Myers v. Com., Record No. 1581-03-2.

• Decision Date: 25 May 2004
• Docket Number: Record No. 1581-03-2.
• Citation: 43 Va. App. 113,596 S.E.2d 536
• Court: Virginia Court of Appeals
• Parties: Denna Kaye MYERS v. COMMONWEALTH of Virginia.

596 S.E.2d 536

43 Va. App. 113

Denna Kaye MYERS v. COMMONWEALTH of Virginia.

Record No. 1581-03-2.

Court of Appeals of Virginia, Richmond.

May 25, 2004.

Joseph M. Teefey, Jr. (Teefey & Teefey, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present ELDER, FRANK and HUMPHREYS, JJ.

FRANK, Judge.

Denna Kaye Myers (appellant) was convicted in a bench trial of grand larceny, in violation of Code § 18.2-95, and of possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in finding the evidence was sufficient to convict. As we agree with appellant that the evidence was insufficient to prove the elements of the offenses, we reverse the judgment of the trial court.

BACKGROUND

On February 8, 2003, Amelia County Deputy Sheriff William Ford observed a green pickup truck run a stop sign at the intersection of Routes 360 and 697, approximately 1,000 feet from Jason Hooley's welding shop. The driver of the truck, responding to Ford's emergency lights, initially pulled over into a parking lot. However, as Deputy Ford exited his vehicle, the truck drove off. Ford chased the truck for four miles. Eventually, the high-speed chase ended when the truck drove into a yard at the end of a dead-end street. At this point, the driver jumped out of the truck and fled. The truck's other occupant, appellant, who was a paraplegic,¹ remained in the passenger seat. The deputy's investigation uncovered an outstanding capias for appellant.

Appellant was transported to the sheriff's office, and the truck was transported to the sheriffs parking lot. Ford "secured" the truck by locking the doors. He kept the key in his possession. The next morning, Ford searched the truck. He noticed "a lot of garbage in the floor board." He also found "blankets, a jacket, just some junk laying in the [passenger-side] front floor board of the truck." Ford also found a .32 revolver wrapped in a blanket on the front floorboard. The weapon was not registered to appellant or the driver.

Later that same day, Deputy Ford returned to the yard where the truck had stopped. He recovered a .22 Ruger target pistol lying approximately sixty feet from where the driver's side of the truck had come to rest. Hooley identified this gun as his, indicating it was stolen from his vehicle at the welding shop. He had last seen the gun on February 7, 2003, and did not notice it was missing until a few days later.

The Commonwealth proved appellant had a prior felony conviction. Appellant did not present any evidence. He moved to strike the evidence, maintaining no evidence proved he had knowledge, dominion, and control over the gun on the floorboard. He further argued he was physically unable to throw the.22 pistol sixty feet from the driver's side of the truck. Appellant suggested the driver, Mays, possessed and disposed of that weapon. He also argued none of the evidence indicated he was involved in the theft of the gun. The trial court overruled the motions and found appellant guilty of both offenses.

ANALYSIS

A. Standard of Review

When faced with a challenge to the sufficiency of the evidence, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence" to support it. Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (citations omitted); see also McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc)

.

* * * * *

Put another way, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted). We must instead ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Kelly, 41 Va.App. at 257, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original)); see also Hoambrecker v. City of Lynchburg, 13 Va.App. 511, 514, 412 S.E.2d 729, 731 (1992)

(observing that the question on appeal is whether "a rational trier of fact could have found the essential elements" of the convicted offense). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Kelly, 41 Va.App. at 257-58,

584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319,

99 S.Ct. at 2789).

Crowder v. Commonwealth, 41 Va.App. 658, 662-63, 588 S.E.2d 384, 386-87 (2003).

The Attorney General argues Maryland v. Pringle, ___ U.S. ___, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003), and Commonwealth v. Hudson, 265 Va. 505, 578 S.E.2d 781, cert. denied, ___ U.S ___, 124 S.Ct. 444, 157 L.Ed.2d 322 (2003), substantially narrowed appellate review of sufficiency arguments. We disagree with this interpretation of these cases.

Pringle examined whether the police had probable cause to arrest an occupant of a vehicle for possession of drugs. ___ U.S. at ___, 124 S.Ct. at 799. Pringle was the front seat passenger in a car where an officer found $763 in "rolled-up cash" in the glove compartment and "five glassine baggies" of cocaine between the backseat armrest and the backseat. Id. at ___, 124 S.Ct. at 798. The Supreme Court, in affirming the finding of probable cause to arrest, concluded it was "an entirely reasonable inference from these facts that any or all three of the occupants" possessed the cocaine found in the car. Id. at ___, 124 S.Ct. at 800. This analysis occurred in the context of discussing a finding of probable cause necessary for an arrest, not a finding of proof beyond a reasonable doubt to prove guilt. Nothing in Pringle addressed the standard of appellate review for trial questions involving guilt beyond a reasonable doubt. The case addressed only what was reasonable in the context of probable cause determinations.

The Commonwealth relies on the Supreme Court's "entirely reasonable inference" comment, and couples it with the Virginia Supreme Court's Hudson decision, to argue the scope of appellate review on issues involving the sufficiency of circumstantial evidence to prove guilt beyond a reasonable doubt has been greatly narrowed. By it own terms, however, Hudson does not support the Commonwealth's position. The Court explained in Hudson, "The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt." 265 Va. at 513, 578 S.E.2d at 785.

The issue before the Hudson Court was whether the Court of Appeals properly found "the Commonwealth's evidence fail[ed] to exclude all reasonable hypotheses of innocence." Id. The Supreme Court, in reversing this Court, noted that we gave credence to the defendant's testimony and his interpretation of the evidence and ignored the prosecution's evidence. Id. at 514, 578 S.E.2d at 786. In this context, the Supreme Court held:

The issue upon appellate review is not whether "there is some evidence to support" these hypotheses [of innocence]. The issue is whether a reasonable jury, upon consideration of all the evidence, could have rejected Hudson's theories in his defense and found him guilty of murder beyond a reasonable doubt.

Id. at 513, 578 S.E.2d at 785 (emphasis added). The Supreme Court found this Court did not follow the traditional standard of appellate review because it ignored the credibility determinations of the fact finder regarding Hudson's evidence. Id. at 514, 578 S.E.2d at 786. Hudson did not alter the traditional standards of appellate review. It simply discussed appellate review of a defendant's theory of the case.

We see nothing in Hudson that changes the standards appellate courts use to evaluate the sufficiency of circumstantial evidence to prove guilt. The Supreme Court of Virginia has consistently evaluated the sufficiency of circumstantial cases presented by the Commonwealth:

It suffices to say that if the proof relied upon by the Commonwealth is wholly circumstantial, as it here is, then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt. To accomplish that, the chain of necessary circumstances must be unbroken and the evidence as a whole must satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other rational hypothesis and to a moral certainty. Yet what inferences are to be drawn from proved facts is within the province of the [fact finder] and not the court so long as the inferences are reasonable and justified.

La Prade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950) (emphasis added). If a defendant argues that the Commonwealth has not met its burden to prove the elements of a crime, appellate courts must consider whether the evidence and the reasonable inferences therefrom, examined in the light most favorable to the Commonwealth, justify a finding of guilt beyond a reasonable doubt. Pringle and Hudson did not change this time-honored standard. While great deference is paid to the fact finder, appellate courts do not capitulate to every factual finding of the lower courts. See, e.g., Jackson v. Commonwealth, 267 Va. 666, 681, 594 S.E.2d 595, 603 (2004)

(finding the trial court erred in refusing to suppress evidence seized after the police stopped a car where "no evidence" supported the inference that the informant was a concerned citizen making a report based on first-hand...