COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
GLEN HINES, S/K/A
GLEN M. HINES
MEMORANDUM OPINION * BY
v. Record No. 3049-99-1 JUDGE LARRY G. ELDER
NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Fabio Crichigno, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Glen M. Hines (appellant) was convicted in a bench trial
for grand larceny in violation of Code § 18.2-95. On appeal, he
contends the circumstantial evidence was insufficient to prove
he was the criminal agent. We hold that the circumstantial
evidence, viewed in the light most favorable to the
Commonwealth, excluded all reasonable hypotheses of appellant's
innocence, and we affirm his conviction.
We examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
deducible therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). 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. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989). The fact finder is not
required to believe all aspects of a witness' testimony; it may
accept some parts as believable and reject other parts as
implausible. See Pugliese v. Commonwealth, 16 Va. App. 82, 92,
428 S.E.2d 16, 24 (1993).
"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). "[T]he 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). Where "[t]he circumstances of motive, time, place,
means, and conduct . . . all concur to form an unbroken chain
which links the defendant to the crime beyond a reasonable
doubt," the circumstantial evidence is sufficient to support the
conviction. Bishop v. Commonwealth, 227 Va. 164, 169, 313
S.E.2d 390, 393 (1984).
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Here, the evidence, viewed in the light most favorable to
the Commonwealth, supported the trial court's finding that
appellant was the only person who could have taken the VCR,
Nintendo and game cartridge from Shelton Morton's bedroom. If
the court credited Aaron Padin's testimony, which it was
entitled to do, these items were missing only minutes after
Padin had been using them and disappeared during the span of
only a few minutes, during which time appellant was alone in
Morton's house. Padin testified that this period of time,
although brief, was long enough for appellant to have unplugged
the items taken.
During the time appellant was alone inside the house,
appellant's companion engaged Padin in conversation and sat such
that he blocked Padin's view of the front of the house with his
body. Although appellant was not carrying anything in his hands
when he left the house, he brushed past Padin in the doorway and
left in a hurry without even making eye contact with him.
Appellant told Padin he would "be right back," but Padin heard
appellant's car leave about thirty seconds later, and appellant
did not return.
Shortly thereafter, Morton returned home and discovered
that a window located in the front of the house and ordinarily
kept locked was open. The window was partially obscured by
bushes. Also open was the back door to the house. Although no
one saw appellant leave Morton's house with the missing items,
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appellant had the opportunity to place the items outside the
house either through the open window, where they would have been
obscured by the bushes, or through the back door, which was not
visible from the front of the house. He also had the
opportunity to retrieve the items during the period after Padin
re-entered the home but before appellant departed in his
automobile. Other evidence established that appellant had a
crack "problem" during this period of time and that he had taken
money from his own girlfriend only a few days before Morton's
VCR and Sarah Miller's Nintendo and game cartridge disappeared.
In light of this evidence, "[t]he circumstances of motive,
time, place, means, and conduct . . . all concur[red] to form an
unbroken chain" linking appellant to the larceny of the VCR,
Nintendo and game cartridge beyond a reasonable doubt. As the
trial court expressly found, the time frame in which these
events occurred was very narrow, and no other reasonable
hypotheses flowed from the evidence in the record. Finally, the
evidence in the record further supported a finding that the
combined value of the VCR, Nintendo and game cartridge was $399,
well in excess of the $200 required to support a conviction for
grand larceny. 1
1
We assume without deciding that the evidence was
insufficient to support appellant's conviction for taking the
portable stereo. Although the stereo was missing when Morton
and Miller returned home and appellant had the opportunity to
take the stereo when he took the VCR and Nintendo, the evidence
established that Morton's home was routinely left unlocked, and
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For these reasons, we hold that the circumstantial evidence
excluded all reasonable hypotheses of appellant's innocence, and
we affirm his grand larceny conviction.
Affirmed.
no evidence established when Morton or Miller last saw the
stereo. Nevertheless, as discussed in the text of the opinion,
the evidence of value of the VCR, Nintendo and game cartridge
was sufficient to support appellant's conviction for grand
larceny.
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Benton, J., dissenting.
The resolution of this case is governed by fundamental
principles. Evidence that tends to prove only that the accused
"had the opportunity to commit the crime" is insufficient to
prove the accused was the criminal agent. See Lewis v.
Commonwealth, 211 Va. 497, 499, 178 S.E.2d 530, 531 (1971). The
principle is well established that the accused "is not to be
prejudiced by the inability of the Commonwealth to point out any
other criminal agent, nor is he called upon to vindicate his own
innocence by naming the guilty man." Thomas v. Commonwealth,
187 Va. 265, 272, 46 S.E.2d 388, 391 (1948). In this case, as
in every criminal prosecution, "'[i]t 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.'" Christian v. Commonwealth, 221
Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (citation omitted).
The homeowner's grandson, who lived in the house, testified
that he habitually left the house unlocked, including the back
door, so that "people could come and go as they wanted." He
also testified that Glen Hines has been his friend for seven
years.
Aaron Padin testified that he left a nightclub after one
o'clock in the morning and went to the house. When he arrived,
no one else was there. He entered through an unlocked door.
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Hines, whom Padin had known for two years, arrived at the house
a half hour later. The front door was still unlocked when Hines
arrived. Hines walked in the house, said, "Hello, Hello," and
came into the bedroom where Padin was watching television.
After Hines and Padin talked and discussed "where everybody was
. . . and what [they] had done that night," Hines asked Padin to
walk outside with him to view something. Padin accompanied
Hines to a car parked at the front of the house. Hines, Padin,
and a person in Hines' automobile "engaged . . . in a
conversation about what [Padin and his friends] did that night
and all this and [one of the men] asked [Padin] if [he] wanted
to buy a bag of marijuana." During the discussion, Hines went
inside to use the bathroom. After Hines was in the house about
"two minutes," Padin returned to the house. When Padin reached
the front door, he met Hines. Leaving the house, Hines said
"I'll be right back." Hines wore pants and a tee-shirt; he was
carrying nothing and had nothing in his hands.
Padin did not go to the bathroom to confirm whether Hines
had been there. Padin walked ten to twelve steps to the
bedroom, saw that the light had been shut off, and discovered
the video recorder and electronic game were missing. Padin
testified that he heard Hines' automobile leave "as soon as [he]
got to the bedroom and cut the light on."
Later, the homeowner's grandson discovered that a window in
the bedroom was open, a window in another bedroom was open, and
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the back door was open. He also noticed a radio had been
removed from the living room. Padin had not seen the radio and
could not know whether it was in the house when he first
arrived.
When, as in this case, a conviction is based on wholly
circumstantial evidence, the circumstances proved "must each be
consistent with guilt and inconsistent with innocence, and . . .
they must concur in pointing to the defendant as the perpetrator
beyond a reasonable doubt." Cantrell v. Commonwealth, 229 Va.
387, 398, 329 S.E.2d 22, 29 (1985). "This is not the sort of
circumstantial evidence which forges the unbroken chain
necessary to establish the culpability of an accused and which
is consistent with guilt and inconsistent with innocence."
Lewis, 211 Va. at 499, 178 S.E.2d at 532. The evidence does not
prove the length of time Padin stood outside and talked with
Hines and his friend before Hines entered the house. Padin
testified that he was "stooped down talking to the passenger"
and that his view of the house was blocked. Moreover, it was
very dark outside. He could not see the front, side, or back of
the house. Thus, the evidence clearly proved that the house was
unlocked, accessible, and unoccupied for an unknown period of
time while the three men were outside discussing a purchase of
marijuana. The opportunity existed for any thief to enter the
house through the unlocked back door or an unobserved, open
window and remove the property.
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This case resembles Lewis, in which the accused was the
only individual known to have been in a house during the time in
which a larceny occurred. Lewis had easy access to the house
because he kept some of his possessions there. 211 Va. at 498,
178 S.E.2d at 531. Significantly, and unlike this case, Lewis
had on his person at the time of arrest an amount of money
similar to that which was taken from the house. Id. at 499, 178
S.E.2d at 531. The Supreme Court reversed the conviction
because the circumstantial evidence was insufficient to support
a finding of guilt beyond a reasonable doubt. Id. Similarly,
in this case, the principal evidence against Hines is testimony
that he was in the house during the time period in which the
crime could have occurred. No evidence proved, however, that he
ever possessed the items reported stolen. Additionally, no
evidence proved through which opening the property left the
house. This case differs from Lewis in that the time involved
in this case apparently was shorter. This difference, however,
does not distinguish this case such that we should hold
differently because this factor "showed only that the defendant
had the opportunity to commit the crime." 211 Va. at 499, 178
S.E.2d at 531. Proof of opportunity alone is insufficient to
establish that the accused was the criminal agent. Id. See
also Duncan v. Commonwealth, 218 Va. 545, 547, 238 S.E.2d 807,
808 (1977).
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No evidence proved the radio was in the house when Hines
arrived. No evidence proved through which opening any of the
property left the house. It is also undisputed that no evidence
proved that Hines had possession of any of the property.
Moreover, the evidence proved that other houses were in close
proximity to this house. Thus, no evidence excludes the
hypothesis that the property was removed while Padin was outside
discussing with Hines and another man the purchase of marijuana.
At best the evidence raised only a suspicion or a
possibility that Hines may have taken the property; however,
those circumstances are insufficient to sustain a conviction.
See Rogers v. Commonwealth, 242 Va. 307, 320, 410 S.E.2d 621,
629 (1991). "[M]ere opportunity to commit an offense raises
only 'the suspicion that the defendant may have been the guilty
agent; and suspicion is never enough to sustain a conviction.'"
Christian, 221 Va. at 1082, 277 S.E.2d at 208 (citation
omitted). The record is manifest that the Commonwealth failed
to meet its burden of "prov[ing] every essential element of the
offense beyond a reasonable doubt." Moore v. Commonwealth, 254
Va. 184, 186, 491 S.E.2d 739, 740 (1997). Thus, I would reverse
the grand larceny conviction and dismiss the indictment.
I dissent.
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Glen Hines, s/k/a v. Commonwealth of Virginia
Combined Opinion