                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia


CHARLES HOWARD DAVIDSON, JR.
                                      MEMORANDUM OPINION * BY
v.   Record No. 2514-97-2           JUDGE ROSEMARIE ANNUNZIATA
                                           JULY 7, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Donald W. Lemons, Judge
          Robert D. Shrader, Jr. (Steingold, Shrader &
          Angelidis, on brief), for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     Charles Howard Davidson, Jr. (appellant) was convicted of

robbery with a deadly weapon in violation of Code § 18.2-58,

display of a firearm in violation of Code § 18.2-53.1, and grand

larceny of a vehicle in violation of Code § 18.2-95.   On appeal,

appellant contends that the evidence was insufficient to support

his conviction for grand larceny.   We disagree, and affirm.

     On or before January 19, 1997, Donna Dawe noticed that a

blue 1988 Cadillac belonging to her and her husband was missing.

 The next day, she reported it stolen.   She did not give

permission for anyone to use the vehicle.

     On January 19, 1997, appellant approached Dawn Miles,

displayed a pistol, and told her to give him the keys to her car.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Michael Wilson, a codefendant, approached Miles with a shotgun

and told appellant to take Miles' purse.    As she was being

robbed, Miles saw a "big long bluish looking car" parked several

spaces from her own.    She testified without objection that she

"thought it was a Lincoln but it turned out that it was a

Cadillac."   Miles turned over the keys to her car, as well as her

purse containing Miles' change purse and calling card.    Appellant

opened the trunk of Miles' car, and Wilson told Miles to get in

the trunk of her car.
     As Miles approached the trunk of her car, Thomas Kirk, a

second codefendant, drove the Cadillac behind her car, blocking

her car into its parking space.    Appellant unsuccessfully

attempted to start Miles' car.    Wilson pushed Miles into the

trunk of the car, but Miles jumped out.    Appellant and Wilson got

into the Cadillac, and the Cadillac left the area.

     On the same night, while on patrol, Officer Matthew

Cavanaugh observed a blue Cadillac.     As Cavanaugh approached the

Cadillac, he observed the driver of the Cadillac turn off all the

lights on the car.   Cavanaugh turned on his patrol car's

emergency lights to signal the Cadillac to stop, but the Cadillac

accelerated.   After a short chase, the Cadillac drove over a

ravine, and four occupants fled the car.    Cavanaugh apprehended

appellant and another occupant, William Smith.    Appellant was not

driving the car.   During a pat-down search of appellant,

Cavanaugh discovered Miles' calling card and change purse.     Miles




                                  -2-
identified appellant as one of the individuals who had robbed

her.

       Cavanaugh noted that the interior of the Cadillac was in

disarray and that the steering column was broken open in such a

way as to allow a person to start the car without the key.

Cavanaugh found Miles' purse in the car.    Outside the vehicle,

Cavanaugh found a camera belonging to Dawe and a vehicle

registration card belonging to Miles.
       After the Commonwealth rested, appellant moved to strike the

Commonwealth's evidence of grand larceny on the basis that the

evidence did not establish that the co-owner of the Cadillac had

not given permission for its use and that appellant's knowledge

that the car was stolen, if any, was insufficient to prove grand

larceny.   The court denied appellant's motion.   Wilson presented

one witness who testified to Wilson's appearance on the night of

the robbery.   At the close of all the evidence, appellant renewed

his motion to strike, which the court denied.     The jury found

appellant guilty of robbery, grand larceny, and displaying a

firearm during the commission of a robbery.

       Appellant contends that the evidence was insufficient to

support his conviction for grand larceny.   "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) (citing Dunlavey v.



                                 -3-
Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).        When

considering the sufficiency of the evidence to support a

conviction, we view the evidence in the light most favorable to

the Commonwealth, according to it all reasonable inferences

fairly deducible therefrom.    Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).     "Where a defendant has

been convicted by a jury whose verdict has been approved by the

trial judge, and where the defendant assails the sufficiency of

the evidence, under familiar rules it is the appellate court's

duty to examine the evidence which tends to support the verdict

and to permit the verdict to stand unless plainly wrong."      Cable

v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

We do not substitute our judgment for that of the jury.      Id.

(citing Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d

452, 457 (1961)).

     First, appellant argues that because Dawe's husband, a

co-owner of the Cadillac, did not testify, a reasonable

hypothesis of innocence exists, i.e., that Dawe's husband gave

appellant permission to use the car.     "When the Commonwealth

relies on circumstantial evidence, it must 'exclude every

reasonable hypothesis of innocence,' but need not disprove every

remote possibility of innocence."      Barlow v. Commonwealth, 26 Va.

App. 421, 429-30, 494 S.E.2d 901, 905 (1998) (quoting Pemberton

v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)

(other citation omitted)).    "The hypotheses which the prosecution



                                 -4-
must reasonably exclude are those 'which flow from the evidence

itself, and not from the imagination of defendant's counsel.'"

Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609

(1981) (quoting Turner v. Commonwealth, 218 Va. 141, 148, 235

S.E.2d 357, 361 (1977)).   Appellant's hypothesis of innocence is

not based on the evidence; all of the evidence presented negates,

rather than supports, the hypothesis.

     The record contains no evidence that appellant or his

codefendants had ever met Dawe or her husband.   One day after

Dawe discovered that the car was missing, she reported it as

stolen.    After the police recovered the car, Dawe and her husband

went to the police impound lot to investigate the condition of

the car.    At trial, Dawe continued to describe the car as

"stolen."   Furthermore, we note that the condition of the

Cadillac was inconsistent with use by permission.   When the

police recovered the car, the interior was in disarray.   Most

importantly, the steering column of the Cadillac was broken open

to allow a person to start the car without the key.    The jury

could reasonably infer from the actions of Dawe and her husband,

as well as from the condition of the vehicle, that Dawe's husband

had not granted appellant permission to use the car.
     Appellant's hypothesis of innocence finds no support in the

evidence, and is in fact disproven by the evidence.    Thus, the

Commonwealth has no duty to exclude the hypothesis, and the

judgment is not plainly wrong.    See Graham v. Commonwealth, 250




                                 -5-
Va. 79, 85-86, 459 S.E.2d 97, 100 (1995).

      Second, appellant argues that the Commonwealth's evidence

did not show that he had dominion or control over the Cadillac.

On that ground, he argues that the evidence does not prove that

he was in joint, exclusive control of the vehicle, a necessary

predicate for the application of the presumption of larceny by

the possessor of recently stolen goods.   "Once the crime [of

larceny] 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 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)).   "There must be evidence of joint control

to justify the inference of joint possession."   Reese v.

Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 267 (1985).

Virginia courts have repeatedly held that "proof that a defendant

knew that an automobile is stolen and was in the automobile as a

passenger does not suffice to prove the defendant guilty of

larceny of the automobile."   Burgess v. Commonwealth, 14 Va. App.

1018, 1023, 421 S.E.2d 664, 667 (1992) (citing Moehring v.
Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893 (1982)); see




                                -6-
also, e.g., Reese, 230 Va. at 175, 335 S.E.2d at 267-68 (citing

Hall v. Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 904

(1983)).

     We find that the evidence was sufficient to establish that

appellant exercised dominion and control over the Cadillac and

that he thus had joint, exclusive possession of the vehicle.

Appellant, as well as Kirk and Wilson, used the Cadillac to

execute the robbery, establishing joint control, and thus joint

possession, of the Cadillac.   Specifically, appellant used the

Cadillac to escape after the robbery he committed in concert with

the other defendants.   This fact alone is sufficient to

demonstrate the required factual predicate for the finding that

appellant had exclusive joint possession of the stolen vehicle.
     Finding no error, we affirm appellant's conviction.

                                                           Affirmed.




                                -7-
