COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
MELVIN JAMES MARSHALL, JR.
MEMORANDUM OPINION * BY
v. Record No. 0576-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Frank G. Aschmann (Aschmann & Aschmann, on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Melvin James Marshall, Jr. (appellant) was convicted in a
bench trial of grand larceny, in violation of Code § 18.2-95. The
sole issue raised on appeal is whether the evidence was sufficient
to establish that he was the perpetrator of the crime. Finding
the evidence sufficient, we affirm.
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 fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"The burden is upon the Commonwealth, however, to prove beyond a
reasonable doubt that [the defendant] was the perpetrator of the
crimes." Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d
662, 668 (1991). "Additionally, circumstantial evidence is as
competent, and entitled to the same weight, as direct testimony
if such evidence is sufficiently convincing." Id. It is true
that, in a case based upon circumstantial evidence, the
Commonwealth must exclude every reasonable hypothesis of
innocence. See Cantrell v. Commonwealth, 7 Va. App. 269, 289,
373 S.E.2d 328, 338 (1988). "However, '[w]hether the
Commonwealth relies upon either direct or circumstantial
evidence, it is not required to disprove every remote
possibility of innocence, but is, instead, required only to
establish guilt of the accused to the exclusion of a reasonable
doubt.'" Id. (quoting Bridgeman v. Commonwealth, 3 Va. App.
523, 526-27, 351 S.E.2d 598, 600 (1986)).
In the present case, all the evidence presented by the
Commonwealth was circumstantial. Any criminal charge may be
proved by circumstantial evidence "[w]here all the circumstances
of time, place, motive, means, opportunity and conduct concur in
pointing out the accused as the perpetrator of the crime."
Schlimme v. Commonwealth, 16 Va. App. 15, 18, 427 S.E.2d 431,
433-34 (1993) (citations omitted). Thus, "we consider the
evidence as a whole in deciding whether it is sufficient to
support the jury's findings that [the defendant] was the
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perpetrator of the crimes." Chichester v. Commonwealth, 248 Va.
311, 329, 448 S.E.2d 638, 650 (1994).
Viewed in the light most favorable to the Commonwealth, the
evidence established that after appellant made a delivery to Jay
Elliot on the second floor of JLE Productions, appellant went
downstairs. From the upstairs loft, Elliot saw appellant enter
Edit Room 2, which did not have an exit to the outside.
Although Elliot could not see appellant in the editing room, he
heard a cable drop on the floor. After hearing the outside door
close, Elliot went downstairs and discovered that a laptop
computer, which he had been working on five to fifteen minutes
before appellant arrived, was missing. The laptop cable
remained on the floor. No one else entered the office during
that time. At trial, Elliot identified appellant as the courier
in his office on September 29, 1998.
In addition to the factors of time, place, means and
conduct, the circumstantial evidence established motive, from
which the trial court could infer that appellant was the
perpetrator. Appellant testified that he owed the IRS $3,000 in
taxes and, when confronted with his log sheet for the day, he
admitted he had falsified the entries to change the order of his
deliveries. Although appellant testified that he did not take
the laptop computer from JLE Productions, "[i]n its role of
judging witness credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the accused and to
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conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
The Commonwealth presented evidence as to each factor in
Schlimme and the inference of guilt was "reasonable, justified
and compelling and left no reasonable room for doubt." Fisher
v. Commonwealth, 16 Va. App. 447, 453, 431 S.E.2d 886, 890
(1993) (citation omitted). The Commonwealth's evidence was
competent, was not inherently incredible and was sufficient to
prove beyond a reasonable doubt that appellant was guilty of
grand larceny. Accordingly, appellant's conviction is affirmed.
Affirmed.
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