Alvin B. Turner v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
ALVIN B. TURNER
v. Record No. 2473-94-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 23, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Angela D. Whitley for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Alvin B. Turner was convicted in a bench trial of statutory
burglary. Turner contends that the evidence was insufficient to
sustain the conviction. We agree and reverse the conviction.
The Commonwealth asserts that the defendant failed to
properly object to the sufficiency of the evidence as to the
burglary charge, and is barred from raising this issue on appeal.
Rule 5A:18. Defense counsel moved to strike the evidence at the
conclusion of the Commonwealth's case as to the statutory
burglary charge, and the trial court overruled the motion. The
defendant then testified in his own behalf. He did not renew the
motion to strike at the conclusion of all the evidence. See
McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 424,
425 (1995) (by presenting evidence a defendant waives the motion
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to strike the evidence made at the conclusion of the
Commonwealth's case). However, he did move to set aside the
guilty verdict as to statutory burglary on the grounds that
"there's no evidence -- that [Wendy Hankins] gave the check to
[the defendant] or that he gave the check to her or that he knew
the other codefendant gave her the check."
"A proper motion to set aside a verdict will preserve for
appeal a sufficiency of the evidence question." Brown v.
Commonwealth, 8 Va. App. 474, 480, 382 S.E.2d 296, 300 (1989).
In deciding whether the motion to set aside the verdict was
proper to preserve the sufficiency issue for appeal, we must
determine whether the trial court had "opportunity to address the
issue and prevent unnecessary appeals." Id.; see Rule 5A:18.
Here, the defendant, in requesting the court to set aside
the verdict, argued that "[t]here's no evidence that he knew
anything about [the stolen check], no evidence that he encouraged
and abetted or anything else. . . . The evidence is completely
silent." The trial court responded, "I'm satisfied with the
decision I made." It is clear from the exchange that the
defendant was contesting the sufficiency of the evidence to prove
statutory burglary and was arguing that the evidence failed to
prove that the defendant possessed or even knew about the check
or that it was stolen. The trial court considered and rejected
the defendant's argument. Accordingly, the defendant properly
preserved the sufficiency of the evidence question for appeal and
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the trial court clearly considered the issue.
In determining whether the evidence is sufficient to sustain
the defendant's statutory burglary conviction, "we view the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom." Brown, 8 Va. App. at 480-81, 382 S.E.2d at 300. To
establish a prima facie case of statutory burglary based on
constructive or actual possession of recently stolen property,
the Commonwealth must prove (1) that goods were stolen from a
house that was broken into; (2) that both the breaking and
entering and the larceny were committed at the same time, by the
same person, as part of the same criminal enterprise; and (3)
that the stolen goods were found soon thereafter in the
possession of the accused. Bright v. Commonwealth, 4 Va. App.
248, 251, 356 S.E.2d 443, 444 (1987).
The evidence showed that the codefendant gave Wendy Hankins
a check that had been recently stolen in a burglary and he asked
her to cash it. Hankins endorsed the check, and the defendant
drove Hankins and the codefendant to a grocery store. After
cashing the check, Hankins gave the proceeds to the codefendant.
The record does not show that the defendant ever handled the
check, or that the codefendant gave the defendant any of the
proceeds. The evidence fails to prove that the defendant
actually or constructively possessed the check. Hankins
testified that the codefendant gave her the check in a hotel
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room. It is not clear from Hankins' testimony whether the
defendant was present at that time. Nevertheless, the defendant
drove Hankins and the codefendant to the grocery store where
Hankins cashed the check and he was present when Hankins gave the
proceeds to the codefendant. However, mere proximity to the
stolen check is not sufficient to prove that the defendant
actually or constructively possessed the check. See Nelson v.
Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384, 386 (1991)
(holding that presence inside stolen vehicle is not sufficient to
show that the accused "exercised dominion and control over the
vehicle"). No evidence proves that the defendant exercised
dominion or control over the check or that he knew that it had
been stolen.
We hold that the evidence was insufficient to prove that the
defendant exercised joint control with the codefendant or Hankins
over the stolen check. See Reese v. Commonwealth, 230 Va. 172,
175, 335 S.E.2d 266, 268 (1985) (stating that "[t]here must be
evidence of joint control to justify the inference of joint
possession"). Accordingly, the Commonwealth failed to establish
a prima facie case of statutory burglary, and we reverse the
defendant's conviction and dismiss the charge against him.
Reversed and dismissed.
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