                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia


DENNIS WAYNE MAHONEY RAMSEY
                                                                MEMORANDUM OPINION * BY
v.      Record No. 1588-07-1                                     JUDGE ROBERT P. FRANK
                                                                      JULY 8, 2008
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                Thomas S. Shadrick, Judge

                  Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.

                  Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        Dennis Wayne Mahoney Ramsey, appellant, was convicted, by a jury, of receiving stolen

property, in violation of Code § 18.2-108. On appeal, he contends that the evidence was insufficient

to prove venue in Virginia Beach, that the evidence was insufficient to prove he was in possession

of stolen property in Virginia Beach, and that the trial court erred in instructing the jury on receiving

stolen property. For the reasons stated, we reverse the judgment of the trial court.

                                            BACKGROUND

        On December 7, 2005, the victim had driven her silver 1995 Honda Accord home from

work. At that time, the car was in good condition. The steering column, the windows, and the

driver’s side door handle were all intact, showing no damage. The next morning, the victim, when

leaving her house in Virginia Beach, noticed her Honda was missing. She called the police and




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
filed a report. The victim had retained possession of the car keys. At trial, the victim testified she

did not know appellant nor did she give him permission to drive her car.

        When the Honda was later recovered and returned to the victim, the steering column was

“messed up,” the radio and other personal property were missing, the door handle was broken, and

the ignition key would not operate the car.

        Four days after the theft, City of Williamsburg Police Officer Brian Carlsen spotted

appellant driving a silver Honda, registered as stolen, in Williamsburg around 2:00 a.m. Ultimately,

Officer Carlsen stopped the vehicle and appellant. Officer Carlsen testified the Honda’s steering

column was “disabled,” so that an ignition key was unnecessary to start the vehicle. Further, the

driver’s side door handle was damaged, and there were two flathead screwdrivers on the passenger

seat.

        Appellant was tried for grand larceny of the vehicle in Virginia Beach. At trial Lorrie

Summer, appellant’s former girlfriend, testified for appellant. On an unspecified day in December

of 2005, Summer met appellant at a gas station in Virginia Beach. Appellant entered the passenger

side of a “gray four-door” vehicle. She could not identify the model or make of the vehicle.

Another man was in the driver’s seat. When shown a photograph of the victim’s car, Summer

testified the photo looked like the car appellant entered. When asked on cross-examination was she

“sure” it was the same car, Summer responded, “It looked like that one, yes,” but she then testified

she was not sure it was the exact car.

        Summer then admitted telling the Commonwealth’s attorney on the morning of the trial that

appellant entered a Nissan, but again testified she did not know “makes and models of cars.” She

further admitted telling the Commonwealth’s attorney the incident occurred “around

Thanksgiving,” but cautioned she really did not know the date.




                                                  -2-
         At the conclusion of the evidence, the prosecutor offered an instruction on the

lesser-included offense of receiving stolen goods, under Code § 18.2-108. Defense counsel

objected to the instruction:

                I’m not sure if they’ve shown venue because the argument is that
                the car is not the same car that was in Virginia Beach. Then the
                only – the only time they’ve shown him in possession of the stolen
                goods is in Williamsburg, not in Virginia Beach. And even if the
                court feels the evidence is sufficient on that issue, that this is the
                same car that he was seen in in Virginia Beach, the testimony was
                clear that he got in the passenger side of the car and not in the
                driver’s side.

                So, Judge, I would submit to you . . . there’s a venue problem with
                having a receiving stolen property charge.

         Additionally, appellant argued that if the jury found appellant did not steal the car, but

was in possession of a stolen car, there is no evidence appellant possessed the car in Virginia

Beach.

         Without abandoning his objection to the instruction, appellant asked the trial court to add

an additional element to the finding instruction, i.e., “That at the time of the receipt the defendant

was in Virginia Beach.” The trial court added that element, and the jury was so instructed.

         The trial court overruled appellant’s objection to the receiving of stolen goods

instruction, concluding:

                But if [the jury] do[es] not believe that there’s sufficient evidence
                beyond a reasonable doubt to find that he stole the vehicle, at least
                based on his own evidence, they could find him guilty of receiving
                it.

         The jury found appellant guilty of receiving a stolen vehicle. This appeal follows.




                                                 -3-
                                            ANALYSIS

       We first address appellant’s contention that the evidence was insufficient to prove he

received or possessed a stolen vehicle in Virginia Beach in violation of Code § 18.2-108. 1

       When considering on appeal the sufficiency of the evidence presented below, we

“presume the judgment of the trial court to be correct” and reverse only if the trial court’s

decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39

Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). This means the jury’s verdict cannot be

overturned on appeal unless no “‘rational trier of fact’” could have come to the conclusion it did.

Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Pease v. Commonwealth, 39 Va. App. 342, 355,

573 S.E.2d 272, 278 (2002) (en banc) (“We let the decision stand unless we conclude no rational

juror could have reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003).

       Under this standard, “a reviewing court does not ‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’” Myers v. Commonwealth, 43

Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (quoting Jackson, 443 U.S. at 318-19) (emphasis

in original). It asks instead whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Kelly, 41 Va. App. at 257, 584 S.E.2d at 447

(quoting Jackson, 443 U.S. at 319). ‘“This familiar standard gives full play to the responsibility

of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Id. at 257-58, 584 S.E.2d at 447

       1
           Code § 18.2-108 states:

                       If any person buys or receive from another person, or aid in
                concealing, any stolen goods or other thing, knowing the same to
                have been stolen, he shall be deemed guilty of larceny thereof, and
                may be proceeded against, although the principal offender be not
                convicted.
                                                -4-
(quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for that of the trier

of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380,

564 S.E.2d 160, 162 (2002).

       Additionally, where, as here, there is a question as to whether the evidence was sufficient

to convict appellant in a particular jurisdiction, we must determine whether there was sufficient

evidence to prove that all of the elements of the offense were committed in that particular

jurisdiction. See Green v. Commonwealth, 32 Va. App. 438, 449, 528 S.E.2d 187, 192 (2000)

(holding that “venue is appropriate in any jurisdiction where the required elements of the offense

have been established” and that the completed offense must have occurred in a particular

jurisdiction in order to sustain the conviction in that jurisdiction). Thus, in the instant case, we

must find that the evidence was sufficient to establish that all of the elements of receiving stolen

property were committed in Virginia Beach.

       Appellant argues that simply being in the vehicle as a passenger is not sufficient to prove

he either possessed the vehicle or knew the vehicle was stolen. We agree. The evidence in the

light most favorable to the Commonwealth indicates that sometime in December of 2005,

appellant entered the passenger side of the stolen vehicle. He was not the driver, nor is there any

evidence appellant exercised any dominion or control over the vehicle in Virginia Beach.

       To convict an accused of violating Code § 18.2-108, the Commonwealth must prove that

property ‘“was (1) previously stolen by another, and (2) received by defendant, (3) with

knowledge of the theft, and (4) a dishonest intent.’” 2 Shaver v. Commonwealth, 30 Va. App.

789, 800-01, 520 S.E.2d 393, 399 (1999) (quoting Bynum v. Commonwealth, 23 Va. App. 412,

419, 477 S.E.2d 750, 754 (1996)).




       2
           Appellant only contests that elements (2) and (3) were not proven in this case.
                                                -5-
       Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992), controls our

analysis. In that case Burgess was standing outside a stolen vehicle. Id. at 1023, 421 S.E.2d at

667. Another man was seated behind the steering wheel. Id. Burgess admitted he had earlier

been picked up by the driver and had ridden in the vehicle, but denied that he knew the vehicle

had been stolen despite the ignition being altered or “punched.” Id. Burgess also had given the

police a false name. Id. at 1020, 421 S.E.2d at 665. He appealed his conviction of grand

larceny. This Court reversed the conviction, holding:

               That Burgess was in the stolen Mazda nine days after the theft does
               not prove that Burgess either stole the Mazda on December 3 or
               exercised dominion or control over the vehicle at any time. See
               Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384,
               386 (1991).

Id. at 1023, 421 S.E.2d at 667. The Court concluded 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.” Id. Finally, the Court quoted a passage from

Reese v. Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 268 (1985), explaining that there

was not joint exclusive possession because Burgess was not present in the stolen vehicle.

               “The Commonwealth relies on the theory of joint exclusive
               possession of recently stolen property. But, giving the
               Commonwealth the benefit of all reasonable inferences, as we
               must, we conclude that the evidence fails to establish joint
               exclusive possession. There must be evidence of joint control to
               justify the inference of joint possession. The Commonwealth
               presented no evidence that [Burgess] exercised any degree of
               dominion or control over the [stolen vehicle]. The evidence of
               [Burgess’] mere presence in the stolen vehicle is not enough to
               support a conviction of [Burgess] as a principal in the second
               degree.”

Id.

       Similarly, in Moehring v. Commonwealth, 223 Va. 564, 290 S.E.2d 891 (1982), the

Supreme Court reversed the conviction of a hitchhiker who had accepted a ride in a vehicle that


                                               -6-
he knew was stolen. The Court found no evidence that Moehring exercised “any degree of

dominion or control over the stolen truck or from which the court could have inferred that

defendant possessed the truck jointly with [the driver].” Id. at 568, 290 S.E.2d at 893. The

Court further found Moehring was not a principal in the second degree because no evidence

indicated Moehring committed any overt act to aid or abet the thief. Id.; see also Nelson, 12

Va. App. at 271, 403 S.E.2d at 386 (holding that Nelson’s presence in truck after it had been

stolen did not show dominion and control over the vehicle).

       We see no principled distinction between Burgess, Nelson, and Moehring, all which

considered the proof required for a grand larceny conviction based on the presumption of being

in possession of recently stolen property and the lesser-included offense of receiving stolen

goods. Just as those decisions analyze “possession,” our inquiry focuses on whether appellant

possessed the stolen vehicle. We conclude that the record does not suggest that appellant, a

passenger, exercised any measure of dominion or control over the Honda or otherwise asserted a

possessory interest in the vehicle. The evidence does not establish that he drove the car, directed

the driver or was otherwise in custody of the stolen property while in Virginia Beach. Thus we

find the evidence insufficient to sustain a conviction for possessing or receiving stolen goods in

Virginia Beach.

       While he clearly exercised dominion and control over the stolen vehicle in Williamsburg,

we conclude that to consider the Williamsburg facts to show dominion and control over the

vehicle in Virginia Beach is too speculative and attenuated. Appellant’s activity in

Williamsburg, as described by Officer Carlsen, was remote in time and place from his behavior

in Virginia Beach, the two events being separated by approximately four days and a number of

miles. While each incident, arguably, involved the same Honda, the record leaves unanswered

the questions of when, where, and how appellant came into possession of the vehicle. Thus,

                                               -7-
appellant’s dominion and control over the vehicle in Williamsburg does not prove that he had

dominion and control over the vehicle in Virginia Beach. 3

                                         CONCLUSION

       For the foregoing reasons, we find the evidence insufficient to establish appellant

possessed stolen property in Virginia Beach. We therefore reverse the conviction and dismiss

the indictment.

                                                                    Reversed and dismissed.




       3
           Appellant argues that the Commonwealth did not establish venue in Virginia Beach.
Because we find the evidence insufficient to sustain the conviction, we need not address venue
beyond that discussed in the context of sufficiency of the evidence. Appellant further challenges
the trial court’s granting of a jury instruction on the lesser-included offence of receiving stolen
property. Again, because we find the evidence insufficient to sustain a conviction for receiving
stolen property in Virginia Beach, we need not address this argument.
                                                  -8-
