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DAVIDSON v. COMMONWEALTH OF VA


DAVIDSON v. COMMONWEALTH
OF VA

(unpublished)


JULY 7, 1998
Record No. 2514-97-2

CHARLES HOWARD DAVIDSON, JR.

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE ROSEMARIE ANNUNZIATA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Donald W. Lemons, Judge
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia

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
Sect. 18.2?58, display of a firearm in violation of Code
Sect. 18.2?53.1, and grand larceny of a vehicle in
violation of Code Sect. 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.
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 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. 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 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 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
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.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17?116.010 this opinion is not designated for
publication.

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