Henry Martin McClary v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 27, 1998
• Docket: 0187971
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Senior Judge Hodges Argued at Norfolk, Virginia

HENRY MARTIN McCLARY MEMORANDUM OPINION * BY v. Record No. 0187-97-1 JUDGE WILLIAM H. HODGES JANUARY 27, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge Steven K. Smith for appellant.

Ruth Ann Morken, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Henry Martin McClary (defendant) appeals his conviction for

receiving stolen goods, Code § 18.2-108, claiming that the

Commonwealth's evidence was insufficient to prove all the

elements of the offense. Because we agree that the Commonwealth

failed to prove that defendant possessed the stolen property, we

reverse.

The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, we recite only those facts necessary for

disposition of the case.

Defendant was arrested on February 28, 1996 outside of a

Super Kmart located in York County, Virginia. Kevin Rowe, a

"loss prevention officer" saw defendant secreting several * Pursuant to Code § 17-116.010 this opinion is not designated for publication. packages of cigarettes into a brown paper bag and then leave the

store without paying for them. Officer Rowe had seen defendant

in the store approximately a week and a half earlier and had

noted his appearance because he was acting suspiciously. At that

time, defendant had exited the store and driven away in a white

Chevrolet automobile with the license plate number "ZUM-2450."

When Officer Rowe saw defendant shoplifting, he followed

defendant out into the parking lot and held him for eventual

arrest. A white Chevrolet automobile with license plate number

ZUM-2450 was also in the parking lot at that time, but Officer

Rowe stopped defendant before he could approach the vehicle. Upon examination by the police, it was discovered that the

vehicle's steering column was damaged and the ignition removed.

A later investigation revealed that the car had been stolen from

Patricia Lee, the registered owner, three months prior. On July

16, 1996 defendant was indicted for receiving stolen goods, the

white Chevrolet, "on or about February 28, 1996" and was found

guilty by a jury.

For a conviction of receiving stolen goods to stand, the

very least the Commonwealth must prove is that the defendant

either actually or constructively possessed the goods. See

Gilland v. Commonwealth, 184 Va. 223, 227-28, 35 S.E.2d 130, 131

(1945). In the instant case, we look to the time charged in the

indictment, on or about February 28, 1996, for evidence that

defendant possessed the car. Defendant was apprehended before he

2 had even approached the stolen vehicle. He never admitted to the

police that he used the vehicle. The record is devoid of

physical evidence, such as fingerprints, or testimonial evidence

from witnesses that would tie defendant to the vehicle on the day

in question. In short, even in the light most favorable to the

Commonwealth, there is a lack of evidence to show defendant

possessed the stolen vehicle as set forth in the indictment. See

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988). Under these circumstances, we must hold as matter of

law that there is insufficient evidence to support the

conviction. According, we reverse. Reversed.