Phan v. Commonwealth

Present: All the Justices

THIET VAN PHAN
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990093 November 5, 1999

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Thiet Van Phan was tried before a jury in the Circuit

Court of Arlington County and convicted of the first-degree

murder of Long Hung Nguyen, the malicious wounding of Nghia H.

Bui, and two counts of the use of a firearm during the

commission of a felony. He was sentenced in accordance with

the jury's verdicts to 75 years imprisonment for the murder

conviction, 15 years imprisonment for the malicious wounding

conviction, and a total of eight years imprisonment for two

convictions for use of a firearm. The Court of Appeals denied

Phan's petition for appeal and, here, Phan challenges the

sufficiency of the evidence to sustain the convictions.

I.

Applying well-established principles of appellate review,

we must consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below. Derr v.

Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).

Between 3:00 and 4:00 p.m. on January 26, 1997, the

defendant was in the Haiau Billiard and Coffee Shop in the
City of Falls Church. Nhan Van Nguyen, another patron in the

pool hall, went to a bathroom where he was attacked and beaten

by the defendant and another man. Nhan Van Nguyen ran out of

the bathroom and tried to get help.

Subsequently, the defendant left the bathroom and

returned to a larger room in the pool hall where he

encountered Long Hung Nguyen, a manager of the pool hall.

Long Nguyen confronted the defendant and told him "not to make

trouble in the pool hall." The defendant "talk[ed] back,

[and] said . . . what if I do? What [are] you going to do

about it?" The defendant, Long Nguyen, and Van Nguyen (Long

Nguyen's brother) began to fight. Long Nguyen and Van Nguyen

struck the defendant, and the defendant's nose began to bleed.

After the fight, the defendant, who was four feet, eleven

inches tall, and weighed 130 pounds, took off his shirt and

said to Van Nguyen and Long Nguyen: "If any one of you guys

about this size just come forward, I will challenge any one of

you guys." Long Nguyen challenged the defendant stating

"okay, how about you and I — you and me then." The defendant

did not respond to Long Nguyen's challenge to fight.

Long Nguyen told the defendant, whose nose was still

bleeding, to "just cool out. Go wash your face and just sit

down, relax." The defendant washed his face and said "I'll be

back" as he left the premises. According to Long Hoang

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Nguyen, a pool hall employee, the defendant made this

statement in English using the same tone as that used in a

line from "[s]ome action movie."

Later that evening, shortly after 8:00 p.m., as Long

Nguyen was in the pool hall tallying the day's receipts, three

masked gunmen entered the pool hall through a back door and

proceeded quickly and directly toward Long Nguyen. One of the

assailants jumped on top of a counter as the three masked

gunmen fired between 15 to 20 gunshots. Long Nguyen sustained

multiple gunshot wounds which caused his death. One of the

assailants also shot Nghia Bui, a patron of the pool hall, in

the foot. The masked assailants departed through the back

door without taking any of the cash that was visible on the

counter behind which Long Nguyen had been standing.

Five eyewitnesses testified that one of the three masked

gunmen was noticeably shorter than the other two assailants.

Sang Van Ha described the short gunman as "[k]ind of fat" with

hair a "little bit" below his shoulders. Ha testified that

when the gunmen first entered the pool hall, the shortest

gunman was in the process of pulling down his mask, and Ha

could see the lower portion of the gunman's face and his dark

skin.

Ha, who had seen Phan at the pool hall earlier on the day

of the murder, testified that Phan and the shortest gunman had

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the "[s]ame hair, same . . . figure." Ha also described one

of the assailants as "kind of short," with "dark skin and long

hair." Ha stated that the person who looked like the

defendant was wearing a black-colored mask and was "[k]ind of

fat."

Bui testified that all three gunmen fired their weapons

in the area of the counter, and that the shortest gunman shot

at him at least three times, striking him once in the foot.

He stated that the shortest gunman was "no more than five feet

[tall]." Thuylinh Ho, the victim's girlfriend, testified that

one of the gunmen was "really short and a little chubby."

Tuong Vinh Nguyen, a pool hall patron who was present

when the murder occurred, described the shortest gunman as

being about five feet tall and "kind of chubby" with "long

[black] hair that was protruding out to . . . his shoulder."

He testified that he could not see the gunmen's faces because

of their masks, but he thought that all the gunmen were

Vietnamese. The defendant is Vietnamese. Nguyen Tran,

another patron, testified that the masked assailants fired a

total of 15 to 20 gunshots at Long Nguyen during a period of

about one to two minutes. Tran, who is five feet, eight

inches in height, stated that the shortest gunman was "[a] lot

shorter than me."

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 The defendant testified at trial that he was not present

in the pool hall when the murder occurred, but was asleep at

home. He stated that he was "a little" upset when he left the

pool hall after the altercation with the victim and his

brother.

The defendant's aunt, Thi Bi Nguyen, testified that the

defendant slept on a sofa in a living room on the first floor

of her townhouse. She stated that on the evening of the

murder, she ate dinner sometime after 7:00 p.m., and the

defendant was lying on the couch watching television. When

asked the last time she saw the defendant on the night of the

murder, she responded: "I came home about seven o'clock.

About seven something, I saw him."

Steven Phan, the defendant's uncle, testified that he

arrived home from work on the night of the murder about 11:00

p.m. When asked whether he saw the defendant in his house

that evening, Steven Phan stated: "I did not see him. But I

saw that there was a blanket on the couch." Steven Phan also

testified that he saw the defendant in his house that evening,

but not "face to face." Special Agent Anh Pham, an employee

of the Federal Bureau of Investigation, testified that he had

interviewed Steven Phan who told him that he (Steven Phan) did

not see the defendant anywhere in the house when Steven Phan

arrived home on the night of the murder.

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 II.

The defendant asserts that the evidence is insufficient

to support his convictions. The defendant contends that the

Commonwealth failed to prove that he had a motive to murder

Long Nguyen and that no one identified the defendant as an

assailant. None of the witnesses observed any tattoos or

markings of any kind on the short assailant even though the

defendant had large tattoos on his arms and hands and fingers.

Continuing, the defendant, relying upon our decisions in Hyde

v. Commonwealth, 217 Va. 950, 234 S.E.2d 74 (1977), and

Burrows v. Commonwealth, 224 Va. 317, 295 S.E.2d 893 (1982),

argues that his convictions should be invalidated because the

evidence is insufficient to identify him as a perpetrator of

the crimes. Responding, the Commonwealth asserts that the

evidence is sufficient to support the convictions. We agree

with the Commonwealth.

We will apply the following principles of appellate

review to our resolution of this appeal:

"Where the sufficiency of the evidence is
challenged after conviction, it is our duty to
consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences
fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that
the judgment is plainly wrong or without evidence to
support it [Code § 8.01-680]."

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Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610

(1981) (quoting Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975)). Additionally, when a

defendant challenges the sufficiency of the evidence, "'[i]f

there is evidence to sustain the verdict, this Court should

not overrule it and substitute its own judgment, even if its

opinion might differ from that of the jury.'" George v.

Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991)

(quoting Snyder v. Commonwealth, 202 Va. 1009, 1016, 121

S.E.2d 452, 457 (1961)), cert. denied, 503 U.S. 973 (1992).

The factfinder need not believe an accused's explanation and,

if that explanation is not believed, may infer that the

accused is lying to conceal his guilt. Black, 222 Va. at 842,

284 S.E.2d at 610; Toler v. Commonwealth, 188 Va. 774, 782, 51

S.E.2d 210, 214 (1949); Speight v. Commonwealth, 4 Va. App.

83, 88, 354 S.E.2d 95, 98 (1987).

Applying the aforementioned principles, we hold that the

evidence, though circumstantial, sufficiently establishes the

defendant's guilt beyond a reasonable doubt. The jury could

have inferred from the evidence that the defendant, who was

angry and humiliated because he had been beaten earlier on the

day of the murder, had a motive to kill Long Nguyen. When the

masked assailants entered the pool hall, they walked quickly

and directly toward Long Nguyen and after they shot him

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multiple times, they did not take money that was visible on

the counter. Indeed, the defendant had threatened Long Nguyen

when the defendant stated, after the fight, that "I'll be

back."

Based on the numerous witnesses' testimony that both the

defendant and one of the masked assailants were unusually

short and had the same "chubby" figure, weight, hair length

and color, nationality, and skin tone, the jury could have

concluded that the defendant was one of the masked assailants.

In view of the identification testimony of the numerous

witnesses, the defendant's alibi testimony that the jury

apparently rejected, the inconsistent testimony of the

defendant's aunt and uncle which further impaired the

credibility of the defendant's alibi, the evidence when

considered as a whole is sufficient to support the

convictions.

We find no merit in the defendant's contention that our

prior decisions in Hyde and Burrows require that we invalidate

the challenged convictions. In Hyde, we considered whether

the evidence was sufficient to support convictions for rape

and murder. There, an adult female with a mental age of 10

years, who was a patient at a hospital, told hospital

personnel that "a tall, white man" who had offered her a

cigarette had taken her into the woods and raped her. Hyde,

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217 Va. at 951, 234 S.E.2d at 76. She did not know the

identity of the rapist. The record in that case established

that the defendant was a tall, white man. Id.

Several witnesses had seen the defendant, James Taylor

Hyde, and the victim together on the date of the rape and

assault, which eventually caused her death. Upon our review

of the record in Hyde, we held that the only direct evidence

which tended to identify Hyde as a principal in the first

degree was the victim's description of her assailant as a

tall, white man who had given her a cigarette. The record did

not contain a description of two other men who were present

when the victim was raped and assaulted. We stated that "to

assume that [the defendant] was the only tall, white man who

had given [the victim] a cigarette that day would be to assume

too much." 217 at 954, 234 S.E.2d at 77. Even though the

defendant in Hyde had made numerous inconsistent statements

about his conduct on the day that the victim was raped and

assaulted, we concluded that the inconsistencies and

contradictions in those statements merely raised a suspicion

of guilt which was not sufficient to support a conviction.

Id. at 954-55, 234 S.E.2d at 77-78.

Hyde is clearly distinguishable from the present case.

The defendant here, unlike the defendant in Hyde, threatened

the victim by stating "I'll be back." Also, unlike the

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defendant in Hyde, the defendant here specifically testified

at trial and tried to offer an alibi defense to the jury,

which the jury rejected, and the jury was entitled to infer

that this defendant was trying to conceal his guilt.

Moreover, unlike the defendant in Hyde, numerous witnesses

testified that the masked assailant who killed Long Nguyen and

the defendant both had an unusually short height, "chubby"

figure, dark skin tone, and long shoulder-length black hair.

In Burrows, we considered whether the evidence was

sufficient to support a defendant's convictions for robbery

and malicious wounding. The victim in Burrows testified that

while he was attending a party, someone approached him from

the rear and began hitting him. 224 Va. at 318, 295 S.E.2d at

894. The victim was struck four or five times, his nose was

broken, and he "couldn't see anything." Id. The assailant

took the victim's wallet and fled. When asked to identify the

assailant at trial, the victim responded, "[w]ell, it looks

like that gentlemen there [referring to [the defendant]], but

. . . I can't say absolutely sure, because it happened so

fast. Like I said, he came from behind me." Id. The victim

testified that sometime after the robbery, he saw the

defendant with four or five other people near a river. The

victim observed a wallet floating in the river and requested

that the defendant retrieve it, and the defendant complied.

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The victim and another man "grabbed" the defendant in an

attempt to hold him until the police arrived. They later

released the defendant, who immediately left the scene. Id.

In Burrows, we held that the evidence was insufficient to

prove that the defendant was the criminal agent because the

victim was not sure that the defendant was his attacker and

the defendant's conduct was not inconsistent with his

innocence. Id. at 319, 295 S.E.2d at 894-95. We held that

the evidence of record in Burrows at best created a suspicion

of guilt which, no matter how strong, was insufficient to

sustain a criminal conviction. Id. at 320, 295 S.E.2d at 895.

For the reasons that we have already mentioned, the

Commonwealth presented evidence from which the jury could have

concluded, beyond a reasonable doubt, that the defendant was

the perpetrator of the crimes which are the subject of this

appeal.

The defendant asserts that Long Hoang Nguyen's testimony

that the defendant stated "I'll be back" as he left the pool

hall earlier on the day of the murder was not credible because

no other witnesses heard that statement. Additionally, the

defendant states that the jury should not have concluded that

he was the short masked gunman because that gunman wore a

short-sleeved shirt, and none of the witnesses testified that

they saw any tattoos or markings of any kind on that

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assailant's arms, even though the defendant has large tattoos

on both of his arms and hands. We find no merit in the

defendant's arguments. The jury, as the finder of fact, was

entitled to assess each witness's credibility and determine

the weight to be accorded the testimony.

III.

We hold that the evidence of record considered as a whole

is sufficient to support the jury's finding that the defendant

perpetrated the criminal acts. "While 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.'" Stamper v. Commonwealth, 220 Va. 260, 273, 257

S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth, 125

Va. 758, 764, 99 S.E. 562, 564 (1919)), cert. denied, 445 U.S.

970 (1980); accord Derr, 242 at 425, 40 S.E.2d at 669.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

JUSTICE KEENAN, with whom JUSTICE KOONTZ joins, dissenting.

In its analysis, the majority has failed to consider the

unique evidentiary burden placed on the Commonwealth in

proving a case based on circumstantial evidence. When a

conviction is based on circumstantial evidence, the

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circumstances proved "must each be consistent with guilt and

inconsistent with innocence, and . . . they must concur in

pointing to the defendant as the perpetrator beyond a

reasonable doubt." Cantrell v. Commonwealth, 229 Va. 387,

398, 329 S.E.2d 22, 29 (1985); see also Rogers v.

Commonwealth, 242 Va. 307, 317-18, 410 S.E.2d 621, 627 (1991);

Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393

(1984); Christian v. Commonwealth, 221 Va. 1078, 1082, 277

S.E.2d 205, 208 (1981). Further, as in any criminal case, the

evidence must exclude all reasonable theories of innocence,

and a suspicion of guilt, however strong, or even a

probability of guilt, will not support a criminal conviction.

Sheppard v. Commonwealth, 250 Va. 379, 387, 464 S.E.2d 131,

136 (1995), cert. denied, 517 U.S. 1110 (1996); Rogers, 242

Va. at 317, 410 S.E.2d at 627; Cook v. Commonwealth, 226 Va.

427, 433, 309 S.E.2d 325, 329 (1983); Bishop, 227 Va. at 169-

70, 313 S.E.2d at 393.

In the present case, I would hold that the trial court's

judgment was plainly wrong because, as a matter of law, the

Commonwealth's evidence established only a suspicion or a

probability of guilt. The circumstantial evidence did not

concur in pointing, beyond a reasonable doubt, to the

defendant as a perpetrator of these crimes. The evidence

merely showed that a person of the same skin color,

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nationality, body type, and hair length as the defendant

committed these crimes. The only other evidence linking the

crimes to the defendant was his conduct in the pool hall

earlier that day and his uncle's testimony, which was

inconsistent with the defendant's alibi.

While these circumstances are consistent with guilt, they

are not inconsistent with innocence and do not exclude a

reasonable hypothesis that someone other than the defendant

was the shortest of the three gunmen who committed these

crimes. Under the majority's view of the evidence, a person

who had an altercation with a victim's brother and stated that

he intended to return may be convicted of murder if his alibi

is inconsistent with other testimony and if he and the

perpetrator share certain general physical characteristics.

Such evidence is insufficient because it fails to present an

unbroken chain of the necessary circumstances of motive, time,

place, means, and conduct that link the defendant to the crime

beyond a reasonable doubt. See Cantrell, 229 Va. at 397, 329

S.E.2d at 28; Bishop, 227 Va. at 169, 313 S.E.2d at 393;

Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196

(1981). Therefore, I would reverse the defendant's

convictions and dismiss the indictments on which they are

based.

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