Opinion
Record No. 2111-92-3
Decided: May 10, 1994
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, Ernest W. Ballou, Judge Designate
Affirmed.
Maureen L. White, Assistant Public Defender (James Hingeley, Public Defender, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The Circuit Court of the City of Lynchburg convicted Alphonso Lee Hubbard (Hubbard) in a bench trial on a single count of grand larceny of payroll checks in violation of Code Sec. 18.2-98. In this appeal, Hubbard challenges the sufficiency of the evidence to prove that he stole all of the missing paychecks. He also contends that the value of the one paycheck shown to have been in his possession was less than two hundred dollars, rendering his crime merely petit larceny, rather than grand larceny. For the reasons that follow, we affirm Hubbard's conviction.
Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding. Hubbard arrived at Burrus Land and Lumber Co. (Burrus) at 8:30 a.m. on January 31, 1992, ostensibly for a job interview with the plant manager. Prior to Hubbard's arrival at Burrus, office manager Brenda Hudson (Hudson) had sorted the payroll checks that were to be distributed that day and placed them in groups in an unlocked filing cabinet. Hudson was alone in the office when Hubbard arrived. She directed him to wait in the hall until the plant manager arrived. Hudson then moved to work in a computer room adjoining the office while Hubbard waited in the hall.
Hudson did not see or hear Hubbard enter the office while she worked in the computer room, nor was she certain that he remained in the hall. After approximately fifty minutes, Hubbard asked Hudson when the plant manager would return. She replied that she did not know, and Hubbard left after giving Hudson his name. Shortly thereafter, the wife of an employee, Herbert Cyrus, came to collect his paycheck, and Hudson discovered that one group of checks, among them Cyrus's check, was missing from the cabinet. The checks had a face value in excess of two thousand dollars.
Beth Gray (Gray), an employee of Debb's Place Market, testified that at 9:30 on the morning of the theft, Hudson entered the store and attempted to cash a Burrus payroll check made out to Herbert Cyrus in the amount of one hundred forty-eight dollars and eighty-six cents. Burrus's employees frequent Debb's Place, located one quarter of a mile from Burrus, and occasionally cashed payroll checks there.
Two employees of Crestar Bank, called as witnesses for the defense, testified that two other Burrus checks were cashed at the drive-up window of the bank's downtown branch on January 31, 1992 sometime between noon and 1:00 p.m. A surveillance camera recorded the transaction and shows that the driver, not Hubbard, passed the two checks to the teller. The teller testified that she saw a second male in the vehicle, but could neither identify Hubbard as that person nor exclude the possibility that it had been Hubbard.
Police interviewed Hubbard around 2:00 p.m. the day of the theft. Hubbard alternately claimed that the check he had attempted to cash at the market was either a tax refund check or a check given to him by his wife.
It has long been the rule in this Commonwealth that proof of possession of recently stolen goods presents prima facie evidence that the possessor was the thief. See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980); Kelly v. Commonwealth, 181 Va. 576, 579, 26 S.E.2d 63, 64 (1943), cert. denied, 321 U.S. 767 (1944). Moreover, "[i]t is immaterial that the quantity of goods possessed [is] less than the quantity stolen and charged in the indictment, for the fact-finder '. . . may infer the stealing of the whole from the possession of part.' " Henderson v. Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975) (quoting Johnson v. Commonwealth, 141 Va. 452, 456, 126 S.E. 5, 7 (1925)).
As in Henderson, the evidence here shows that Hubbard, at a point proximate in both time and locality to the scene of the theft, possessed at least part of a distinctive set of stolen property. Additionally, the trier of fact could consider Hubbard's inconsistent statements to the police as demonstrative of Hubbard's guilty state of mind. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981); Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 179-80 (1988). These facts support a reasonable inference by the trier of fact that Hubbard had both the opportunity and the means to obtain all of the checks and that he knew his possession of Cyrus's check was wrongful.
Whether the Commonwealth relies upon either direct or circumstantial evidence, it need not disprove every conceivable possibility of innocence, but instead need only establish the guilt of the accused to the exclusion of a reasonable doubt. Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986). In doing so, the Commonwealth must exclude reasonable hypotheses of innocence that flow from the evidence. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991). The hypothesis that some third party purloined the group of checks and that Hubbard, within ten minutes, came either illicitly or serendipitously into possession of only the Cyrus check does not reasonably flow from the evidence adduced at trial.
Accordingly, we cannot say that the trial judge's verdict was plainly wrong or without support in the evidence, see Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), nor can we say that the Commonwealth failed in meeting its burden to establish guilt of grand larceny beyond a reasonable doubt. For these reasons, we affirm Hubbard's conviction.
Affirmed.