COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
SONNY JAMES TURNER
MEMORANDUM OPINION * BY
v. Record No. 1942-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Sonny James Turner (appellant) was convicted in a bench
trial of third offense petit larceny in violation of
Code § 18.2-96. On appeal, he contends that the circumstantial
evidence was insufficient to prove that he committed the
larceny. For the following reasons, we affirm the judgment of the
trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on May 30, 2000,
appellant and two others visited the home of Kermit Bonhams
(Bonhams). They "just stopped" by and drank beer with him on
his porch. After ten minutes, appellant asked to use the
bathroom and Bonhams told him to "go ahead." When appellant
came out of the house, he immediately went to his car and called
for the others to leave with him. Bonhams was unable to see
appellant from the front due to "the way he – you know, the way
he was walking." After the three men left, Bonhams went into
his house and discovered that his VCR that was earlier directly
under the television set was missing. Bonhams had used the VCR
that morning, and no one other than appellant had been in the
house.
Investigator George Hooker went to Bonhams' house the day
of the theft. He found a beer can with appellant's fingerprints
on it about ten feet from the television stand in the room where
the VCR had been taken.
The trial court found appellant guilty of third offense
petit larceny.
II. SUFFICIENCY OF THE EVIDENCE
In reviewing sufficiency of the evidence, "the judgment of
the trial court sitting without a jury is entitled to the same
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weight as a jury verdict." Saunders v. Commonwealth, 242 Va.
107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
The credibility of a witness and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
Appellant contends that the circumstantial evidence was
insufficient to prove that he committed the petit larceny. He
argues that the circumstances surrounding his entry and exit of
the house and the fingerprints on the beer can failed to prove
that he stole the VCR. We disagree.
"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.'" Taylor v. Commonwealth, 33 Va. App.
735, 737, 536 S.E.2d 922, 923 (2000) (quoting Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983),
cert. denied, 465 U.S. 1109 (1984)). "The Commonwealth need not
'exclude every possible theory or surmise', but it must exclude
those hypotheses 'which flow from the evidence itself.'"
Haskins v. Commonwealth, 31 Va. App. 145, 151, 521 S.E.2d 777,
780 (1999) (quoting Cantrell v. Commonwealth, 7 Va. App. 269,
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289-90, 373 S.E.2d 328, 338-39 (1988)). "'The circumstances of
motive, time, place, means, and conduct must all concur to form
an unbroken chain which links the defendant to the crime beyond
a reasonable doubt.'" Floyd v. Commonwealth, 31 Va. App. 193,
198, 522 S.E.2d 382, 384 (1999) (quoting Bishop v. Commonwealth,
227 Va. 164, 169, 313 S.E.2d 390, 392 (1984)).
Properly viewed, the Commonwealth's evidence established an
unbroken chain linking appellant to the theft of the VCR. The
VCR was in Bonhams' house before appellant entered and missing
after he left. Appellant was the only person to enter the house
during this time and he left suddenly, shielding the front of
his body from Bonhams' sight. He immediately went to his car
and called for his friends to leave. Appellant's fingerprints
were found on a beer can ten feet from the place where the VCR
was located before the theft. Bonhams gave appellant permission
to use only the bathroom, not to enter the room with the VCR.
The time, place, means, and opportunity for appellant to commit
the crime were established. The totality of the circumstances
leaves no reasonable hypothesis of innocence.
Appellant's reliance on Duncan v. Commonwealth, 218 Va.
545, 238 S.E.2d 807 (1977), is misplaced. In Duncan, the
evidence established that the defendant and codefendant were
seen near a stopped train about 10:00 a.m. Later in the day,
car parts stolen from the train were found near the railroad
track where the train had been stopped. The codefendant
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testified that they were on the train merely to look at the
cars. The Court found this evidence insufficient to support a
conviction for larceny.
However, the facts of the instant case are clearly
distinguishable. Unlike a train, which by its nature is open to
the public, appellant was the only person other than the victim
who had access to the home during the period of time available
for the theft of the VCR. Fingerprint evidence affirmatively
established that appellant was in the same location as the
stolen VCR. In Duncan, there was a several hour time lapse
between the theft and the discovery of the stolen car parts.
Here, the time frame between the theft of the VCR and its
discovery by Bonhams was almost immediate. Appellant's
contention that someone else may have entered the home is
unsupported by the evidence. "The Commonwealth is only required
to exclude hypotheses of innocence that flow from the evidence,
and not from the imagination of [defense] counsel." Fordham v.
Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
For the foregoing reasons, we affirm.
Affirmed.
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