                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Petty, Alston and Senior Judge Willis
Argued at Richmond, Virginia


DAVID ELWOOD McNEAL, SR.
                                                                MEMORANDUM OPINION * BY
v.        Record No. 2171-09-3                                  JUDGE JERE M. H. WILLIS, JR.
                                                                       JULY 20, 2010
COMMONWEALTH OF VIRGINIA


                        FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                    Victor V. Ludwig, Judge

                    David C. Smith, Assistant Public Defender (Office of the Public
                    Defender, on brief), for appellant.

                    Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                    Cuccinelli, II, Attorney General, on brief), for appellee.


          On appeal from his conviction of violating Code § 18.2-118 by failing to return rental

property within ten days of the expiration of the rental agreement, David Elwood McNeal, Sr.,

contends the evidence was insufficient to support his conviction. We agree and reverse the

judgment of the trial court.

                                                  FACTS

          Under familiar principles of appellate review, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779

(1999).

          Wenda Workman, the manager at Central Virginia Rental, testified that on September 18,

2008, McNeal rented from her company an aluminum brake, a stand, and an extra handle. The

          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
term of the rental was one week. She testified that McNeal kept the equipment for two to three

months, during which time she tried unsuccessfully to contact him and sent him letters, to which

he did not respond. She testified that the value of the brake and handle was $2,500 and the value

of the stand was $300. The total accrued rental charge was $1,518.98.

       Workman testified that Deputy Pultz returned the brake and the handle to the business.

She could not recall the exact date of return, but thought it was in September. The stand was

never recovered. Workman testified she did not have with her the papers regarding the lease and

was unable to recall the relevant dates exactly. The written lease was not introduced into

evidence.

       The Commonwealth and McNeal stipulated that Pultz recovered the brake and handle

from McNeal’s sister’s house on September 19, 2008.

                                           DISCUSSION

                       Whenever any person is in possession or control of any
               personal property, by virtue of or subject to a written lease of such
               property, . . . and such person so in possession or control shall,
               with intent to defraud, . . . fail to return such property to the lessor
               thereof within ten days after expiration of the lease or rental period
               for such property stated in such written lease, he shall be deemed
               guilty of the larceny thereof.

Code § 18.2-118(a).

       The indictment charged that “[McNeal,] while in possession or control of an aluminum

brake, . . . by virtue of a written lease or rental agreement for said aluminum brake, . . .

unlawfully [and] feloniously . . . fail[ed] to return the aluminum brake . . . within ten days after

expiration of the lease or rental agreement . . . .” The trial court convicted McNeal “of the

[specified] offense as charged in the indictment.” The prosecution and the conviction were thus

limited to circumstances surrounding McNeal’s alleged retention of the brake, and embraced




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neither the handle nor the stand. We review the evidence with respect to its sufficiency to prove

that accusation.

       When reviewing the sufficiency of the evidence to prove the elements of the crime, we

“‘presume the judgment of the trial court to be correct.’” Davis v. Commonwealth, 39 Va. App.

96, 99, 570 S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425

S.E.2d 90, 94 (1992)). We reverse only if the trial court’s judgment is “plainly wrong or without

evidence to support it.” Code § 8.01-680. A court considering a challenge to the sufficiency of

the evidence does not “‘ask itself whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (quoting

Woodby v. INS, 385 U.S. 276, 282 (1966)). Rather, the relevant question is whether “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 319. Pursuing this inquiry, we are mindful that “[g]reat deference must be given

to the fact finder who, having seen and heard the witnesses, assesses their credibility and weighs

their testimony.” Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1988).

       The evidence proved McNeal rented the items from Central Virginia Rental on

September 18, 2008 for a period of one week. This was the only evidence establishing the

existence and the terms of the rental agreement. The parties stipulated that the police returned

the aluminum brake and the extra handle on September 19, 2008. This stipulation was binding

and conclusive. Although Workman testified McNeal kept the rented items for two to three

months and that a large rental obligation accrued, this testimony conflicted with the undisputed

evidence that the items were rented on September 18 and the stipulation that the brake and

handle were returned on September 19, 2008. “When facts are equally susceptible to more than

one interpretation, one which is consistent with the innocence of the accused, the trier of fact




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cannot arbitrarily adopt an inculpatory interpretation.” Moody v. Commonwealth, 28 Va. App.

702, 706, 508 S.E.2d 354, 356 (1998).

       Thus, the evidence failed to prove beyond a reasonable doubt that McNeal did not return

the brake within ten days of the expiration of the rental agreement. Accordingly, we reverse the

judgment of the trial court.

                                                                                  Reversed.




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