Summary
In Wilson, a case involving grand larceny of an automobile, there was testimony that Wilson "look[ed] like the man that was driving my car.
Summary of this case from Osborne v. DaleOpinion
Record No. 1931-92-1
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Dennis F. McMurran, Judge
Affirmed.
Dianne G. Ringer, Assistant Public Defender, for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Lamorris Earl Wilson appeals his conviction for grand larceny of an automobile. He contends the evidence is insufficient to sustain the conviction. We hold that the trial court did not err in finding the victim's identification testimony, together with the other evidence, sufficient to prove beyond a reasonable doubt that appellant committed grand larceny of an automobile. Accordingly, we affirm the appellant's conviction.
Willie Lee Heart testified that he saw two men drive by in his automobile after it was missing from his employer's parking lot. Within one-half hour, Officer M. L. Gavin observed Wilson and another man walking away from Heart's automobile in a parking lot. After Wilson was arrested, Heart positively identified Wilson as the man driving his stolen car. At trial, Heart testified that the defendant, Wilson, "looks like the man that was driving my car. This is all that I can say, whether or not it's a hundred percent, ninety-eight percent." In addition to the identification, Wilson's fingerprint was found on the outside of the driver's side window of Heart's car.
Heart's identification and the other evidence are sufficient to prove grand larceny of the automobile. Hammer v. Commonwealth, 207 Va. 159, 163, 148 S.E.2d 892, 895 (1966); Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d 611, 614 (1968). The law does not require that identification testimony be absolutely certain in order to be admissible. Martin v. Commonwealth, 210 Va. 686, 692, 173 S.E.2d 794, 799 (1970); see also 3 Wigmore Evidence Sections 726-28 (1970). The victim expressed sufficient certainty in his identification of the defendant as the person he observed driving his stolen vehicle to make the identification admissible. The manner in which Heart expressed his degree of certainty in the identification goes to the weight that the fact finder may choose to accord his identification. The trial court did not err by admitting and considering Heart's identification testimony.
Considering all the evidence, Wilson's guilt was established beyond a reasonable doubt. The recent possession of stolen property, established by Heart's seeing him driving the vehicle, his fingerprint on the vehicle, and the officer's seeing him walk away from the vehicle, raises the presumption that defendant is guilty of larceny. See Williams v. Commonwealth, 188 Va. 583, 597, 50 S.E.2d 407, 414 (1948). The trial court was not required to accept defendant's explanation of his presence near the vehicle. Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 5 (1958). A witness's testimony "may be disbelieved where it is . . . inconsistent with circumstances in evidence . . . especially where the witness is a party." Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568 (1968). Accordingly, we affirm the appellant's conviction of grand larceny of an automobile.
Affirmed.