Gerald Ellis McWilliams v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
GERALD ELLIS McWILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2021-98-2 JUDGE WILLIAM H. HODGES
OCTOBER 12, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
William J. Viverette for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant was convicted of grand larceny of an automobile.
On appeal, he argues that the evidence was insufficient to
support the conviction because the Commonwealth failed to prove
that he knew that the automobile was stolen and that he
exercised dominion and control over it. We agree and reverse.
When the sufficiency of the evidence is challenged on
appeal, "'we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom.'" Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
So viewed, the evidence proved that on the afternoon of
June 15, 1998, appellant and Michael Brown, a codefendant, saw a
man named Walter. Appellant had a VCR that he wanted to pawn,
and Walter offered to drive appellant and Brown to the pawnshop.
Either Brown or Walter drove the car, starting it with a key on
a ring that contained several other keys.
William and Debra Mitchell lived three houses away from
appellant. The Mitchells owned an automobile that they parked
on the street in front of their house. The Mitchells last saw
the automobile on June 14, 1998, and noticed that it was missing
on the morning of June 15, 1998. Mr. Mitchell could not find
his keys to the automobile on June 14, 1998.
On June 15, 1998, the Mitchells were driving in another
automobile when they saw their missing automobile. While stopped
at a traffic light, the Mitchells confronted appellant, Brown and
Walter. Appellant testified that he got out of the automobile and
told Brown and Walter to give the automobile to the Mitchells.
Appellant attempted to retrieve his VCR, and he struggled with Mr.
Mitchell. The police arrived and only Walter ran from the scene.
Larceny is defined as the "wrongful taking of the goods of
another without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods."
Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
(1987) (citation omitted). "Once the crime is established, the
unexplained possession of recently stolen goods permits an
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inference of larceny by the possessor." Id. For the larceny
inference to arise, however, "the Commonwealth must establish
that the accused was in exclusive possession of property
recently stolen." Best v. Commonwealth, 222 Va. 387, 389, 282
S.E.2d 16, 17 (1981) (citation omitted). Consequently, there
must be evidence that the defendant exercised dominion and
control over the property. See Moehring v. Commonwealth, 223
Va. 564, 568, 290 S.E.2d 891, 893 (1982). Evidence of mere
presence in a stolen vehicle is insufficient to establish
exclusive possession. See Nelson v. Commonwealth, 12 Va. App.
268, 271, 403 S.E.2d 384, 386 (1991) (citation omitted).
The automobile did not have any signs of forced entry, and
the steering column and windows were intact. A key on a key
ring was used to start the automobile. When the Mitchells
stopped the automobile, appellant was a passenger in the
automobile, and he did not flee from the scene.
"[A] suspicion of guilt, however strong, or even a
probability of guilt, is insufficient to support a criminal
conviction." Bishop v. Commonwealth, 227 Va. 164, 170, 313
S.E.2d 390, 393 (1984). No evidence was presented to show that
appellant assisted in the theft of the automobile. The evidence
did not prove beyond a reasonable doubt that appellant exercised
any degree of dominion or control over the automobile or that he
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shared joint exclusive possession of the stolen automobile.
Accordingly, we reverse the larceny conviction.
Reversed and dismissed.
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