COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton, Bumgardner
and Lemons
Argued at Richmond, Virginia
KIMBERLY P. MARTIN, S/K/A
KIMBERLY PAIGE MARTIN
MEMORANDUM OPINION * BY
v. Record No. 1556-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
Lindsay G. Dorrier, Jr., for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kimberly P. Martin (appellant) was convicted in a jury trial
of grand larceny in violation of Code § 18.2-95 and statutory
burglary in violation of Code § 18.2-91. On appeal, she
contended that the trial judge erred in refusing to grant her
motion to set aside the jury verdicts. In an unpublished
opinion, Martin v. Commonwealth, No. 1556-97-2 (Va. Ct. App.
June 9, 1998), a panel of this Court reversed and dismissed the
convictions. On petition of the Commonwealth, we granted
rehearing en banc to consider whether the evidence was sufficient
to sustain the jury verdicts. On rehearing en banc, we affirm
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
appellant's convictions.
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I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
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). So viewed, the evidence established that
appellant was employed at Brown's Cleaners until "a couple of
months" before the store was burglarized in the early morning
hours of January 8, 1996. One of the co-owners of the store,
Harry Brown (Brown), had terminated appellant after learning that
she had given false information in an employment statement. When
appellant left her job, her key to the premises was recovered but
the combination to the safe was not changed by Brown. At the
time of the burglary, the co-owners of the store, four current
employees, and appellant were the only individuals who knew the
combination to the safe.
On the night of the burglary, Eddie Mawyer (Mawyer) was
plowing snow from the parking lot of the shopping center in which
Brown's Cleaners was located. Between 3:00 a.m. and 4:00 a.m.,
Mawyer observed a four-wheel drive vehicle enter the parking lot.
He saw two women, one of whom was wearing a Chicago Bulls
jacket, get out of the car and walk toward Brown's Cleaners.
After five or ten minutes passed, the women failed to return and
Mawyer suspected that "something must be going on." He
approached the side of the dry cleaners, saw that the window had
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been broken, and noticed "a shadow of people inside." Earlier
that night, the window to the store had been intact.
Mawyer went to a nearby telephone in the parking lot and
called the police to report the burglary. As he was giving the
license plate number of the vehicle to the police, a woman, whom
Mawyer identified as appellant, approached him and began to speak
with him.
Officer Michael Deeds (Deeds) was the first officer to
arrive at the scene. He noted that the side glass window had
been broken. There were also footprints, which appeared to be
made from a "lug-soled" or "mountain climbing-type" boot or shoe,
that led from the broken glass to the back of the cleaners and
then to the back of Kmart, another store located in the shopping
center.
Deeds spoke with appellant, who told him that she and her
companion, Heather Mortenson, had been walking, sledding, and
tubing in the snow. Mortenson was wearing a Chicago Bulls
jacket, and appellant was wearing some other sports team jacket.
Both women denied entering the cleaners. Deeds then examined
the soles of appellant's shoes and noted that appellant and
Mortenson were wearing "lug-soled" shoes. Deeds compared
appellant's shoes, "as to size," to the footprints in the snow,
and they were "very similar." The footprints also appeared to be
"the same impression [as] the bottom of [appellant's] tread."
Several other police officers arrived and the two women were
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later escorted from the scene. However, twenty or thirty minutes
later both appellant and Mortenson were seen walking behind the
Kmart store. When the officers asked them why they were in the
area again, they replied that "they were just walking again."
Both women denied involvement in the burglary and were released
within a few minutes.
Officers Stephen Upman and Tom McKeen went to the rear of
the Kmart store and saw two sets of footprints leading away from
the cleaners along the rear alley. The officers followed these
footprints and discovered underneath a pile of snow a pillowcase
containing money, money pouches, a money box, a diskette case,
and a brick. Officer Upman testified that thirty or forty
minutes after the police released appellant and Mortensen, he saw
a man, later identified as William Frazier, and a boy walking
from behind the Kmart.
The evidence further established that Brown's Cleaners
usually closed at 9:00 p.m. on Sundays, but that it may have
closed a little earlier on January 7 because of the blizzard.
While Brown did not personally close the store and lock the safe
on January 7, he testified that the store's money bags were
"always" placed in the safe at the end of the day. Brown
verified that the money found in the pillowcase behind the Kmart
had been taken from his business.
At trial, appellant testified on her own behalf. She
confirmed that her companion, Mortenson, was wearing a Chicago
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Bulls jacket on January 7 and that the two women were walking
through the parking lot to go tubing with some other persons.
While she denied her involvement in the burglary, she admitted on
cross-examination that she knew the combination to the safe and
was aware that at least $150 is left in the safe each night for
the morning business.
The jury convicted Martin of grand larceny and statutory
burglary. She was sentenced to serve two consecutive
twelve-month jail sentences. In an unpublished opinion, a panel
of this Court reversed and dismissed the convictions. On
petition of the Commonwealth, we granted rehearing en banc to
consider whether the evidence was sufficient to sustain the jury
verdicts.
II.
On appeal, "[w]e may not disturb the trial court's judgment
unless it is `plainly wrong or without evidence to support it.'"
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,
904 (1998) (citation omitted). In addition, "the inferences to
be drawn from proven facts are matters solely for the fact
finder's determination." Marshall v. Commonwealth, 26 Va. App.
627, 633, 496 S.E.2d 120, 123 (1998).
In the instant case, the evidence, when viewed in the light
most favorable to the Commonwealth, was sufficient to prove
appellant's criminal agency in the burglary and grand theft of
her former employer. The law is well settled that
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"'[c]ircumstantial 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.'" McBride v. Commonwealth, 24 Va. App. 603, 606, 484
S.E.2d 165, 167 (1997) (quoting Coleman v. Commonwealth, 226 Va.
31, 53, 307 S.E.2d 864, 876 (1983), cert. denied, 465 U.S. 1109
(1984)). "The fact finder is not required to believe testimony
that is inconsistent with the facts, may reject testimony that
has been impeached, and may rely solely upon circumstantial
evidence to prove an offense, provided the circumstances point
unerringly to prove the necessary elements of the offense." Doss
v. Commonwealth, 23 Va. App. 679, 685, 479 S.E.2d 92, 95 (1996).
Here, the trier of fact reasonably could have concluded that
the two persons who exited the four-wheel drive vehicle,
appellant and Mortenson, were the same individuals who went to
the dry cleaners, broke its window, and then went inside to steal
the money and other items from the safe. Both women were wearing
boots that were similar to the two sets of footprints near the
scene of the burglary. These footprints led away from the
cleaners to the back of the Kmart, where the stolen money was
found in a pillowcase underneath a pile of snow.
The evidence established that appellant was aware of the
procedures used by the cleaners and knew the combination to the
safe. Although appellant denied any involvement in the burglary,
the jury was not required to believe her nor give any weight to
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her testimony. "In its role of judging witness credibility, the
fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to
conceal [her] guilt." Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998).
The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of both charges.
Accordingly, appellant's convictions are affirmed.
Affirmed.
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Benton, J., dissenting.
The majority holds that the evidence was sufficient to prove
Kimberly P. Martin's guilt beyond a reasonable doubt. I
disagree. While we are bound to review the evidence in the light
most favorable to the Commonwealth, we must not lose sight of the
fact that "whether a criminal conviction is supported by evidence
sufficient to prove guilt beyond a reasonable doubt is not a
question of fact but one of law." Bridgeman v. Commonwealth, 3
Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). We must reverse
Martin's convictions if the evidence is insufficient to prove her
guilt beyond a reasonable doubt. See In re Winship, 397 U.S.
358, 364 (1970).
The evidence creates only a suspicion that Martin may have
committed the burglary and larceny. The principle is well
established, however, that "[s]uspicious circumstances '"no
matter how grave or strong, are not proof . . . beyond a
reasonable doubt . . . ."'" Burchette v. Commonwealth, 15 Va.
App. 432, 438-39, 425 S.E.2d 81, 86 (1992) (citations omitted).
For this reason, we and the Supreme Court have consistently held
that suspicious circumstances or even probability of guilt are
insufficient to support a conviction. See Littlejohn v.
Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)
(citing Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78
(1977)).
The evidence proved that on the night of this incident, the
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driver of a snowplow was clearing the shopping center parking lot
following a thirty-inch snowfall. Martin and Mortenson drove
onto the parking lot and walked toward the cleaners. A
passageway by the side of the cleaners led to the rear of the
shopping center and to a hill that sloped down to a residential
area. When the two women did not return to their vehicle after
ten minutes, the snowplow driver became curious and pushed snow
toward the cleaners. Although the snowplow driver saw shadows of
people inside the building, he neither saw Martin enter the
building nor saw her inside the building. No evidence proved
that either Martin or Mortenson went inside the cleaners. When
the police questioned Martin, she denied being in the building
and told the police that she and Mortenson were there because
they had intended to go sledding. At most, the evidence proved
that Martin walked toward the building and the passageway.
Proof that Martin had been employed at the cleaners and knew
the combination to the safe also raised only a suspicion of
guilt. The evidence did not establish that the safe was locked
prior to the burglary or that the money taken from the cleaners
had been locked in the safe. In fact, during their
investigation, the police recovered "a red money box that [the
owner kept] on the desk in the office." The evidence further
proved that the cleaners unexpectedly closed early the previous
day because of the heavy snowfall. Thus, the evidence did not
prove that the burglar opened the safe, did not exclude the
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possibility that the person who closed the cleaners failed to
lock the safe that night, or did not even prove that the burglar
took money from a locked safe.
Moreover, the evidence does not exclude the reasonable
hypothesis that another person committed the crime. Where a
verdict is based on circumstantial evidence, "'all necessary
circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Stover v. Commonwealth, 222 Va. 618,
623, 283 S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth,
217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "When, from the
circumstantial evidence, 'it is just as likely, if not more
likely,' that a 'reasonable hypothesis of innocence' explains the
accused's conduct, the evidence cannot be said to rise to the
level of proof beyond a reasonable doubt." Littlejohn, 24 Va.
App. at 414, 482 S.E.2d at 859 (quoting Haywood v. Commonwealth,
20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)).
Although the evidence established that Martin's boots were
"very similar" to the footprints in the snow near the cleaners,
that evidence merely confirms the snowplow driver's testimony
that Martin walked toward the building and the passageway.
Significantly, no evidence proved that the footprints leading to
the cleaners matched the footprints leading away from the
cleaners to the money that was hidden behind the Kmart store.
The evidence also failed to prove that the footprints in the snow
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leading to the place where the stolen property was hidden had any
unusual qualities that made it likely that the prints were made
by Martin's boots.
In addition, only thirty to forty minutes after Martin and
Mortenson were allowed to leave the shopping center, the police
officers saw two other individuals ten to twenty feet away from
the location of the stolen property. The police did not examine
those individuals' shoes or try to match them to the footprints
in the snow. While the Commonwealth is not required to exclude
the possibility that another person may have committed the crime,
see Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d
829, 831 (1991), the Commonwealth is required to exclude
hypotheses of innocence that flow from the evidence. See id.
See also Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373
S.E.2d 328, 338-39 (1988) (stating that the Commonwealth need not
"'exclude every possible theory or surmise,'" but it must exclude
those hypotheses "'"which flow from the evidence itself."'"
(citations omitted)). The existence of these two other
individuals near the cleaners and only a few feet away from the
stolen property creates a reasonable hypothesis that someone
other than Martin committed the burglary.
The evidence, even viewed in the light most favorable to the
Commonwealth, creates only a suspicion or probability of guilt.
"A conviction based upon a mere suspicion or probability of
guilt, however strong, cannot stand." Bridgeman, 3 Va. App. at
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528, 351 S.E.2d at 601-02. Thus, I would reverse Martin's
convictions and dismiss the indictments.
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