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SAVAGE v. COMMONWEALTH



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SAVAGE

v.

COMMONWEALTH


MARCH 13, 2001

Record No. 0889-00-1

Present: Judges Benton, Bray and Frank

Argued at Chesapeake, Virginia

ALBERT ANTONIO SAVAGE

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

E. Everett Bagnell, Judge


MEMORANDUM OPINION[1] BY JUDGE
ROBERT P. FRANK

Barrett R. Richardson (Richardson &
Rosenberg, LLC, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.

Albert Antonio Savage (appellant) was convicted
in a bench trial of burglary in violation of Code
? 18.2-91, petit larceny in violation of Code
? 18.2-96, and destruction of property in violation of Code
? 18.2-137. On appeal, he contends the trial court erred in
finding the evidence sufficient to convict him of these offenses.
We agree and reverse the convictions.

I. BACKGROUND

On August 24, 1998, Frank Sheffer resided at
521 Butler Avenue in Suffolk, Virginia. He left his house at 8:30
a.m. that day. He returned home that evening at approximately
8:00 p.m. and found that the french door in his bedroom was
slightly ajar and that the glass in the door had been broken. His
cellular phone was missing. The cellular phone was kept in the
top dresser drawer in his bedroom. He also noticed that a blood
pressure kit was destroyed. The contents of a dresser drawer were
strewn all over the floor. Sheffer said he made no calls on the
cellular phone after 8:00 a.m. on August 24, 1998.

Brian McCullough, an employee of GTE Wireless
testified that two telephone calls were made on the afternoon of
August 24, 1998 from Sheffer’s cell phone. The first telephone
call was made at 4:21 p.m., and the second telephone call was
made at 5:03 p.m. Both calls were made to the same telephone
number, 539-0945. Mr. McCullough did not have firsthand knowledge
of who placed the calls.

Eric Woodley, the employee of a taxi service,
testified that he picked appellant up three times on August 24,
1998. The first pick-up was a "walk-up," which occurs
when the taxi is flagged down, near the Riverview section of the
city, a quarter mile from Butler Road. Woodley testified he drove
appellant to Cedar Street. At 3:17 p.m., Woodley picked up
appellant at 31 Stacey Drive as a result of a call to the taxi
company. Woodley drove appellant to 210 Cedar Street. At 4:21
p.m., Woodley picked up appellant, as a result of a telephone
call, at 210 Cedar Street and drove him to 31 Stacey Drive. A
third call was received at approximately 5:05 p.m., but Woodley
testified he did not pick up appellant after that call. Woodley
testified the taxi company’s telephone number was 539-0945.

On cross-examination, Woodley said that he did
not know who made the telephone calls to the taxi dispatcher, did
not know who actually dialed the telephone number, and did not
know who communicated with the dispatcher. He said that he did
not notice anything unusual about appellant’s behavior on August
24, 1998, and he did not notice whether appellant had a cell
phone.

Appellant denied being involved in the
burglary. Appellant testified he "was no where in that
neighborhood of Constance Road, Butler Street, or wherever Mr.
Woodley said I was." Appellant indicated he only would call
for a cab from 117 Morgan Street, 31 Stacy Drive or 210 Cedar
Street. Appellant denied being picked up by Woodley near the
Riverview location described by Woodley.

Appellant testified he would occasionally send
a woman named Saundra to use a phone to call the cab company when
he was on Cedar Street. He said his father’s girlfriend would be
sent to use a telephone to call the cab company if he was on
Morgan Street. Appellant testified that when he was at 31 Stacey
Drive, he would make the telephone call to the cab company or his
"old lady" would make the call from a neighbor’s house.
He could not remember who placed the telephone calls to the cab
company on August 24, 1998. Appellant timely moved to strike the
evidence. The motion was denied. Appellant was convicted of
burglary, destruction of property, and petit larceny.

II. ANALYSIS

On review of a challenge to the sufficiency of
the evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom. Commonwealth
v. Jenkins
, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998).
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict, and will not be
disturbed on appeal unless plainly wrong or without evidence to
support it." Beck v. Commonwealth, 2 Va. App. 170,
172, 342 S.E.2d 642, 643 (1986).

Robertson v. Commonwealth, 31 Va. App.
814, 820, 525 S.E.2d 640, 643 (2000).

At trial, as well as on appeal, the
Commonwealth relied upon the presumption that unexplained
possession of recently stolen property creates a presumption of
guilt.

[W]hen evidence has been introduced, which, if
believed, establishes that a house has been broken and entered
and goods stolen therefrom, and warrants an inference beyond a
reasonable doubt that the breaking and entering and the larceny
of the goods were committed at the same time, by the same person
or persons, as a part of the same transaction, upon principle and
authority, the exclusive possession of the stolen goods shortly
thereafter, unexplained or falsely denied, has the same
efficiency to give rise to an inference that the possessor is
guilty of the breaking and entering as to an inference that he is
guilty of the larceny.

Drinkard v. Commonwealth, 163 Va. 1074,
1083, 178 S.E. 25, 28 (1935). "It is well settled that the
unexplained possession of recently stolen property creates a
presumption of guilt, but such possession must be exclusive on
the part of the accused." Leebrick v. Commonwealth,
198 Va. 365, 367, 94 S.E.2d 212, 214 (1956). Thus, "the
evidence must reveal that the accused was consciously
asserting at least a possessory interest in or exercising
dominion over the stolen property." Ferrell v.
Commonwealth
, 11 Va. App. 380, 388, 399 S.E.2d 614, 618
(1990) (citing Best v. Commonwealth, 222 Va. 387, 389, 282
S.E.2d 16, 17 (1981)). Additionally, an accused can jointly
possess stolen property with another. Castle v. Commonwealth,
196 Va. 222, 227, 83 S.E.2d 360, 363 (1954). Therefore, the
evidence must prove beyond a reasonable doubt that appellant was
in possession of the stolen cell phone or jointly possessed the
property with another person.

The evidence established that on two occasions
on the day of the burglary the stolen cell phone was used to call
a cab to transport appellant. Appellant was at the location
designated by the caller. Appellant acknowledged the phone calls
to the cab were made on his behalf, although he did not recall
who made the actual calls. Further, appellant denied being picked
up by Woodley, the cab driver, at the location described by
Woodley as a quarter of a mile from the crime scene.

"’Circumstantial evidence is as competent
and is entitled to as much weight as direct evidence, provided it
is sufficiently convincing to exclude every reasonable hypothesis
except that of guilt.’" Byers v. Commonwealth, 23 Va.
App. 146, 151, 474 S.E.2d 852, 855 (1996) (quoting Coleman v.
Commonwealth
, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).
"’[W]here the Commonwealth’s evidence as to an element of an
offense is wholly circumstantial, "all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence."’" Id. (quoting Moran
v. Commonwealth
, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987) (citation omitted)).

"However, ‘[w]hether the Commonwealth
relies upon either direct or circumstantial evidence, it is not
required to disprove every remote possibility of innocence, but
is, instead, required only to establish guilt of the accused to
the exclusion of a reasonable doubt.’" Cantrell v.
Commonwealth
, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988)
(quoting Bridgeman v. Commonwealth, 3 Va. App. 523,
526-27, 351 S.E.2d 598, 600 (1986) (citation omitted)).
"’The hypotheses which the prosecution must reasonably
exclude are those "which flow from the evidence

itself, and not from the imagination of
defendant’s counsel."’" Id. at 289-90, 373
S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va.
838, 841, 284 S.E.2d 608, 609 (1981) (citation omitted)).

In this case, while the suspicion of
appellant’s guilt is strong, it is equally plausible that the
phone calls were made by a neighbor or appellant’s girlfriend.
While the fact finder may conclude appellant lied to conceal his
guilt, Black, 222 Va. at 842, 284 S.E.2d at 610, we do not
believe this alone is sufficient to prove appellant’s guilt.

For these reasons, we find the evidence was
insufficient to prove beyond a reasonable doubt that appellant
committed the offenses. Therefore, we reverse the judgment of the
trial court and dismiss the indictments.

Reversed and dismissed.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

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