Best v. Com., 801811

• Decision Date: 11 September 1981
• Docket Number: No. 801811,801811
• Citation: 222 Va. 387,282 S.E.2d 16
• Parties: Edward Lee BEST v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 16

282 S.E.2d 16

222 Va. 387

Edward Lee BEST v. COMMONWEALTH of Virginia.

Record No. 801811.

Supreme Court of Virginia.

Sept. 11, 1981.

Edward H. McNew, Jr., Portsmouth (Bangel, Bangel & Bangel, Portsmouth, on brief), for appellant.

John B. Purcell, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, COMPTON, STEPHENSON, JJ., and HARMAN, Senior Justice.

PER CURIAM.

Indicted for grand larceny, Edward Lee Best was convicted in a bench trial and sentenced to two years' imprisonment, suspended upon his good behavior during that period. On appeal, Best challenges his conviction upon the ground that the evidence was insufficient to establish he was in exclusive possession of recently stolen property.

Between Friday, February 15, and Monday, February 18, 1980, someone entered the lot of Craddock Auto Service in Portsmouth and stole the tires and rims to a 1971 Chevrolet which was being repaired and repainted there. Under the pretense of being interested in purchasing a car, Cecil Proffitt, the owner of Craddock Auto Service, and Wayne Thompson, a part-time employee, went to a neighborhood where two cars were for sale. Best and two others showed them both cars. When they examined the second car, which was at Best's home, Proffitt asked Best if he had tires to replace the worn tires on the car being sold. Best led them to a shed where he said he had one tire for the car. Looking into the doorless, open shed, Proffitt saw the stolen tires and wheels, which were readily identifiable because they bore paint spots matching the new color of the Chevrolet. When Proffitt asked Best about the tires, Best told him "they belonged on his sister's car. He said they didn't belong to the car he was selling."

Best's mother testified that four persons lived at the residence where the tires were found: herself, her husband, and her two sons. She also stated that she did not know anything about the stolen tires in the shed and that her daughter lived on the Eastern Shore.

The trial court ruled that Best was in exclusive possession of recently stolen property and thus was presumed to have stolen the items. The defendant presented no evidence, and the trial court convicted Best of grand larceny.

For the larceny presumption to arise, the Commonwealth must establish that the accused was in exclusive possession of property recently stolen. Price's Case, 62 Va. (21 Gratt.) 846, 869 (1872). One can be in exclusive possession of an item when he jointly possesses it with another. Carter v. Commonwealth, 209 Va. 317, 323, 163 S.E.2d 589, 594 (1968), cert. denied, 394 U.S. 991, 89 S.Ct. 1479, 22 L.Ed.2d 766 (1969). The evidence must reveal, however, that the accused was consciously asserting at least a possessory interest in the stolen property or was exercising dominion over the stolen property. Drinkard v. Commonwealth, 163 Va. 1074, 1081-82, 178 S.E. 25, 27 (1935). We have repeatedly held that the presumption does not arise when the evidence merely reveals that the stolen property was found in a place to which several people, including the accused, had access. Leebrick v. Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214 (1956); Castle v. Commonwealth, 196 Va. 222, 227, 83 S.E.2d 360, 364 (1954); Tyler's Case, 120 Va. 868, 871, 91 S.E. 171, 172 (1917). In the case before us, the evidence revealed that several persons other than the accused had access to the open shed where the stolen property was found.

Arguing the conviction should be affirmed, the Commonwealth relies heavily upon Best's statement to Proffitt that the tires belonged on his sister's car. The Commonwealth contends that Best's statement was false and extremely incriminating and that consequently the presumption of larceny arises. We find the Commonwealth's argument unpersuasive. The presumption arises only when the accused has been shown to be in exclusive possession of recently stolen property, regardless of how much other incriminating evidence the Commonwealth has marshalled. ^* We rejected an argument similar to the Commonwealth's in Leebrick, supra, where the evidence revealed that several persons (including the defendants...