COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
DERRICK C. TUCKER
MEMORANDUM OPINION * BY
v. Record No. 1288-02-2 JUDGE SAM W. COLEMAN III
JUNE 17, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Leslie M. Osborn, Judge
Buddy A. Ward, Public Defender, for
appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Derrick C. Tucker ("appellant") appeals his bench trial
convictions for burglary and petit larceny. He contends the trial
court erred by finding the evidence sufficient to support his
convictions. For the reasons that follow, we disagree and affirm
his convictions.
BACKGROUND
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved Michele Tucker ("Tucker")
left her home at approximately 11:15 p.m. on July 24, 2000 to go
to work. She secured the premises when she left and did not
return until 9:00 a.m. the following morning. Upon her return,
she discovered her house had been broken into through the front
door. Her jewelry and a compact disc player were missing from
the residence.
Tasha Rosser testified she was at the home of her aunt,
Wynetta Jones, on the night of the burglary. Jones lived next
door to Tucker. Rosser heard a noise coming from Tucker's house
during the night. She explained it sounded "like somebody had
. . . pushed on the door or something." She reported the sound
to Jones, who told her Tucker was away for the night. Ten or
fifteen minutes later Rosser looked out the window and saw
appellant "coming from over there," meaning from the direction
of Tucker's home next to her aunt's. She also saw a wire or
cord dangling from appellant's pocket. Appellant looked up, saw
Rosser looking at him, and cursed. He pushed the cord deeper
into his pocket, mounted his bicycle, and rode from the scene.
David Byrd spoke to appellant the day after the burglary.
Appellant denied involvement in the burglary and stated he had
been at his mother's house down the street the previous night.
- 2 -
Later, appellant told the police he was at his girlfriend's
house twenty-five miles away on the night of the burglary.
ANALYSIS
"When a conviction is based upon circumstantial evidence,
such evidence 'is as competent and is entitled to as much weight
as direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt.'"
Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400
(1994) (citation omitted). "The 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).
Rosser reported she heard a loud banging noise at Tucker's
house. She described the noise as sounding like someone beating a
drum. Tucker was away from home at the time Rosser heard the
noise. Shortly thereafter, Rosser saw appellant walking away from
Tucker's residence with an electrical cord dangling from his
person. Tucker testified that a compact disc player had been
stolen from her house. Appellant walked to and mounted a bicycle
from next to Jones' house. When he saw Rosser observing him, he
cursed aloud. Appellant provided inconsistent statements
regarding his whereabouts on the night of the burglary.
- 3 -
The trial court reasonably concluded appellant was causing
the banging noise and entered Tucker's residence. Furthermore,
the court reasonably inferred that the electrical cord hanging
from appellant's pocket belonged to the compact disc player stolen
from Tucker's residence. Appellant's reaction upon seeing Rosser
observing him leaving the burglary scene indicates a consciousness
of guilt. Additionally, appellant gave inconsistent alibis. The
Commonwealth's evidence was competent, was not inherently
incredible, and was sufficient to prove beyond a reasonable doubt
that appellant was guilty of burglary and petit larceny.
Accordingly, we affirm appellant's convictions.
Affirmed.
- 4 -
Benton, J., dissenting.
To convict Derrick C. Tucker of burglary, the Commonwealth
must prove he broke and entered the dwelling house in the
nighttime with intent to commit a felony or any larceny in the
house. See Code § 18.2-89. To convict him of petit larceny,
the Commonwealth must prove he took and carried away goods and
chattels of value less than $200 with the intent to permanently
deprive the owner of possession. See Code § 18.2-96; Lund v.
Commonwealth, 217 Va. 688, 691, 232 S.E.2d 745, 748 (1977).
Because the circumstantial evidence failed to establish
appellant committed either burglary or petit larceny, I dissent.
In a criminal case, where the quantum of proof must be
beyond a reasonable doubt, the imperative to secure convictions
free of speculation, surmise, and conjecture is constitutionally
based. See In re Winship, 397 U.S. 358 (1970). Thus, although
"[i]nconsistencies and contradictions in statements made by an
accused may support an inference of guilty knowledge and raise a
suspicion of guilt, . . . convictions may not rest upon
suspicion." Hyde v. Commonwealth, 217 Va. 950, 954, 234 S.E.2d
74, 77 (1977). Indeed, it is well established that "[e]ven when
the contradictions are material and sufficiently significant to
elevate suspicion to the level of probability, they do not
relieve the Commonwealth of the burden of producing evidence
- 5 -
which establishes guilt beyond a reasonable doubt." Id. at 954,
234 S.E.2d at 77-78.
All necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. It is not sufficient that the
evidence create a suspicion of guilt,
however strong, or even a probability of
guilt, but must exclude every reasonable
hypothesis save that of guilt. To
accomplish that the chain of circumstances
must be unbroken and the evidence as a whole
must be sufficient to satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
reasonable hypothesis and to a moral
certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The evidence established that Michele Tucker locked the
doors and windows of her residence when she left for work at
11:15 p.m. Returning at 9:00 a.m. the next morning, she
discovered that her front door had been "busted in." The
intruder took jewelry, a few of her daughter's things, and a
compact disc walkman; the intruder also consumed food and beer
from the refrigerator. Tucker informed the investigating
officer that she had noticed two neighborhood boys, not
appellant, in the area when she went to work.
Tasha Rosser, a teenager who was "staying" at her aunt's
house adjacent to Tucker's residence, testified that appellant
and a few friends were at her aunt's house on the night of the
incident. About half an hour after appellant and the others
- 6 -
left, Rosser "heard a noise coming from over there." She
characterized the noise as "a loud drum sound." Ten or fifteen
minutes after hearing the sound, Rosser looked out a window and
saw appellant. When she first saw appellant, he was "between
the two houses" and near a "light pole" that was thirty feet
from Tucker's residence. Appellant was walking to his bicycle,
which was parked beside the window. She also saw "a cord or
something" dangling from his pocket. As appellant approached
his bicycle, he "said the S word," pushed "whatever was in his
pocket" into the pocket, and left on his bicycle.
The day after the incident, appellant told Tucker and
Tucker's male friend that he had been at his own home, which is
less than a mile away from Tucker's residence. He denied
breaking into the residence. When questioned a week later,
appellant again denied involvement in the burglary but told the
investigating officer he was at his girlfriend's house.
The Commonwealth's hypothesis of guilt is no more likely
than a hypothesis of innocence. The Commonwealth's evidence
proved only that ten to fifteen minutes after Rosser heard a
drum-like loud noise she saw Tucker walking to his bicycle. She
did not see him walk toward her aunt's house from Tucker's
residence. Instead, she testified that she saw him near a light
pole that was in between the two houses. Rosser then heard
Tucker cuss and saw him push a cord into his pocket before
- 7 -
leaving on his bicycle. She never saw appellant at Tucker's
residence.
No one saw appellant break into the residence. No one saw
him inside Tucker's residence. Moreover, no fingerprint
evidence was produced to prove he had been inside the residence.
Furthermore, no evidence proved appellant had any of the stolen
items. Even though Rosser saw "a cord or something" dangling
from his pocket, the trier of fact had to speculate that the
cord belonged to the stolen walkman.
While the majority interprets cussing and pushing something
inside a pocket as evidence of consciousness of guilt, Rosser
clearly testified that appellant was not looking at her when he
cursed. The evidence does not establish why appellant cursed or
that he knew someone was observing him. Rosser's testimony that
he "looked like he knew somebody was looking" was a sheer
conjecture. The evidence equally supports the hypothesis that
appellant said the "S word" and pushed a cord into his pocket in
preparation to ride his bicycle. In short, the evidence in the
record is simply insufficient to prove appellant's involvement
beyond a reasonable doubt.
"Whenever the evidence leaves indifferent which of several
hypotheses is true, or merely establishes only some finite
probability in favor of one hypothesis, such evidence does not
amount to proof of guilt beyond a reasonable doubt." Sutphin v.
- 8 -
Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985).
Thus, where the evidence "'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. Harrell v.
Commonwealth, 11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990)
(quoting Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d
251, 253 (1969)).
The evidence proved appellant had been at Rosser's aunt's
house with other teenagers that night. After congregating there
with his friends, appellant approached his bicycle, which was
near a window of Rosser's aunt's house. Because he lived in the
neighborhood, his presence was not unusual or incriminating.
Moreover, no evidence indicates the noise Rosser heard was
related to the break-in. Indeed, the time of the burglary was
established only in a general way between 11:00 p.m. and
9:00 a.m.
The evidence that connects appellant to the burglary is far
too tenuous to support a finding of guilt. Simply put, the
evidence is insufficient to prove appellant committed the
burglary and petit larceny because the Commonwealth failed to
exclude every reasonable hypothesis save that of guilt. For
these reasons, I would reverse the convictions and dismiss the
indictments.
- 9 -