From Casetext: Smarter Legal Research

Britt v. Commonwealth

Court of Appeals of Virginia
Mar 28, 1995
Record No. 2204-93-1 (Va. Ct. App. Mar. 28, 1995)

Opinion

Record No. 2204-93-1

Decided: March 28, 1995

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, William F. Rutherford, Judge

(Douglas Fredericks, on briefs), for appellant. Appellant submitting on briefs.

(James S. Gilmore, III, Attorney General; G. Russell Stone, Jr., Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

Present: Judges Barrow, Koontz and Elder


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Kenneth Eugene Britt (Britt) appeals his conviction for unauthorized use of a motor vehicle pursuant to Code Sec. 18.2-102. Britt contends that the evidence was insufficient to show that he did more than enter the vehicle after it had already been moved. For the following reasons, we affirm Britt's conviction.

Relying on Reese v. Commonwealth, 230 Va. 172, 335 S.E.2d 266 (1985), Britt contends that the evidence showed only his mere presence in the vehicle, which is insufficient to establish the requisite intent to deprive the owner of possession. We agree that mere presence in a vehicle which has been misappropriated does not establish an intent to deprive the owner of that vehicle either temporarily or permanently. Id. at 175, 335 S.E.2d at 267-68; see also Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892 (1982). However, in Reese, the accused was present with the actual thief. That is not the case here.

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code Sec. 8.01-680). Where the Commonwealth relies on circumstantial evidence to prove the essential elements of an accused's guilt, it is required not only to establish guilt of the accused to the exclusion of a reasonable doubt, but also to disprove every reasonable hypothesis of the accused's innocence. Lafon v. Commonwealth, 17 Va. App. 411, 426, 438 S.E.2d 279, 288. However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that the imagination of the accused can construct to conform to discrete components of the evidence presented by the prosecution. 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).

Here, the record does not support Britt's contention that some other person moved the vehicle and that he merely entered the vehicle to sleep at some point thereafter. Moreover, the trier of fact was not required to believe Britt's testimony, Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362 (1986), and was thus left with the conclusion that Britt's presence in the car was not coincidental to it having been moved. It was reasonable for the trial judge to infer from the record as a whole that Britt came into possession of the missing keys and used them to appropriate the car without the consent of the owner and with the intent temporarily to deprive the owner thereof of possession.

For these reasons, we affirm Britt's conviction.

Affirmed.


Summaries of

Britt v. Commonwealth

Court of Appeals of Virginia
Mar 28, 1995
Record No. 2204-93-1 (Va. Ct. App. Mar. 28, 1995)
Case details for

Britt v. Commonwealth

Case Details

Full title:KENNETH EUGENE BRITT v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia

Date published: Mar 28, 1995

Citations

Record No. 2204-93-1 (Va. Ct. App. Mar. 28, 1995)