COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
MARLON GERMAINE WATSON
MEMORANDUM OPINION * BY
v. Record No. 0494-00-1 JUDGE G. STEVEN AGEE
APRIL 24, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Michael J. Lutke (Office of the Public
Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Marlon Germaine Watson (Watson) was convicted and sentenced
in a bench trial in the Circuit Court of Southampton County for
one count of robbery in violation of Code § 18.2-58, and one
count of malicious wounding in violation of Code § 18.2-51. He
appeals the robbery conviction averring that the evidence was
insufficient to support his conviction. For the reasons set
forth below, we affirm.
I.
In the months of June and July 1998, Watson, then a
twenty-one-year-old seasonal farm worker, shared a rented room
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
with two or three other farm workers at the Courtland Inn Motel
in Southampton County. On July 23, 1998, however, Watson
obtained a separate room for himself for one night. Watson
verbally provided his name as "James Peters" but failed to
produce any identification. Watson's signature on the motel's
registration card, however, provided the name "Watson."
Between 8:30 p.m. and 9:00 p.m. on July 24, 1998, Jagmohan
Shah (Shah), the seventy-year-old motel manager, found Watson
waiting for him outside the motel's locked office. Watson told
Shah he "want[ed] to pay the rent" even though Watson had never
before handled the arrangements for the workers' room. Shah,
who always kept the office door locked and the keys on his
person, unlocked the door of the office. As soon as Shah
entered the office, Watson pushed him, causing Shah to fall.
Watson locked the door and dragged Shah into his living
quarters, adjacent to the office. Watson started beating Shah
on the left side of his head, and then attempted to choke the
elderly manager with a towel. When Watson was unable to choke
Shah, he beat Shah's face and ear so hard that the ear was
"displaced"; Shah lost consciousness.
At approximately 11:00 p.m., Annette Flythe (Flythe), a
motel employee, arrived at the motel to deliver laundry. Watson
approached her minutes later and asked her for a ride to the
store. Once he was in the car, however, Watson directed Flythe
to "keep going" whereupon she drove until Watson eventually
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exited the car in North Carolina. Watson did not pay Flythe for
the ride, but she did not think that was unusual. Watson took
no personal belongings with him.
Shah slowly regained consciousness and called 911 at
approximately 11:12 p.m. While placing the emergency call from
the office phone, Shah realized the desk drawer containing the
motel's cash box had been broken into. Shah fell unconscious
again.
The first sheriff's deputy arrived at the motel at
approximately 11:15 p.m. The investigating officer, R.W.
Carwile, arrived at 11:29 p.m. and found residents of the motel
"milling around" outside. Approaching the crime scene, the
officer found the door to the office closed, but unlocked.
Inside, Officer Carwile found the drawer where the cash box was
kept broken into, the cash box had the key in it, and the
motel's money was missing. Shah estimated the cash box held
$1,200 that evening. (The money was never recovered.)
Shah slipped in and out of consciousness several times and
spent the night at a local hospital. Initially he could not
remember what had happened, however his memory returned the
following day and he recalled the incident "exactly." Shah was
certain Watson was his assailant. Only Watson had been in the
room when Shah was beaten, and Watson was the only person who
had come to pay the rent that night. Shah identified Watson
from a photo array on July 31, 1998. Flythe also identified
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Watson from the array. Watson was subsequently arrested in the
state of Georgia in 1999.
These details were presented at trial by the Commonwealth.
At the close of the Commonwealth's case, Watson moved to strike
the evidence, arguing the Commonwealth had not proven when the
robbery occurred or that Watson had committed the crime. Watson
argued that while Shah was unconscious, someone other than
Watson could have entered the unlocked office and committed the
robbery. The trial court overruled the motion. Watson
presented no evidence in his behalf, and the court rendered its
decision of guilty. With regard to the robbery, the judge said:
[W]hat we have in th[is] case is a man who
attacks Mr. Shah, leaves him unconscious.
When Mr. Shah wakes up the money's gone and
shortly thereafter, sometime during that
same period of time an employee takes this
man to North Carolina to flee with no
property, not his blue calendar, no luggage,
not nothing. So it's a circumstantial case.
The question is whether or not he robbed the
man and the answer is obvious. Of course he
did. That's the reason he beat him up. He
beat him up, took the money and escaped to
North Carolina and stayed gone until they
found him in Georgia . . . .
II.
When the sufficiency of the evidence is challenged, we
consider all the evidence, and any reasonable inferences fairly
deducible therefrom, in the light most favorable to the party
that prevailed at trial, which is the Commonwealth in this case.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
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537 (1975). Witness credibility, the weight accorded the
testimony and the inferences to be drawn from proven facts are
matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The trial court's judgment will not be disturbed on appeal
unless it is plainly wrong or without evidence to support it.
See Code § 8.01-680. We will not substitute our judgment for
that of the trier of fact. See Cable v. Commonwealth, 243 Va.
236, 239, 415 S.E.2d 218, 220 (1992).
To convict Watson of robbery, the Commonwealth was required
to show beyond a reasonable doubt that Watson committed "the
taking, with intent to steal, of the personal property of
another, from his person or in his presence, against his will,
by violence or intimidation." Johnson v. Commonwealth, 209 Va.
291, 293, 163 S.E.2d 570, 572-73 (1968).
It is well established that circumstantial evidence is just
as competent and 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). The
Commonwealth's evidence, however, need not affirmatively
disprove all theories which might negate the conclusion that the
defendant committed the crimes; the conviction will instead be
sustained if the evidence excludes every reasonable hypothesis
of innocence. Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.
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The chain of necessary circumstances supporting guilt must be
unbroken. 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. Stover v.
Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981).
In this case, the only reasonable hypothesis flowing from
the evidence is that Watson took the money from the cash box in
the motel office after he savagely beat the elderly manager, who
possessed the office keys, into unconsciousness. This
hypothesis is supported by a chain of circumstances, which
provides more than a strong suspicion of guilt.
Watson had been staying in a room with several other men
but obtained his own room for one night, using a false name.
Watson gained entry into the locked office by falsely telling
Shah he wanted to pay rent, something he had never before
handled. Once inside, Watson pushed Shah down, locked the door,
forced the elderly man into an adjacent room and then
maliciously beat him.
Upon investigating the attack against Shah it was
discovered that the motel's money was missing, taken with the
use of the manager's keys last known to be in the manager's
possession when he was attacked by Watson. He is the last
person known to have been aware of where Shah was located and
the last person known to have been in the office before police
arrived. There is no evidence that anyone other than Watson
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entered the office or adjacent living quarters while Shah was
unconscious. The only evidence that someone else might have
been near the crime scene is the investigating officer's
testimony that when he arrived, approximately fifteen minutes
after the first officers responded to the 911 call, motel
residents were "milling around," but outside the motel office.
While there was no specific testimony or evidence
surrounding the theft, "[o]pportunity . . . when reinforced by
other incriminating circumstances, may be sufficient to
establish criminal agency beyond a reasonable doubt." Christian
v. Commonwealth, 221 Va. 1078, 1082, 227 S.E.2d 205, 208 (1981);
see also Phan v. Commonwealth, 258 Va. 506, 514, 521 S.E.2d 282,
286 (1999) (each single piece of evidence may be insufficient,
but "the combined force of many concurrent and related
circumstances . . . may lead a reasonable mind irresistibly to a
conclusion" (citations omitted)).
Further, Shah's unconscious state, which facilitated the
theft, was a direct result of having been beaten severely by
Watson. The record contains no evidence of animosity between
Watson and Shah that might explain the beating. The reasonable
inference, then, is that Watson's violent attack on Shah was a
precursor to the robbery. For what other purpose would a
twenty-one-year-old man savagely beat and choke a
seventy-year-old man without provocation after luring him into a
closed office where the cash box was kept? See Ingram v.
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Commonwealth, 192 Va. 794, 803, 66 S.E.2d 846, 851 (1951) ("for
what purpose [except rape] would a man attack a defenseless
woman, at night, dressed in her nightclothes"). "Inferences and
deductions from human conduct may be properly drawn when they
follow naturally from facts proven." Id. Accord Green v.
Commonwealth, 223 Va. 706, 711-12, 292 S.E.2d 605, 608-09 (1982)
(affirming a fifteen year old's conviction for an attempted rape
of a sixty-five-year-old woman who threw the victim to the floor
and removed her clothes after entering her house on pretext, but
fled when her husband approached).
The dissent relies on Commonwealth v. Smith, 259 Va. 780,
529 S.E.2d 78 (2000), to find the evidence insufficient to
support Watson's robbery conviction. We find the case
distinguishable.
In Smith, the victim had been drinking heavily when Smith
approached him and spoke a few instigating words regarding
Smith's relationship with the victim's spouse. Smith then
punched the victim as he began to walk away. The victim kept
walking away, but then fell unconscious on a public street.
When the victim awoke, hours later in a hospital, he was being
treated for knife wounds. No evidence was produced relating to
what happened in the interval time between the victim falling
unconscious and then awaking in the hospital to find that he had
been stabbed. The only evidence that Smith had committed the
crime, on a public street, was that some of the knife wounds
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were in the same place Smith had punched the victim. The victim
testified he did not see Smith with any weapon nor did he see
blood when Smith punched him. Smith's conviction was overturned
on appeal based on the holding that the evidence raised no more
than a suspicion of guilt.
In contrast to Smith, Watson had no reason to maliciously
beat Shah. There is no evidence of animosity or conflict
between the two men. Shah's unconscious state, allowing for the
theft to occur, was caused by Watson's actions. Shah's beating
did not take place in public, but rather just prior to the
robbery in a private, locked office where the motel's money was
kept. Watson is the last person known to have access to that
office which he gained by subterfuge and subsequent use of
violent force. There is also the evidence that Watson remained
on the motel's premises shortly thereafter until he could flee,
without any of his belongings, including personal property that
provided police with his true identity, originally thought to be
"James Peters."
From the totality of these circumstances, the trial judge
could conclude beyond a reasonable doubt that Watson committed
the Courtland Inn Motel robbery. We find that the Commonwealth
met its burden of proving the guilt of Watson for the crime of
robbery to the exclusion of every reasonable hypothesis
consistent with his innocence. Finding there was sufficient
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evidence for the trial court to convict the appellant of
robbery, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
The Commonwealth bears the burden of proving every element of
a criminal offense beyond a reasonable doubt. Adkins v.
Commonwealth, 20 Va. App. 332, 342, 457 S.E.2d 382, 387 (1995).
Thus, when a conviction is based on circumstantial evidence, "all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence." Inge v. Commonwealth, 217 Va. 360,
366, 228 S.E.2d 563, 567 (1976). "[M]ere opportunity to commit an
offense raises only 'the suspicion that the defendant may have
been the guilty agent.'" Christian v. Commonwealth, 221 Va. 1078,
1082, 227 S.E.2d 205, 208 (1981) (citation omitted). The
principle is well established, however, that "a suspicion of
guilt, however strong, or even a probability of guilt, is
insufficient to support a criminal conviction." Bishop v.
Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).
Although the evidence proved beyond a reasonable doubt that
Marlon Germaine Watson severely beat Jagmohan Shah, no evidence
proved who took the money from the office. During the beating,
Shah lapsed into unconsciousness and remained in the office for
almost three hours before the police arrived. No evidence proved
what transpired in the interval of time between the beating and
the arrival of the police officers. The officer who responded to
Shah's telephone call testified that the door to the office was
unlocked when he arrived and that people were gathered around
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outside the office. No one saw when or under what circumstances
the money was taken.
Citing two robbery cases, People v. Adams, 81 Cal. Reptr.
378, 380 (Cal. App. 1969), and Sinks v. State, 133 N.E.2d 563, 565
(Ind. 1956), the Commonwealth argues that the evidence was
sufficient to convict Watson for robbery even though no person saw
the theft and Shah was unconscious. In Adams, the evidence proved
the following:
The [victim, the defendant and the
defendant's acquaintance] started walking
down the street [at 3:00 a.m.]. Defendant
suddenly put his arm around [the victim's]
neck, forced him to the ground and fell on
top of him. [The victim] was greatly
frightened. He asked what defendant wanted
and defendant replied that he wanted all of
[the victim's] money. [The victim] could
feel defendant going through his pockets.
[The victim] was rendered unconscious. He
awoke in a pool of blood and found his
wallet gone and the pocket in which it had
been kept torn. Also missing were the
contents of his wallet: about $50.00 in
cash, four credit cards, his driver's
license and miscellaneous identification.
81 Cal. Reptr. at 378-79.
In Sinks, the evidence proved that the victim drank beer
for hours with the two defendants. 133 N.E.2d at 564. As the
victim left to go to a hotel with the defendants, they assured
him that his money could be safely left with the hotel clerk and
that they would not take his money. Id. The evidence further
proved the following:
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They had gone only a few steps when [one
defendant], without saying a word, turned
around and struck [the victim], knocking him
down on the sidewalk and rendering him
unconscious. At the time [one defendant]
struck him, [the other defendant] had his
hand on [the victim's] shoulder.
About three minutes after the three left
the tavern, the tavern owner looked out the
window and saw [the victim] lying on the
sidewalk. Between the time the three left
the tavern and [the victim] was seen lying
on the sidewalk, no one came through the
front door of the tavern, and no one was
seen going by the place where he was lying.
. . . [The defendants] were arrested about
a half hour later at an all night restaurant
. . . . As a result of a search, $27.35 was
found on [one defendant] and $16 on [the
other defendant]. Both men at the time
stated they had borrowed the money. In the
presence of a police officer the next
morning at the County Jail, [the victim]
accused both [defendants] of striking him
and robbing him, and each of them offered to
repay [the victim] if he would not have them
prosecuted.
Id.
Both cases are inapposite to the circumstances of this
case. In Adams, the evidence proved that the defendant demanded
money from the victim and searched his pockets before the victim
lost consciousness. In Sinks, the evidence proved that after
beating the victim, the defendants lied about borrowing money
from the victim and sought to reimburse the victim when accused
of robbery. In addition, the evidence in Sinks affirmatively
proved no other person approached the victim after the assault.
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No such similar circumstances or evidence in this case tends to
prove Watson took the money from the drawer.
Neither the testimony of Shah nor any other evidence tends
to prove the circumstances surrounding the theft of the money.
As in Commonwealth v. Smith, 259 Va. 780, 529 S.E.2d 78 (2000),
the record contains insufficient evidence to prove who committed
the offense. The Commonwealth argues that Smith is not
controlling because the victim in Smith "was not aware he had
been stabbed until he 'came to' later in a hospital."
Therefore, the Commonwealth contends it is left to surmise who
stabbed the victim after the accused beat him. That lack of
evidence is precisely the flaw in the Commonwealth's proof
concerning the robbery of Shah. Although the evidence proved
beyond a reasonable doubt the assault, no evidence tends to
prove the identity of the person who took the money. Watson
made no demands for money from Shah. Moreover, Shah was
unconscious for hours after the beating. The Commonwealth's own
evidence proved that the door to the office was not locked when
the officer responded to Shah's telephone call and that people
were milling around outside the office.
As in Smith, the evidence proved that the accused committed
a criminal act against the victim. Here, Watson maliciously
wounded Shah and was convicted for that act. Similarly, as in
Smith, the evidence is not inconsistent with the hypothesis that
someone else committed the separately charged offense. "The
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guilt of a party is not to be inferred because the facts are
consistent with his guilt, but they must be inconsistent with his
innocence." Cameron v. Commonwealth, 211 Va. 108, 110-11, 175
S.E.2d 275, 276 (1970).
The evidence proved that Watson left the motel two and a half
hours after beating Shah. This conduct is as consistent with
guilt of the felonious wounding as with any other hypothesis.
When, as here, the evidence raises only an inference concerning
the identity of the thief of the property and the evidence does
not exclude the hypothesis that Watson was not the taker, the
evidence amounts only to a suspicion of Watson's guilt. Evidence
that proves the accused committed one offense and, because of his
mere presence, had the opportunity to commit a second offense
provides only the suspicion that the accused committed the second
offense. See Smith, 259 Va. at 784, 529 S.E.2d at 79. That
suspicion "'no matter how strong is insufficient to sustain a
conviction.'" Id.
For these reasons, I would reverse the robbery conviction
and dismiss the indictment.
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