                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


TRAVIS MAXWELL ELLINGTON
                                            MEMORANDUM OPINION * BY
v.        Record No. 2370-97-2               JUDGE LARRY G. ELDER
                                               OCTOBER 20, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                  James F. D'Alton, Jr., Judge
          P. George Eliades, II (Eliades & Butterworth,
          on brief), for appellant.

          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.

                                  I.

                                 FACTS

     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
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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

     1
      The court ruled that the driver's statement was not
admissible as substantive evidence.




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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




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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

larceny.
                                II.

                             ANALYSIS

     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


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sufficiently convincing to exclude every reasonable hypothesis

except that of guilt."    Coleman v. Commonwealth, 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



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not required to believe appellant's out-of-court denial, see,

e.g., 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

conviction.

                                        Reversed and dismissed.




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