Home / Fulltext Opinions / Virginia Court of Appeals / ELLINGTON v. COMMONWEALTH OF VA






October 20, 1998
Record No. 2370-97-2




James F. D’Alton, Jr., Judge
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia

George Eliades, II (Eliades & Butterworth, on brief), for
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.

Travis Maxwell Ellington (appellant) appeals from his bench
trial conviction for petit larceny. On appeal, he contends the
evidence was insufficient to support his conviction. For the
reasons that follow, we agree and reverse his conviction.



On March 21, 1997, Gary DiGuardi was doing construction work
with appellant, whom he had known for only a few weeks. At about
3:30 p.m., DiGuardi took appellant home from work, and the two
men stopped at a house in Hopewell where appellant thought they
could get some marijuana. They were unable to obtain any
marijuana there, but they remained, talking and drinking with a
female occupant of the home. About 4:30 p.m., appellant asked
DiGuardi if he could borrow his truck for "a few
minutes," and DiGuardi said yes. DiGuardi testified that
appellant did not say why he wanted the truck or where he planned
to go, but the trial court did not believe his testimony and
found that "[DiGuardi] lent [appellant] the truck as an
open?ended loan to get drugs." DiGuardi waited at the house
for hours, but appellant did not return. Sometime after midnight,
DiGuardi left the residence, found a telephone and called his
wife, who had expected him to return home at 5:30 p.m. She picked
him up, and they went to the police station to complete an
offense report and went home. As they returned to the police
station the next day, they saw DiGuardi’s truck being driven by a
person they had never seen before. When DiGuardi’s wife
confronted the driver and asked him where he got the car, he said
that appellant had lent it to him,[1]
and the driver fled.

Missing from the truck were a variety of items, including $140
in cash, a pair of binoculars and a CB radio. In addition, the
car’s antenna and ashtray had been ripped out.

Appellant failed to appear at work the following week. When
DiGuardi got appellant’s telephone number and called him,
appellant said that the police had been following him and that,
because he had a suspended operator’s license, he had parked the
truck and left it around the corner all night. He claimed not to
know anything about the items missing from DiGuardi’s truck, but
he agreed to make restitution. When the matter came up in general
district court, appellant had it continued so that he could make
restitution. Although the matter was continued, the record gives
no indication that appellant ever made restitution.

Appellant was tried for unauthorized use of a vehicle and
grand larceny. At the close of the Commonwealth’s evidence,
appellant moved to strike both charges. He contended that the
testimony of DiGuardi and his wife was not sufficiently credible
because DiGuardi admitted he and appellant tried to buy drugs
after work, a fact he earlier had failed to admit, and because he
was in trouble with his wife and was "looking for a
scapegoat." The court granted the motion to strike the
charge of unauthorized use:

At this point in the evidence, I see in the light most
favorable to the Commonwealth. [Victim] lent the truck as an
open?ended loan to get drugs, regardless of what he said.
[Drugs] weren’t at the house. The man went out, and I think the
unauthorized use falls on that basis. He didn’t have any time
frame where he spent the night, and wandered around.

The court denied the motion to strike the grand larceny charge
but reduced it to petit larceny. It also stated that it
"accepted the majority of the investigation."

Appellant presented testimony from Stacy Ellington, his
ex?wife, that DiGuardi dropped appellant off at her house at
about 4:00 p.m. on the date in question and drove off. Appellant
delivered her child support payment and remained at her home with
their children until 9:30 or 10:00 p.m. that evening.

Appellant moved to strike the petit larceny charge, arguing
that the court had already found the testimony of the
Commonwealth’s witnesses to be incredible and that this fact,
coupled with Stacy Ellington’s testimony that appellant left
DiGuardi in the truck and spent the evening at her house,
provided reasonable doubt as to appellant’s guilt. The trial
judge denied the motion and found appellant guilty of petit



Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975).

The weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide. However, whether a criminal conviction is
supported by evidence sufficient to prove guilt beyond a
reasonable doubt is not a question of fact but one of law.

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601?02 (1986). "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." Coleman v.
, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

Larceny requires proof of "the wrongful or fraudulent
taking of personal goods of some intrinsic value, belonging to
another, without his assent, and with the intention to deprive
the owner thereof permanently." Bryant v. Commonwealth,
248 Va. 179, 183, 445 S.E.2d 667, 670 (1994) (quoting Skeeter
v. Commonwealth
, 217 Va. 722, 725, 232 S.E.2d 756, 758
(1977)) (other citation omitted).

The circumstantial evidence in this case does not exclude all
reasonable hypotheses of innocence. The evidence, viewed in the
light most favorable to the Commonwealth, proved only that the
money and other items were in DiGuardi’s truck when he loaned it
to appellant and that they were missing when DiGuardi and his
wife found an unknown third person driving the truck the
following day. None of the items were ever seen in appellant’s
possession, and appellant made no statements permitting the
inference that he took the items. This circumstantial evidence
left the reasonable hypothesis that this third person or some
other unknown individual took the items during the time the truck
was out of DiGuardi’s possession. Although appellant agreed to
pay restitution to DiGuardi, this agreement did not constitute an
admission that appellant took the items, and he, in fact, told
DiGuardi he did not take the items. Although the trial court was
not required to believe appellant’s out?of?court denial, see,
, Speight v. Commonwealth, 4 Va. App. 83, 88, 354
S.E.2d 95, 98 (1987) (en banc), the court’s
disbelief nevertheless did not provide substantive evidence of
appellant’s guilt.

For these reasons, we reverse and dismiss appellant’s

Reversed and dismissed.



court ruled that the driver’s statement was not admissible as
substantive evidence.