                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata
Argued at Chesapeake, Virginia


BOBBY JOE LEE MEDLIN
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0392-04-1                                JUDGE ROSEMARIE ANNUNZIATA
                                                                 NOVEMBER 9, 2004
COMMONEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                Wilford Taylor, Jr., Judge

                 Charles E. Haden for appellant.

                 Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Bobby Joe Lee Medlin appeals his conviction of unauthorized use of an automobile in

violation of Code § 18.2-102 on the ground that insufficient evidence supports his conviction.

For the reasons that follow, we affirm.

                                           I. Background

       On appeal, we review the evidence in the light most favorable to the Commonwealth, the

party prevailing below, together with all reasonable inferences that may be drawn. Garcia v.

Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence

establishes that Medlin was employed by A-Plus Towing and came to work on July 8, 2003

complaining of a toothache. The company’s owner, Bobby Morris, testified that Medlin was

assigned to drive a 1992 Ford Super Duty tow truck valued at between $8,000 and $10,000.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
          After visiting a dentist, Medlin returned to work and asked to borrow some money from

Morris to pay for a prescribed pain medication. Morris gave Medlin forty dollars and “told him

to go buy the medicine and to take [the] truck home and park it.” Morris testified that Medlin

was the only person who had a set of keys to the tow truck other than the set Morris kept in his

office.

          Medlin was neither “on duty” nor “on call” after he left work. When Morris telephoned

him that evening and got no response, he drove to Medlin’s house. The tow truck was not there.

Based on a conversation with Medlin’s girlfriend, Morris believed that Medlin had gone to

Hampton General Hospital. However, Morris was unable to locate either Medlin or the tow

truck at the hospital.

          Later, Morris received a telephone call and learned that his truck was on Mercury

Boulevard. When he arrived at Mercury Boulevard, Morris found the Super Duty tow truck

Medlin had taken. The tow truck was running with the keys in the ignition and was hooked up to

a Chevrolet truck. Medlin did not ask for, nor did he obtain, permission to tow the Chevrolet

truck. Morris unhooked the Chevrolet truck and loaded the Super Duty to the tow truck he had

driven to the scene.

          Numerous times that night, Morris called Medlin on the business cell phone Morris

provides his drivers, but Medlin hung up each time immediately upon hearing Morris say,

“Hello.” Morris did not hear from Medlin again until he called the office asking to be bailed out

of jail “a week or two” after the incident.

          Regarding general company policy, Morris explained that he permits his employees to

take trucks home, but “the rule is, if someone calls you to tow a vehicle, you need to call me

before you tow that vehicle.” Morris further explained that if an employee is “out on [his] own




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to some of the private properties that I have, if [he] decide[s] to go out on one of [his] nights off

and tow a car from a private property[, then] I allow [him] to do that.”

       In support of his motion to strike, Medlin argued the evidence was insufficient because

Morris had not seen him operate the tow truck and because the company had a liberal policy

permitting employees to use its trucks when they were off duty. The trial judge denied the

motion and said the following:

               The evidence is, I’m convinced, beyond a reasonable doubt that
               you committed the offense. Mr. Morris told you not to use the
               truck, to take it home and park it. You didn’t do that. You were
               towing and you didn’t have authority. You didn’t call in to the
               dispatcher or even call in after the fact, as the policy permits. Even
               if you picked up somebody, you had a duty to call in.

This appeal followed.

                                            II. Analysis

                                      A. Standard of Review

       When the sufficiency of the evidence is challenged on appeal, the appellate court reviews

the evidence that tends to support the conviction and upholds the conviction unless it is plainly

wrong or lacks evidentiary support. Code § 8.01-680; Commonwealth v. Jenkins, 255 Va. 516,

520, 499 S.E.2d 263, 265 (1998). “If there is evidence to support the convictions, the reviewing

court is not permitted to substitute its own judgment, even if its opinion might differ from the

conclusions reached by the finder of fact at the trial.” Id. at 520, 499 S.E.2d at 265. Conflicts in

the evidence are resolved by the fact finder, and such conflicts are not revisited on appeal unless

“‘the evidence is such that reasonable [persons], after weighing the evidence and drawing all just

inferences therefrom, could reach but one conclusion.’” City of Bedford v. Zimmerman, 262 Va.

81, 86, 547 S.E.2d 211, 214 (2001) (quoting J & E Express, Inc. v. Hancock Peanut Co., 220 Va.

57, 62, 255 S.E.2d 481, 485 (1979)) (alteration in Zimmerman).



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       The Commonwealth may rely on circumstantial evidence to prove its case beyond a

reasonable doubt, but in doing so it must exclude every reasonable hypothesis of innocence.

Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) (en banc), aff’d,

266 Va. 397, 588 S.E.2d 149 (2003). “The statement that circumstantial evidence must exclude

every reasonable hypothesis of [innocence] is an alternative way of stating the fundamental

precept that the Commonwealth has the burden to prove each element of an offense beyond a

reasonable doubt.” Id. Circumstantial evidence may prove the Commonwealth’s case beyond a

reasonable doubt because, “[w]hile no single piece of evidence may be [] sufficient, the

combined force of many concurrent and related circumstances, each insufficient in itself, may

lead a reasonable mind irresistibly to a conclusion.” Id. (internal quotations omitted).

   B. The Evidence Was Sufficient To Prove that Medlin Used the Vehicle without Authority

       A violation of Code § 18.2-102 “‘may be committed by an employee of the owner of a

motor vehicle in using the vehicle for his own purposes not connected with the purposes for

which the vehicle had been entrusted to him or in using the vehicle contrary to the instructions of

the owner.’” Overstreet v. Commonwealth, 17 Va. App. 234, 237, 435 S.E.2d 906, 908 (1993)

(quoting 7A Am. Jur. 2d Automobiles and Highway Traffic § 349 (1980)). “[W]here an act

violates the specific scope or duration of consent to use a vehicle, a trespassory taking

contemplated by Code § 18.2-102 occurs.” Id. at 238, 435 S.E.2d at 908.

       Here, the evidence, viewed in the light most favorable to the Commonwealth, established

that Medlin operated the tow truck and that his operation exceeded the scope of Morris’s

authorization. Morris authorized Medlin to use the tow truck for the limited purpose of driving

himself home after complaining about and seeking medical attention for a toothache. Morris

directed Medlin to park the tow truck at his home but did not authorize him to use the tow truck

to tow any vehicle. Medlin was the sole individual who had access to the vehicle’s ignition keys.

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When Morris could not reach Medlin by telephone, he drove to Medlin’s home and noticed the

tow truck was not there. Instead, Morris found the truck on Mercury Boulevard later that night,

hooked up to another vehicle in preparation for towing it. Additionally, Medlin repeatedly hung

up the phone when Morris tried to contact him about the tow truck and failed to contact Morris

for a “a week or two” after leaving the company’s premises with the tow truck, facts from which

the trial court could infer guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209, 547

S.E.2d 899, 907 (2001). Taken as a whole, we conclude the evidence excluded Medlin’s

hypothesis that he did not drive the truck to Mercury Boulevard and that the evidence was

sufficient to support the trial court’s conclusion that Medlin operated the tow truck in excess of

Morris’s limited authorization.

       Medlin’s further contention that the company’s general policy, which allowed its drivers

to “go out on one of [their] nights off and tow a car from a private property,” supports the

conclusion that Morris was merely “advising rest but not strictly forbidding personal use of the

vehicle” is without merit. Here, Morris’s testimony establishes that, on the date in question, he

explicitly and clearly told Medlin to take the tow truck home and park it, notwithstanding any

company policy to the contrary. Moreover, to the extent Morris’s testimony regarding the

company’s policy conflicts with his testimony that he did not authorize Morris to do anything

other than take the truck home and park it, it is evident the trial court resolved that conflict in

favor of the Commonwealth. We are bound by that determination on appeal. “On appeal this

court must ‘discard the evidence of the accused in conflict with that of the Commonwealth, and

regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to

be drawn therefrom.’” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)

(quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603, 606 (1954)).




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For the foregoing reasons, we affirm Medlin’s conviction.

                                                            Affirmed.




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