Opinion
Record No. 2064-92-2
February 15, 1994
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY WILLIAM E. SPAIN, JUDGE DESIGNATE.
Scott Goodman, for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Koontz and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Hank LaRobert Shaver appeals from his conviction for grand larceny in violation of Code § 18.2-95. On appeal, he contends (1) that the trial court erred in giving the Commonwealth's proffered instruction on the inferences to be drawn from recent possession of stolen goods; (2) that the evidence was insufficient to sustain his conviction; and (3) that the trial court erred in permitting the Commonwealth to argue the issue of punishment on rebuttal. For the reasons that follow, we reverse appellant's conviction on his challenge to the sufficiency of the evidence without reaching his other assignments of error.
We are guided by the following principles: "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."Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). Unless the jury's verdict is "plainly wrong or without evidence to support it," it will not be disturbed on appeal. Id. In addition, it is up to the jury to determine the credibility of the witnesses, by "weighing such factors as the appearance and manner of the witness on the stand, their intelligence, their opportunity for knowing the truth and observing the things about which they testify, their interest in the outcome of the case, their bias, and if any had been shown, their prior inconsistent statements. . . ." Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987) (citing Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29 (1949)). Finally, circumstantial evidence is sufficient to support a conviction only if it excludes every reasonable hypothesis of innocence. See McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987); Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986).
The evidence in this case showed that the Eaves' home, which was located in Buckingham County on route 20 just outside of Scottsville, was broken into on December 9, 1991, between 2:00 and 6:00 p.m. Appellant, Frank Shaver (appellant's brother), and Nevada Shane Wood had all been guests in the Eaves' home three days prior to the break-in. Appellant's employer testified that after work on December 9, he took appellant to his mother's house in Charlottesville, arriving sometime after 5:30 p.m. At 7:30 p.m., the police found appellant, his brother Frank, Nevada Shane Wood, and a fourth person, Michael Brown, at a location eighteen miles south of the Eaves' home in an automobile whose hatchback area contained several of the stolen items, including photographs and personal documents bearing the victims' names. A coffee can containing various coins, including several half-dollars, was found on the floorboard of the rear left seat, and several half-dollars were found in appellant's pants pocket. The record shows that appellant was riding in the right front or right rear passenger seat. Finally, when stopped by police, appellant and his brother were verbally and physically abusive toward the police and calmed down only after several civilians and other officers arrived on the scene with guns.
We recognize that "[p]roof of possession of recently stolen goods is prima facie evidence that the possessor was a thief,"Henderson v. Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 784 (1975), and "throws upon the accused the burden of accounting for that possession." Hope v. Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990) (en banc) (quotingFout v. Commonwealth, 199 Va. 184, 190-91, 98 S.E.2d 817, 821-22 (1957)). Appellant asserts that this evidence was insufficient to show that he "was ever aware of, much less in [either actual or constructive] possession of," the recently stolen goods. Clearly, appellant's mere presence in the Chevette was insufficient to support his conviction. See Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981);Burgess v. Commonwealth, 14 Va. App. 1018, 1023-24, 421 S.E.2d 664, 667 (1992).
The Commonwealth asserts that the record contains additional facts sufficient to constitute "a further showing of actual knowing possession," such as exercise of dominion and control over the stolen property. See Nelson v. Commonwealth, 12 Va. App. 268, 270-71, 403 S.E.2d 384, 386 (1991). The critical link in this case, it argues, is appellant's possession of several fifty-cent pieces or half-dollars like those in the coffee can stolen from the Eaves' home and found in the back seat of the Chevette. As the Supreme Court noted in Cook v. Commonwealth, 214 Va. 686, 204 S.E.2d 252 (1974), "the identity of stolen property which is incapable of strict proof is not required to be strictly proved 'where proof of possession is very recent.'" Id. at 687, 204 S.E.2d at 253 (quoting Gravely v. Commonwealth, 86 Va. 396, 401, 10 S.E. 431, 432-33 (1889)). InCook, the Court upheld the conviction where the evidence showed that a pint-sized jar of pre-1964 silver coins, some of which were sticky and had pieces of scotch tape on them, had been taken from the victim's home and that defendant possessed coins matching that exact description on the day of the theft.Id. at 687-88, 204 S.E.2d at 252-53. Although noting that "[c]oins are somewhat fungible and are not easily identified," the Court concluded that the "facts and circumstances [inCook] made the coins more easily identifiable." Id. at 688, 204 S.E.2d at 253; see Henderson v. Commonwealth, 215 Va. at 813, 213 S.E.2d at 783-84 (upholding conviction where defendant was found to have in his apartment certain tires that were goods of the same distinctive types as those stolen, and his possession was at a point fifteen to twenty yards from the scene of the theft on the same night they were stolen).
In this case, by contrast, the coins found in appellant's pocket were not readily identifiable. Although a court might be able to take judicial notice of the fact that half-dollars circulate in lower numbers than certain other coins, this fact, standing alone, does not render the coins in appellant's possession unique enough to link them to the theft. Therefore, we conclude that the evidence was insufficient to support a finding either that the goods found on appellant's person were stolen or that appellant had knowing possession of the items in the car which clearly had been stolen. As argued by appellant, a reasonable hypothesis flowing from the circumstantial evidence in this case is that appellant's brother and friends picked him up at his mother's house in Charlottesville after the break-in was complete, that he had no awareness of the presence of the stolen goods in the car, and that he came into possession of the half-dollars in his pocket through lawful means.
For these reasons, we reverse appellant's conviction.
Reversed and dismissed.