Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, Kinser,
JJ., and Poff, Senior Justice
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 991244 SENIOR JUSTICE RICHARD H. POFF
April 21, 2000
WILLARD SMITH
FROM THE COURT OF APPEALS OF VIRGINIA
The sole issue framed by the parties to this appeal is
whether the evidence adduced at trial was sufficient to identify
the accused as the criminal agent in the commission of a felony.
In a bench trial conducted in the Circuit Court of the City
of Richmond, Willard Smith was convicted of malicious wounding
as defined in Code § 18.2-51. * A panel of the Court of Appeals
of Virginia reversed the judgment entered by the trial judge and
dismissed the indictment. Smith v. Commonwealth, Record No.
2130-97-2 (March 2, 1999). See Burks v. United States, 437 U.S.
1, 18 (1978). We awarded the Commonwealth an appeal.
The evidence of record shows that Andrew Taylor, the victim
of the felony, testified that he and a friend named Joseph had
*
Code § 18.2-51 provides:
If any person maliciously shoot, stab, cut, or wound
any person or by any means cause him bodily injury, with the
intent to maim, disfigure, disable, or kill, he shall, except
where it is otherwise provided, be guilty of a Class 3 felony.
If such act be done unlawfully but not maliciously, with the
intent aforesaid, the offender shall be guilty of a Class 6
felony.
"started drinking about 6:00 that morning" and had consumed
"about four or five quarts of beer." Looking across the city
street where they were standing, he saw Smith approaching.
Speaking to Taylor, Smith said, "I know you are mad . . .
because I got your wife." Taylor testified that as he "turned
to walk away," Smith hit him "[r]ight here in the stomach." He
said that he "hit me again, and I grabbed him, and after that I
don't remember much more than that." He did "remember walking
away from him" and that "all of a sudden the lights went out."
Taylor remained unconscious until he "came to" in a
hospital emergency room. He said that medical personnel were
"sewing me in the back." He explained that he "had knife
stabs," that he was "bleeding," that he "had to be stitched,"
and that some of his wounds were located at the "[s]ame spot"
where Smith had been "hitting" him. Taylor testified on direct
examination that he did not see "anything in the defendant's
hand" when Smith was hitting him and, again on cross-
examination, that "[i]f it was a weapon used, I didn't see it."
Asked if he had seen any blood, Taylor replied that he had not.
In response to counsel's statement that "[y]ou don't know that
Willard Smith did anything to you other than hit or punch you,"
Taylor said, "That's correct."
Smith moved to strike the Commonwealth's evidence "on a
reasonable doubt basis." The trial judge overruled the motion,
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and Smith elected to rest. The court found Smith guilty of
malicious wounding and imposed a sentence of 20 years
imprisonment with execution of 16 years of that sentence
suspended during good behavior.
The Court of Appeals held that the evidence was
insufficient to support the conviction. We agree.
We have said that "where a fact is equally susceptible of
two interpretations one of which is consistent with the
innocence of the accused, [the trier of fact] cannot arbitrarily
adopt that interpretation which incriminates [the accused]."
Burton and Conquest v. Commonwealth, 108 Va. 892, 899, 62 S.E.
376, 379 (1908). Additionally, "the burden is upon the
Commonwealth to prove the guilt of the accused to the exclusion
of every reasonable hypothesis consistent with his innocence
. . . ." Spicer v. Commonwealth, 156 Va. 971, 973, 157 S.E.
566, 566 (1931). In LaPrade v. Commonwealth, 191 Va. 410, 418,
61 S.E.2d 313, 316 (1950), we stated the following principles
that are pertinent here:
[I]f the proof relied upon by the Commonwealth is
wholly circumstantial, as it here is, then to establish
guilt beyond a reasonable doubt all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence. They must overcome the presumption of innocence
and exclude all reasonable conclusions inconsistent with
that of guilt. To accomplish that, the chain of necessary
circumstances must be unbroken and the evidence as a whole
must satisfy the guarded judgment that both the corpus
delicti and the criminal agency of the accused have been
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proved to the exclusion of any other rational hypothesis
and to a moral certainty.
Concerning the identity of the criminal agent, the
Commonwealth's hypothesis relies principally upon the fact that
"[t]he victim described at least some of the stab wounds as
being in the 'same spot[s]' where the defendant had struck him."
But the evidence, or lack of evidence, supports a different
hypothesis.
Taylor testified that Smith attacked him with his fists and
that, with respect to that attack, he had seen no weapons or
blood indicative of a stabbing attack. Joseph was never called
as a witness to contradict that testimony. The record at trial
contains no evidence of the time or duration of the fist attack,
the length of time Taylor lay unconscious on the sidewalk, or
what transpired in the interval of time preceding his arrival at
the hospital.
The evidence of record supports two hypotheses. First,
that the period of unconsciousness resulted from a fist attack
that developed into a knife attack by Smith when Taylor started
"walking away from him." Second, that Taylor's unconsciousness
resulted from his state of intoxication which inspired an
unidentified pedestrian present at the scene (or one arriving
later) to use a knife to terrorize the victim in order to
achieve some ulterior motive. Consequently, the Commonwealth
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failed "to prove the guilt of the accused to the exclusion of
every reasonable hypothesis consistent with his innocence
. . . ." Spicer v. Commonwealth, 156 Va. at 973, 157 S.E. at
566.
We agree with the conclusion reached by the Court of
Appeals that "[t]he evidence raises no more than a suspicion of
Smith's guilt." "Suspicion, however, no matter how strong is
insufficient to sustain a criminal conviction." Stover v.
Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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