Bobby Joe Lee Medlin v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata
Argued at Chesapeake, Virginia
BOBBY JOE LEE MEDLIN
MEMORANDUM OPINION* BY
v. Record No. 0392-04-1 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 9, 2004
COMMONEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Charles E. Haden for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Bobby Joe Lee Medlin appeals his conviction of unauthorized use of an automobile in
violation of Code § 18.2-102 on the ground that insufficient evidence supports his conviction.
For the reasons that follow, we affirm.
I. Background
On appeal, we review the evidence in the light most favorable to the Commonwealth, the
party prevailing below, together with all reasonable inferences that may be drawn. Garcia v.
Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence
establishes that Medlin was employed by A-Plus Towing and came to work on July 8, 2003
complaining of a toothache. The company’s owner, Bobby Morris, testified that Medlin was
assigned to drive a 1992 Ford Super Duty tow truck valued at between $8,000 and $10,000.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
After visiting a dentist, Medlin returned to work and asked to borrow some money from
Morris to pay for a prescribed pain medication. Morris gave Medlin forty dollars and “told him
to go buy the medicine and to take [the] truck home and park it.” Morris testified that Medlin
was the only person who had a set of keys to the tow truck other than the set Morris kept in his
office.
Medlin was neither “on duty” nor “on call” after he left work. When Morris telephoned
him that evening and got no response, he drove to Medlin’s house. The tow truck was not there.
Based on a conversation with Medlin’s girlfriend, Morris believed that Medlin had gone to
Hampton General Hospital. However, Morris was unable to locate either Medlin or the tow
truck at the hospital.
Later, Morris received a telephone call and learned that his truck was on Mercury
Boulevard. When he arrived at Mercury Boulevard, Morris found the Super Duty tow truck
Medlin had taken. The tow truck was running with the keys in the ignition and was hooked up to
a Chevrolet truck. Medlin did not ask for, nor did he obtain, permission to tow the Chevrolet
truck. Morris unhooked the Chevrolet truck and loaded the Super Duty to the tow truck he had
driven to the scene.
Numerous times that night, Morris called Medlin on the business cell phone Morris
provides his drivers, but Medlin hung up each time immediately upon hearing Morris say,
“Hello.” Morris did not hear from Medlin again until he called the office asking to be bailed out
of jail “a week or two” after the incident.
Regarding general company policy, Morris explained that he permits his employees to
take trucks home, but “the rule is, if someone calls you to tow a vehicle, you need to call me
before you tow that vehicle.” Morris further explained that if an employee is “out on [his] own
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to some of the private properties that I have, if [he] decide[s] to go out on one of [his] nights off
and tow a car from a private property[, then] I allow [him] to do that.”
In support of his motion to strike, Medlin argued the evidence was insufficient because
Morris had not seen him operate the tow truck and because the company had a liberal policy
permitting employees to use its trucks when they were off duty. The trial judge denied the
motion and said the following:
The evidence is, I’m convinced, beyond a reasonable doubt that
you committed the offense. Mr. Morris told you not to use the
truck, to take it home and park it. You didn’t do that. You were
towing and you didn’t have authority. You didn’t call in to the
dispatcher or even call in after the fact, as the policy permits. Even
if you picked up somebody, you had a duty to call in.
This appeal followed.
II. Analysis
A. Standard of Review
When the sufficiency of the evidence is challenged on appeal, the appellate court reviews
the evidence that tends to support the conviction and upholds the conviction unless it is plainly
wrong or lacks evidentiary support. Code § 8.01-680; Commonwealth v. Jenkins, 255 Va. 516,
520, 499 S.E.2d 263, 265 (1998). “If there is evidence to support the convictions, the reviewing
court is not permitted to substitute its own judgment, even if its opinion might differ from the
conclusions reached by the finder of fact at the trial.” Id. at 520, 499 S.E.2d at 265. Conflicts in
the evidence are resolved by the fact finder, and such conflicts are not revisited on appeal unless
“‘the evidence is such that reasonable [persons], after weighing the evidence and drawing all just
inferences therefrom, could reach but one conclusion.’” City of Bedford v. Zimmerman, 262 Va.
81, 86, 547 S.E.2d 211, 214 (2001) (quoting J & E Express, Inc. v. Hancock Peanut Co., 220 Va.
57, 62, 255 S.E.2d 481, 485 (1979)) (alteration in Zimmerman).
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The Commonwealth may rely on circumstantial evidence to prove its case beyond a
reasonable doubt, but in doing so it must exclude every reasonable hypothesis of innocence.
Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) (en banc), aff’d,
266 Va. 397, 588 S.E.2d 149 (2003). “The statement that circumstantial evidence must exclude
every reasonable hypothesis of [innocence] is an alternative way of stating the fundamental
precept that the Commonwealth has the burden to prove each element of an offense beyond a
reasonable doubt.” Id. Circumstantial evidence may prove the Commonwealth’s case beyond a
reasonable doubt because, “[w]hile no single piece of evidence may be [] sufficient, the
combined force of many concurrent and related circumstances, each insufficient in itself, may
lead a reasonable mind irresistibly to a conclusion.” Id. (internal quotations omitted).
B. The Evidence Was Sufficient To Prove that Medlin Used the Vehicle without Authority
A violation of Code § 18.2-102 “‘may be committed by an employee of the owner of a
motor vehicle in using the vehicle for his own purposes not connected with the purposes for
which the vehicle had been entrusted to him or in using the vehicle contrary to the instructions of
the owner.’” Overstreet v. Commonwealth, 17 Va. App. 234, 237, 435 S.E.2d 906, 908 (1993)
(quoting 7A Am. Jur. 2d Automobiles and Highway Traffic § 349 (1980)). “[W]here an act
violates the specific scope or duration of consent to use a vehicle, a trespassory taking
contemplated by Code § 18.2-102 occurs.” Id. at 238, 435 S.E.2d at 908.
Here, the evidence, viewed in the light most favorable to the Commonwealth, established
that Medlin operated the tow truck and that his operation exceeded the scope of Morris’s
authorization. Morris authorized Medlin to use the tow truck for the limited purpose of driving
himself home after complaining about and seeking medical attention for a toothache. Morris
directed Medlin to park the tow truck at his home but did not authorize him to use the tow truck
to tow any vehicle. Medlin was the sole individual who had access to the vehicle’s ignition keys.
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When Morris could not reach Medlin by telephone, he drove to Medlin’s home and noticed the
tow truck was not there. Instead, Morris found the truck on Mercury Boulevard later that night,
hooked up to another vehicle in preparation for towing it. Additionally, Medlin repeatedly hung
up the phone when Morris tried to contact him about the tow truck and failed to contact Morris
for a “a week or two” after leaving the company’s premises with the tow truck, facts from which
the trial court could infer guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209, 547
S.E.2d 899, 907 (2001). Taken as a whole, we conclude the evidence excluded Medlin’s
hypothesis that he did not drive the truck to Mercury Boulevard and that the evidence was
sufficient to support the trial court’s conclusion that Medlin operated the tow truck in excess of
Morris’s limited authorization.
Medlin’s further contention that the company’s general policy, which allowed its drivers
to “go out on one of [their] nights off and tow a car from a private property,” supports the
conclusion that Morris was merely “advising rest but not strictly forbidding personal use of the
vehicle” is without merit. Here, Morris’s testimony establishes that, on the date in question, he
explicitly and clearly told Medlin to take the tow truck home and park it, notwithstanding any
company policy to the contrary. Moreover, to the extent Morris’s testimony regarding the
company’s policy conflicts with his testimony that he did not authorize Morris to do anything
other than take the truck home and park it, it is evident the trial court resolved that conflict in
favor of the Commonwealth. We are bound by that determination on appeal. “On appeal this
court must ‘discard the evidence of the accused in conflict with that of the Commonwealth, and
regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to
be drawn therefrom.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)
(quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)).
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For the foregoing reasons, we affirm Medlin’s conviction.
Affirmed.
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