                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia


RICHARD IRVIN HUDDLESTON
                                            MEMORANDUM OPINION * BY
v.     Record No. 2335-98-3                JUDGE SAM W. COLEMAN III
                                               OCTOBER 19, 1999
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                     George E. Honts, III, Judge

            Wayne D. Inge for appellant.

            Linwood T. Wells, Jr., Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


       Richard Huddleston was convicted in a bench trial of petit

larceny in violation of Code § 18.2-96.     On appeal, Huddleston

argues the evidence is insufficient to prove he intended to

permanently deprive the owner of his property.     We agree and

reverse the conviction.

                              BACKGROUND

       Huddleston borrowed a drill from Martin Newton to make

repairs on a trailer for a mutual friend.     Newton told

Huddleston to return the drill the next morning.     Several days

later when Huddleston had not returned the drill, Newton called

him.    Huddleston told Newton that he would return the drill, and

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Newton told him to return it "as soon as you can."   Huddleston

still did not return the drill, so Newton spoke with him again

and told Huddleston to return it by a certain day or he would

get a warrant.   Huddleston again assured Newton that he would

return the drill, but again Huddleston failed to do so.   When

Newton last talked with Huddleston demanding that the drill be

returned, work on the trailer had not begun.

     Newton reported the incident to the sheriff's office.      An

investigator went to Huddleston the next day and advised him

that Newton had reported the drill stolen.   Huddleston admitted

that he had the drill and when told by the investigator to

return it, Huddleston said he would.    When Huddleston did not

return the drill within four days, the investigator obtained a

grand larceny warrant for Huddleston.   Before Huddleston was

arrested on the warrant, Huddleston's employer contacted Newton

to determine his willingness to accept payment for the missing

drill.   As a result, Huddleston borrowed $100 from his employer

which he paid to Newton for the drill, and which Newton accepted

in satisfaction of the missing drill.   Thereafter, Newton called

the sheriff's office and requested that the warrant be

"withdrawn."   He was told that could not be done.   Huddleston

was arrested on the warrant.

     At trial, Huddleston testified that the drill had been

stolen from his truck either the day before or the same day the



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investigator had talked with him.     Huddleston had not reported

the drill stolen.

                                ANALYSIS

     Huddleston denies that he intended permanently to deprive

Newton of his property, and he argues that the circumstances do

not support an inference that he so intended.     He contends the

evidence fails to establish he had a larcenous intent and at

most establishes a civil claim against him for failing and being

unable to return bailed property.     We agree.

     On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the

Commonwealth and grant to it all reasonable inferences fairly

deducible therefrom.   See Commonwealth v. Jenkins, 255 Va. 516,

521, 499 S.E.2d 263, 265 (1998).    "The credibility of the

witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that

evidence as it is presented."    Sandoval v. Commonwealth, 20 Va.

App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).

The trial court's ruling will not be disturbed on appeal "unless

plainly wrong or without evidence to support it."     Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     Where the evidence "'is equally susceptible of two

interpretations one of which is consistent with the innocence of

the accused, [the trier of fact] cannot arbitrarily adopt that

interpretation which incriminates [the accused].'"   Harrell v.

                                 - 3 -
Commonwealth, 11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990)

(quoting Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d

251, 253 (1969)).   Furthermore, when a conviction is based on

circumstantial evidence, the evidence "must be consistent with

guilt and inconsistent with innocence and must exclude every

reasonable hypothesis of innocence."    Bishop v. Commonwealth, 227

Va. 164, 169, 313 S.E.2d 390, 393 (1984).    Although the

Commonwealth is not required to disprove every remote possibility

of innocence, it must disprove those theories of innocence that

"flow from the evidence itself."   Black v. Commonwealth, 222 Va.

838, 841, 284 S.E.2d 608, 609 (1981) (citation omitted).

     "To prove that a defendant is guilty of larceny, the

Commonwealth must present evidence that the defendant took the

property with the intention to deprive the owner permanently of

his possession of the goods."   Welch v. Commonwealth, 15 Va. App.

518, 524, 425 S.E.2d 101, 105 (1992).   "Intent may, and most often

must, be proven by circumstantial evidence and the reasonable

inferences to be drawn from proven facts are within the province

of the trier of fact."   Fleming v. Commonwealth, 13 Va. App. 349,

353, 412 S.E.2d 180, 183 (1991).   Where the larceny is based upon

the failure to return or account for bailed property, failure to

perform the duty to return the property or the "'refusal to

account or pay over on demand constitutes embezzlement, or is, at

least, evidence from which a fraudulent conversion may be

inferred.'"   Stegall v. Commonwealth, 208 Va. 719, 721-22, 160

                                - 4 -
S.E.2d 566, 568 (1968) (quoting 29A C.J.S. Embezzlement § 11, at

27-28).

        Two cases are instructive on the principle controlling this

case.    Although both cases deal with statutory embezzlement

charges, rather than larceny, the crucial issue in both cases is

whether the element of failing to return bailed property, and the

surrounding circumstances, constitutes sufficient circumstantial

evidence to prove a larcenous intent or fraudulent conversion,

which is the same issue before us here.    In Stegall, supra, the

defendant rented an automobile through a written agreement from a

Virginia agency wherein he agreed to return the automobile two

days later.    Stegall did not return the vehicle.   It was later

found abandoned in Nashville, Tennessee.    Stegall was arrested

approximately seven months later in Michigan.    At trial his

explanation was that he had rented the car in Lynchburg for his

employer, who had provided the rental deposit.    After going to

their hotel room, Stegall and his employer went to a Roanoke

restaurant for dinner.    The employer took the car for "a few

minutes," and when he did not return in a reasonable time, Stegall

hitchhiked back to Lynchburg.    When the employer had not returned

the next morning, Stegall testified that he checked out of the

hotel and left the state and that he had not seen the employer

since.

        In holding that the failure to return the vehicle, "coupled

with the surrounding circumstances," constituted sufficient

                                 - 5 -
evidence for the fact finder to conclude that Stegall had formed

an intent to wrongfully convert the automobile to his own use, the

Court held that Stegall's explanation of why he did not return the

vehicle was not plausible and a reasonable man could not be

expected to believe it.   See id. at 723, 160 S.E.2d at 569.   The

Court noted that

          [o]rdinarily, uncontradicted evidence should
          be accepted as true and cannot be wholly
          discredited or disregarded if not opposed to
          probabilities, even though the witness is an
          interested party. Uncontradicted evidence
          is not, however, necessarily binding on the
          court or the jury. It may be disbelieved
          where it is inherently improbable,
          inconsistent with circumstances in evidence,
          or somewhat contradictory in itself,
          especially where the witness is a party or
          is interested. Neither courts nor juries
          are required to believe that which they know
          from ordinary experience is incredible.

Id. at 722, 160 S.E.2d at 568 (citations omitted).

     Because the trial judge was entitled to disregard Stegall's

account of what occurred "as inherently improbable" and because

his failure to return the vehicle, "when coupled with the

surrounding circumstances," supports the inference that Stegall

intended to permanently deprive the owner of possession of the

vehicle, the evidence was sufficient to prove the specific

intent as an element of the offense.

     In Molash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868

(1986), we held that the defendants' failure to return bailed

property, under the surrounding circumstances of that case,


                               - 6 -
failed to prove that the defendants intended permanently to

deprive the owners of the possession of their vehicle.   In

Molash, the explanation of why the bailed vehicle was not

returned was uncontradicted, was not inherently incredible, was

not internally inconsistent, and proved that the intent was not

criminal.

     The Molashes were long distance truck drivers who were

employed on occasion by the Markhams to haul freight.    No

written contract of employment existed and apparently no term of

employment was stated.   At the Markhams' direction, the Molashes

were to drive one of the Markhams' tractors to haul a trailer of

freight owned by B & L Truck Lines, Inc. from Covington,

Virginia to Chicago and then to pick up a return load of

freight.    When the Molashes arrived in Chicago, no return load

was waiting.   The Molashes called B & L's agent who gave them a

telephone number to call in order to obtain a return shipment,

which they did.   They were able to secure another load to be

returned to North Carolina.   On the return trip, the Molashes

visited a relative in Kentucky for Thanksgiving.   While there,

they decided to quit the job.   According to the uncontradicted

testimony, the Molashes called an agent for B & L Trucking to

report that they had quit and to report the exact separate

locations of the tractor and trailer.   At trial, the agent of

B & L testified and he did not refute that testimony.    Mrs.

Markham testified, however, that in a telephone conversation

                                - 7 -
with Mr. Molash, he told her that he didn't know where the

tractor and trailer were located.

     In finding the evidence insufficient in Molash to prove a

fraudulent intent or intent to permanently deprive the owners of

possession of their property, despite the testimony of Mrs.

Markham, we held the uncontradicted material evidence of the

Molashes was not implausible or inherently incredible and could

not be disregarded.   See id. at 248, 348 S.E.2d at 871.     The

uncontradicted material evidence proved that after the Molashes

quit as truck drivers, they informed B & L Trucking's agent of

the location of the tractor and trailer.   Therefore, that

evidence disproved that the Molashes intended to deprive the

owners of possession of their property.    Thus, the

Commonwealth's evidence failed to exclude every reasonable

hypothesis of innocence.   In reaching that result in Molash, we

reiterated and applied the principle from Stegall that

          "[o]rdinarily, uncontradicted evidence
          should be accepted as true and cannot be
          wholly discredited or disregarded if not
          opposed to probabilities, even though the
          witness is an interested party. . . . It
          may be disbelieved where it is inherently
          improbable, inconsistent with circumstances
          in evidence, or somewhat contradictory in
          itself, especially where the witness is a
          party."

Id. at 247, 348 S.E.2d at 871 (quoting Stegall, 208 Va. at 722,

160 S.E.2d at 568).




                               - 8 -
     Here, viewing the evidence in the light most favorable to

the Commonwealth, it proved that Huddleston borrowed the drill

from Newton in order to do repairs on a mutual friend's trailer.

No circumstances exist that would support an inference that at

the time Huddleston borrowed the drill he intended not to return

it or to permanently deprive Newton of his lawful possession of

the drill.   When Newton demanded return of the drill, Huddleston

never denied that he had the drill and repeatedly promised to

return it.   When contacted by the sheriff, Huddleston

acknowledged that he had Newton's drill and again promised to

return it.   When confronted with a criminal warrant, Huddleston

acknowledged that he had had Newton's drill, but stated that it

apparently had been stolen from his truck and he was unable to

return it.   Huddleston never denied that he had the drill or

that he was required to return or account for it to Newton.

Huddleston arranged to borrow money from his employer and paid

Newton $100 for the drill.   Newton accepted the money in

satisfaction of the drill and asked that the warrant be

withdrawn.

     The uncontradicted credible evidence of the Commonwealth in

this case is as equally compelling as the evidence in Molash in

establishing the lack of a fraudulent or criminal intent.   The

evidence shows that Huddleston borrowed Newton's drill; at all

times Huddleston acknowledged that Newton was entitled to

possession and that he intended to return it to Newton; and when

                               - 9 -
Huddleston was unable to do so, he accounted for the drill by

paying Newton for it.   Although Huddleston apparently did not

tell the officers that the drill had been stolen or was missing

from his truck, Huddleston's testimony that he was unable to

return the drill because it was stolen or missing was

uncontradicted, it was not inherently incredible or internally

inconsistent, and could not be disbelieved.   Accordingly,

because the Commonwealth's evidence did not exclude every

reasonable hypothesis of innocence, the evidence is insufficient

to support the conviction.   Thus, we reverse the conviction and

dismiss the indictment.

                                         Reversed and dismissed.




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