Simmons v. Commonwealth
In Simmons v. Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978), the defendant was a gas station attendant employed to work the 6:00 p.m.-to-9:00 p.m. shift. See id. at 182, 247 S.E.2d at 359.
Two other employees worked from 7:00 a.m. to 6:00 p.m. and had keys to the station. See id.
On the evening in question, the owner departed the station at 5:30 p.m. and received no answer when he telephoned the station at 9:05 p.m. that evening. See id.
When the owner arrived the next morning, he discovered that the station's doors were unlocked and that $ 100 in cash and various tools and merchandise were missing, but he admitted that he "had not taken a physical inventory for several days." Id. at 182, 247 S.E.2d at 359-60.
Although the defendant, who had worked six days prior to the theft, was owed $ 70 in wages, the police officer investigating the theft was unable to locate him for a period of at least six months. See id. at 182, 247 S.E.2d at 360.
The Court held, "all that reasonably may be inferred from the evidence is that the defendant had the opportunity to commit the crime and that he fled at a time when wages were payable to him." Id. at 183, 247 S.E.2d at 360.
This "opportunity and subsequent flight, while sufficient to arouse strong suspicion, were not themselves sufficient to support the defendant's conviction." Id.