Kenneth E. Viar v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Fitzpatrick and Senior Judge Cole
Argued at Richmond, Virginia
KENNETH E. VIAR
v. Record No. 1434-93-2 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA AUGUST 8, 1995
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
John R. Snoddy, Jr., Judge
Joseph A. Sanzone (Joseph A. Sanzone Associates, on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Kenneth E. Viar (appellant) appeals from a judgment of the
Circuit Court of Appomattox County (trial court) that approved
twelve jury verdicts convicting him for having in his possession
motor vehicles from which the vehicle identification number (VIN)
had been removed, changed, or altered without the consent of the
Department of Motor Vehicles (DMV), in violation of Code
§ 46.2-1075. In this appeal, appellant states five separate
issues for our consideration; however, each is premised upon a
claim that the evidence is insufficient to support the verdicts.
When sufficiency of the evidence is at issue on appeal, the
evidence must be viewed in the light most favorable to the
Commonwealth, and the evidence must be accorded all reasonable
____________________
*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The
jury's verdict, approved by the trial court, will not be
disturbed unless it is plainly wrong or without evidence to
support it. Code § 8.01-680; Stockton v. Commonwealth, 227 Va.
124, 145-46, 314 S.E.2d 371, 385 (1984).
Each indictment for which appellant stands convicted charged
that appellant violated Code § 46.2-1075 which provides:
Possession of vehicles with serial numbers
removed or altered.-- Any person who shall
knowingly have in his possession a motor
vehicle, trailer, or semitrailer, the motor
number, serial number, or identification
number of which has been removed, changed, or
altered without the consent of the Department
shall be guilty of a Class 6 felony.
The record discloses that on October 6, 1992, agents of the
Virginia State Police and the DMV searched the premises of
Hillcrest Motors owned by appellant and located on sixty-six and
one-half acres of land on which appellant operated a used car
business. In the course of that business, appellant would cause
damaged vehicles to be rebuilt by frequently using parts of other
similar vehicles. The vehicles involved were usually recovered
thefts, repossessions, or damaged in wrecks. Appellant's
practice was to gather parts needed, take the parts with the
vehicle to be rebuilt to one of several body shops, pay to have
the repairs made, and then sell the vehicle that had been
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rebuilt for him. 1 The leftover parts were either sold to a
salvage company or returned to appellant together with the
rebuilt vehicle.
Appellant had purchased the searched premises in 1981 and
constructed a garage thereon in 1988 from which he has since
operated the business. When the search was made, there were
numerous vehicles on the premises. A video tape introduced into
evidence showed some to be complete vehicles, others to be mere
frames whose identification numbers had either been removed or
were partly illegible. The original VIN is placed on the vehicle
when it is being newly assembled. It tells where the vehicle was
made, the type of engine, body style, the year it was made, and
similar information. The original VIN may not be lawfully
removed from one vehicle and placed on another vehicle without
notifying the DMV and obtaining approval of its use on the latter
vehicle. In the area of appellant's place of business, that
approval must be obtained by contacting DMV Agent D. L. Keesee.
Keesee testified that he had not authorized the removal, change,
or alteration of any of the VINs in issue.
During the search, the agents discovered twelve vehicles on
the premises owned by appellant that the motor number, serial
number, or identification number had been removed, changed, or
altered without the consent of the DMV. Six of these vehicles
1
Occasionally, appellant's employees would rebuild cars in the
same manner as the outside shops performed that act.
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contained VINs that had been registered to other vehicles. A
review of the record shows evidence that supports the indictments
relating to those six vehicles as follows:
1. 1987 Plymouth Reliant. The vehicle was
in the possession of Robert Lee Crews, sold
to him by Hillcrest Motors in 1992. State
Police Investigator McDowell (McDowell)
testified that it was a 1986 Plymouth,
displaying a 1987 Plymouth VIN. McDowell
stated that the difference in value between
the two vehicles was about $2,800, and that
the mileage on the 1986 model was 102,571,
while the mileage on the 1987 was 37,522;
2. 1991 Chevrolet pickup truck. The
vehicle was in the possession of Percy L.
Jennings, sold to him by Hillcrest Motors in
1992. McDowell testified that it was a 1989
pickup, displaying a 1991 model VIN.
McDowell stated that the difference in value
between the two vehicles was about $1,450.
The 1989 record mileage was 50,581 compared
to the record mileage of 53,471 for the 1991
vehicle;
3. 1991 GMC pickup truck. McDowell
testified that it was a 1988 Chevrolet S10
displaying a 1991 GMC VIN. The record
mileage on the 1988 was 47,983, while the
1991 record mileage was 22,962;
4. 1985 Ford pickup. The vehicle was in
the possession of Lanny Johnson, sold to him
by Hillcrest Motors in 1990. McDowell
testified that it was a 1983 vehicle,
displaying a 1985 VIN;
5. 1987 Astro Van. The vehicle was being
rebuilt inside the garage at Hillcrest
Salvage. McDowell determined it to be a 1985
van, displaying a 1987 VIN; and
6. 1987 Chevrolet Camaro. McDowell
testified that the VIN had been removed and
was found to have been placed on another 1987
vehicle.
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Jason Thacker (Thacker), an employee of appellant, testified
that he began working for appellant in the spring of 1992. One
weekend, he and appellant picked up a late model truck.
Appellant told him the VIN could be used on a different truck.
Thacker had seen five vehicles without VINs. Thacker testified
that his supervisor, Louis Foster, told him that appellant had
given them instructions to build the newer vehicles and
"sometimes that meant changing the VINs."
Approximately two weeks after making the VIN changes,
McDowell and Keesee recorded an interview with appellant. The
recording was later transcribed. Appellant's counsel heard the
recording and compared the transcription. Although he objected
to the admission of the transcription, he did not challenge its
accuracy and conceded that it could properly be read to the jury.
In the statement, appellant said that his instruction to his
employees "was to build the latest model unit" and "anybody that
has been in this business . . . has moved some VIN numbers.
Cause you know, I, I'm guilty of that, that's all I can say."
Appellant said: "I woke up from this nightmare before you all
got there. I was trying to figure out how to do it to get it
straightened out. You all have gotten here, we're, it's gonna
get straightened out." Appellant said that he and his wife had
been involved in a lengthy divorce and that had taken him away
from the car business, and he was not paying as much attention as
before. He knew that his employees were changing VINs.
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Appellant's excuse was that Keesee was not always available.
Appellant recognized that the fact that other people were doing
the same thing was not an excuse.
In addition to the violations listed above, McDowell and the
other investigators discovered six other VIN violations that did
not involve exchanges from one vehicle to another registered
vehicle. Appellant concedes that the VINs had been removed from
the six remaining vehicles which were located on his premises.
He denied knowledge but, upon review of each, made explanation as
to the probable cause of the violations. The jury rejected these
as legitimate reasons for the violations. We hold that the
explanations merely created jury questions which were decided
adversely to appellant. The evidence supports the jury verdicts.
Appellant argues that the evidence is insufficient to prove
he either possessed the vehicles or knew of the condition of the
VINs. We disagree. The record established that the vehicles
were subject to his dominion and control on the premises he
owned, and that he regularly was on the premises and operated the
business conducted thereon. The evidence is sufficient to show
he had actual knowledge of the presence and condition of some of
the vehicles and constructive knowledge of the others. See Drew
v. Commonwealth, 230 Va. 471, 338 S.E.2d 844 (1986); Powers v.
Commonwealth, 227 Va. 474, 316 S.E.2d 739 (1984); Brown v.
Commonwealth, 5 Va. App. 489, 364 S.E.2d 773 (1988). Although
ownership and use of the premises do not alone establish
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constructive possession, they are factors to be considered.
Eckhart v. Commonwealth, 222 Va. 447, 281 S.E.2d 853 (1981).
Appellant's statement and Thacker's testimony together with
evidence of ownership and operation of the business sufficiently
support the verdicts.
Finally, appellant argues that some of the "items" from
which the VINs had been removed were not in fact "vehicles." The
Code sections relied upon by appellant are not applicable here.
Code § 46.2-100 in relevant part includes items that were
"designed for self-propulsion." It does not require that the
items be operable at the time the VINs were removed.
Appellant presented evidence to excuse the transfer of VINs,
asserting that it was some other person who made the transfers;
therefore he was not aware of the presence of items whose VINs
had been removed. All his evidence was presented to the jury and
rejected.
When weighing the evidence, the fact finder is not required
to accept entirely either the Commonwealth's or defendant's
account of the facts. Barrett v. Commonwealth, 231 Va. 102, 107,
341 S.E.2d 190, 193 (1986). Moreover, the fact finder is not
required to believe all aspects of a defendant's statement or
testimony; the trial judge or jury may reject that which it finds
implausible, yet accept other parts which it finds to be
believable. Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d
603, 606 (1973). Thus, the jury was entitled to accept only
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those parts of appellant's evidence that it found plausible and
credible when considering all the facts presented to it. The
jury having rejected the excuses presented and when viewing the
evidence in the light most favorable to the Commonwealth, we find
that the evidence is sufficient to support the verdicts.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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