COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
DAVID WAYNE MURPHY
MEMORANDUM OPINION * BY
v. Record No. 1198-01-2 JUDGE JEAN HARRISON CLEMENTS
JULY 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James A. Luke, Judge
(Jacqueline R. Waymack; Butterworth &
Waymack, on brief), for appellant.
Appellant submitting on brief.
Amy L. Marshall, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
David Wayne Murphy was convicted in a bench trial of
statutory burglary in violation of Code § 18.2-91 and grand
larceny in violation of Code § 18.2-95. On appeal, he contends
the evidence was insufficient to sustain the convictions. Finding
the evidence insufficient to convict Murphy of statutory burglary
and sufficient to convict him of grand larceny, we reverse in part
and affirm in part the judgment of the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). "In so doing, we must discard
the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination." Crawley v. Commonwealth, 29
Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not
disturb the conviction unless it is plainly wrong or unsupported
by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,
337 S.E.2d 897, 898 (1985).
Murphy first contends the evidence was insufficient to
convict him of statutory burglary because it failed to establish
the essential element of "breaking." Specifically, Murphy argues
the evidence did not prove beyond a reasonable doubt that he
gained access to the Ahepa Center by the use of force or that his
entry into the Ahepa Center was without permission.
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The indictment charged Murphy with breaking and entering "the
Ahepa Center" in violation of Code § 18.2-91. Thus, to sustain a
conviction under Code § 18.2-91, the Commonwealth had to prove
beyond a reasonable doubt, inter alia, that Murphy broke and
entered the Ahepa Center.
"Actual breaking involves the application of
some force, slight though it may be, whereby
the entrance is effected. Merely pushing
open a door, turning the key, lifting the
latch or resort to other slight physical
force is sufficient to constitute this
element of the crime. . . . But a breaking,
either actual or constructive, to support a
conviction of burglary, must have resulted in
an entrance contrary to the will of the
occupier of the [premises]."
Robertson v. Commonwealth, 31 Va. App. 814, 821, 525 S.E.2d 640,
644 (2000) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110
S.E. 356, 357 (1922) (emphasis added)).
Viewed in the light most favorable to the Commonwealth, the
evidence proved that, around 4:00 p.m. on Friday, May 5, 2001,
John Trotter, Sr., accompanied by his grandchildren, went to the
Ahepa Center, a community center used for many activities
including bingo three days a week, to clean up after a bingo game
held the previous night. When closed, the building, which had an
alarm tab, was normally accessed by using a key to unlock the
door. However, when Trotter prepared to unlock the door, he
noticed the door was already unlocked. He walked in and saw that
the light in the kitchen was on. Going into the kitchen, he
observed Murphy, with whom he was familiar, walking back and forth
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in the kitchen. Trotter looked around the building to see if
someone who might have let Murphy in was there, but saw nobody
else there. Trotter testified that he had not given Murphy
permission to be in the building and that he had no such authority
anyway.
Trotter then observed Murphy, who had picked up a box of
food, leave the kitchen, walk past his grandchildren, and run out
the side door of the Ahepa Center. One of Trotter's grandsons
chased after him for a short distance but stopped when Murphy
dropped the box of food. The box contained shrimp, chicken, and
ham, valued at $65.
A subsequent examination of the kitchen revealed that the
locks on the reach-in and walk-in refrigerators had been broken.
Food was scattered throughout the walk-in refrigerator.
The next day, Antonio Afifantis, who ran the bingo games and
concession sales at the Ahepa Center, discovered that over $600 in
cash was missing from the reach-in refrigerator. Afifantis had
locked the money from Thursday night's bingo games and concession
sales in the reach-in refrigerator. Afifantis, who had the only
key to that refrigerator, had not opened the refrigerator after
locking the money inside or given anyone else permission to do so.
Nicholas Doukas, the executive secretary and manager of the
Ahepa Center, testified that Murphy had been coming to the center
for three years but that he had not given him permission "to be
back in the kitchen area or to go in the refrigerator" on May 5,
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2001. According to him, the only people that would have
permission to go back in that area were people who work there, "or
members of the order, or guests of the people that are there, or
if someone has permission to be back there."
When asked how many people had access to the Ahepa Center,
Gary Metry, a member of the Ahepa Order and current bingo
chairman, testified: "Honestly, at this point, I cannot tell you.
There are several keys, and we are having problems of accounting,
who has got keys." That problem, he testified, has "probably been
in existence over several years, quite frankly."
In finding the Commonwealth's evidence sufficient to prove
that Murphy broke into the Ahepa Center, the trial judge relied,
in large part, upon the evidence of the damaged and broken lock of
the refrigerator in the kitchen, which was, he determined, "part
of the building used for safety." However, it is a "well-settled
principle that the force [necessary to constitute a breaking] must
be applied to something attached to the premises and relied upon
by the occupant for safety." Johns v. Commonwealth, 10 Va. App.
283, 286-87, 392 S.E.2d 487, 489 (1990). Here, there was no
evidence that the refrigerator was attached to the premises or
that the lock on it was intended to protect anything other than
the contents of the refrigerator itself. Thus, the trial court's
reliance on this evidence to establish a forceful entry into the
building was misplaced.
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Moreover, we find no evidence in the record that supports the
trial court's finding that Murphy was in the Ahepa Center without
permission. There was no evidence of physical damage to either
door to the center following Murphy's entry or that his entry had
triggered the alarm. Indeed, Trotter simply found the front door
unlocked when he approached the building. Furthermore, while
Trotter testified that he had not given Murphy permission to enter
the building, Doukas and Afifantis testified only that they had
not given anyone permission to be in the kitchen or the
refrigerator. Doukas further testified that anyone who worked at
the Ahepa Center, "or members of the order, or guests of the
people that are there, or . . . someone [who had] permission to be
back there" could enter the kitchen area. Additionally, Metry
could not say how many people had access to the center or who had
keys to the building. Plainly, Murphy, who consistently attended
the bingo games at the Ahepa Center, was well known to the members
of the center, its officers, and those who worked there. It was
not shown that he did not have the permission of a member or other
person in authority to be in the building.
We, therefore, conclude that the evidence presented at trial
failed to prove beyond a reasonable doubt that Murphy entered the
Ahepa Center that day without permission. Accordingly, we hold
the trial court erred in finding the evidence sufficient to
convict Murphy of statutory burglary.
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Murphy next contends the evidence was insufficient to convict
him of grand larceny because he was only seen leaving the building
with a box of food valued at $65. The missing cash was only
linked to him because he stole the box of food, he argues.
To convict Murphy of grand larceny the Commonwealth had to
prove beyond a reasonable doubt that the goods stolen by him were
valued at $200 or more. See Code § 18.2-95(ii). "Circumstantial
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." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
"However, 'the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those
that spring from the imagination of the defendant.' Whether an
alternate hypothesis of innocence is reasonable is a question of
fact, and therefore, is binding on appeal unless plainly wrong."
Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832
(1997) (citation omitted) (quoting Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)).
The uncontroverted evidence of the Commonwealth proved that,
on Thursday evening after bingo had concluded, Afifantis counted
the monies from the concession sales and bingo proceeds and locked
them in the refrigerator in the kitchen. He had the only key. On
Friday afternoon, Trotter found Murphy leaving the kitchen with a
box of stolen food. Trotter then saw the broken refrigerator
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locks and food strewn all over the walk-in refrigerator. When
Afifantis examined the refrigerator and its contents the next day,
the $600 in cash was missing. We conclude that this evidence was
sufficient for the trial court to reasonably infer that Murphy,
who had been seen stealing the food, had also stolen the missing
cash. Johnson v. Commonwealth, 141 Va. 452, 456, 126 S.E. 5, 6-7
(1925) (holding that the unexplained exclusive possession of part
of the stolen property warrants inference that thief stole all of
it). We hold, therefore, that the trial court did not err in
convicting Murphy of grand larceny.
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Accordingly, we reverse Murphy's conviction of breaking and
entering and dismiss the indictment and affirm his conviction of
grand larceny.
Affirmed in part, and
reversed in part.
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