Mohammed Mike Sbitan v. Commonwealth ( 2006 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Felton
Argued at Alexandria, Virginia
MOHAMMED MIKE SBITAN
MEMORANDUM OPINION* BY
v. Record No. 1863-04-4 JUDGE WALTER S. FELTON, JR.
JANUARY 17, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Marvin D. Miller for appellant.
Eugene Murphy, Senior Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Mohammed Mike Sbitan (“appellant”) appeals his convictions for petit and grand larceny,
following a jury trial. Appellant contends the circumstantial evidence was insufficient to establish,
beyond a reasonable doubt, that he committed larceny of truck parts and tools from two vehicles
parked in the Koons Ford body shop parking lot and that he knowingly possessed those items at the
time of his arrest. He also asserts the evidence presented to the jury did not exclude every
reasonable hypothesis of his innocence. For the reasons that follow, we affirm.
I. BACKGROUND
When the sufficiency of the evidence to sustain a criminal conviction is challenged on
appeal, “we view the evidence in the light most favorable to the Commonwealth, the party
prevailing below, and grant all reasonable inferences fairly deducible therefrom.” Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996) (citing Higginbotham v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). So viewed, the undisputed
evidence proved that on the evening of September 6, 2003, Eduardo Torrey, an off-duty special
agent with the Virginia Department of Motor Vehicles, was working as a security guard for
Koons Ford in Falls Church. He began his shift shortly before 11:00 p.m. Torrey initially
checked Koons’ various lots, including the body shop lot,1 and observed no suspicious
circumstances.
At approximately 12:30 a.m., Torrey returned to the body shop lot. His cursory drive
around the body shop building revealed no visible signs of unauthorized persons or vehicles.
Torrey left his car to check the lock on the front door of the body shop. As he was turning to
walk back to his car, he observed vehicle lights at the back of the parking lot, and watched as a
dark-colored Jeep Cherokee, occupied by two males, slowly moved towards him. Once the Jeep
approached the area where Torrey was standing, it increased its speed and “sped out of the
parking lot really fast.” Torrey entered his car and followed the Jeep in an effort to obtain its
license tag number.
Officer Uelman of the City of Falls Church Police Department was performing moving
radar traffic enforcement on the street running adjacent to Koons’ body shop. She observed the
Jeep approaching her car as her radar clocked the Jeep’s speed at 17 miles per hour above the
speed limit. The officer made a u-turn and executed a traffic stop. As she stepped out of her
vehicle, Torrey arrived and explained to Officer Uelman, whom he knew, that the stopped Jeep
had just left the Koons lot at a high rate of speed.
1
When Torrey initially checked the body shop building, employees were still working
inside.
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Officer Uelman identified the driver as appellant.2 When she and another officer looked
into the open rear cargo area of the Jeep, they saw various items discovered shortly thereafter to
have been stolen from an “Al’s Towing” tow truck and from a “Pro Air” van parked on the
Koons body shop lot. Among the items found in the cargo area was a Duwalt cordless drill and
its case marked with a handwritten “Pro Air” for identification, an impact wrench belonging to
Pro Air, LED running lights, wheels, hubcaps, and other items identified as having been stolen
from the “Al’s Towing” tow truck and the “Pro Air” van.
During the stop and subsequent search,3 Officer Uelman observed that the hands of
appellant’s passenger, Josh Fredericks, were “extremely dirty . . . greasy black.” Fredericks also
had a fresh cut on the middle finger of his right hand, which was bleeding at the time of the stop.
Shortly thereafter, while investigating the area of the Koons body shop lot where Torrey first
spotted the Jeep leaving, Detective McCormick found fresh blood on the rear and side of the
“Al’s Towing” tow truck, as well as on a leaf located on the truck’s running board. He also
found the normally locked doors on the “Pro Air” van wide open. The interior light was on,
tools and a ladder marked “Pro Air” were scattered on the ground, and the interior of the van
“looked like it had been rummaged through.”
II. ANALYSIS
Appellant first argues the evidence was insufficient to support his larceny convictions
because it failed to establish that he “knowingly and intentionally possessed” the stolen items
found in plain view in the cargo area of the Jeep at the time of the traffic stop. We disagree.
“Larceny is 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.
2
The Jeep was registered to appellant’s brother.
3
The validity of the search is not at issue.
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Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987) (citing Dunlavey v.
Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). “‘[P]ossession of goods recently
stolen is prima facie evidence of guilt of the crime of larceny, 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) (quoting Fout v. Commonwealth, 199 Va. 184, 190, 98 S.E.2d
817, 821 (1957)). In order for the inference of larceny to arise, possession of the stolen goods
must be exclusive, but “‘[o]ne can be in exclusive possession of an item when he jointly
possessed it with another.’” Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832
(1997) (quoting Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981)). Thus, the
evidence of a person’s recent exclusive possession of stolen property, coupled with an
unexplained or unreasonable explanation of his possession, supports a finding of guilt. Bright, 4
Va. App. at 251, 356 S.E.2d at 444.
The evidence is undisputed that the items found in the rear cargo area of the Jeep driven
by appellant at the time of the traffic stop had been recently stolen from the “Al’s Towing” and
“Pro Air” vehicles parked on the Koons body shop lot. With the larceny unquestionably
established, the question presented to the jury was whether appellant knowingly possessed the
stolen goods.
To establish that appellant knowingly possessed the stolen goods, the Commonwealth
was required to prove beyond a reasonable doubt “that the defendant was aware of both the
presence and the character of the [stolen goods] and that [the items were] subject to his dominion
and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). “Such
possession may be proved by ‘evidence of acts, declarations or conduct of the accused from
which an inference may be fairly drawn that he knew of the existence of [the stolen goods] at the
place where they were found.’” Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491,
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497 (1990) (en banc) (quoting Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812,
814 (1975)).
Occupancy of a vehicle in which stolen items have been found is a factor that may be
considered in determining whether a defendant constructively possessed the items. Lane v.
Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). The fact that a defendant is not
the owner of a vehicle does not automatically preclude a finding that he had the requisite
knowledge of or dominion and control over contraband located in the vehicle. See, e.g., Fox v.
Commonwealth, 213 Va. 97, 189 S.E.2d 367 (1972).
From the totality of the evidence presented to them, it was reasonable for the jury to have
inferred that appellant was aware that he was transporting stolen property. See Commonwealth
v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (noting that “[i]t is within the province
of the jury to determine what inferences are to be drawn from proved facts, provided the
inferences are reasonably related to those facts”).
Appellant also contends his convictions should be reversed because the jury, by rejecting
his explanation for his possession of the stolen goods, failed to exclude every reasonable
hypothesis of his innocence flowing from the evidence presented to it.
“The statement that circumstantial evidence must exclude every reasonable theory of
innocence is simply another way of stating that the Commonwealth has the burden of proof
beyond a reasonable doubt.” Hudson, 265 Va. at 513, 578 S.E.2d at 785. “The issue upon
appellate review is not whether ‘there is some evidence to support’ [appellant’s] hypotheses,” but
“whether a reasonable jury, upon consideration of all the evidence, could have rejected
[appellant’s] theories . . . and found him guilty . . . beyond a reasonable doubt.” Id. (internal
citation omitted).
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Appellant told Officer Uelman that he was on the Koons lot to locate a vehicle
identification number (“VIN”) on a red Ford Focus that appellant had towed to that area three
days earlier for Superior Towing Company (“Superior”). He told Officer Uelman that he
received a call from Superior’s dispatcher around 9:00 p.m. asking for the VIN number to
complete paperwork for the tow. He told the officer that when he received the call, he borrowed
his brother’s Jeep and went “directly” to Superior’s office. There, he picked up Fredericks, and
the two men drove some 30 minutes to the Koons lot where he located the red Ford Focus,
obtained the VIN number, and left the lot. Appellant told Officer Uelman that he and Fredericks
were on the lot for approximately five minutes. In contrast, Torrey told the jury that he observed
the Jeep driven by appellant leave the Koons body shop lot “really fast” around 12:30 a.m.
Appellant’s brother testified that he and Fredericks had been on the Koons body shop lot
each of the three evenings preceding appellant’s arrest “to ferry” new cars from Koons’ body
shop lot to the GSA offices in Springfield.4 Appellant contended that he was legitimately present
on the Koons lot the night he was arrested and that either his brother or Fredericks could have
placed the stolen items in the Jeep’s cargo compartment, unbeknownst to him prior to his
borrowing the vehicle.
The jury, however, was “not obligated to accept” appellant’s explanation as credible.
Roberts v. Commonwealth, 230 Va. 265, 272, 337 S.E.2d 255, 260 (1985). “While no single
piece of evidence may be sufficient,” to support a finding of guilt, “the ‘combined force of many
concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind
4
Pursuant to its contract with GSA, Superior would “ferry” new cars from Koons Ford’s
body shop lot to the GSA facilities in Springfield by sending drivers to the lot to drive the new
cars to GSA’s Springfield offices. Appellant’s brother testified that Superior obtained the new
cars from the body shop lot because the body shop is where Koons’ “new car prep area” is
located.
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irresistibly to a conclusion.’” Hudson, 265 Va. at 514, 578 S.E.2d at 786 (quoting Derr v.
Commonwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)).
Here, there was a discrepancy between appellant’s statement to Officer Uelman regarding
the time appellant was on the property and the time Torrey saw the Jeep leaving the lot.
Appellant drove from the lot in a rapid manner. Goods identified as stolen from the two vehicles
parked on the Koons lot in the area where Torrey first saw the Jeep’s headlights were present in
the Jeep’s rear cargo area. The jury could have reasonably inferred that appellant’s denial of
knowledge of the presence of the stolen goods in the Jeep, and his explanation to Officer
Uelman, were not credible. “[W]hen a defendant’s ‘hypothesis of innocence is [rejected as]
unreasonable, evidence of possession of recently stolen goods is sufficient to support a
conviction.’” Id. (quoting Westcott v. Commonwealth, 216 Va. 123, 127, 216 S.E.2d 60, 64
(1975)).
From the record before us, we find there was sufficient credible evidence from which the
jury could reasonably have concluded that appellant knowingly possessed the stolen items, and
was guilty of larceny of those items. For these reasons, the trial court’s judgment is affirmed.
Affirmed.
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