Opinion
Record No. 0649-92-2
July 20, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Robert P. Geary, for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Benton and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Douglas W. Cunningham, appellant, appeals his conviction of unauthorized use of an automobile in violation of Code § 18.2-102. We reverse and hold that the evidence was insufficient to establish appellant's knowing unauthorized use of an automobile.
Appellant was convicted of violating Code § 18.2-102, which states in pertinent part that "any person who shall . . . drive or use any . . . vehicle . . . not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony. . . ."
Appellant was driving the vehicle which was not his own without the consent or presence of the owner. The issue is whether appellant knew that Antonio Whiters, appellant's friend who let appellant use the car, did not have authority to allow appellant to use the car.
It is well settled in Virginia that to justify conviction of a crime, it is not sufficient to create a suspicion or probability of guilt, but the evidence must establish the guilt of an accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of a party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.
Camp v. Commonwealth, 14 Va. App. 879, 884, 419 S.E.2d 435, 438 (1992).
The Commonwealth's uncontradicted evidence established that Antonio Whiters told appellant the car was rented from a person named Calvin. Whiters discovered the true owner's license above the sun visor and the true owner's checkbook in the glovebox, but never told appellant about these items. Whiters further testified that, although he was suspicious about the true ownership of the car, he never shared these suspicions with appellant.
This evidence fails to exclude the reasonable hypothesis of innocence that appellant used the car with Whiters' consent,without knowledge that Whiters did not have authority to permit appellant to use the car. Accordingly, the evidence is insufficient to support appellant's conviction and this case is reversed and dismissed.
Reversed and dismissed.