COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Frank and Humphreys Argued at Richmond, Virginia

DENNA KAYE MYERS OPINION BY v. Record No. 1581-03-2 JUDGE ROBERT P. FRANK MAY 25, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF AMELIA COUNTY Thomas V. Warren, Judge Joseph M. Teefey, Jr. (Teefey & Teefey, on brief), for appellant. Leah A. Darron, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Denna Kaye Myers (appellant) wa s convicted in a bench trial of grand larceny, in violation of Code § 18.2-95, and of possessi on of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On ap peal, he contends the trial court erred in finding the evidence was sufficient to convict. As we agree with appellant that the evid ence was insufficient to prove the elements of the offenses, we reverse the judgment of the trial court.
BACKGROUND On February 8, 2003, Amelia County Deputy Sheri ff William Ford obse rved a green pickup truck run a stop sign at the inters ection of Routes 360 and 697, appr oximately 1,000 feet from Jason Hooley’s welding shop. Th e driver of the truck, responding to Ford’s emergency lights, initially pulled over into a parking lot. However, as Deputy Fo rd exited his vehicle, the truck drove off. Ford chased the truck for four m iles. Eventually, the high-speed chase ended when the truck drove into a yard at the end of a dead-end street. At this point , the driver jumped out of the truck and fled.- 2 - The truck’s other occupant, appellant, who was a paraplegic, 1 remained in the pa ssenger seat. The deputy’s investigation uncovered an outstanding capias for appellant. Appellant was transported to the sheriff’s office, and the truck was transported to the sheriff’s parking lot. Ford “sec ured” the truck by lock ing the doors. He kept the key in his possession. The next morn ing, Ford searched the tr uck. He noticed “a lot of garbage in the floor board.” He also found “blankets, a jacket, just so me junk laying in the [passenger-side] front floor board of the truck.” Ford also found a .32 revolver wrapped in a blanket on the front floorboard. The weapon was not registered to appellant or the driver. Later that same day, Deputy Ford returned to the yard wher e the truck had stopped. He recovered a .22 Ruger target pistol lying approximately sixty feet from where the driver’s side of the truck had come to rest. Hooley iden tified this gun as his, indicating it was stolen from his vehicle at the welding shop. He ha d last seen the gun on February 7, 2003, and di d not notice it was missing until a few days later. The Commonwealth proved appellant had a pr ior felony conviction. Appellant did not present any evidence. He moved to strike the evidence, maintain ing no evidence proved he had knowledge, dominion, and control over the gun on the floorboard. He further argued he was physically unable to throw the .22 pistol sixty feet from the driver’s side of the truck. Appellant suggested the driver, Mays, possessed and disposed of that weapon. He al so argued none of the evidence indicated he was involve d in the theft of the gun. The trial cour t overruled the motions and found appellant guilty of both offenses.

1 The record does not detail the extent of appellant’s disability beyond Ford’s testimony that appellant was unable to walk and that he was transported to the sheriff’s office by an ambulance.- 3 - ANALYSIS A. Standard of Review When faced with a challenge to th e sufficiency of the evidence, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence” to support it. Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (citations omitted); see also McGee v. Commonwealth , 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc )). * * * * * * * Put another way, a reviewing cour t does not “ask itself whether it believes that the evidence at th e trial established guilt beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted). We must instead ask whether “ any rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt.” Kelly , 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson , 443 U.S. at 319 (emphasis in original)); see also Hoambrecker v. City of Lynchburg , 13 Va. App. 511, 514, 412 S.E.2d 729, 731 (1992) (observing that the question on appe al is whether “a rational trier of fact could have found the essential elements” of the convicted offense). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the eviden ce, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly , 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson , 443 U.S. at 319). Crowder v. Commonwealth , 41 Va. App. 658, 662-63, 588 S.E.2d 384, 386-87 (2003). The Attorney General argues Maryland v. Pringle , 124 S. Ct. 795 (2003), and Commonwealth v. Hudson , 265 Va. 505, 578 S.E.2d 781, cert. denied , 124 S. Ct. 444 (2003), substantially narrowed a ppellate review of sufficiency ar guments. We disagree with this interpretation of these cases. Pringle examined whether the police had probabl e cause to arrest an occupant of a vehicle for possession of drugs. 124 S. Ct. at 799. Pringle was the front seat passenger in a car where an officer found $763 in “r olled-up cash” in the glove co mpartment and “five glassine baggies” of cocaine between the backs eat armrest and the backseat. Id. at 798. The Supreme- 4 - Court, in affirming the finding of probable cau se to arrest, conclude d it was “an entirely reasonable inference from these facts that any or all three of the o ccupants” possessed the cocaine found in the car. Id. at 800. This analysis occurred in the context of discussing a finding of probable cause necessary for an arrest, no t a finding of proof beyond a reasonable doubt to prove guilt. Nothing in Pringle addressed the standard of appe llate review for trial questions involving guilt beyond a reasonable doubt. The case addressed only what was reasonable in the context of probable cause determinations. The Commonwealth relies on the Supreme Court’s “entirely reasonable inference” comment, and couples it with the Virginia Supreme Court’s Hudson decision, to argue the scope of appellate review on issues involving the suffi ciency of circumstantia l evidence to prove guilt beyond a reasonable doubt has been greatly na rrowed. By it own terms, however, Hudson does not support the Commonwealth’s positi on. The Court explained in Hudson , “The statement that circumstantial evidence must exclude every reas onable theory of innocence is simply another way of stating that the Commonw ealth has the burden of proof beyond a reasonable doubt.” 265 Va. at 513, 578 S.E.2d at 785. The issue before the HudsonCourt was whether the Court of Appeals properly found “the Commonwealth’s evidence fail[ed] to exclude al l reasonable hypotheses of innocence.” Id. The Supreme Court, in reversing this Court, noted th at we gave credence to the defendant’s testimony and his interpretation of the evidence and ignored the pr osecution’s evidence. Id. at 514, 578 S.E.2d at 786. In this contex t, the Supreme Court held: The issue upon appellate review is not whether “there is some evidence to support” these hypothese s [of innocence]. The issue is whether a reasonable jury, upon cons ideration of all the evidence, could have rejected Hudson’ s theories in his defense and found him guilty of murder beyond a reasonable doubt.- 5 - Id. at 513, 578 S.E.2d at 785 (emphasis added). The Supreme Court found this Court did not follow the traditional standard of appellate review because it ignored the credibility determinations of the fact finder regarding Hudson’s evidence. Id. at 514, 578 S.E.2d at 786. Hudson did not alter the traditional standards of appe llate review. It simply discussed appellate review of a defendant’s theory of the case. We see nothing in Hudsonthat changes the standards appellate courts use to evaluate the sufficiency of circumstantial evidence to prove guilt. The Supreme Court of Virginia has consistently evaluated the sufficiency of circ umstantial cases presented by the Commonwealth: It suffices to say that if the proof relied upon by the Commonwealth is wholly circumstan tial, as it here is, then to establish guilt be yond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and excl ude all reasonab le conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rati onal hypothesis and to a moral certainty. Yet what inferences are to be drawn from proved facts is within the province of the [fact finder] and not the court so long as the inferences are reasonable and justified. La Prade v. Commonwealth , 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950) (emphasis added). If a defendant argues that the Commonwealth has not met its bu rden to prove the elements of a crime, appellate courts must consider whethe r the evidence and the reasonable inferences therefrom, examined in the light most favorable to the Commonwealth, justify a finding of guilt beyond a reasonable doubt. Pringle and Hudson did not change this time-honored standard. While great deference is paid to the fact finder, appellate courts do not capitulate to every factual finding of the lower courts. See, e.g. , Jackson v. Commonwealth , ___ Va. ___, 2004 Va. LEXIS 74, *23 (April 23, 2004) (finding the trial court erre d in refusing to suppress evidence seized after the police stopped a car wh ere “no evidence” supported the inference that the informant- 6 - was a concerned citizen making a report based on first-hand knowledge); White v. Commonwealth , 267 Va. 96, 105-06, 591 S.E.2d 662, 668 (2004) (overturning an escape conviction because the evidence did not support th e finding that White was in custody when he fled). B. Possession of a Firearm by a Felon Appellant contends no evidence indicated he knowingly and intelligently exercised dominion and control over the weapon. We agree that the evidence was insufficient to prove appellant possessed eith er of the two weapons found by the deputy. To support a conviction based upon construc tive possession, “the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was awar e of both the presence and character of the substance and that it was subj ect to his dominion and cont rol.” Powers v. Commonwealth , 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). However, mere proximity to a controlled item, such as a gun or narcotics, is not legally sufficient by it self to establish dominion and control. Wright v. Commonwealth , 217 Va. 669, 670, 232 S.E.2d 733, 734 ( 1977); Fogg v. Commonwealth , 216 Va. 394, 395, 219 S.E.2d 672, 673 (1975). For example, proof that illegal narcotics were “found in [the] premises or a vehicle owned or occupied by the [accused] is insufficient, standing alone, to prove constructive possession.” Powers , 227 Va. at 476, 316 S.E.2d at 740. We find Hancock v. Commonwealth , 21 Va. App. 466, 465 S.E.2d 138 (1995), is instructive here. Hancock was seated behind th e driver in the backse at of a car stopped by police. Id. at 468, 465 S.E.2d at 139. After Hancock exit ed the vehicle, the police noticed a gun on the floorboard under the driver’s seat. Id. The officer testified he could not see the gun until Hancock stepped out of the car because “‘his feet were on top of it.’” Id. Additionally, the car- 7 - was stopped at night, so the lighting precluded a cl ear view of the gun. Id. at 472, 465 S.E.2d at 141. We reversed Hancoc k’s conviction, noting: No evidence established that Hancoc k ever held the firearm, saw it, knew it was present, or exercised an y dominion and control over it. See Powers , 227 Va. at 476, 316 S.E.2d at 740. The facts established no more than a mere suspicion that the firearm was possessed by Hancock or that he knew the firearm was under the driver’s seat. The evidence must rise beyond “the realm of probability and supposition.” Hall v. Commonwealth , 225 Va. 533, 537, 303 S.E.2d 903, 905 (1983). “‘Circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a [guilty] verdict . . . beyond a reasonable doubt.’” Crisman [v. Commonwealth] , 197 Va. [17,] 21, 87 S.E.2d [796,] 799 [(1955)] (quoting Powers v. Commonwealth , 182 Va. 669, 676, 30 S.E.2d 22, 25 (1944)). Proof that the firearm was located close to Hancock was not sufficient to prove the elements of the offense beyond a reasonable doubt. See Jones v. Commonwealth , 17 Va. App. 572-74, 439 S.E.2d 863, 864 (1994). Id. at 472, 465 S.E.2d at 141-42. The Commonwealth here presented no ev idence that appellant knew the weapon was hidden in the blanket. It is uncontroverted that the gun was hidde n from sight. Deputy Sheriff Ford characterized the floorboard where the bl anket with the .32 revolver was found as an “upheaval of junk.” Appellant made no furtive ge stures toward the firearm nor were there any acts, statements, or conduct indicating appe llant exercised dominion and control over the firearm. The evidence proved onl y that appellant was an occupa nt of a vehicle and in close proximity to a hidden revolver. This circumstan tial evidence is legally insufficient to prove possession. See Powers , 227 Va. at 476, 316 S.E.2d at 740; Hancock , 21 Va. App. at 472, 465 S.E.2d at 141-42. The fact finder unreasonably inferred appellant possessed the revolver. This analysis also applies to possession of the .22 Ruger. Appellant did nothing to suggest he knew about the gun. The deputy found this gun even further away from appellant, outside the truck and over sixty feet away from where appellant sat. Additionally, the gun was not found until the next day. Again, appellant di d nothing to suggest he had any knowledge of,- 8 - or dominion or control over, the gun. Governed by the standard of review, we conclude no rational fact finder could have found beyond a reasonable doubt th at appellant “was aware of both the presence and character of the [firearms] a nd that [they were] subject to his dominion and control.” Powers , 227 Va. at 476, 316 S.E.2d at 740. C. Grand Larceny Appellant contends the gra nd larceny charge fails as well. The Commonwealth, in prosecuting the grand larceny ch arge, relied on the inference that “[o]nce the crime is established, the unexplained possess ion of recently stolen goods permits an inference of larceny by the possessor.” Bright v. Commonwealth , 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987). As the evidence here did not prove appellant possessed the stolen gun, this inference cannot support the theft conviction. Additionally, the Commonwealth argues appellant aided and abetted the driver who stole, possessed, and disposed of the .22 Ruger. However, “suspicion or even probability of guilt is not sufficient. There must be an unbroken chain of circumstances ‘proving the guilt of the accused to the “exclusion of any other rational hypothe sis and to a moral certainty.”’” Gordon v. Commonwealth , 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971) (quoting Brown v. Commonwealth , 211 Va. 252, 255, 176 S.E.2d 813, 815 (1970)). On appellate review, the issue is whether a reasonable jury, upon co nsideration of all the evidence in the light most favorable to the Commonwealth and the reasonable inferences therefrom, could have found the accused guilty beyond a reasonable doubt. Hudson , 265 Va. at 513-14, 578 S.E.2d at 785-86. We believe the evidence was insufficient as a matter of law to prove appellant guilty of grand larceny. As discussed above, nothing links appellant to the stolen firearm f ound outside the truck. He made no motions suggesting he threw the we apon out of the truck no r did he say anything- 9 - suggesting he had knowledge of the gun or its theft. Appellant, a paraplegic, simply remained a passenger in a truck that drove th rough a stop sign and then trie d to elude an officer. Although the fact finder concluded the st olen .22 Ruger was in the vehicle, no evidence supports that conclusion nor is it a reasonable inference from th e facts. The stolen gun was never seen in the truck or in appellant’s possession. The deputy did not find the gun in the yard until the next day.
See Gordon , 212 Va. at 301, 183 S.E.2d at 737 (finding th e Commonwealth failed to exclude all reasonable hypotheses of innocence where “a break in the chain” occurred when no one testified observing Gordon dispose of the drugs in the public area where the police recovered the narcotics). Even if the evidence allowed th e inference that the stolen gun was in the truck at some point, that fact does not prove be yond a reasonable doubt that appell ant acted as a principal in the second degree when Mays stole the gun. 2 While mere presence during the commission of a crime is not sufficient to convict a person as a principal in the second degree, the Supreme Court of Virginia held: “it is certain that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby ai ding and abetting the same.” Foster v. Commonwealth , 179 Va. 96, 100, 18 S.E.2d 314, 316 (1942) (citations omitted). Hampton v. Commonwealth , 32 Va. App. 644, 648-49, 529 S.E.2d 843, 845 (2000). However, here we have neither proof that the appellant failed to oppose the theft nor proof of other circumstances upon which to find he acted as a principal in the second degree.

2 We assume without deciding, for purposes of this discussion, that the driver stole the .22 Ruger.- 10 - In Pugliese v. Commonwealth , 16 Va. App. 82, 86, 428 S.E.2d 16, 20 (1993), Pugliese admitted he was present in the van where Davis shot and killed a man. Pugliese remained in the van while Davis disposed of the body. Id. Later, the defendant took some of the dead man’s money and assisted Davis in disposing of the van. Id. at 86-87, 428 S.E.2d at 20-21. The jury found Pugliese guilty of murder as a principa l in the second degree. This Court found the evidence was sufficient to support that conviction. Id. at 92-95, 428 S.E.2d 24-25. Clearly, “other circumstances” were present in Pugliese in addition to the accused’s presence and failure to oppose the criminal act. In this case, however, no “other circumstances” are present. No evidence proved appellant partic ipated in the theft of the weapon or aided and abetted Mays by inciting, encouraging, advising, or assisting him either immediately before or after the crime. No evidence proved appellant was a “look-out.” No evidence even proved the theft occurred while appellant was with the driv er. No evidence proved appellant shared the driver’s criminal intent. We conclude the Commonwealth did not prove appellant aided and abetted the driver in the commission of the theft.
CONCLUSION We find the trial court erred in finding the evidence sufficient beyond a reasonable doubt to convict appellant of grand larceny and posse ssion of a firearm by a felon. We, therefore, overturn and dismiss the convictions. Reversed and dismissed.