                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Decker
UNPUBLISHED


              Argued by teleconference


              TRAVIOUS MARQUE BAILEY
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0932-14-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                                  APRIL 7, 2015
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                              Robert W. Curran, Judge

                               Anthony J. Balady, Jr., for appellant.

                               Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Travious Marque Bailey (“Bailey”) appeals the final judgment entered by the Circuit

              Court for the City of Suffolk (the “trial court”) for his conviction of grand larceny of a heating

              and air conditioning unit (“the unit”) in violation of Code § 18.2-95. For the following reasons,

              we affirm the judgment of the trial court.

                     In support of his appeal, Bailey offers the following three assignments of error:

                               1. The trial court erred when it denied Defendant’s motion to
                                  strike the evidence of grand larceny, as the evidence showed
                                  that the heating and air conditioning unit was entrusted and
                                  delivered to the Defendant in the course of his employment and
                                  that no trespassory taking occurred.

                               2. The trial court erred when it found Defendant guilty of grand
                                  larceny, as Defendant presented a reasonable hypothesis of
                                  innocence that was not excluded by the evidence.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               3. The trial court erred in finding the evidence sufficient to
                  support a larceny conviction, as the Commonwealth’s evidence
                  supported a theory of embezzlement instead of larceny, and
                  neither the Court nor the Commonwealth stated their reliance
                  on an embezzlement theory of the case.

       On appeal, “[w]hat the elements of the offense are is a question of law that we review de

novo.” Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). “Whether

the evidence adduced is sufficient to prove each of those elements is a factual finding, which will

not be set aside on appeal unless it is plainly wrong.” Id. In reviewing that factual finding, we

consider the evidence in the light most favorable to the Commonwealth and give it the benefit of

all reasonable inferences fairly deducible therefrom. Commonwealth v. McNeal, 282 Va. 16, 20,

710 S.E.2d 733, 735 (2011) (citations omitted). We do not “substitute our judgment for that of

the trier of fact.” Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

“Instead, the relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                      A. Trespassory Taking

       Bailey’s first assignment of error claims that because Bailey received the unit in the

scope of his employment, no trespassory taking occurred. We disagree. Under Code § 18.2-95,

“grand larceny includes the taking, not from the person of another, of goods that have a value of

$200 or more.” Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). A

conviction of larceny requires proof beyond a reasonable doubt of the defendant’s intent to steal,

which must accompany his taking of the property. Bryant v. Commonwealth, 248 Va. 179, 183,

445 S.E.2d 667, 670 (1994) (citations omitted).

       The Virginia Supreme Court has held that the “owner of personal property may deliver it

to another upon conditions, or in circumstances, which give the recipient bare custody of the

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property. Constructive possession remains in the owner.” Pritchard v. Commonwealth, 225 Va.

559, 562, 303 S.E.2d 911, 913 (1983).  The Court provided several examples including, “a watch

handed to a friend to time a race, the owner expecting its return at the end of the race” or

“clothing handed to a customer in a clothing store, to try on for size, the owner expecting it to be

returned if rejected, paid for if accepted.” Id. The Court held that “if the property is carried

away before the condition is performed, with the intent to steal it from the owner, the act

becomes larceny.” Id. Alternatively, when the true owner “gives consent to a temporary

possession or a possession for a limited purpose, the expiration of that qualification creates a

constructive revestment of possession in the true owner with ‘bare charge or custody’ in the

other person. A violation of the owner’s possessory right constitutes a trespassory taking.”

Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 908 (1993) (quoting 50

Am. Jur. 2d Larceny § 23 (1970)).

       The record, viewed in the light most favorable to the Commonwealth, demonstrates that

Bailey exercised control over the unit against the true owner’s, Rohit Ahluwalia (“Ahluwalia”),

possessory right. First, Bailey offered several different explanations as to what happened to the

unit. Bailey first told Ahluwalia that his friend “Mike” had the unit and was getting a needed

part and that the unit would be installed in a couple of days. Bailey later told Ahluwalia and

Robert Bowles (“Bowles”), one of Ahluwalia’s maintenance employees, that the police had

confiscated the unit and arrested his friend “Mike” because the unit had been previously stolen.

On two occasions, Bailey, purporting to be “Sergeant Boyd” of the Suffolk Police Department (a

fictitious character) answered Bowles’s phone call and later told Bowles that he was trying to get

Ahluwalia back for something and hung up. Despite talking to Detective Loury of the Suffolk

Police Department, who was investigating the whereabouts of the unit, Bailey never contacted

Detective Loury or made any effort to return the unit.

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       There is ample evidence in the record to support a finding that Bailey’s actions violated

Ahluwalia’s possessory right to the unit, and thus constituted a trespassory taking under both

theories explained in Pritchard and Overstreet. First, consistent with the analysis of Pritchard,

Bowles, in his capacity as a maintenance employee of Ahluwalia, relinquished custody of the

unit to Bailey based solely on Bailey’s representation that he would install the unit at

Ahluwalia’s rental property in Suffolk on June 2, 2013. As a result, Ahluwalia never

relinquished constructive possession of the unit and Bailey, at most, had bare custody of the unit.

       Alternatively, pursuant to the reasoning of Overstreet, the evidence clearly demonstrates

that the unit was delivered to Bailey for the limited purpose of installing the unit at Ahluwalia’s

rental property. Bailey exceeded the limited purpose for which he possessed the unit when he

transferred custody to his friend “Mike” and failed to install the unit on June 2, 2013, thus

creating a constructive revestment of possession of the unit to its true owner, Ahluwalia.

Consequently, the trial court did not err in concluding there was sufficient evidence to support

Bailey’s larceny conviction.

                                   B. Hypothesis of Innocence

       Bailey’s second assignment of error alleges that the evidence was insufficient to support

his conviction because he “presented a reasonable hypothesis of innocence that was not excluded

by the evidence.” Specifically, Bailey claims that he transferred the unit to “Mike” for

installation, who falsely told Bailey that the unit had been confiscated by the Suffolk Police

Department. Bailey argues that this hypothesis of innocence was not excluded or impeached by

any evidence offered by the Commonwealth at trial.

       It is well established that “the reasonable-hypothesis principle is not a discrete rule unto

itself.” Haskins v. Commonwealth, 44 Va. App. 1, 8-9, 602 S.E.2d 402, 405-06 (2004). “The

statement that circumstantial evidence must exclude every reasonable theory of innocence is

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simply another way of stating that the Commonwealth has the burden of proof beyond a

reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003).

Thus, the principle “does not add to the burden of proof placed upon the Commonwealth in a

criminal case.” Id. It merely “reiterates the standard applicable to every criminal case.” Pease

v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) (en banc) (citation

omitted). Further, whether the hypothesis of innocence is reasonable is itself a “question of

fact.” Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (citation

omitted). “Merely because defendant’s theory of the case differs from that taken by the

Commonwealth does not mean that every reasonable hypothesis consistent with his innocence

has not been excluded. What weight should be given evidence is a matter for the [fact-finder] to

decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). The fact-finder

is not required to believe all aspects of the testimony of a witness. Moyer v. Commonwealth, 33

Va. App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc). “[A] fact-finder, having rejected a

defendant’s attempted explanation as untrue, may draw the reasonable inference that his

explanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268

Va. 692, 696, 604 S.E.2d 79, 82 (2004) (citations omitted).

       The trial court, as fact-finder, determined Bailey’s testimony was not credible. The trial

court explained, “The trouble with the defendant in this case is there’s [sic] too many different

stories given to too many different people. It causes serious question about his credibility.” In

addition to offering several different explanations as to what happened to the unit, Bailey

pretended to be “Sergeant Boyd” and later told Bowles that he was trying to get Ahluwalia back

for something. Bailey was also unable to provide any details about “Mike” even though he

claimed that he was able to retrieve the unit from him at some point. Further, despite talking to




                                               -5-
Detective Loury of the Suffolk Police Department about the unit’s whereabouts, Bailey admitted

that he did not contact Detective Loury or attempt to return the unit.

        There is ample evidence in the record for a reasonable fact-finder to conclude that

Bailey’s testimony was not credible. Accordingly, the trial court did not err in rejecting Bailey’s

hypothesis of innocence.

            C. Proof of Embezzlement Sufficient to Sustain the Larceny Conviction

        In his third assignment of error, Bailey argues that even if he converted the unit to his

own use without the permission of Ahluwalia, such conversion is at most embezzlement, not

larceny. Bailey concedes that under current law, proof of embezzlement is sufficient to sustain a

larceny. He also acknowledges that his appeal as it relates to this assignment of error was not

properly preserved pursuant to Rule 5A:18. However, he asks this Court to apply the ends of

justice exception of Rule 5A:18 to consider this issue.

        While Rule 5A:18 normally requires an objection to be raised in the trial court below to

preserve an issue for appellate review, the Rule does permit this Court to “overlook the

appellant’s failure to preserve the issue and consider the merits of his argument for the first time

on appeal if the ends of justice so demand.” Brittle v. Commonwealth, 54 Va. App. 505, 512-13,

680 S.E.2d 335, 339 (2009). However, “the ends of justice exception is narrow and is to be used

sparingly.” Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).

This high standard is essential to buttress the principle that “a litigant has the responsibility to

afford a court the opportunity to consider and correct a perceived error before such error is

brought to the appellate court for review.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409,

411, 587 S.E.2d 546, 548 (2004) (citations omitted).

        In order to avail oneself of the exception, a defendant must affirmatively show that a

miscarriage of justice has occurred, not that a miscarriage might have occurred. Mounce v.

                                                 -6-
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). The trial error must be

“clear, substantial and material.” Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8,

11 (1989). Further,

               an appellant must demonstrate more than that the Commonwealth
               failed to prove an element of the offense . . . [, i]n order to show
               that a miscarriage of justice has occurred . . . the appellant must
               demonstrate that he or she was convicted for conduct that was not
               a criminal offense or the record must affirmatively prove that an
               element of the offense did not occur.

Redman, 25 Va. App. at 221, 487 S.E.2d at 272.

       Even if we accept Bailey’s argument that he had possession, as opposed to custody of the

unit and is therefore at most guilty of embezzlement, the evidence is still sufficient to support a

larceny conviction pursuant to the embezzlement statute. Code § 18.2-111 provides, “[p]roof of

embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted

hereunder shall be deemed guilty of larceny and may be indicted as for larceny.” Because Bailey

concedes that the evidence demonstrates that he is guilty of embezzlement by converting the unit

to his own use, Bailey is guilty of a crime that would sustain a conviction under his indictment

for larceny. Thus, applying the ends of justice exception to this issue would be inappropriate.

       Concluding that there was sufficient evidence in the record to establish each element of

grand larceny, we affirm the judgment of the trial court.

                                                                                           Affirmed.




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