said, “It does seem somewhat unusual that someon e [who] says he’s in possession of a fiend car and then disobeys the command of th e Court to appear for trial, is so squeamish that he doesn’t want to drive it because he doesn’t have a driver’s license. Seems peculiar.”
II. A NALYSIS A. Standard of Review When considering the sufficie ncy of the evidence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the tr ial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth , 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in origin al). “Viewing the evidence in the light most favorabl e to the Commonwealth, as we must since it was the prevailing party in the- 4 - trial court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must in stead ask whether ‘ any rational trier of fact could have found the essential elem ents of the crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc )) (emphasis in original). “This familiar standard gives full play to the resp onsibility of the trier of fa ct fairly to resolve conf licts in the testimony, to weigh the evidence, and to draw reasonable inferen ces from basic facts to ul timate facts.” Jackson, 443 U.S. at 319. Any issues of statutory interpretation are reviewed de novo

. B. Offense of Rece iving Stolen Property Code § 18.2-108(A) reads, “If any person buys or receives from another person, or aids in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be pr oceeded against, although the principal offender is not convicted.” As the Supreme Cour t said in Covil v. Commonwealth, 268 Va. 692, 604 S.E.2d 79 (2004), “We have therefore long held that a person indicted for simple larceny may be tried, convicted and punished for that offense merely upon proof that property was stolen by some other person and received by the accused, knowi ng it to have been stolen.” Id. at 695, 604 S.E.2d at 81. “It is true, of cour se, that an essential element of the offense of receiving stolen property is guilty knowledge.” Roberts v. Commonwealth, 230 Va. 264, 270, 337 S.E.2d 255, 259 (1985). “Guilty knowledge ‘is sufficiently s hown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they we re stolen.’” Shaver v. Commonwealth, 30 Va. App. 789, 800-01, 520 S. E.2d 393, 399 (1999) (quoting Reaves v. Commonwealth, 192 Va. 443, 451, 65 S.E.2d 559, 564 (1951)). Now, “[f]or the purposes of this appeal, the Defendant concedes both that the vehicle had been stolen by someone and that he (the Defendant), ever so briefl y, did have possession of it, in the way that term is used on the authorities.” Opening Br. at 5 n.2. Howe ver, appellant asserts- 5 - on appeal that he did not have guilty knowledge (i.e., knowledge th at the vehicle was stolen and a dishonest intent to possess or conceal the stolen vehicle). C. Appellant’s Guilty Knowledge Appellant argues that there wa s no direct evidence showing that he knew the car was stolen and that he did not plan to return it. He also argues that the indirect evidence was too slight to meet the Commonwealth’s burde n of proof beyond a reasonable doubt.
1. Commonwealth’s Prima Facie Case At trial, the Commonwealth di d not present direct eviden ce that appellant had guilty knowledge. However, “guilty knowledge may be supplied by circumstantial evidence, including the circumstance that the accused was in possession of recently stolen property.” Covil, 268 Va. at 695, 694 S.E.2d at 81 (quoting Roberts, 230 Va . at 270, 337 S.E.2d at 259). “[P]roof of possession of recently stolen goods establishes a pr ima facie case that the defendant received [the stolen goods] with guilty knowledge, [and] the burden is cast upon him to go forward with evidence in explanation.” Id. In addition, circumstantial eviden ce of a defendant’s efforts to evade arrest may be sufficient to prove that appe llant received the vehicle with guilty knowledge. See Spitzer v. Commonwealt h, 233 Va. 7, 9, 353 S.E.2d 711, 713 (1987) (“We are of [the] opinion that the police officer’s te stimony describing Spitzer’s franti c efforts to evade arrest in Fairfax County was sufficient to prove con cealment with guilty knowledge within the intendment of Code § 18.2-108.”). In this case, the stolen vehicle was located in an area known by the police as a “dumping ground for stolen car s,” appellant was found in possession of the stolen vehicle mere hours after it was stolen, a ppellant admitted that he knew Clemons did not own the car, and appellant attempted to flee when the police pulled up to the driver’s side of the stolen vehicle.- 6 - Appellant argues that, as a matter of law, the Commonwealth’s evidence was insufficient to show that appellant had a dishonest intent wh en he possessed the car (i.e., that appellant knew the car was stolen and intended to continue acting adversely to th e owner’s property interest in the vehicle). One reason appellant argues the Commonwealth did not prove its case is because appellant could have known that he was receiving stolen property but could have instead wished to use this opportunity to re turn the vehicle to its owner. 1 Appellant cites Reid v. Commonwealth, No. 0480-93-1, 1994 Va. App. LEXIS 610 (Va. Ct. App. Oct. 4, 1994), an unpublished case from this Court, in an attempt to argue that appellant’s pr esence in the vehicle was not enough to prove that he had a dishonest intent in possessing that vehicle. Id. at *4-5 (“[E]ven if the evidence were sufficient to show that appellant knew the vehicle was stolen, mere presence in and subsequent flight from the vehicle is insufficient to show that the accused aided in concealing it with dishonest intent [in vi olation of Code § 18.2-108].”). This Court is not bound by its unpublished opinions. See Code § 17.1-413, Rule 5A:1(f); see also Grajales v. Commonwealth, 4 Va. App. 1, 2 n.1, 353 S.E.2d 789, 790 n.1 (1987). Moreover, Reid is distinguishable. In this case, appellant concedes that he was in possession of the vehicle (while Reid, as a backseat passenger in the vehicle, was not in possession). Appellant here was driving the stolen vehicle, he admitted that he knew th at Clemons did not own the car, and, when he saw the police, he attempted to flee from the vehicle and the police.

1 “The Commonwealth need only exclude reas onable hypotheses of innocence that flow from the evidence . . . .” Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) (quoting Boothe v. Commonwea lth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)). Thus, appellant’s particular argument that he could have known the car was stolen but intended to return it was not a reasonable hypothesis of innocence because it is not even supported by appellant’s own testimony as a ppellant testified that he di d not know the car was stolen.- 7 - 2. Appellant’s Evidence In rebuttal to the Commonwealth’s case, appe llant testified that he did not know the vehicle was stolen at the time he began driving it. He believed Clemons had rented the vehicle and wanted appellant to drive it because Clemon s did not have a valid driver’s license – not because Clemons wanted to give appellant stolen property or did not want to get caught in possession of a stolen vehicle. Appellant now seeks to argue on appeal that, because he presented testimony to rebut the Commonwealth’s evidence that he was guilty of receiving stolen property, there was a reas onable hypothesis of hi s innocence and, therefore, the trial court erred in convicting him. The inference of guilty knowledge arising from an accused’s possession of recently stolen property may be repelled by a credible explanation, but the trier of fact is under no obligation to accept an account it finds unworthy of belief. In cases of this kind, when a defendant’s “hypothesis of innocence” is rejected as unreasonable, evidence of his posse ssion of recently stolen goods is sufficient to support a conviction. Covil, 268 Va. at 695-96, 604 S.E.2d at 82. Whether a “hypothesis of innocen ce is reasonable is a question of fact and, therefore, is bindi ng on appeal unless plainly wrong.” Wood v. Commonwealth, 57 Va. App. 286, 306, 701 S.E .2d 810, 819 (2010) (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004)). “Merely because defendant’s theory of th e case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has not been excluded.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). Consequently, the trial judge was not obligated to believe appellant’s version of events and could certainly rely on the Commonwealth’s evidence to convict appellant. A ppellant’s testimony was that Clemons told him that he had a “fiend whip for the day,” which, if be lieved by the trier of fact, implies that appellant thought that the vehi cle had not been stolen and that it would be- 8 - returned. However, the trial judge was not requir ed to believe appellant, who admitted that he had twice previously been convicted of misd emeanors involving lying, cheating, or stealing. “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). The trial judge expressed his disbelief that Cl emons had told appellan t that he had rented the car and that the reason Clemons wanted appe llant to drive the vehicle was because Clemons did not have a current driver’s license. The tria l judge said, “It does seem somewhat unusual that someone [who] says he’s in possession of a fi end car and then disobeys the command of the Court to appear for trial, is so squeamish that he doesn’t want to drive it because he doesn’t have a driver’s license. Seems peculi ar.” Therefore, the trial j udge was unconvinced by appellant’s explanation as to why he did not know the vehicle was stolen and why he was driving it. Indeed, the fact that the trial judge convicted appellant of receiv ing stolen property (after hearing argument from the Commonwealth and appellant) shows his implicit credib ility determination. Cf. Cuffee v. Commonwealth, 61 Va . App. 353, 367, 735 S.E.2d 693, 700 (2013). For all of these reasons, we hold that a rational trier of fact could have disbelieved appellant’s explanation as to why he thought th e vehicle was legitimately borrowed – and why he was driving it – and instead ha ve decided that appellant knew the vehicle had been stolen and was, nevertheless, still willi ng to use and drive the vehicle.
III. C ONCLUSION In short, we hold that a rati onal trier of fact could have concluded that appellant had guilty knowledge that the vehicle he was driving was stolen. Likewi se, the trier of fact could- 9 - certainly conclude that he simp ly did not believe appellant’s testimony that he did not know the car was stolen. Therefore, we affirm appellant’s conviction. Affirmed.