Virginia Lawyers Weekly VA Lawyers Weekly
There was insufficient evidence for the trial court to conclude that appellant adjusted the mirror of a stolen car. His conviction for tampering with a vehicle is reversed.
Overview
Police found a stolen car “with significant damage.” A police detective searched the car and found a right thumbprint on the front of the rearview mirror.” The thumbprint matched that of appellant Petty.
“Based on the position of the thumbprint, the trial court found that Petty adjusted the rearview mirror. The car owner did not testify as to whether the mirror had been adjusted or was otherwise out of place.
“In considering whether Petty ‘tamper[ed] with’ the car in violation of Code § 18.2-146, the trial court defined tampering as ‘taking any action with respect to touching, adjusting, moving, removing any items in a vehicle for which you don’t have purpose.’
“The trial court declined to adopt the dictionary definition of ‘tamper’ because ‘it’s [not] all encompassing with respect to what’s contemplated by the statute’ and, under the dictionary definitions, ‘the [c]ourt could only find an individual guilty of tampering with … if they took some action that was detrimental to the vehicle[,] and I think the legal definition under 18.2-146 is broader than that.’
“The trial court found that adjusting a rearview mirror constitutes tampering with a vehicle and convicted Petty of violating Code § 18.2-146.”
Definitions
“Although the parties ask us to define ‘tamper,’ the Supreme Court has already done so. In Cox v. Commonwealth, 220 Va. 22 (1979), the Supreme Court adopted Black’s Law Dictionary’s definition of tamper: ‘to “interfere improperly” and “to meddle so as to alter a thing, especially to make corrupting or perverting changes.”’ …
“Petty urges us to use that definition or to adopt Merriam-Webster’s definition, which defines tamper as ‘to interfere so as to weaken or change for the worse.’ … The Commonwealth asks this Court to define ‘tamper’ as it relates to the specific statute, proposing that, in Code § 18.2-146, ‘tamper’ refers to ‘unauthorized physical manipulations of vehicle parts that in some manner impede the lawful driver’s safe, intended, or normal operation of the vehicle.’
“An ‘improper interference’ and ‘meddl[ing] so as to alter a thing,’ … requires something more than merely touching that thing. We do not need to consider the requirements of the words ‘improper’ and ‘meddling’ because the evidence does not show that Petty interfered with or altered the mirror.”
Insufficient evidence
“The trial court inferred, based solely on the position of Petty’s fingerprint on the rearview mirror, that Petty adjusted the mirror. From that inference, the trial court concluded that Petty tampered with the vehicle.
“But even if we accept the trial court’s conclusion that Petty’s fingerprint was positioned as if he were adjusting the mirror, the evidence does not show that Petty did adjust or otherwise interfere with the mirror.
“Even though the owner of the car and the police officers who found the car testified at trial, the Commonwealth did not introduce any evidence to suggest that the mirror was out of place.
“The evidence does not show an interference or an alteration, at least one of which is necessary to show that Petty ‘improperly interfered’ with the mirror or ‘meddl[ed] [with it] so as to alter’ it. …
“Without more evidence, a reasonable factfinder could not conclude that Petty tampered with the vehicle unless it arbitrarily adopted an incriminating construction of the facts or resorted to inferences that “push ‘into the realm of non sequitur.’”
Reversed.
Petty v. Commonwealth, Record No. 1217-22-3, May 9, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of the City of Lynchburg (Yeatts). Michelle C.F. Derrico, Brett P. Blobaum for appellant. Tanner M. Russo, Jason S. Miyares for appellee. VLW 023-7-166, 5 pp.
