COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Chafin 

Argued at Chesapeake, Virginia 

DE’ANTE LAVON JOHNSON 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1137-13-1 JUDGE ROBERT J. HUMPHREYS 

 APRIL 29, 2014 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Wilford Taylor, Jr., Judge 

 Charles E. Haden for appellant. 

 Rosemary V. Bourne, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee. 

 De’ante Lavon Johnson (“Johnson”) was convicted at a bench trial in the Circuit Court 

for the City of Hampton (“trial court”) of three counts of breaking and entering, in violation of 

Code § 18.2-91, and three counts of grand larceny, in violation of Code § 18.2-95. On appeal, 

Johnson argues that the evidence was insufficient to prove that Johnson committed these 

offenses. Specifically, he argues that, 

The trial court erred in denying [his] motion to strike the three 

counts of breaking and entering and the three counts of grand 

larceny, where no evidence at all linked Johnson to the break-ins 

and thefts at 13 Golden Willow Circle or 55 Treasure Key, and the 

Commonwealth’s evidence merely showed Johnson to be in 

possession of stolen property from 63 Michael’s Woods Drive but 

did not establish that [he] participated in the break-in at 63 

Michael’s Woods Drive or the carrying away of property from that 

address. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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I. ANALYSIS 

 When the sufficiency of the evidence is challenged on appeal, this Court must “‘examine 

the evidence that supports the conviction and allow the conviction to stand unless it is plainly 

wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 

S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 

139-40 (2008)). We review the evidence in the light most favorable to the Commonwealth, as 

the prevailing party below, and determine whether “‘any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. 

Virginia, 443 U.S. 307, 319 (1979)). “Furthermore, we ‘accord the Commonwealth the benefit 

of all inferences fairly deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 

95, 712 S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 

910, 923 (2008)). However, “[i]n order for inferences to amount to evidence they must be 

inferences based on facts that are proved, and not inferences based on other inferences.” Smith 

v. Commonwealth, 185 Va. 800, 819, 40 S.E.2d 273, 282 (1946). 

 “The unexplained possession of recently stolen goods permits the fact finder to infer that 

the possessor is the thief.” Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832 

(1997). In certain circumstances, the same inference can extend to proving a charge of breaking 

and entering. “The guilt of one breaking into a building may be established by circumstantial 

evidence. Direct testimony on the part of someone who saw him in the commission of the act or 

near the scene of the crime is not necessary, and it is unusual in cases of this character.” Fout v. 

Commonwealth, 199 Va. 184, 189, 98 S.E.2d 817, 821 (1957). 

“[W]hen evidence has been introduced, which, if believed, 

establishes that a house has been broken and entered and goods 

stolen therefrom, and warrants an inference beyond a reasonable 

doubt that the breaking and entering and the larceny of the goods 

were committed at the same time, by the same person or persons, 

as a part of the same transaction, upon principle and authority, the 
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exclusive possession of the stolen goods shortly thereafter, 

unexplained or falsely denied, has the same efficiency to give rise 

to an inference that the possessor is guilty of the breaking and 

entering as to an inference that he is guilty of the larceny.” 

Id. at 190-91, 98 S.E.2d at 822 (quoting Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 

S.E. 25, 28 (1935)). 

 In order for the larceny inference to arise, “the possession must be exclusive, but ‘one can 

be in exclusive possession of an item when he jointly possesses it with another,’ as long as ‘the 

accused was consciously asserting at least a possessory interest in the stolen property or was 

exercising dominion over [it].’” Archer, 26 Va. App. at 13, 492 S.E.2d at 832 (quoting Best v. 

Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981)); see also Montague v. 

Commonwealth, 40 Va. App. 430, 437, 579 S.E.2d 667, 670 (2003). To raise an inference of 

guilt from the possession of the fruits of crime by the defendant, 

“it is necessary that they be found in his exclusive possession. A 

constructive possession . . . is not sufficient to hold the prisoner to 

a criminal charge. He can only be required to account for the 

possession of things which he actually and knowingly possessed, 

as, for example, where they are found upon his person, or in his 

private apartment, or in a place of which he kept the key. If they 

are found upon premises owned or occupied as well by others as 

himself, or in a place to which others had equal facility and right of 

access, there seems no good reason why he, rather than they, 

should be charged upon this evidence alone.” 

Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 363 (1954) (quoting Tyler v. 

Commonwealth, 120 Va. 868, 871, 91 S.E. 171, 172 (1917)). 

The mere fact that stolen articles are found on the premises of a 

man of a family or in a place to which others have free access, 

without a showing of his actual conscious possession thereof, 

discloses no more than a prima facie constructive possession 

which alone is not sufficient to justify an inference of guilt. 

Id. at 228, 83 S.E.2d at 364. “[T]here must be evidence that the defendant exercised dominion 

and control over the property.” Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 
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384, 386 (1991). “[M]ere proximity to a controlled item, such as a gun or narcotics, is not 

legally sufficient by itself to establish dominion and control.” Myers v. Commonwealth, 43 

Va. App. 113, 121, 596 S.E.2d 536, 540 (2004). 

A. 63 Michael’s Woods Drive (Pronia Residence) 

 While Brittany Pronia (“Pronia”) was out of town for thirteen days, someone broke into 

her house through the back door. The intruder wrote on the wall in the master bedroom, “where 

is the money and jewelry,” and at the bottom of the stairs he wrote, “thank you.” When Pronia 

returned home from her trip she reported the break in and missing property. Among other items 

missing were two personalized United States Navy commissioning rings. Three days later, 

police apprehended Johnson. At that time Johnson was wearing one of the rings and he admitted 

to possession of the other ring, which he lost while running from police. Thus, Johnson was 

found in possession of recently stolen property from the Pronia residence. See Montgomery v. 

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (“Four weeks is not, as a matter 

of law, so long a time that goods may not be considered recently stolen.”). 

 The evidence supports a finding that the breaking and entering and the grand larceny 

from the Pronia residence occurred at the same time and that the same person or persons 

committed the offenses as part of the same transaction. The perpetrator broke into the house and 

was looking for jewelry, as evidenced by the writing on the wall. Johnson exclusively possessed 

the stolen rings from the Pronia residence shortly after the breaking and entering and the grand 

larceny from that residence. These facts give rise to a fair inference that Johnson committed 

these acts. While Johnson said that he bought the rings from an unknown subject at a bar, as the 

fact finder, the trial court was not obligated to accept his explanation as credible. Roberts v. 

Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985). Therefore, we do not disturb 
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Johnson’s convictions for the breaking and entering and grand larceny related to the Pronia 

residence. 

B. 13 Golden Willow Circle (McMillian Residence) and 55 Treasure Key (Cherry Residence) 

 On September 12, 2012, Todd McMillian (“McMillian”) returned to his home at 13 

Golden Willow Circle to find the front door kicked in and the inside of his home destroyed. A 

neighbor reported seeing a young black male, possibly about 5’10” in height, and a black Toyota 

4-Runner sport utility vehicle (“S.U.V.”) in front of McMillian’s home that morning. McMillian 

reported property missing from his home.1 

 On September 13, 2012, Jason Cherry (“Cherry”) returned to his home at 55 Treasure 

Key to find his back door open and his house “ransacked” inside. Cherry’s neighbor had noticed 

a dark green or black S.U.V. backed into Cherry’s driveway that morning and she also noticed a 

gentleman in the S.U.V. “rocking side-to-side” in the backseat behind the passenger’s seat. She 

wrote down the license plate number of the S.U.V. Among many other items missing from 

Cherry’s home were a “Kimber .45,” an “H&K USP .40 handgun,” an “H&K P7 handgun,” a 

“Raven .25,” and a “Mossberg breeching shotgun.” 

 Only one black male was seen at both of these residences. Some of the stolen property 

from the McMillian and Cherry residences was found a few days after the dates of the offenses 

in the back of a black Toyota 4-Runner, the S.U.V. used in both offenses. A video found in a 

camcorder in the back of the S.U.V. shows De’ante Johnson driving the vehicle, but Terrell 

Daniels and Marquan Johnson are also in the vehicle, and all three are young black males. There 

is no evidence as to when the video was taken. Marquan Johnson was driving the S.U.V. and 

was the sole occupant of the vehicle moments before an officer found the stolen property in the 

 1

 Johnson does not contest the sufficiency of the evidence to prove the value of the 

property stolen in any of the three grand larceny charges. 
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S.U.V. on September 17, 2012. On these facts, there is at most only a suspicion that De’ante 

Johnson, and not Marquan Johnson or Terrell Daniels, committed the offenses at the McMillian 

and Cherry residences. “Suspicion, however, no matter how strong, is insufficient to sustain a 

criminal conviction.” Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981). 

 The Commonwealth argues that its case is stronger with regard to the Cherry residence at 

55 Treasure Key because police found an H&K .40 handgun in the vicinity where Johnson was 

hiding from police just prior to his arrest on September 26, 2012—this was the same type of 

handgun taken from Cherry’s home and the evidence supports that it was Cherry’s handgun. 

 Pursuant to the investigation of and search for Johnson on September 26, Officer Steve 

Carpenter searched an alleyway where another officer had observed the two suspects, Johnson 

and a codefendant, hunched down. Officer Carpenter testified, “The area was checked and I was 

unable to locate the two subjects, but while I was back there I was just kicking around leaves and 

branches that were [lying] down and located two firearms.” One firearm was an H&K .40 

handgun. Officer Carpenter found the firearms behind the backyard of 112 Hickory Hill. 

Officer Carpenter also found Pronia’s commissioning ring in the backyard of 113 Aspenwood 

Drive. Johnson was detained behind 112 Aspenwood Drive. The record fails to establish the 

distance between the location of the firearms and the location of the ring, or the distance between 

the location of the firearms and the location where police detained Johnson. Officer Carpenter 

only testified that he found the ring in the “general vicinity” after he found the firearms. 

 Johnson denied possession of the handgun. Johnson’s unidentified codefendant, who 

also hid in the area where the handgun was found, denied knowledge and possession of the 

handgun as well. The handgun was found in the general area of a backyard apparently not 

owned by Johnson or his codefendant. Thus, the handgun was found in an area to which others 

had equal facility and right of access as Johnson. See Castle, 196 Va. at 227, 83 S.E.2d at 363. 
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There was no evidence that Johnson was consciously asserting a possessory interest in the stolen 

property or was exercising dominion over it—the evidence only establishes that the handgun was 

found in the general vicinity where Johnson lost the stolen ring and hid or ran from the police 

with his codefendant. Mere proximity to the handgun, even if it were clear that it existed in this 

case, is not enough to establish that Johnson exercised dominion and control over it. Myers, 43 

Va. App. at 121, 596 S.E.2d at 540. 

 “‘There must be an unbroken chain of circumstances proving the guilt of the accused to 

the exclusion of any other rational hypothesis and to a moral certainty.’” Id. at 123-24, 596 

S.E.2d at 541 (quoting Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 

(1971)). In Gordon, the Supreme Court found that the Commonwealth failed to exclude all 

reasonable hypotheses of innocence where “a break in the chain” occurred because no witness 

testified to seeing Gordon dispose of the drugs that a detective found in a grass plot near a public 

street. Gordon, 212 Va. at 301, 183 S.E.2d at 737. “Because of the fatal gap in the 

circumstantial evidence adduced against Gordon,” the Supreme Court reversed Gordon’s 

conviction for possession of heroin. Id. 

 Here, no witness testified to seeing Johnson with the handgun or disposing of it; nor was 

there any DNA or fingerprint evidence linking Johnson to the handgun. Johnson was not in the 

immediate area of the handgun when it was found, and the evidence does not establish the 

distance between where Johnson was apprehended, the backyard of 112 Aspenwood Drive, and 

the location of the handgun, behind the backyard of 112 Hickory Hill. From this scant record a 

reasonable fact finder could not conclude beyond a reasonable doubt that Johnson exercised 

dominion and control over the handgun, as required to support a finding that he was in 

possession of recently stolen property and thus the burglar and thief. Therefore, we hold that the 
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evidence is insufficient to prove that Johnson committed the breaking and entering and grand 

larceny offenses at the McMillian and Cherry residences. 

C. Revocation and Suspension of Previous Sentence 

 At Johnson’s sentencing on the three breaking and entering convictions and the three 

grand larceny convictions, the trial court revoked the suspension of a sentence imposed on 

Johnson for prior offenses—five years suspended for a burglary and four years suspended on a 

theft of a firearm charge, both committed in 2009. The trial court resuspended the nine-year 

sentence for a period of five years from the May 28, 2013 sentencing date. Johnson argues that 

if his recent breaking and entering and grand larceny convictions are set aside on appeal, then 

there is “no basis” for concluding that he violated his probation condition that he obey all 

federal, state, and local laws, which appeared to be the sole ground for revoking his suspended 

sentences, and thus his probation violations should be reversed as well. 

 The Virginia Supreme Court has reversed a probation revocation judgment and remanded 

it to the trial court for reconsideration when “it cannot be determined from the record the extent 

to which the trial court’s judgment revoking [the defendant’s] probation and previously 

suspended sentence was based upon the [improper conviction].” Milteer v. Commonwealth, 267 

Va. 732, 741-42, 595 S.E.2d 275, 280-81 (2004). Here, as in Milteer, the trial court did not 

specify which of Johnson’s convictions were the bases of its probation revocation and 

resuspension judgment and therefore we remand for reconsideration of the probation violation as 

well. 

II. CONCLUSION 

 We hold that Johnson’s convictions for the breaking and entering and grand larceny 

related to the Pronia residence were supported by the evidence but that his four other convictions 

were improper for lack of sufficient evidence to support them. Therefore, we reverse the 
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probation revocation judgment and remand to the trial court for reconsideration in view of this 

Court’s opinion. 

Affirmed in part; 

reversed and dismissed in part; 

and remanded in part.