COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
CHARLES HOWARD DAVIDSON, JR. MEMORANDUM OPINION * BY v. Record No. 2514-97-2 JUDGE ROSEMARIE ANNUNZIATA JULY 7, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Donald W. Lemons, Judge Robert D. Shrader, Jr. (Steingold, Shrader & Angelidis, on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Charles Howard Davidson, Jr. (appellant) was convicted of
robbery with a deadly weapon in violation of Code § 18.2-58,
display of a firearm in violation of Code § 18.2-53.1, and grand
larceny of a vehicle in violation of Code § 18.2-95. On appeal,
appellant contends that the evidence was insufficient to support
his conviction for grand larceny. We disagree, and affirm.
On or before January 19, 1997, Donna Dawe noticed that a
blue 1988 Cadillac belonging to her and her husband was missing.
The next day, she reported it stolen. She did not give
permission for anyone to use the vehicle.
On January 19, 1997, appellant approached Dawn Miles,
displayed a pistol, and told her to give him the keys to her car.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Michael Wilson, a codefendant, approached Miles with a shotgun
and told appellant to take Miles' purse. As she was being
robbed, Miles saw a "big long bluish looking car" parked several
spaces from her own. She testified without objection that she
"thought it was a Lincoln but it turned out that it was a
Cadillac." Miles turned over the keys to her car, as well as her
purse containing Miles' change purse and calling card. Appellant
opened the trunk of Miles' car, and Wilson told Miles to get in
the trunk of her car. As Miles approached the trunk of her car, Thomas Kirk, a
second codefendant, drove the Cadillac behind her car, blocking
her car into its parking space. Appellant unsuccessfully
attempted to start Miles' car. Wilson pushed Miles into the
trunk of the car, but Miles jumped out. Appellant and Wilson got
into the Cadillac, and the Cadillac left the area.
On the same night, while on patrol, Officer Matthew
Cavanaugh observed a blue Cadillac. As Cavanaugh approached the
Cadillac, he observed the driver of the Cadillac turn off all the
lights on the car. Cavanaugh turned on his patrol car's
emergency lights to signal the Cadillac to stop, but the Cadillac
accelerated. After a short chase, the Cadillac drove over a
ravine, and four occupants fled the car. Cavanaugh apprehended
appellant and another occupant, William Smith. Appellant was not
driving the car. During a pat-down search of appellant,
Cavanaugh discovered Miles' calling card and change purse. Miles
-2- identified appellant as one of the individuals who had robbed
her.
Cavanaugh noted that the interior of the Cadillac was in
disarray and that the steering column was broken open in such a
way as to allow a person to start the car without the key.
Cavanaugh found Miles' purse in the car. Outside the vehicle,
Cavanaugh found a camera belonging to Dawe and a vehicle
registration card belonging to Miles. After the Commonwealth rested, appellant moved to strike the
Commonwealth's evidence of grand larceny on the basis that the
evidence did not establish that the co-owner of the Cadillac had
not given permission for its use and that appellant's knowledge
that the car was stolen, if any, was insufficient to prove grand
larceny. The court denied appellant's motion. Wilson presented
one witness who testified to Wilson's appearance on the night of
the robbery. At the close of all the evidence, appellant renewed
his motion to strike, which the court denied. The jury found
appellant guilty of robbery, grand larceny, and displaying a
firearm during the commission of a robbery.
Appellant contends that the evidence was insufficient to
support his conviction for grand larceny. "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. Commonwealth, 4 Va. App.
248, 251, 356 S.E.2d 443, 444 (1987) (citing Dunlavey v.
-3- Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). When
considering the sufficiency of the evidence to support a
conviction, we view the evidence in the light most favorable to
the Commonwealth, according to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). "Where a defendant has
been convicted by a jury whose verdict has been approved by the
trial judge, and where the defendant assails the sufficiency of
the evidence, under familiar rules it is the appellate court's
duty to examine the evidence which tends to support the verdict
and to permit the verdict to stand unless plainly wrong." Cable
v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
We do not substitute our judgment for that of the jury. Id.
(citing Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d
452, 457 (1961)).
First, appellant argues that because Dawe's husband, a
co-owner of the Cadillac, did not testify, a reasonable
hypothesis of innocence exists, i.e., that Dawe's husband gave
appellant permission to use the car. "When the Commonwealth
relies on circumstantial evidence, it must 'exclude every
reasonable hypothesis of innocence,' but need not disprove every
remote possibility of innocence." Barlow v. Commonwealth, 26 Va.
App. 421, 429-30, 494 S.E.2d 901, 905 (1998) (quoting Pemberton
v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)
(other citation omitted)). "The hypotheses which the prosecution
-4- must reasonably exclude are those 'which flow from the evidence
itself, and not from the imagination of defendant's counsel.'"
Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609
(1981) (quoting Turner v. Commonwealth, 218 Va. 141, 148, 235
S.E.2d 357, 361 (1977)). Appellant's hypothesis of innocence is
not based on the evidence; all of the evidence presented negates,
rather than supports, the hypothesis.
The record contains no evidence that appellant or his
codefendants had ever met Dawe or her husband. One day after
Dawe discovered that the car was missing, she reported it as
stolen. After the police recovered the car, Dawe and her husband
went to the police impound lot to investigate the condition of
the car. At trial, Dawe continued to describe the car as
"stolen." Furthermore, we note that the condition of the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton Argued at Richmond, Virginia
CHARLES HOWARD DAVIDSON, JR. MEMORANDUM OPINION * BY v. Record No. 2514-97-2 JUDGE ROSEMARIE ANNUNZIATA JULY 7, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Donald W. Lemons, Judge Robert D. Shrader, Jr. (Steingold, Shrader & Angelidis, on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Charles Howard Davidson, Jr. (appellant) was convicted of
robbery with a deadly weapon in violation of Code § 18.2-58,
display of a firearm in violation of Code § 18.2-53.1, and grand
larceny of a vehicle in violation of Code § 18.2-95. On appeal,
appellant contends that the evidence was insufficient to support
his conviction for grand larceny. We disagree, and affirm.
On or before January 19, 1997, Donna Dawe noticed that a
blue 1988 Cadillac belonging to her and her husband was missing.
The next day, she reported it stolen. She did not give
permission for anyone to use the vehicle.
On January 19, 1997, appellant approached Dawn Miles,
displayed a pistol, and told her to give him the keys to her car.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Michael Wilson, a codefendant, approached Miles with a shotgun
and told appellant to take Miles' purse. As she was being
robbed, Miles saw a "big long bluish looking car" parked several
spaces from her own. She testified without objection that she
"thought it was a Lincoln but it turned out that it was a
Cadillac." Miles turned over the keys to her car, as well as her
purse containing Miles' change purse and calling card. Appellant
opened the trunk of Miles' car, and Wilson told Miles to get in
the trunk of her car. As Miles approached the trunk of her car, Thomas Kirk, a
second codefendant, drove the Cadillac behind her car, blocking
her car into its parking space. Appellant unsuccessfully
attempted to start Miles' car. Wilson pushed Miles into the
trunk of the car, but Miles jumped out. Appellant and Wilson got
into the Cadillac, and the Cadillac left the area.
On the same night, while on patrol, Officer Matthew
Cavanaugh observed a blue Cadillac. As Cavanaugh approached the
Cadillac, he observed the driver of the Cadillac turn off all the
lights on the car. Cavanaugh turned on his patrol car's
emergency lights to signal the Cadillac to stop, but the Cadillac
accelerated. After a short chase, the Cadillac drove over a
ravine, and four occupants fled the car. Cavanaugh apprehended
appellant and another occupant, William Smith. Appellant was not
driving the car. During a pat-down search of appellant,
Cavanaugh discovered Miles' calling card and change purse. Miles
-2- identified appellant as one of the individuals who had robbed
her.
Cavanaugh noted that the interior of the Cadillac was in
disarray and that the steering column was broken open in such a
way as to allow a person to start the car without the key.
Cavanaugh found Miles' purse in the car. Outside the vehicle,
Cavanaugh found a camera belonging to Dawe and a vehicle
registration card belonging to Miles. After the Commonwealth rested, appellant moved to strike the
Commonwealth's evidence of grand larceny on the basis that the
evidence did not establish that the co-owner of the Cadillac had
not given permission for its use and that appellant's knowledge
that the car was stolen, if any, was insufficient to prove grand
larceny. The court denied appellant's motion. Wilson presented
one witness who testified to Wilson's appearance on the night of
the robbery. At the close of all the evidence, appellant renewed
his motion to strike, which the court denied. The jury found
appellant guilty of robbery, grand larceny, and displaying a
firearm during the commission of a robbery.
Appellant contends that the evidence was insufficient to
support his conviction for grand larceny. "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. Commonwealth, 4 Va. App.
248, 251, 356 S.E.2d 443, 444 (1987) (citing Dunlavey v.
-3- Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). When
considering the sufficiency of the evidence to support a
conviction, we view the evidence in the light most favorable to
the Commonwealth, according to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). "Where a defendant has
been convicted by a jury whose verdict has been approved by the
trial judge, and where the defendant assails the sufficiency of
the evidence, under familiar rules it is the appellate court's
duty to examine the evidence which tends to support the verdict
and to permit the verdict to stand unless plainly wrong." Cable
v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
We do not substitute our judgment for that of the jury. Id.
(citing Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d
452, 457 (1961)).
First, appellant argues that because Dawe's husband, a
co-owner of the Cadillac, did not testify, a reasonable
hypothesis of innocence exists, i.e., that Dawe's husband gave
appellant permission to use the car. "When the Commonwealth
relies on circumstantial evidence, it must 'exclude every
reasonable hypothesis of innocence,' but need not disprove every
remote possibility of innocence." Barlow v. Commonwealth, 26 Va.
App. 421, 429-30, 494 S.E.2d 901, 905 (1998) (quoting Pemberton
v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)
(other citation omitted)). "The hypotheses which the prosecution
-4- must reasonably exclude are those 'which flow from the evidence
itself, and not from the imagination of defendant's counsel.'"
Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609
(1981) (quoting Turner v. Commonwealth, 218 Va. 141, 148, 235
S.E.2d 357, 361 (1977)). Appellant's hypothesis of innocence is
not based on the evidence; all of the evidence presented negates,
rather than supports, the hypothesis.
The record contains no evidence that appellant or his
codefendants had ever met Dawe or her husband. One day after
Dawe discovered that the car was missing, she reported it as
stolen. After the police recovered the car, Dawe and her husband
went to the police impound lot to investigate the condition of
the car. At trial, Dawe continued to describe the car as
"stolen." Furthermore, we note that the condition of the
Cadillac was inconsistent with use by permission. When the
police recovered the car, the interior was in disarray. Most
importantly, the steering column of the Cadillac was broken open
to allow a person to start the car without the key. The jury
could reasonably infer from the actions of Dawe and her husband,
as well as from the condition of the vehicle, that Dawe's husband
had not granted appellant permission to use the car. Appellant's hypothesis of innocence finds no support in the
evidence, and is in fact disproven by the evidence. Thus, the
Commonwealth has no duty to exclude the hypothesis, and the
judgment is not plainly wrong. See Graham v. Commonwealth, 250
-5- Va. 79, 85-86, 459 S.E.2d 97, 100 (1995).
Second, appellant argues that the Commonwealth's evidence
did not show that he had dominion or control over the Cadillac.
On that ground, he argues that the evidence does not prove that
he was in joint, exclusive control of the vehicle, a necessary
predicate for the application of the presumption of larceny by
the possessor of recently stolen goods. "Once the crime [of
larceny] is established, the unexplained possession of recently
stolen goods permits an inference of larceny by the possessor."
Id. "In order for the presumption to arise, the possession must
be exclusive, but '[o]ne can be in exclusive possession of an
item when he jointly possesses it with another,' as long as 'the
accused was consciously asserting at least a possessory interest
in the stolen property or was exercising dominion over [it].'"
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)). "There must be evidence of joint control
to justify the inference of joint possession." Reese v.
Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 267 (1985).
Virginia courts have repeatedly held that "proof that a defendant
knew that an automobile is stolen and was in the automobile as a
passenger does not suffice to prove the defendant guilty of
larceny of the automobile." Burgess v. Commonwealth, 14 Va. App.
1018, 1023, 421 S.E.2d 664, 667 (1992) (citing Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893 (1982)); see
-6- also, e.g., Reese, 230 Va. at 175, 335 S.E.2d at 267-68 (citing
Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 904
(1983)).
We find that the evidence was sufficient to establish that
appellant exercised dominion and control over the Cadillac and
that he thus had joint, exclusive possession of the vehicle.
Appellant, as well as Kirk and Wilson, used the Cadillac to
execute the robbery, establishing joint control, and thus joint
possession, of the Cadillac. Specifically, appellant used the
Cadillac to escape after the robbery he committed in concert with
the other defendants. This fact alone is sufficient to
demonstrate the required factual predicate for the finding that
appellant had exclusive joint possession of the stolen vehicle. Finding no error, we affirm appellant's conviction.
Affirmed.
-7-