                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and O’Brien
UNPUBLISHED


              Argued at Norfolk, Virginia


              RODNEY LENARD MARSHALL
                                                                                              MEMORANDUM OPINION* BY
              v.            Record No. 1706-15-1                                              JUDGE RANDOLPH A. BEALES
                                                                                                  JANUARY 24, 2017
              COMMONWEALTH OF VIRGINIA


                                                FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                                             Michelle J. Atkins, Judge

                                           Joseph R. Lassiter, Jr. (Protogyrou & Rigney, P.L.C., on brief), for
                                           appellant.

                                           Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                                           Attorney General, on brief), for appellee.


                            Rodney Lenard Marshall was indicted for and convicted of receiving stolen property in

              violation of Code § 18.2-108. On appeal, Marshall argues that the evidence presented by the

              Commonwealth failed to establish that the vehicle was actually stolen property or that he knowingly

              received stolen property.

                                                                              I. BACKGROUND

                            On September 8, 2014, Gerry Self (the alleged victim) offered his 2001 Ford Mustang to

              “Triggy” in exchange for drugs. At trial, Mr. Self testified, “Well, basically I had – you know I

              had been out using, and I gave this guy [“Triggy”] my car for drugs basically; and he never

              brought the car back.” Mr. Self testified that he expected to get his car back at some point, but

              he did not testify that he had told Triggy that he wanted it back by any specific date. The

              Commonwealth asked Mr. Self, “So were you expecting to get the vehicle back at some point?”
                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Mr. Self responded, “Yeah. I was supposed to get the vehicle back, but he never brought the car

back.” However, Mr. Self acknowledged that he did not communicate to Triggy any conditions

on the duration of the “loan” or limit Triggy’s use of the car.

       On September 9, 2014 (the day after Mr. Self gave Triggy the vehicle), Triggy had not

returned the car to Mr. Self. Mr. Self called the police and spoke with Detective Crowder about

his Mustang on September 9, 2014. The Commonwealth did not produce any evidence that

Mr. Self attempted to reach out to Triggy in an effort to ask for the return of his car. Mr. Self

never filed a written police report although he did make a series of phone calls to Detective

Crowder. On September 28, 2014, Detective Crowder filed a report indicating that the vehicle

had been stolen and issued a be-on-the-lookout (“BOLO”) for the victim’s car.

       At approximately 3:18 a.m. on September 28, 2014, not long after the BOLO had been

broadcast to officers, Officer Phan saw a Mustang matching the description of Mr. Self’s

Mustang. Officer Phan followed the vehicle as it turned into a convenience store parking lot.

Officer Phan drew his weapon and slowly approached the Mustang. He saw a man he

subsequently identified as Marshall in the driver’s seat. As Officer Phan approached, the

Mustang backed out of its parking space and sped away. Officer Phan and another officer

pursued the vehicle with their lights and sirens activated on their vehicles. Eventually, the

Mustang traveled in the wrong direction down a one-way street and the officers halted their

pursuit. However, a short time later, they found the vehicle on “the grass in the front yard of [a

nearby house].” Officer Phan testified that, at that point, they called in a “K-9 officer.” Officer

Phan also testified, “We did a tracking, and as we did tracking, we went to the house right next to

it to the right . . . , and that’s when we came in contact with two individuals that were hiding [on]

the dark side of the house by the AC unit.” As the men were being brought out of hiding, Officer

Phan recognized one of the men as the driver. Officer Phan was then able to identify the driver
                                                -2-
as Rodney Marshall by his suspended driver’s license (which Marshall had with him). Officer

Phan again identified him at trial.

                                                                          II. ANALYSIS

                                                                     A. Standard of Review

              When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). “Viewing the evidence in

the light most favorable to the Commonwealth, as we must since it was the prevailing party in the

trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must

instead ask whether ‘any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)) (emphasis in

original). “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.” Jackson, 443 U.S. at 319.

                                                               B. Offense of Receiving Stolen Property

               On appeal, Marshall only disputes his conviction for receiving stolen property in

violation of Code § 18.2-108.1 A violation of Code § 18.2-108(A) occurs when “any person

buys or receives from another person, or aids in concealing, any stolen goods or other thing,

knowing the same to have been stolen . . . .” Code § 18.2-108(A). If this occurs, “he shall be
                                                            
              1
           Marshall was convicted of three other offenses: felony eluding police in violation of
Code § 46.2-817(B), driving on a suspended license (third offense) in violation of Code
§ 46.2-301, and driving the wrong way on a one-way street in violation of Code § 46.2-806. He
was also charged with unauthorized use of a motor vehicle in violation of Code § 18.2-102, but
the trial court granted Marshall’s motion to strike on that charge.
                                                 -3-
deemed guilty of larceny thereof, and may be proceeded against, although the principal offender

is not convicted.” Id. Thus:

               [t]o convict a defendant under Code § 18.2-108, the
               Commonwealth must prove that property was (1) previously stolen
               by another, and (2) received by defendant, (3) with knowledge of
               the theft, and (4) a dishonest intent. Guilty knowledge is
               sufficiently shown if the circumstances proven are such as must
               have made or caused the recipient of stolen goods to believe they
               were stolen. Guilty knowledge . . . absent proof of an admission
               against interest, . . . necessarily must be shown by circumstantial
               evidence.

Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11 (2000) (internal quotations and

citations omitted).

                          C. Whether the Mustang Was Stolen by Another

       When we examine the evidence under our established standard of review, we conclude

that the evidence was insufficient to support Marshall’s conviction because the evidence did not

prove that the Mustang had been stolen by another. It is certainly true that Marshall was in

possession of the vehicle without permission from the owner, Mr. Self. It is also undisputed that

Mr. Self wanted the Mustang back. However, the Commonwealth was required to prove beyond

a reasonable doubt that Triggy took the car with the intent to permanently deprive Mr. Self of the

vehicle. See Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 907 (1993)

(finding that a larceny is committed when an individual has “the intent to deprive the owner of

his property permanently . . . . Common law larceny, and its statutory lesser included offenses,

require a trespassory taking.”). Mr. Self only testified, “Well, basically I had – you know I had

been out using, and I gave this guy my car for drugs basically; and he never brought the car

back.” Mr. Self’s testimony that he “gave this guy [Triggy] my car for drugs” – without any

more information to indicate what was communicated to Triggy – is simply not sufficient to

show that Triggy actually stole the vehicle (i.e., that Triggy took the vehicle from Mr. Self with
                                               -4-
the intent to permanently deprive Mr. Self of the Mustang). The fact that Marshall attempted to

flee the scene, without more, also cannot be proof that Triggy stole the vehicle. Marshall knew

that he was driving on a suspended driver’s license when the officer tried to stop him.

       Marshall also argues that the evidence was insufficient to support a finding that he had

knowledge that the car was stolen at the time he received it. However, because the

Commonwealth failed to prove that the Mustang was actually stolen (a necessary element of the

offense of receiving stolen property), we do not need to reach Marshall’s second argument.

                                         III. CONCLUSION

       In short, the evidence was insufficient to support Marshall’s conviction for receiving

stolen property as the evidence did not establish that the Mustang had actually been stolen, given

that the owner testified that “I gave this guy [Triggy] my car for drugs[.]” Consequently, we

must reverse and dismiss Marshall’s conviction for receiving stolen property.

                                                                         Reversed and dismissed.




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