Opinion
Record No. 0832-92-3
November 23, 1993
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY B.A. DAVIS, III, JUDGE.
Clyde H. Perdue, Jr. (Raine Perdue, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Fitzpatrick.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Albert Junior Cook (appellant) appeals his conviction of receiving stolen property in violation of Code § 18.2-108. On appeal, he argues that the evidence was insufficient to prove his guilt. We disagree and affirm the conviction.
On August 29, 1991, a storage trailer belonging to Computerland was burglarized and several pieces of computer equipment were taken. On September 30, 1991, Computerland notified the police that one of the stolen computers was brought into their store for repair. Although the serial numbers on the exterior of the computer had been removed, a serial number on the inside of the computer matched the serial number of a computer stolen in the August break-in.
The computer was brought to the store by Diane Fisher, an employee of Tim Wray, owner of Tim's Texaco. Wray purchased the computer, keyboard, and monitor from appellant on September 10, 1991, for $300.
Conflicting testimony was presented in this case. Appellant denied taking the computer or knowing that it was stolen. He asserts that he first learned about the computer on September 1, 1991 when he was collecting rent from Jamie Muse, who rented a house in Roanoke owned by appellant's mother. Muse allegedly asked appellant if he knew of anyone who wanted to buy a used computer. Appellant claims that Muse told him that the computer came from a lady in Christiansburg, Virginia. Appellant responded to Muse that he did not know of a buyer for the computer, but that he would ask around. Two days later, while talking to Wray at Tim's Texaco, he asked if Wray knew of anyone who was interested in buying a used computer. Wray told appellant that he was interested.
On September 10, 1991, appellant and his girlfriend (Juanita Novia) took the computer from Muse and brought it to Tim's Texaco where Wray offered to buy it for $300. Appellant left the store and called Muse, who accepted the offer. Appellant contends that Wray then told him to drive to Wray's house where they exchanged the computer for a $300 check made payable to "Cash."
Wray's testimony conflicts with the version of events described by appellant. Wray testified that the conversation which appellant claims occurred on or about September 3, 1991, never took place. Rather, Wray describes the first discussion of the computer as occurring when appellant came into the store "out of the blue" and asked him if he wanted to buy a used computer. Wray stated that he never previously solicited or advised appellant that he was seeking a used computer. In addition, he testified that appellant came to the store alone, and that the two men "haggled" over the price. Once they settled on the price, the computer was brought directly into the store's office where Wray gave appellant a check for $300 made out to "Cash." Appellant testified that he cashed the check at his bank and later gave Muse all of the money.
Familiar principles of appellate review provide as follows:
When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The [trial court's] verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide."Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Appellant was convicted of receiving stolen property in violation of Code § 18.2-108. "Knowledge that the goods received were stolen property is an essential element of the crime, one which the Commonwealth must prove beyond a reasonable doubt. Absent proof of an admission against interest, such knowledge necessarily must be shown by circumstantial evidence."Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983) (citations omitted). "[G]uilty knowledge need not be directly proved. It may be shown by circumstances. It is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen." Reaves v. Commonwealth, 192 Va. 443, 451, 65 S.E.2d 559, 564 (1951) (citations omitted).
Appellant admits that he sold the computer to Wray and that he cashed the check that Wray gave him in payment for the computer. The evidence shows that the computer equipment was stolen thirteen days prior to the date appellant made the sale. Therefore, the Commonwealth's evidence proves appellant was in possession of recently stolen property and, as such, "constituted prima facie evidence that the [appellant] received the stolen goods with guilty knowledge and cast upon him the burden of going forward with evidence in explanation."Roberts v. Commonwealth, 230 Va. 264, 271, 337 S.E.2d 255, 260 (1985) (citing Westcott v. Commonwealth, 216 Va. 123, 127, 216 S.E.2d 60, 64 (1975) (other citations omitted).
Appellant testified that he did not know the equipment was stolen and that he made the sale as a favor for Muse. The trial court rejected appellant's explanation and specifically found that "[t]he Defendant knew he was in possession of stolen property at the time he sold it to Mr. Wray." It is well settled that the fact finder is "'not obliged to accept' what it obviously found was an unreasonable explanation. And, in the prosecution of this type of case, when a defendant's 'hypothesis of innocence is [rejected as] unreasonable, evidence of possession of recently stolen goods is sufficient to support a conviction.'" Roberts, 230 Va. at 272, 337 S.E.2d at 260 (quoting Westcott, 216 Va. at 127, 216 S.E.2d at 64).
The trial judge recognized that conflicting evidence was presented by both sides and that he was "inclined to believe some of [appellant's] version." The trial judge, however, was not obligated "to accept, in toto, either the theory of the Commonwealth or that of an accused. [The factfinder had] the right to reject that part of the evidence believed by [him] to be untrue and to accept that found by [him] to be true."Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958) (citations omitted); see also Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986); Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973) (factfinder may reject that portion of the testimony which it finds implausible but accept other parts which it finds believable).
From the record before us, we cannot say that the trial court's judgment is plainly wrong or without evidence to support it. Accordingly, we affirm the conviction.
Affirmed.