                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


WARREN LEWIS BAKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2391-01-2                   JUDGE RICHARD S. BRAY
                                                JUNE 18, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Robert P. Geary for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Warren Lewis Baker (defendant) was convicted in a bench trial

for grand larceny of an automobile in violation of Code § 18.2-95.

On appeal, he contends the evidence was insufficient to identify

him as the criminal actor.   We agree and reverse the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                 I.

     In reviewing the sufficiency of the evidence, we consider the

record "'in the light most favorable to the Commonwealth, giving

it all reasonable inferences fairly deducible therefrom."    Watkins

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(citation omitted).   The credibility of the witnesses, the weight

accorded testimony, and the inferences drawn from the proven facts

are matters to be determined by the fact finder.    See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by evidence.   See Code § 8.01-680.

     Viewed accordingly, the record establishes that, on the

morning of April 10, 2000, Jackson Hudson, an employee of Southern

States Cooperative (Southern States), arrived at work and

discovered a "gold-tan" "Ford wagon," "VIN number

1FAFP58U4XG295654," property of Southern States, missing from the

parking area.   Hudson testified the keys to the car were "kept on

a pegboard in the office adjacent to [his] office," and the "last

time [the car] was driven was around the 31st of March, 1st of

April," although the vehicle was seen on the premises "around the

4th or 5th [of April]."   Several days thereafter, Hudson recovered

the car, then repainted black, from a "Maaco paint and body shop."

     James Smith, owner and manager of the Maaco facility,

testified that the stolen car was brought to his "shop" on April

10, 2000, by a "young ["black"] male" identifying himself as

"Warren Baker."   The man instructed Smith to "sand some chips out

of the front bumper" and "[c]hange the color," a request that

"surprised" Smith because the vehicle was "practically new."      Upon

completion of the work, the individual returned to Maaco and "put

                               - 2 -
a partial payment down," but never "pick[ed] the car up,"

prompting Smith to "call[] the police."   Asked by the prosecutor

"whether or not that individual is in the courtroom," Smith

answered, "I'm going to be honest with you.   I couldn't say

because at that time he had hair."

     Henrico County Police Investigator L.C. Tyler investigated

the subject offense and obtained a warrant for defendant's related

arrest on April 17, 2000.   Aware defendant was then an "employee"

of Southern States, working on an "evening" "cleaning crew," Tyler

and another officer "served th[e] warrant on him at his work."

     At the close of the Commonwealth's case-in-chief and, again,

after resting without presenting evidence, defendant moved to

strike, arguing "there was no identification made that the person,

in fact, who brought the car [to the Maaco shop] was . . .

defendant."   The trial court denied the motion and convicted

defendant of grand larceny, resulting in this appeal.

                                II.

     Defendant challenges the sufficiency of the evidence, arguing

the Commonwealth failed to establish defendant's identity as the

offender.   We agree.

     "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).

"Once the crime is established, the unexplained possession of

                               - 3 -
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)).

     When "a conviction is based on circumstantial evidence, 'all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence.'"   Garland v. Commonwealth, 225 Va. 182,

184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 217

Va. 360, 366, 228 S.E.2d 563, 567 (1976)).   However, "[t]he

Commonwealth need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant."    Hamilton v. Commonwealth, 16

Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).   Whether a hypothesis

of innocence is reasonable is a question of fact, Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and

a finding by the trial court is binding on appeal unless plainly

wrong.   Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987).


                                 - 4 -
     Here, the evidence established that "a young ["black"] male,"

identifying himself as "Warren Baker," appeared at Maaco in

possession of the stolen vehicle and ordered the car repainted,

together with additional cosmetic work.   However, no evidence

otherwise identified defendant as the Maaco customer.   Thus, the

record doesn't sufficiently prove possession of the stolen

property in defendant, evidence necessary to support the inference

that he committed larceny of the vehicle.   Unaided by the

inference, the Commonwealth's evidence was clearly insufficient to

support the conviction.    Investigator Tyler testified defendant

was employed by Southern States at the time of arrest, a week

following the offense.    However, nothing suggests defendant had

prior access to the premises, the keys to the vehicle or the

vehicle.

     Accordingly, we find the evidence insufficient to prove

beyond a reasonable doubt defendant was the perpetrator of the

larceny and reverse the conviction.

                                          Reversed and dismissed.




                                - 5 -
