                    COURT OF APPEALS OF VIRGINIA


Present:   Judge Bray, Senior Judges Duff and Overton


DAVID EMORY SPITLER
                                         MEMORANDUM OPINION *
v.       Record No. 0722-98-4         BY JUDGE CHARLES H. DUFF
                                           APRIL 20, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                        Dennis L. Hupp, Judge

            (Jay K. Wilk, Assistant Public Defender, on
            brief), for appellant. Appellant submitting
            on brief.

            (Mark L. Earley, Attorney General;
            H. Elizabeth Shaffer, Assistant Attorney
            General, on brief), for appellee. Appellee
            submitting on brief.


     Tried by a jury in Shenandoah County, David Emory Spitler

(appellant) was found guilty of grand larceny. 1   Appellant was

sentenced to six and one-half years of imprisonment for that

offense.

     On appeal, appellant challenges the sufficiency of the

evidence to sustain his conviction of grand larceny.     We agree




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     1
      Appellant entered guilty pleas upon charges of escaping
from the custody of a law enforcement officer and failing to
appear for a jury trial. On appeal, appellant does not
challenge his conviction for these offenses.
that the evidence was insufficient to prove appellant's guilt

beyond a reasonable doubt, and reverse appellant's conviction.

                                FACTS

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"      Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

     On August 1, 1996, appellant was an inmate in the

Shenandoah County jail.   That morning, appellant, who had been

granted trustee status, was taken to work on the grounds at the

Virginia Department of Transportation (VDOT) office in Edinburg.

After reporting for work at 8:00 a.m., appellant was required to

check in at the office every two hours.     Appellant checked in at

10:00 a.m., and reported to the office again at noon for lunch.

Appellant took his lunch outside to eat.     Appellant did not

report to the office as required at 2:00 p.m., and was not seen

at the facility again.    No trustees other than appellant were

unaccounted for that day.

     Wayne Smoot, a VDOT employee, drove his 1988 GMC pickup

truck to work on August 1, 1996 and parked the vehicle in the

lot outside the VDOT office.   Smoot left the keys to the truck

on the console inside the vehicle.      The area around the facility




                                - 2 -
was fenced, but the gate to the fence was kept open during the

day.    Although the facility was not open to the public for

business, there were no restrictions to enter or exit the

parking lot.    In a VDOT van, Smoot left the premises to inspect

some bridges.    When Smoot returned to the VDOT facility at about

2:00 p.m., his truck was missing.    Smoot testified that the

value of his truck before it was stolen was over $200.

        Lawrence Nestlerod found Smoot's truck on a secluded

portion of Nestlerod's Frederick County property on August 4,

1996.    The vehicle had been stripped and damaged.   No

fingerprints were found on the vehicle.

        Appellant was returned to the Shenandoah County jail on

October 30, 1997.

                               ANALYSIS

        Larceny is defined

             as 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." "Once
             the crime is established, the unexplained
             possession of recently stolen goods permits
             an inference of larceny by the possessor."
             For the larceny inference to arise, however,
             "the Commonwealth must establish that the
             accused was in exclusive possession of
             property recently stolen." Consequently,
             there must be evidence that the defendant
             exercised dominion and control over the
             property.




                                 - 3 -
Nelson v. Commonwealth, 12 Va. App. 268, 270-71, 403 S.E.2d 384,

386 (1991) (citations omitted) (evidence insufficient to prove

appellant committed grand larceny where stolen vehicle found

abandoned, with the engine running, and with appellant's

fingerprints inside it).

     In the present case, there was no evidence that appellant

ever exercised dominion and control over Smoot's truck.     The

Commonwealth introduced no evidence tending to prove that

appellant was ever inside the vehicle.     While it was certainly

suspicious that appellant and the vehicle disappeared from the

VDOT facility at roughly the same time, this circumstance was an

insufficient basis upon which to find appellant guilty beyond a

reasonable doubt of grand larceny.      The "mere opportunity to

commit an offense raises only 'the suspicion that the defendant

may have been the guilty agent; and suspicion is never enough to

sustain a conviction.'"    Christian v. Commonwealth, 221 Va.

1078, 1082, 277 S.E.2d 205, 208 (1981) (citation omitted).

     For the foregoing reasons, we find that the evidence was

insufficient to support a finding beyond a reasonable doubt that

appellant was guilty of grand larceny.     Therefore, appellant's

conviction is reversed, and the proceedings against him are

dismissed.

                                     Reversed and dismissed.




                                - 4 -
