COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Annunziata
Argued at Richmond, Virginia
JACOB DANIEL AQUINO
MEMORANDUM OPINION * BY
v. Record No. 3041-99-2 JUDGE LARRY G. ELDER
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Ali J. Amirshahi for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jacob Daniel Aquino (appellant) appeals from a judgment of
the Circuit Court for the City of Richmond convicting him of
three counts of robbery, one count of attempted robbery, and
four counts of using a firearm in the commission of a felony.
He contends the Commonwealth's evidence was insufficient as a
matter of law to identify him as the perpetrator of these
crimes. We hold that the Commonwealth's identification evidence
was not unreliable as a matter of law and was sufficient to
prove appellant's guilt beyond a reasonable doubt. Accordingly,
we affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Background
On May 21, 1999, around 3:00 a.m., Chris Kasper, Jason
Sheldon, Suntek Chung, and Marilyn Brogan were walking home when
they stopped to admire a fountain by the Richmond Public
Library. A man walked up, asked about the fountain, then
produced a revolver and instructed the four to throw their
wallets to the ground. After Kasper, Sheldon, and Chung
surrendered their money, the robber thanked them and ran off.
Kasper and Sheldon indicated that the robbery lasted
between five and ten minutes. Kasper, Sheldon, and Chung each
stated that he had an opportunity during the robbery to observe
the perpetrator's face. 1
Within a week after the robbery, a detective showed the
victims a six-photograph police lineup that included a
photograph of appellant. Kasper and Sheldon identified
appellant as the robber. Chung wavered between appellant and
another person and eventually selected the other person.
At trial, Kasper, Sheldon, and Chung identified appellant
as the robber. Although the victims admitted they had been
drinking beer earlier that night, none indicated that he was
intoxicated at the time of the robbery.
1
Brogan was out of the country and did not testify at
trial.
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Upon cross-examining each victim, appellant had his
brother, Andrew Aquino (Andrew), enter the courtroom so he could
be observed by the witness.
Kasper admitted it was "possible" that Andrew was the
robber. He reiterated, however, that the robber looked like
appellant as appellant appeared in the lineup photograph. And
upon being shown a photograph of Andrew, Kasper stated that
Andrew did not look like the robber. He further noted that
appellant's appearance at trial was different from his
appearance in the lineup photograph.
Sheldon initially denied the possibility that Andrew was
the robber. He finally stated that it "could be possible" after
appellant asked whether he was certain in his identification of
appellant "beyond any doubt in your mind whatsoever." Upon
looking at a photograph of Andrew on re-direct, Sheldon
indicated that Andrew was not the robber, remarking "[t]his
gentleman is much skinnier."
Chung did not waver in his identification of appellant at
trial as the robber, and he was adamant that Andrew was not the
perpetrator.
Analysis
"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.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
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(citation omitted). "When such evidence leads to the conclusion
of guilt beyond a reasonable doubt, and excludes every
reasonable hypothesis of innocence, it is sufficient to support
a finding of guilty." Avent v. Commonwealth, 209 Va. 474, 477,
164 S.E.2d 655, 657 (1968). "This Court does not substitute its
judgment for that of the trier of fact, and the 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) (citation omitted).
"A conviction based upon a mere suspicion or probability of
guilt, however strong, cannot stand." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02
(1986). But "[t]he Commonwealth is not required to exclude the
possibility that another may have committed the crime." Johnson
v. Commonwealth, 15 Va. App. 73, 76, 422 S.E.2d 593, 594 (1992)
(emphasis added), aff'd, 248 Va. 444, 448 S.E.2d 426 (1994);
Parrish v. Commonwealth, 17 Va. App. 361, 365, 437 S.E.2d 215,
217 (1993) (noting that the Commonwealth need not "negate every
possibility" of innocence). The Commonwealth is "required only
to establish guilt of the accused to the exclusion of a reasonable
doubt." Bridgeman, 3 Va. App. at 526-27, 351 S.E.2d at 600
(emphasis added).
In determining the sufficiency of evidence to support a
conviction where a witness' identification is challenged, we
look to the reliability factors enunciated in Neil v. Biggers,
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409 U.S. 188 (1972), as significant circumstances that may be
considered along with other evidence. See Charity v.
Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997).
These factors include
the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
of the witness' prior description of the
criminal, the level of certainty
demonstrated by the witness at the
confrontation, and the length of time
between the crime and the confrontation.
Biggers, 409 U.S. at 199-200.
"[E]vidence of a pre-trial identification is admissible and
may be sufficient to overcome deficiencies existing in an
in-court identification." Martin v. Commonwealth, 210 Va. 686,
692, 173 S.E.2d 794, 799 (1970).
An identification made by a victim or an
eyewitness soon after a crime has been
committed may be more objective and accurate
and have greater probative value than one
made later in court when unduly suggestive
circumstances, if present, or the changed
appearance of the defendant, might adversely
affect the identifier's testimony.
Moreover, the memory of a witness may fade
. . . .
Niblett v. Commonwealth, 217 Va. 76, 82, 225 S.E.2d 391, 394
(1976).
Chung unequivocally identified appellant at trial as the
robber and did not waver when asked whether it was possible
Andrew was the culprit. Although Kasper and Sheldon, when
pressed, admitted it was possible that Andrew was the robber,
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neither recanted his identification of appellant from the photo
lineup. Moreover, there was evidence that appellant's
appearance had changed from the date of the robbery and the date
of trial.
We cannot say that the Commonwealth's identification
evidence was inherently unreliable. Nor can we say that the
jury was plainly wrong in believing this evidence. Accordingly,
the judgment of the trial court will not be disturbed.
Affirmed.
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