Opinion
Record No. 0480-93-1
Decided: October 4, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, John E. Clarkson, Judge
Reversed and dismissed.
David H. Moyer (Bashara Hubbard, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Thaddeus Lee Reid appeals his conviction for receiving or aiding in the concealment of stolen property, an automobile, in violation of Code Sec. 18.2-108. He contends that the evidence was insufficient to support his conviction because it failed to show he aided in concealing the vehicle. For the reasons that follow, we reverse appellant's conviction.
I.
On November 9, 1992, Officers Wash and Spruill were following a vehicle that they believed might have been stolen. When Spruill's marked police car made a U-turn to follow the vehicle, it "accelerated rapidly," made a sharp turn, and came to a stop in a residential driveway. Three people jumped out of the car and fled in different directions. When the officers had positioned themselves on either side of appellant, he stopped running and obeyed their request to lie down on the ground. When questioned, he gave a false name and social security number. The officers discovered his real name only through fingerprinting. The officers did not identify appellant as the driver of the vehicle.
The vehicle was identified as having been stolen on October 20, 1992. The vehicle identification number had been removed from the dashboard, the license plates were missing, and the temporary tag on the car was registered to a different vehicle. The horn portion of the steering wheel had been removed, exposing the internal wires.
Appellant testified that prior to being apprehended by police, he accepted a ride in the car from Alton Winston, an acquaintance of his since elementary school, whom he had previously seen driving the car. Appellant testified that he sat in the left rear passenger seat of the four door car and noticed nothing unusual about the steering wheel. Appellant also testified that Winston said he was going to run from the officers because "he didn't have his license."
Appellant gave conflicting testimony as to when he realized the car might have been stolen. He reported first that when Winston ran, "[he] figured then the car was stolen, but then again I was confused. I really didn't know." On cross-examination, he denied having any idea that the car was stolen until after he had begun to run from the police. He also testified that he gave the police a false name because he was on probation for a felony and was afraid he would receive a probation violation.
The court held that the circumstantial evidence-that appellant knew the driver, saw the car in the neighborhood, fled the scene, and gave police a false name-was sufficient to prove guilty knowledge.
II.
In reviewing a challenge to the sufficiency of the evidence on appeal, "we [view] the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment . . . will not be set aside unless it appears from the evidence that [it] 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). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing . . . ." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 744, 752 (1945)).
In order to support appellant's conviction, the Commonwealth had to prove that appellant aided in concealing the stolen automobile with knowledge that it had been stolen and with a dishonest intent. Code Sec. 18.2-108; see Starks v. Commonwealth, 225 Va. 48, 301 S.E.2d 152 (1983). Guilty knowledge may be shown by circumstantial evidence, such as the defendant's efforts to evade arrest. Spitzer v. Commonwealth, 233 Va. 7, 9, 353 S.E.2d 711, 713 (1987). However, here, as in Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992), "[t]he trier of fact had no basis upon which to conclude that [the accused] noticed the condition of the ignition at the time he was in the automobile." Id. at 1023, 421 S.E.2d at 667.
The evidence, viewed in the light most favorable to the Commonwealth, proved that appellant was merely a backseat passenger in the four door vehicle. Although the trial court was entitled to disbelieve appellant's testimony that he did not notice the ignition had been punched out, the record still lacked substantive evidence to prove that appellant had such knowledge. Finally, even if the evidence were sufficient to show that appellant knew the vehicle was stolen, mere presence in and subsequent flight from the vehicle is insufficient to show that the accused aided in concealing it with a dishonest intent. Cf. id. (citing Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893 (1982)) (holding that proof that a defendant was present in a vehicle with knowledge that it was stolen was insufficient to prove larceny absent additional evidence that the defendant exercised dominion and control over the vehicle); see also Spitzer, 233 Va. at 9, 353 S.E.2d at 713 (holding that evidence of erratic driving in stolen car was sufficient to prove concealment with guilty knowledge where accused was the driver).
Because the Commonwealth failed to prove all elements of the crime beyond a reasonable doubt, we reverse appellant's conviction.
Reversed and dismissed.