                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


ALBERT ANTONIO SAVAGE
                                              MEMORANDUM OPINION * BY
v.   Record No. 0889-00-1                      JUDGE ROBERT P. FRANK
                                                   MARCH 13, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                      E. Everett Bagnell, Judge

            Barrett R. Richardson (Richardson &
            Rosenberg, LLC, on brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.



     Albert Antonio Savage (appellant) was convicted in a bench

trial of burglary in violation of Code § 18.2-91, petit larceny

in violation of Code § 18.2-96, and destruction of property in

violation of Code § 18.2-137.     On appeal, he contends the trial

court erred in finding the evidence sufficient to convict him of

these offenses.    We agree and reverse the convictions.

                            I.   BACKGROUND

     On August 24, 1998, Frank Sheffer resided at 521 Butler

Avenue in Suffolk, Virginia.     He left his house at 8:30 a.m.

that day.    He returned home that evening at approximately

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
8:00 p.m. and found that the french door in his bedroom was

slightly ajar and that the glass in the door had been broken.

His cellular phone was missing.   The cellular phone was kept in

the top dresser drawer in his bedroom.   He also noticed that a

blood pressure kit was destroyed.   The contents of a dresser

drawer were strewn all over the floor.   Sheffer said he made no

calls on the cellular phone after 8:00 a.m. on August 24, 1998.

     Brian McCullough, an employee of GTE Wireless testified

that two telephone calls were made on the afternoon of August

24, 1998 from Sheffer's cell phone.    The first telephone call

was made at 4:21 p.m., and the second telephone call was made at

5:03 p.m.   Both calls were made to the same telephone number,

539-0945.   Mr. McCullough did not have firsthand knowledge of

who placed the calls.

     Eric Woodley, the employee of a taxi service, testified

that he picked appellant up three times on August 24, 1998.     The

first pick-up was a "walk-up," which occurs when the taxi is

flagged down, near the Riverview section of the city, a quarter

mile from Butler Road.   Woodley testified he drove appellant to

Cedar Street.   At 3:17 p.m., Woodley picked up appellant at 31

Stacey Drive as a result of a call to the taxi company.   Woodley

drove appellant to 210 Cedar Street.   At 4:21 p.m., Woodley

picked up appellant, as a result of a telephone call, at 210

Cedar Street and drove him to 31 Stacey Drive.   A third call was

received at approximately 5:05 p.m., but Woodley testified he

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did not pick up appellant after that call.    Woodley testified

the taxi company's telephone number was 539-0945.

     On cross-examination, Woodley said that he did not know who

made the telephone calls to the taxi dispatcher, did not know

who actually dialed the telephone number, and did not know who

communicated with the dispatcher.   He said that he did not

notice anything unusual about appellant's behavior on August 24,

1998, and he did not notice whether appellant had a cell phone.

     Appellant denied being involved in the burglary.    Appellant

testified he "was no where in that neighborhood of Constance

Road, Butler Street, or wherever Mr. Woodley said I was."

Appellant indicated he only would call for a cab from 117 Morgan

Street, 31 Stacy Drive or 210 Cedar Street.   Appellant denied

being picked up by Woodley near the Riverview location described

by Woodley.

     Appellant testified he would occasionally send a woman

named Saundra to use a phone to call the cab company when he was

on Cedar Street.   He said his father's girlfriend would be sent

to use a telephone to call the cab company if he was on Morgan

Street.   Appellant testified that when he was at 31 Stacey

Drive, he would make the telephone call to the cab company or

his "old lady" would make the call from a neighbor's house.    He

could not remember who placed the telephone calls to the cab

company on August 24, 1998.   Appellant timely moved to strike



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the evidence.   The motion was denied.   Appellant was convicted

of burglary, destruction of property, and petit larceny.

                           II.   ANALYSIS

               On review of a challenge to the
          sufficiency of the evidence, we view the
          evidence in the light most favorable to the
          Commonwealth, the prevailing party, and
          grant to it all reasonable inferences fairly
          deducible therefrom. Commonwealth v.
          Jenkins, 255 Va. 516, 521, 499 S.E.2d 263,
          265 (1998). "The judgment of a trial court
          sitting without a jury is entitled to the
          same weight as a jury verdict, and will not
          be disturbed on appeal unless plainly wrong
          or without evidence to support it." Beck v.
          Commonwealth, 2 Va. App. 170, 172, 342
          S.E.2d 642, 643 (1986).

Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640,

643 (2000).

     At trial, as well as on appeal, the Commonwealth relied

upon the presumption that unexplained possession of recently

stolen property creates a presumption of guilt.

               [W]hen evidence has been introduced,
          which, if believed, establishes that a house
          has been broken and entered and goods stolen
          therefrom, and warrants an inference beyond
          a reasonable doubt that the breaking and
          entering and the larceny of the goods were
          committed at the same time, by the same
          person or persons, as a part of the same
          transaction, upon principle and authority,
          the exclusive possession of the stolen goods
          shortly thereafter, unexplained or falsely
          denied, has the same efficiency to give rise
          to an inference that the possessor is guilty
          of the breaking and entering as to an
          inference that he is guilty of the larceny.




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Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28

(1935).   "It is well settled that the unexplained possession of

recently stolen property creates a presumption of guilt, but

such possession must be exclusive on the part of the accused."

Leebrick v. Commonwealth, 198 Va. 365, 367, 94 S.E.2d 212, 214

(1956).   Thus, "the evidence must reveal that the accused was

consciously asserting at least a possessory interest in or

exercising dominion over the stolen property."    Ferrell v.

Commonwealth, 11 Va. App. 380, 388, 399 S.E.2d 614, 618 (1990)

(citing Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16,

17 (1981)).   Additionally, an accused can jointly possess stolen

property with another.    Castle v. Commonwealth, 196 Va. 222,

227, 83 S.E.2d 360, 363 (1954).   Therefore, the evidence must

prove beyond a reasonable doubt that appellant was in possession

of the stolen cell phone or jointly possessed the property with

another person.

     The evidence established that on two occasions on the day

of the burglary the stolen cell phone was used to call a cab to

transport appellant.   Appellant was at the location designated

by the caller.    Appellant acknowledged the phone calls to the

cab were made on his behalf, although he did not recall who made

the actual calls.   Further, appellant denied being picked up by

Woodley, the cab driver, at the location described by Woodley as

a quarter of a mile from the crime scene.



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     "'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.'"    Byers v. Commonwealth, 23 Va. App. 146,

151, 474 S.E.2d 852, 855 (1996) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

"'[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, "all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of

innocence."'"   Id. (quoting Moran v. Commonwealth, 4 Va. App.

310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted)).

"However, '[w]hether the Commonwealth relies upon either direct

or circumstantial evidence, it is not required to disprove every

remote possibility of innocence, but is, instead, required only

to establish guilt of the accused to the exclusion of a

reasonable doubt.'"    Cantrell v. Commonwealth, 7 Va. App. 269,

289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v.

Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986)

(citation omitted)).   "'The hypotheses which the prosecution

must reasonably exclude are those "which flow from the evidence

itself, and not from the imagination of defendant's counsel."'"

Id. at 289-90, 373 S.E.2d at 338-39 (quoting Black v.

Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)

(citation omitted)).

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     In this case, while the suspicion of appellant's guilt is

strong, it is equally plausible that the phone calls were made

by a neighbor or appellant's girlfriend.   While the fact finder

may conclude appellant lied to conceal his guilt, Black, 222 Va.

at 842, 284 S.E.2d at 610, we do not believe this alone is

sufficient to prove appellant's guilt.

     For these reasons, we find the evidence was insufficient to

prove beyond a reasonable doubt that appellant committed the

offenses.   Therefore, we reverse the judgment of the trial court

and dismiss the indictments.

                                           Reversed and dismissed.




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