COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
DAVIS RANDOLPH BROWN
MEMORANDUM OPINION * BY
v. Record No. 0107-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Arthur W. Sinclair, Judge Designate
David L. Heilberg for appellant.
Richard B. Campbell, Assistant Attorney
General (Mark L. Earley, Attorney General;
John K. Byrum, Jr., Assistant Attorney
General, on brief), for appellee.
Davis Randolph Brown (appellant) was convicted in a bench
trial of three counts of breaking and entering with the intent to
commit larceny in violation of Code § 18.2-91 and three counts of
petit larceny in violation of Code § 18.2-96. Appellant contends
the evidence was insufficient to prove beyond a reasonable doubt
that he committed any of the offenses charged. We find no error
and affirm.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997). The only evidence presented at trial was
the testimony of the three larceny victims, Muscoe Garnett, Mary
Scott Kaiser and Christopher Spanos, and one additional witness,
John McAllister.
At approximately 8:00 a.m. on January 17, 1996, John
McAllister, a University of Virginia student, was asleep in his
loft bed at the Zeta Psi fraternity house. He awoke when an
unknown man, whom he identified at trial as appellant, opened the
door to his room, walked in, and asked him if he had tickets to
the Virginia-North Carolina basketball game that night.
McAllister responded that he did not. Appellant picked up
McAllister's wallet from a desk near the door, turned away from
McAllister, and sifted through the contents. He then wrote down
a number where he said McAllister could reach him if he "got wind
of any tickets," and left the room. McAllister came down from
the loft, checked his wallet and found the contents, including
three dollars, intact. Appellant was not charged with any crimes
relating to this incident.
Immediately after this encounter, McAllister walked down the
hall of the fraternity house past the room of Muscoe Garnett. As
he passed, McAllister heard Garnett talking to someone whose
voice sounded "like the same person that was just in my room."
At approximately 8:30 a.m. that day, Muscoe Garnett was in
his loft bed in his room with the door closed. A man matching
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appellant's description entered Garnett's room and asked him for
tickets to the North Carolina basketball game. Garnett answered
that he had none, and the intruder "bent down" in the vicinity of
where Garnett had left his pants on the floor under the end of
the loft. After the man left, Garnett climbed down from the
loft, checked his pants pocket, and found his wallet, containing
thirty to forty dollars, missing. He confronted the intruder,
who denied having taken the wallet. The intruder left the
fraternity house, and Garnett called police. Garnett was unable
to identify appellant as the man in his room.
At approximately 11:25 a.m. on the following day, January
18, 1996, Mary Scott Kaiser left her office in Clark Hall at the
University of Virginia and walked to an adjacent office suite.
Her office was "one of the back offices in a suite of offices.
To get there from the hall, you would have to go through one
central . . . door and then back [along] a hallway to my office
and through another door." Kaiser left her purse under a ledge
behind a box of paper next to her desk, and she closed both the
door to her office and the door to her office suite. No one else
was in her office suite at that time. When Kaiser returned
approximately five minutes later she encountered a man, whom she
identified at trial as appellant, leaving her office suite.
Appellant asked her where the buildings and grounds offices were
located. Kaiser gave him directions, but as he left she realized
those offices were closed at that time, and she became
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suspicious. She immediately checked the contents of her purse
and discovered her wallet, containing twenty dollars, missing.
Between 5:30 and 6:00 a.m. the following day, January 19,
1996, University of Virginia student Christopher Spanos, his
roommate, and three guests were asleep in Spanos' bedroom on the
third floor of the Kappa Sigma fraternity house, which was
located next door to the Zeta Psi house. The bedroom door was
closed. Spanos awoke to find a man, whom he identified at trial
as appellant, standing at his desk, which was within arm's reach
of his bed. Spanos confronted the intruder and asked what he was
doing. Appellant said he was "a friend of Dave's from
downstairs." When Spanos informed him that there was no "Dave"
living downstairs, appellant "backed up" and claimed to be "a
homeless guy looking for a place to stay." Spanos replied that
he could not stay in the fraternity house, and appellant left the
room. When Spanos checked, he discovered that his wallet and $7
were missing.
The trial court found that "the Commonwealth's evidence
meets the burden of proof" and convicted appellant of three
counts of statutory burglary and three associated petit
larcenies.
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,
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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).
"Proof of the elements of an offense . . . includes proof of
the corpus delicti." Watkins v. Commonwealth, 238 Va. 341, 350
n.3, 385 S.E.2d 50, 55 n.3 (1989), cert. denied, 494 U.S. 1074
(1990). "Where the charge is merely larceny, the corpus delicti
is the larceny of the goods. Where the charge is breaking and
entering with the intent to commit larceny, the corpus delicti is
the breaking and entering with that intent." Drinkard v.
Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935).
"'Direct evidence is not essential to prove the corpus delicti.
It may be proved by circumstantial evidence.'" Fisher v.
Commonwealth, 16 Va. App. 447, 452, 431 S.E.2d 886, 889 (1993)
(citation omitted).
Appellant asserts that because the police never recovered
the stolen wallets or the money, either in appellant's possession
or elsewhere, the Commonwealth failed to establish that the
charged crimes had been committed. This argument is without
merit. Proof that appellant was in exclusive possession of
recently stolen property would be necessary to invoke the larceny
presumption, but the Commonwealth does not rely upon the
presumption in the instant case. Recovery of the stolen property
is not essential to establish the corpus delicti of larceny. See
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id.
In the instant case, the testimony of Garnett, Spanos and
Kaiser that their money and wallets were taken from their rooms
and office, respectively, was sufficient to establish the corpus
delicti of larceny, and the undisputed evidence that the intruder
entered through closed doors at each location at the time of the
theft was sufficient to prove the three offenses of statutory
burglary.
Appellant also contends the evidence established only
opportunity and the Commonwealth failed to exclude the
possibility that some other person was the criminal agent. We
disagree.
Where the evidence is wholly circumstantial, "'[t]he
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.'" Betancourt v. Commonwealth,
26 Va. App. 363, 375, 494 S.E.2d 873, 879 (1998) (quoting Sam v.
Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)).
"'[A]ll necessary circumstances proved must be consistent with
guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Fisher v. Commonwealth, 16
Va. App. 447, 452, 431 S.E.2d 886, 889 (1993) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). The
Commonwealth need not "exclude every possible theory or surmise,"
but must exclude those hypotheses "'which flow from the evidence
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itself.'" Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373
S.E.2d 328, 338-39 (1988) (citation omitted). "Further '[w]hile
no single piece of evidence may be sufficient, the combined force
of many concurrent and related circumstances, each insufficient
in itself, may lead a reasonable mind irresistibly to a
conclusion.'" Shurbaji v. Commonwealth, 18 Va. App. 415, 423,
444 S.E.2d 549, 553 (1994) (quoting Stamper v. Commonwealth, 220
Va. 260, 273, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S.
972 (1980)). Additionally, although opportunity alone cannot
support a conviction, "[o]pportunity is always a relevant
circumstance . . . and when reinforced by other incriminating
circumstances, may be sufficient to establish criminal agency
beyond a reasonable doubt." Christian v. Commonwealth, 221 Va.
1078, 1082, 277 S.E.2d 205, 208 (1981).
The facts presented here, taken as a whole, were sufficient
to prove appellant's criminal agency beyond a reasonable doubt.
The evidence placed appellant in the office or rooms from which
the property was taken immediately before the thefts were
1
discovered. He had no rationale for being in the Garnett and
Spanos bedrooms and rifling through the victims' wallets at
6:00 a.m. or 8:00 a.m. Nor did he have a reason for having
1
This fact distinguishes the instant case from Lewis v.
Commonwealth, 211 Va. 497, 498-99, 178 S.E.2d 530, 531-32 (1971);
Varker v. Commonwealth, 14 Va. App. 445, 447-48, 417 S.E.2d 7, 9
(1992); and Thomas v. Commonwealth, 187 Va. 265, 270-72, 46
S.E.2d 388, 390-91 (1948), in which the evidence proved the
defendants' presence at the crime scenes but could not establish
the time with any certainty.
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entered Kaiser's office suite through a closed door. Further,
the trial court could reasonably infer that, when confronted,
appellant gave each victim a false explanation of his presence
and intentions at the time of each theft. The trial court was
not plainly wrong when it concluded that appellant was the person
who broke and entered the premises and took the missing items.
Affirmed.
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Benton, J., dissenting.
The principle is well established that "mere 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 v. Commonwealth, 221 Va. 1078,
1082, 277 S.E.2d 205, 208 (1981) (citation omitted). "While a
conviction may properly be based on circumstantial evidence,
suspicion or even probability of guilt is not sufficient. There
must be an unbroken chain of circumstances proving the guilt of
the accused to the 'exclusion of any other rational hypotheses
and to a moral certainty.'" Gordon v. Commonwealth, 212 Va. 298,
300, 183 S.E.2d 735, 737 (1971) (citation omitted). "Suspicious
circumstances, '"no matter how grave or strong, are not proof of
guilt sufficient to support a verdict of guilty. The actual
commission of the crime by the accused must be shown by evidence
beyond a reasonable doubt to sustain his conviction."'"
Burchette v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d
81, 86 (1992) (citations omitted).
The evidence proved that Mary Scott Kaiser left her office
for about five minutes. The suite of offices leading into her
office and her office were unlocked while she left the premises.
The evidence also proved that Kaiser never saw Brown enter or
exit her personal office. When Kaiser saw Brown coming out of
the suite of offices where her office was located, Brown asked
Kaiser where the maintenance department was located. Kaiser
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testified that up until two months prior to that time, the
maintenance department had been located on the basement floor of
Kaiser's building. Kaiser also testified that although one has
to travel through the suite of offices to leave her office, there
are twelve to fifteen different ways to get out of the building
from her office.
Muscoe Garnett was unable to identify Brown in a photo
lineup and did not identify him at trial. Garnett testified that
he could not see what the man in his room was doing but he was
sure the man was bent over in the area where Garnett had
discarded his pants. Garnett did not see the man with his
wallet. Garnett's bedroom door was not locked. Garnett also
testified that the front door of the fraternity house has no lock
and that "people came in pretty freely."
Christopher Spanos testified that he was asleep when the man
entered his room. Spanos testified that he did not see the man
with his wallet. Although he identified Brown at trial as the
man who was in his room, at the preliminary hearing he was not
sure that Brown was the man in his room. Other people, who
attended a party in the fraternity house the night before, were
asleep in Spanos' room. Spanos also testified that his door was
shut but not locked and that the doors to the fraternity house
remained unlocked. Fraternity pledges recovered Spanos' wallet.
However, no evidence proved when or where the wallet was found.
Both Spanos and Garnett were tentative in their
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identifications of Brown as the man they saw in their respective
bedrooms. The evidence also proved that the fraternity houses,
the bedrooms, the office suite, and Kaiser's office were unlocked
and that other people had access to these locations. Thus, other
individuals had an opportunity to steal the missing property.
Simply put, the Commonwealth failed to exclude the reasonable
hypothesis that someone else was the criminal agent responsible
for the larceny and burglary offenses. Therefore, I would hold
that the Commonwealth failed to prove beyond a reasonable doubt
that Brown committed these offenses, and I would reverse Brown's
convictions.
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