Decided: April 19, 1994.
DANIEL WEBSTER HAMLETT
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Kenneth M. Covington, Judge Designate.
Present: Judges Barrow, Willis and Senior Judge Cole*fn*
MEMORANDUM OPINION BY
JUDGE BERNARD G. BARROW
In this criminal appeal, the defendant argues that the evidence was insufficient to support his convictions for burglary and two counts of petty larceny based on his theft of a lawnmower and a .22 caliber rifle. Holding that the evidence supports the convictions, we affirm.
When the sufficiency of the evidence is challenged on appeal, we view the evidence in the light most favorable to the Commonwealth, granting all reasonable inferences fairly deducible therefrom, and will reverse the trial court's judgment only if plainly wrong or without evidence to support it. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).
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). "Possession of goods recently stolen is prima facie evidence of guilt" of the crime of larceny. Fout v. Commonwealth, 199 Va. 184, 190, 98 S.E.2d 817, 821 (1957); see Bright, 4 Va. App. at 251, 356 S.E.2d at 444.
Proving that the defendant had possession of recently stolen goods requires evidence that the defendant was in exclusive possession, Best v. Commonwealth, 222 Va. 387, 389, 282 S.E.2d 16, 17 (1981), which includes joint possession with another. Carter v. Commonwealth, 209 Va. 317, 323 n.3, 163 S.E.2d 589, 594 n.3 (1968), cert. denied, 394 U.S. 991, 22 L. Ed. 2d 766, 89 S. Ct. 1479 (1969). The evidence must show, however, that the defendant consciously asserted at least a possessory interest in the stolen property or exercised dominion over the stolen property. Best, 222 Va. at 389, 282 S.E.2d at 17; Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 893 (1982). Mere presence at the sale of stolen property is not enough to establish dominion and control. See Reese v. Commonwealth, 230 Va. 172, 175, 335 S.E.2d 266, 267-68 (1985) (holding that defendant's presence as passenger in stolen automobile was not enough to establish dominion and control); Nelson v. Commonwealth, 12 Va. App. 268, 271, 403 S.E.2d 384, 386 (1991).
The defendant's presence at the sale of the mower, combined with the evidence that he was near the house from which the mower was stolen around the time of the burglary, is enough to establish joint possession needed to raise the inference that defendant was guilty of larceny. See Fout, 199 Va. at 190, 98 S.E.2d at 821-22; Bright, 4 Va. App. at 251, 356 S.E.2d at 444.
The defendant's possession and sale of the stolen rifle five days after the crime was discovered was sufficient to convict him of larceny. The time that elapsed between the crime and the possession was brief enough to raise the inference that the defendant committed the larceny. See Montgomery v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (four weeks is recent).
A defendant in possession of recently stolen goods bears the "burden of accounting for that possession." Fout, 199 Va. at 191, 98 S.E.2d at 821. In this case, the trier of fact was entitled to reject the defendant's explanation of how he obtained the gun. Failure to prove the truth of one's explanation for possessing recently stolen property may support a conviction for burglary. Brown v. Commonwealth, 213 Va. 748, 750, 195 S.E.2d 703, 705 (1973).
The witness's identification of the defendant as one of the men he had seen as he drove in the neighborhood a few days before the burglary was discovered was not incredible as a matter of law. To be incredible as a matter of law, testimony must be "so contrary to human experience or to usual human behavior as to render it unworthy of belief." Willis v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812-13 (1977). The credibility of witnesses and the weight to be given their testimony are questions for the trier of fact. We cannot say that the witness's identification was unworthy of belief.
For the foregoing reasons, we hold that the Commonwealth presented sufficient evidence from which the trial court could determine beyond a reasonable doubt that the defendant was guilty of burglary and larceny of the lawnmower and the rifle.