COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

HENRY MARTIN McCLARY 

 MEMORANDUM OPINION* BY 

v. Record No. 0187-97-1 JUDGE WILLIAM H. HODGES 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Steven K. Smith for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Henry Martin McClary (defendant) appeals his conviction for 

receiving stolen goods, Code § 18.2-108, claiming that the 

Commonwealth's evidence was insufficient to prove all the 

elements of the offense. Because we agree that the Commonwealth 

failed to prove that defendant possessed the stolen property, we 

reverse. 

 The parties are fully conversant with the record in the 

cause, and because this memorandum opinion carries no 

precedential value, we recite only those facts necessary for 

disposition of the case. 

 Defendant was arrested on February 28, 1996 outside of a 

Super Kmart located in York County, Virginia. Kevin Rowe, a 

"loss prevention officer" saw defendant secreting several 

 

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

designated for publication. 
 2 

packages of cigarettes into a brown paper bag and then leave the 

store without paying for them. Officer Rowe had seen defendant 

in the store approximately a week and a half earlier and had 

noted his appearance because he was acting suspiciously. At that 

time, defendant had exited the store and driven away in a white 

Chevrolet automobile with the license plate number "ZUM-2450." 

 When Officer Rowe saw defendant shoplifting, he followed 

defendant out into the parking lot and held him for eventual 

arrest. A white Chevrolet automobile with license plate number 

ZUM-2450 was also in the parking lot at that time, but Officer 

Rowe stopped defendant before he could approach the vehicle. 

 Upon examination by the police, it was discovered that the 

vehicle's steering column was damaged and the ignition removed. 

A later investigation revealed that the car had been stolen from 

Patricia Lee, the registered owner, three months prior. On July 

16, 1996 defendant was indicted for receiving stolen goods, the 

white Chevrolet, "on or about February 28, 1996" and was found 

guilty by a jury. 

 For a conviction of receiving stolen goods to stand, the 

very least the Commonwealth must prove is that the defendant 

either actually or constructively possessed the goods. See

Gilland v. Commonwealth, 184 Va. 223, 227-28, 35 S.E.2d 130, 131 

(1945). In the instant case, we look to the time charged in the 

indictment, on or about February 28, 1996, for evidence that 

defendant possessed the car. Defendant was apprehended before he 
 3 

had even approached the stolen vehicle. He never admitted to the 

police that he used the vehicle. The record is devoid of 

physical evidence, such as fingerprints, or testimonial evidence 

from witnesses that would tie defendant to the vehicle on the day 

in question. In short, even in the light most favorable to the 

Commonwealth, there is a lack of evidence to show defendant 

possessed the stolen vehicle as set forth in the indictment. See

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 

721 (1988). Under these circumstances, we must hold as matter of 

law that there is insufficient evidence to support the 

conviction. According, we reverse. 

 Reversed.