                     COURT OF APPEALS OF VIRGINIA


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


ROBERT LEE FREEMAN
                                          MEMORANDUM OPINION * BY
v.   Record No. 0708-01-1                  JUDGE RICHARD S. BRAY
                                                MAY 7, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on brief), for
          appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Robert Lee Freeman (defendant) was convicted in a bench trial

for grand larceny of a vehicle in violation of Code § 18.2-95.      On

appeal, he contends the evidence was insufficient to support the

conviction.   We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                  I.

     In assessing sufficiency of the evidence on appeal, we view

the record "'in the light most favorable to the Commonwealth,

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
giving it all reasonable inferences fairly deducible therefrom.'"

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866

(1998) (citation omitted).   The credibility of the witnesses, the

weight accorded testimony, and the inferences drawn from proven

facts are matters determined by the fact finder.    Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by the evidence.   See Code

§ 8.01-680.

     Viewed accordingly, the evidence established that a Dodge van

belonging to Cynthia Brown was stolen from a Portsmouth street

between 8:30 p.m. and 10:00 p.m. on October 14, 2000.   Police were

notified and, within an hour, Officer R.G. Suggs observed the van

drive "past [him] very slowly," "traveling on a flat tire."    Suggs

stopped the vehicle and "ordered . . . all the individuals in the

vehicle [to] exit."   Defendant, the front seat passenger,

complied, but immediately "began to walk away."    Confronted with

Suggs' "verbal commands to . . . stop," defendant "began running

down [the] [s]treet," only to be apprehended minutes later.    When

"taken into custody," he protested to police, "I didn't do

anything, I didn't do anything."

     At the time of the stop, the driver's window of the van was

"completely broken out," with "glass on the floorboard on the

passenger side" and "a slight amount [of glass] on the passenger's

seat."   "[T]he steering column ignition" had been "popped out" and

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was resting "on the floorboard on the passenger side of the

vehicle."

     Defendant moved to strike the evidence, arguing the

Commonwealth failed to prove he had "exhibited any kind of

dominion or control over this car."     The trial court overruled the

motion and convicted defendant of the larceny, resulting in the

instant appeal.

                                 II.

     Challenging the sufficiency of the evidence to support the

conviction, defendant argues on appeal that "presence and flight"

do not establish the elements of the offense.    The Commonwealth

counters that "presence and flight," together with "the location

of the ignition," "the glass," "the recency [sic] of the theft"

and defendant's comment, "I didn't do anything," proved the

offense beyond a reasonable doubt.

     "Larceny is the wrongful taking of the goods of another

without the owner's consent and with the intention to permanently

deprive the owner of possession of the goods."    Bright v.

Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987)

(citation omitted).   "Once the crime is established, the

unexplained possession of recently stolen goods permits an

inference of larceny by the possessor."    Id.

            In order for the presumption to arise, the
            possession must be exclusive, but "[o]ne can
            be in exclusive possession of an item when
            he jointly possesses it with another," as
            long as "the accused was consciously

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           asserting at least a possessory interest in
           the stolen property or was exercising
           dominion over [it]."

Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832

(1997) (quoting Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d

16, 17 (1981)).

     "Circumstantial evidence is as competent and entitled to as

much weight as direct evidence . . . ."   Coleman v. Commonwealth,

226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).    However, where "a

conviction is based on circumstantial evidence, 'all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Garland v. Commonwealth, 225 Va. 182,

184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217

Va. 360, 366, 228 S.E.2d 563, 567 (1976)).    Nevertheless, "[t]he

Commonwealth need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant."    Hamilton v. Commonwealth, 16

Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).    Whether a hypothesis

of innocence is reasonable is a question of fact, Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and

a finding by the trial court is binding on appeal unless plainly

wrong.   Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987).

     Here, unaided by the larceny inference arising from

possession of the stolen van, the evidence was clearly

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insufficient to sustain the conviction.      The record does not

establish that defendant assisted, abetted or otherwise

facilitated the crime, before, during or after the initial

taking.     His presence in the van, together with the shattered

glass, broken ignition and protestation to police, do not exclude

the reasonable hypothesis that he entered the vehicle, free of

involvement in the larceny.    Thus, while defendant's "conduct does

raise a suspicion of guilt, . . . it is not sufficient to

establish beyond a reasonable doubt that [he] committed grand

larceny."    Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d

891, 893 (1982); see Reese v. Commonwealth, 230 Va. 172, 174-75,

335 S.E.2d 266, 268 (1985); Burgess v. Commonwealth, 14 Va. App.

1018, 1023-24, 421 S.E.2d 664, 667 (1992); Nelson v. Commonwealth,

12 Va. App. 268, 271, 403 S.E.2d 384, 386 (1991).

     The Commonwealth's reliance upon the possession/larceny

inference is similarly misplaced.    The record does not suggest

defendant, a passenger, exercised any measure of dominion or

control over the van or otherwise asserted a possessory interest

in the vehicle.    The evidence does not establish that he drove the

van, directed the driver or was otherwise in custody of the stolen

property.    Neither defendant's flight from the scene nor his

statement to police, "I didn't do anything," are assertions of a

possessory interest in the vehicle.      Absent such evidence, the

inference clearly does not pertain.      See Reese, 230 Va. at 175,

335 S.E.2d at 267-68 (holding "evidence of joint control"

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necessary to convict passenger in stolen vehicle); Moehring, 223

Va. at 568, 290 S.E.2d at 893 (holding "mere acceptance . . . of a

ride in a stolen vehicle" by passenger fails to establish

involvement in initial taking or requisite dominion and control);

Burgess, 14 Va. App. at 1023, 421 S.E.2d at 667 (holding presence

in stolen vehicle with knowledge of theft does not establish

dominion and control necessary to inference); Nelson, 12 Va. App.

at 270-71, 403 S.E.2d at 386 (holding presence in a stolen vehicle

does not establish dominion and control).

     Accordingly, we find the evidence insufficient to support the

conviction and reverse the trial court.

                                          Reversed and dismissed.




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