                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia


ALVIN B. TURNER

v.          Record No. 2473-94-2       MEMORANDUM OPINION *
                                   BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA                JANUARY 23, 1996


            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      William R. Shelton, Judge
            Angela D. Whitley for appellant.

            Steven A. Witmer, Assistant Attorney General
            (James S. Gilmore, III, Attorney General,
            on brief), for appellee.



     Alvin B. Turner was convicted in a bench trial of statutory

burglary.   Turner contends that the evidence was insufficient to

sustain the conviction.    We agree and reverse the conviction.

     The Commonwealth asserts that the defendant failed to

properly object to the sufficiency of the evidence as to the

burglary charge, and is barred from raising this issue on appeal.

 Rule 5A:18.   Defense counsel moved to strike the evidence at the

conclusion of the Commonwealth's case as to the statutory

burglary charge, and the trial court overruled the motion.    The

defendant then testified in his own behalf.    He did not renew the

motion to strike at the conclusion of all the evidence.     See

McQuinn v. Commonwealth, 20 Va. App. 753, 755, 460 S.E.2d 424,

425 (1995) (by presenting evidence a defendant waives the motion
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to strike the evidence made at the conclusion of the

Commonwealth's case).    However, he did move to set aside the

guilty verdict as to statutory burglary on the grounds that

"there's no evidence -- that [Wendy Hankins] gave the check to

[the defendant] or that he gave the check to her or that he knew

the other codefendant gave her the check."

     "A proper motion to set aside a verdict will preserve for

appeal a sufficiency of the evidence question."    Brown v.
Commonwealth, 8 Va. App. 474, 480, 382 S.E.2d 296, 300 (1989).

In deciding whether the motion to set aside the verdict was

proper to preserve the sufficiency issue for appeal, we must

determine whether the trial court had "opportunity to address the

issue and prevent unnecessary appeals."    Id.; see Rule 5A:18.

     Here, the defendant, in requesting the court to set aside

the verdict, argued that "[t]here's no evidence that he knew

anything about [the stolen check], no evidence that he encouraged

and abetted or anything else. . . . The evidence is completely

silent."   The trial court responded, "I'm satisfied with the

decision I made."   It is clear from the exchange that the

defendant was contesting the sufficiency of the evidence to prove

statutory burglary and was arguing that the evidence failed to

prove that the defendant possessed or even knew about the check

or that it was stolen.   The trial court considered and rejected

the defendant's argument.   Accordingly, the defendant properly

preserved the sufficiency of the evidence question for appeal and


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the trial court clearly considered the issue.

     In determining whether the evidence is sufficient to sustain

the defendant's statutory burglary conviction, "we view the

evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom."   Brown, 8 Va. App. at 480-81, 382 S.E.2d at 300.     To

establish a prima facie case of statutory burglary based on

constructive or actual possession of recently stolen property,

the Commonwealth must prove (1) that goods were stolen from a

house that was broken into; (2) that both the breaking and

entering and the larceny were committed at the same time, by the

same person, as part of the same criminal enterprise; and (3)

that the stolen goods were found soon thereafter in the

possession of the accused.   Bright v. Commonwealth, 4 Va. App.

248, 251, 356 S.E.2d 443, 444 (1987).

     The evidence showed that the codefendant gave Wendy Hankins

a check that had been recently stolen in a burglary and he asked

her to cash it.   Hankins endorsed the check, and the defendant

drove Hankins and the codefendant to a grocery store.   After

cashing the check, Hankins gave the proceeds to the codefendant.

The record does not show that the defendant ever handled the

check, or that the codefendant gave the defendant any of the

proceeds.   The evidence fails to prove that the defendant

actually or constructively possessed the check.   Hankins

testified that the codefendant gave her the check in a hotel


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room.    It is not clear from Hankins' testimony whether the

defendant was present at that time.     Nevertheless, the defendant

drove Hankins and the codefendant to the grocery store where

Hankins cashed the check and he was present when Hankins gave the

proceeds to the codefendant.    However, mere proximity to the

stolen check is not sufficient to prove that the defendant

actually or constructively possessed the check.     See Nelson v.

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

(holding that presence inside stolen vehicle is not sufficient to

show that the accused "exercised dominion and control over the

vehicle").    No evidence proves that the defendant exercised

dominion or control over the check or that he knew that it had

been stolen.
        We hold that the evidence was insufficient to prove that the

defendant exercised joint control with the codefendant or Hankins

over the stolen check.     See Reese v. Commonwealth, 230 Va. 172,

175, 335 S.E.2d 266, 268 (1985) (stating that "[t]here must be

evidence of joint control to justify the inference of joint

possession").    Accordingly, the Commonwealth failed to establish

a prima facie case of statutory burglary, and we reverse the
defendant's conviction and dismiss the charge against him.

                                             Reversed and dismissed.




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