                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia


MICHAEL J. CARTIER
                                     MEMORANDUM OPINION * BY
v.   Record No. 1987-95-2         JUDGE JOHANNA L. FITZPATRICK
                                        OCTOBER 15, 1996
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ESSEX COUNTY
                    Joseph E. Spruill, Jr., Judge

           Gordon A. Wilkins (Wilkins, Davison & Emery,
           on brief), for appellant.

           John K. Byrum, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



      Michael J. Cartier was convicted of grand larceny and

burglary on April 18, 1995.    Code §§ 18.2-91 and 18.2-95.

Cartier contends the Commonwealth failed to prove beyond a

reasonable doubt that he committed burglary and larceny.      Finding

the evidence sufficient to support the verdicts, we affirm the

convictions.

      Viewed in the light most favorable to the Commonwealth, the

party prevailing below, Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975), the evidence proved that on

August 13, 1994, at 4:10 a.m., State Trooper Don Llewellyn

spotted a station wagon speeding and weaving on Route 64 in the

City of Chesapeake.    After Llewellyn turned on his lights and
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
siren, the vehicle continued for several miles before it came to

a stop.    The occupants of the vehicle were identified as Michael

Cartier, Kevin McIntyre, and Paul Tracey, the owner of the

vehicle.   Cartier was driving the vehicle.

     Llewellyn noticed that the vehicle contained a large

quantity of items, including rifles, bows, arrows, small radios,

and cassette players.   He also noticed that the wires on some

stereo speakers were frayed and looked as if they had been

ripped.    In the right-front floorboard of the vehicle were a pair

of bolt cutters and a screwdriver.      Cartier had a pair of

binoculars around his neck.
     Llewellyn spoke with Cartier and arrested him for driving

under the influence.    Llewellyn testified that while he tried to

question Cartier, Tracey told Cartier to "keep his . . . mouth

shut, . . . they couldn't prove anything."     Cartier said nothing

about the property in the vehicle.      Llewellyn then questioned

Tracey about the property.    Tracey indicated that the items in

the vehicle were his and that he had retrieved them from a

trailer in Tappahannock where he had lived with his

ex-girlfriend.

     On August 14, 1994, John Green reported the burglary of his

trailer located in Essex County.   Green who lived in the City of

Richmond stayed in the trailer only on weekends.     His daughter

lived in the trailer with her current boyfriend.     Green testified

that Tracey and his daughter had dated about 2-4 years prior to




                                - 2 -
the incident.   Green had no knowledge that Tracey ever lived in

the trailer with his daughter.    Green had never met Cartier.

     Green checked his trailer the week before August 14 and

found nothing amiss.   When he arrived at the trailer on August

14, he noticed that the door was unlocked.   He saw that furniture

was overturned, holes had been knocked in the walls, and property

was missing.    Neither Green's daughter nor her boyfriend were

there when Green arrived.   At trial, Green identified items found

in the vehicle as either his or his daughter's property that was

missing from the trailer.   Green testified that he had never

given anyone permission to take or sell the items.
     Appellant claims this evidence did not prove he possessed

the property without the owner's consent or that he intended to

permanently deprive the owner of the property.   We disagree.     The

evidence proved that a week prior to Cartier's arrest, Green

locked his trailer.    Green testified that someone had broken into

the trailer and stolen numerous items belonging to him and his

daughter.   Green testified that he never consented to the taking

of the property.

     Tracey, who was present in the vehicle with Cartier told the

trooper:

            [T]he property in the vehicle was his and
            . . . that he had just come from Tappahannock
            where he had retrieved these items from a
            trailer, and . . . that he had lived in this
            trailer with a girl or woman who was
            currently living there.




                                 - 3 -
Based on Green's testimony that the items found in the vehicle

driven by Cartier were his, the trial judge obviously chose to

disbelieve Tracey's statement and concluded the property was

taken without Green's consent.

     Upon determining that the vehicle contained recently stolen

goods, the trial judge could properly assume that the persons in

exclusive possession of the goods were the thieves.   Best v.

Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981).      See
Carter v. Commonwealth, 209 Va. 317, 323, 163 S.E.2d 589, 594

(1968), cert. denied, 354 U.S. 991 (1969)(a person can be in

exclusive possession of property even though he jointly possesses

it with others).   Cartier argues that this presumption does not

apply to him because the Commonwealth did not prove that he

possessed the items found in the vehicle.

     The trooper testified that upon pulling over the vehicle

driven by Cartier, he observed "a great deal of property in the

vehicle.   "It stretched from the front seat all the way back--

This is a station wagon--all the way to the rear tailgate."     He

stated that the binoculars were around Cartier's neck.   Where an

individual is driving a car filled with recently stolen stereo

equipment, rifles and music cassettes and has binoculars around

his neck, the evidence is legally sufficient to support the

finding that he possesses the property.   This case does not

involve property hidden under a car seat.   See Hancock v.
Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995)(appellant




                                 - 4 -
did not constructively possess a gun found underneath the car

seat in front of him and no other evidence connected him to the

gun).    Rather, the vehicle was loaded with property in plain view

of any occupant or any person looking into the vehicle.

Cartier's knowing possession is further supported by his refusal

to stop the vehicle when the trooper activated his lights.

        In accepting the presumption that an individual in

possession of stolen goods is a thief and rejecting Tracey's

statement as incredible, the trial judge correctly found Cartier

guilty of larceny.    Although Cartier argues that the evidence

supports a finding that he received the goods in good faith,

Cartier had the burden of proving this claim once the

Commonwealth establishes a prima facie case of larceny.       Hope v.

Commonwealth, 10 Va. App. 381, 385, 392 S.E.2d 830, 833 (1990).

He presented no evidence supporting his good faith possession of

the property.

        Cartier also attacks his conviction for burglary based on

the Commonwealth's failure to prove an unlawful entry in the

nighttime.    The Commonwealth indicted and tried Cartier for

"unlawfully and feloniously, enter[ing] in the nighttime the

dwelling house of John Otis Green with the intent to commit

larceny."    Code § 18.2-91.   Green testified that he found his

trailer ransacked and its door unlocked.    This testimony,

combined with Tracey's testimony that he had obtained the items

from a trailer in Tappahannock, provided sufficient evidence for



                                 - 5 -
the trial judge to find that an unlawful entry occurred.

     All of the evidence supports the trial judge's conclusion

that the entry occurred in the nighttime.   The officer stopped

the vehicle at 4:00 a.m., and Tracey stated that "he had just

come from Tappahannock where he had retrieved [the property in

the car]."   The fact finder has the duty to draw inferences from

circumstantial evidence and to determine the weight to be

ascribed to such evidence.   Schneider v. Commonwealth, 230 Va.

379, 382, 337 S.E.2d 325, 329 (1983).   Where the evidence

establishes that Cartier committed larceny, and a codefendant

admits, at 4:00 a.m., to having just driven from Tappahannock to

retrieve property, and the vehicle contains a large amount of

property stolen from a trailer, circumstantial evidence is

sufficient to prove beyond a reasonable doubt that Cartier

entered in the nighttime.
     For these reasons, we affirm the convictions.

                                              Affirmed.




                               - 6 -
Benton, J., dissenting.



     The evidence failed to prove beyond a reasonable doubt that

Michael J. Cartier stole the property or that he unlawfully

entered the trailer in the nighttime.    Thus, I would reverse the

convictions.   I dissent.

     When Green returned to his trailer in Tappahannock and found

it unlocked and ransacked, he did not know who entered it or when

it was entered.   He had last visited the trailer and seen the

property approximately a week prior to his discovery.    During

that week, his daughter and her male friend lived in the trailer.

Green also testified that his daughter had dated Paul Tracey, a

codefendant, approximately two to four years prior to the trial.

Neither the daughter nor her male friend, the occupants of the

trailer, testified at trial.
     At the time of his arrest, Paul Tracey told Officer

Llewellyn that the items in the vehicle belonged to him.    He

claimed that he had formerly lived with a friend in a trailer in

Tappahannock and had retrieved the property from the trailer.

Based on these circumstances and the fact that Cartier was

driving a vehicle containing Green's property, the trial judge

found Cartier guilty of larceny and burglary.

     Larceny is the wrongful taking of another's property without

his consent and with the intent to permanently deprive him of

possession.    Bright v. Commonwealth, 4 Va. App. 248, 251, 356

S.E.2d 443, 444 (1987).     "To prove common law larceny, the



                                 - 7 -
Commonwealth must show that the accused wrongfully acquired

possession of personal goods belonging to another."     Payne v.

Commonwealth, 222 Va. 485, 488, 281 S.E.2d 873, 874 (1981).      This

offense also requires proof of a trespassory taking.     Tanner v.

Commonwealth, 55 Va. 635, 642 (1857).

     The evidence in this case did not prove Cartier committed a

trespassory taking or that Cartier wrongfully acquired the

property.   Although Cartier was driving the vehicle, Tracey, the

owner of the vehicle, was present.     No evidence proved Cartier

possessed the property.   Even if Tracey did take the property,

the evidence does not prove that Cartier assisted in the offense.

No evidence proved Cartier knew that Tracey did not own the

items in the vehicle.
     The Commonwealth argues that the burglary conviction should

stand regardless of whether the evidence proved the offense

occurred "in the nighttime."   I disagree.   Even though breaking

and entering in the daytime constitutes a statutory offense, once

the Commonwealth indicted Cartier for "enter[ing] in the

nighttime," it had the obligation to prove the crime charged.

"'If the unnecessary word or words inserted in the indictment

describe, limit or qualify the words which it was necessary to

insert therein, then they are descriptive of the offense charged

in the indictment and cannot be rejected as surplusage.    The

offense as charged must be proved.'"     Hairston v. Commonwealth, 2

Va. App. 211, 214-15, 343 S.E.2d 355, 357 (1986)(quoting Mitchell



                               - 8 -
v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).

The phrase "in the nighttime," modifies the entry.       It

"describe[s], limit[s] [and] qualif[ies]" a necessary part of the

indictment, the physical act of entering.       Id.   Therefore, the

indictment required the Commonwealth to prove that the offense

occurred at night.

     The Commonwealth also contends that the evidence proved the

burglary occurred "in the nighttime."      I disagree.   Every element

of an offense must be proved beyond a reasonable doubt.        In re

Winship, 397 U.S. 358, 364 (1970).       The only relevant evidence

concerning time was testimony that the trooper stopped the

vehicle at 4:00 a.m. and that Tracey stated that he had just come

from Tappahannock and had retrieved the items from a trailer.

These two facts did not establish beyond a reasonable doubt that

the offense occurred at night.    Tracey's statement that he had

"just come from Tappahannock" does not establish beyond a

reasonable doubt that he obtained the property at night.

Obviously, he may have loaded the property the previous day and

not left the county until that night.      A nighttime entry is not

proved beyond a reasonable doubt simply by Tracey's statement

concerning the origin of his journey.

     Without the testimony of the daughter and male friend, the

current occupants of the trailer, we can only speculate as to how

Tracey may have gained entry to the trailer.      Simply because

Green found his door unlocked does not mean an unlawful entry



                                 - 9 -
occurred.   His daughter may have left the door unlocked.

     To convict Cartier, "'all necessary circumstances proved

must be consistent with guilt and inconsistent with innocence and

exclude every reasonable hypothesis of innocence.'"   Moran v.

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987)(citation omitted).   The evidence at trial did not exclude

every reasonable hypothesis of innocence, and consequently, the

Commonwealth failed to prove larceny and burglary beyond a

reasonable doubt.   Therefore, I dissent.




                              - 10 -
