COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
MATTHEW LEE MCKINNEY
MEMORANDUM OPINION * BY
v. Record No. 1129-96-2 JUDGE LARRY G. ELDER
MAY 13, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Jr., Judge
Robert J. Wagner (Wagner & Wagner, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Matthew Lee McKinney appeals his convictions of statutory
burglary in violation of Code § 18.2-91 and second offense petit
larceny in violation of Code § 18.2-96 and § 18.2-104. He
contends that the evidence was insufficient to support his
convictions. For the reasons that follow, we reverse.
I.
FACTS
Between 9:00 a.m. and 1:00 p.m. on November 1, 1995, someone
broke into the victim's residence through a rear window and stole
two bottles of wine, a clock radio, a woman's brassiere, and a
knitting bag. The victim resides in a town house that is
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
situated within a row of eight town homes. Appellant was
arrested two weeks later at his apartment several miles away from
the victim's residence and charged with statutory burglary and
second offense petit larceny.
At trial, the only evidence linking appellant to the crime
was the testimony of the victim's neighbor. The neighbor
testified that at about 12:00 p.m. on the day of the crime, he
saw appellant drive up and park his van in front of the row of
town homes. Appellant exited his van, walked down the sidewalk
adjacent to the town homes, and stared momentarily at the
victim's residence. He then walked behind the row of town homes,
where the neighbor saw him walking towards the victim's
residence. Later, the neighbor saw appellant walking briskly
towards his van carrying a bag that "looked heavy." The trial
court overruled appellant's motion to strike and convicted him of
burglary and second offense petit larceny.
II.
SUFFICIENCY OF THE EVIDENCE
The record contains no direct evidence establishing that
appellant was ever inside the victim's residence. Thus, the only
issue on appeal is whether the circumstantial evidence was
sufficient to prove that appellant was the person who broke into
the victim's residence and stole her property. Appellant
contends it is not, and we agree.
When considering the sufficiency of evidence on appeal in a
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criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"Where the Commonwealth's evidence as to an element of an offense
is wholly circumstantial, 'all necessary circumstances proved
must be consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence.'" Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)
(citation omitted). "It 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." Webb v. Commonwealth, 204 Va.
24, 34, 129 S.E.2d 22, 29 (1963). Thus, the evidence must
"establish . . . guilt beyond a reasonable doubt." Id.
In order to obtain a conviction of statutory burglary under
Code § 18.2-91, the Commonwealth must prove that the accused
"commit[ed] any of the acts mentioned in Code § 18.2-90 with
intent to commit larceny . . . ." The acts mentioned in Code
§ 18.2-90 include breaking and entering a dwelling house during
the daytime. Larceny is "the wrongful taking of the goods of
another without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods."
Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
(1987). In a prosecution for burglary, it is well established
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that:
upon proof of a breaking and entering and a
theft of goods, and if the evidence warrants
an inference that the breaking and entering
and the theft were committed at the same time
by the same person and as part of the same
transaction, "the exclusive possession of the
stolen goods shortly thereafter, unexplained
or falsely denied, has the same efficiency to
give rise to an inference that the possessor
is guilty of the breaking and entering as to
an inference that he is guilty of the
larceny."
Sullivan v. Commonwealth, 210 Va. 201, 203, 169 S.E.2d 577, 579
(1969) (quoting Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178
S.E. 25, 28 (1935)).
We hold that the evidence was insufficient to prove that
appellant was the person who burgled the victim's residence.
Although the evidence in the record raises a suspicion that
appellant was the person who broke into appellant's residence and
stole her property, it is insufficient to support the inference
that appellant actually committed the offenses.
While the evidence supports the conclusion that the burglary
of the victim's town house and the larceny of her property were
committed at the same time by the same person, the remaining
circumstantial evidence does not establish that appellant ever
had possession of property stolen from the victim's residence.
Specifically, the only evidence describing the bag carried by
appellant -- the testimony of the neighbor -- was insufficient to
prove that it was the victim's stolen knitting bag.
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The victim testified that the bag stolen from her residence
was made of red cloth and that it had "a picture like a fox
hunting scene on it." She also testified that the stolen bag had
a size and shape "similar to a knitting bag [or] a yarn bag."
The neighbor testified that the bag carried by appellant was made
of red cloth and "had two handles on it." However, his testimony
failed to correspond with the victim's description of her
knitting bag in two pivotal respects. The neighbor did not
describe the size or shape of appellant's bag and no evidence
established that its size and shape were similar to a knitting
bag. In addition, the neighbor testified only that the bag was
"red" and did not indicate that it was decorated with a printed
image. That evidence was not sufficient to prove the offense
beyond a reasonable doubt because it merely proved that the item
was "roughly similar to an article which had been stolen."
Griffith v. Commonwealth, 213 Va. 50, 51, 189 S.E.2d 366, 367
(1972).
Moreover, the neighbor did not testify whether or not
appellant was carrying the bag when he initially walked behind
the town homes towards the victim's residence. Thus, the
evidence does not exclude the reasonable hypothesis that
appellant was at the victim's neighborhood for some other purpose
and was carrying a two-handled bag that was either larger or
smaller than a knitting bag and coincidentally happened to be
red.
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Because the record does not prove that appellant ever had
"exclusive possession of [the victim's] stolen items," the
evidence was insufficient to support the inference that appellant
was the person who broke into the victim's residence and stole
her property. See id.
For the foregoing reasons, we reverse the convictions of
statutory burglary and second offense petit larceny.
Reversed.
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Cole, J., dissenting.
I respectfully dissent because the circumstantial evidence
presented at trial was sufficient to support the convictions.
The Commonwealth's evidence was not in dispute and was not
impeached in any manner. The town house home of Tracey Chapman
was burglarized, and personal property consisting of two bottles
of wine, a bottle of champagne, a clock radio, a lace bra and a
red cloth bag was stolen between 9:00 a.m. and 1:00 p.m. on
November 1, 1995. During these four hours, Chapman was at work,
the home was unoccupied and all doors and windows were locked
except one window next to the back door which was open about one
inch. When she returned home for lunch at 1:00 p.m., Chapman
found the back door unlocked and the window screen removed; the
house had been ransacked and was in disarray. The only issue
before this Court is whether the circumstantial evidence is
sufficient to support the defendant's convictions as the criminal
agent. For the reasons that follow, I find credible evidence in
the record to support the findings of the fact finder.
The chief witness for the Commonwealth was George Hauck, a
neighbor who lived three town houses from Chapman. Around noon
on the day in question, Hauck saw from his town house front
window the defendant exit a van that was parked in one of Hauck's
family member's assigned parking spaces. The fact finder could
infer from this that the defendant did not reside in the town
house complex, for if he did, he would have parked in his own
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assigned space. If he had come to visit someone on business or
otherwise, he would have parked in the space for the person being
visited or in a space designated for short-term visitors.
The defendant walked down the sidewalk towards Hauck's town
house. About halfway down, he stopped and stared at the Chapman
town house. Hauck testified that the defendant looked like he
knew where he was going because he did not look in the direction
of any of the other town houses. The fact finder could infer
from this evidence that the defendant knew which home he intended
to visit and that he stopped there to case it to insure no one
was present before breaking and entering the house.
The defendant then walked to the back of the Chapman home.
Hauck went to his back door in order to better observe the
defendant. He watched the defendant walk to the rear of the
Chapman house where he disappeared out of Hauck's sight. This
evidence placed the defendant at noon at the scene of the crime.
The breaking and entry into the Chapman house occurred at the
back door of her town house. Hauck testified that at this time
he observed no other persons present in the area.
Hauck went back to the front of his town house. A little
later, the defendant walked past Hauck and returned to his van.
Hauck testified that when the defendant first entered the
complex, he "eased down the sidewalk." He described in detail
defendant's every movement as he exited the van to go to the rear
of the Chapman home. At no time did he mention that the
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defendant was carrying anything with him. The fact finder was
entitled to infer from this that the defendant did not carry a
red cloth bag to the rear of the Chapman home. When the
defendant reappeared from the rear of the Chapman house to return
to the van, Hauck characterized his pace as "pretty fast" and
"brisk." The fact finder could infer from this that the
defendant was making a conscious effort to hurriedly flee the
scene of the crime in order not to be detected or caught.
Hauck testified that "he walked by me towards his van
carrying a red bag." He described the bag in the following
manner: "[I]t looked heavy, but you know, it wasn't folded up,
it was open, it had two handles on it." He stated the bag was
cloth.
The fact finder was entitled to infer from all of the
evidence that the defendant did not have a red bag with him when
he approached the Chapman home. He was entitled to infer that
the defendant stole Chapman's red cloth knitting bag to hold the
other stolen articles. Hauck said the red cloth bag "looked
heavy." The fact finder was entitled to infer from this evidence
that it looked heavy because, instead of or in addition to
containing knitting, it contained two bottles of wine, a bottle
of champagne, a clock radio and a bra. The red cloth bag was a
perfect container for concealing and transporting the stolen
items.
Chapman testified that the bag stolen from her residence was
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made of cloth and that it had "a picture like a fox hunting scene
on it." She also testified that the stolen bag had a size and
shape "similar to a knitting bag [or] a yarn bag." Hauck
testified that the bag carried by the defendant was made of red
cloth and "had two handles on it."
In analyzing the descriptions of the bag given by the owner,
Chapman, and by Hauck, I will first look at the similarities
between them. Chapman said her stolen bag was both "cloth" and
"red." Hauck said the bag he saw in the defendant's possession
was both "cloth" and "red." These identical descriptions
contained obvious similarities that would be immediately
observable by anyone viewing the bag as they pertained to the
bag's physical, external appearance.
The majority opinion says that Hauck did not describe the
size or shape of the bag and no evidence established that its
size and shape were similar to a knitting bag of the type stolen
from Chapman. I believe that it is common knowledge that a
knitting bag is an item that is big enough to carry knitting
supplies, such as needles, skeins of yarn, and the work product
thereof, such as a sweater or other item of clothing being
knitted. Hauck was not asked to approximate the size of the bag,
however, he did say it had two handles, it looked "heavy" and it
was open. I believe the fact finder could infer from this that
it had sufficient size to accommodate either knitting supplies or
the fruits of defendant's crime. No doubt the fact finder
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considered this along with the other evidence concerning motive,
time, place, means and conduct.
Moreover, during Chapman's testimony, she indicated that
police investigators arrived to question her about possible
stolen items. In describing the stolen items, she testified:
And the bag, also, that I noticed later, I
didn't know until later when it was described
to me, that it was actually missing . . . .
From this, the fact finder could infer that Chapman was unaware
that her knitting bag had been taken until the police questioned
her and described the bag to her. If Chapman did not tell them
about it, then they must have acquired such information from
Hauck. Thus, Hauck's description was clearly sufficient to make
the owner recall her similar bag and become aware that it was
gone.
As to the fox hunting scene on the bag, the evidence
disclosed that this bag was inherited from Chapman's mother. We
have no evidence whether the bag was faded with time, printed in
pastel colors, or printed on one side only. Therefore, we do not
know whether it was possible for Hauck to clearly see and
identify the picture. If the scene appeared on only one side, it
may have been on the side of the bag facing away from Hauck. No
doubt the fact finder evaluated all of these matters together
with all of the evidence in the case. At a minimum, the fact
finder knew as a conclusive fact that a red cloth bag was stolen
from the Chapman house and that the defendant who was present
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outside that house was seen carrying a red cloth bag a short
distance from the Chapman house. The conclusions about size,
shape and a printed image are nothing more than conjecture and
surmise.
The majority opinion concludes that "the evidence does not
exclude the reasonable hypothesis that appellant was at the
victim's neighborhood for some other purpose and was carrying a
two-handled bag that was either larger or smaller than a knitting
bag and coincidentally happened to be red." The Supreme Court
has said many times, as has this Court, that "the Commonwealth
need only exclude reasonable hypotheses of innocence that flow
from 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) (emphasis added). The fact finder has the
duty to draw inferences from circumstantial evidence and to
determine the weight to be ascribed to such evidence. See
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 737
(1983). The inferences drawn from circumstantial evidence are
within the province of the fact finder and not the appellate
court so long as the inferences are reasonable and justified.
See O'Brien v. Commonwealth, 4 Va. App. 261, 263-64, 356 S.E.2d
449, 450 (1987). "[W]e consider the evidence as a whole in
deciding whether it is sufficient to support the [trial court's]
findings that [the accused] was the perpetrator of the crimes."
Chichester v. Commonwealth, 248 Va. 311, 330, 448 S.E.2d 638, 650
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(1954). "While 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.'" Stamper v. Commonwealth, 220 Va.
260, 272-74, 257 S.E.2d 808, 817-18 (1979) (upholding reasonable
inferences that crime was committed by former employee, that
requisite robbery occurred, and that car seen near murder scene
at approximate time of crimes was Stamper's wife's car) (citation
omitted).
The test which we must apply is whether the circumstances
which were proved concur in pointing to the defendant's guilt
beyond a reasonable doubt. The evidence does not show that the
defendant was in the victim's neighborhood for some other purpose
when he was seen carrying a red cloth knitting bag. Therefore,
the defendant's contentions do not flow from any evidence in the
record.
Neither Chapman nor Hauck know the defendant or had seen him
before this occurrence. It is not reasonable to believe that on
November 1, 1995, during the four hours between 9:00 a.m. and
1:00 p.m., two different persons appeared at the back of the
Chapman home and that both of them coincidentally carried red
cloth bags. The fact finder found that there was only one person
present. It is undisputed that the defendant was there. The
evidence does not disclose the presence of any other person.
There is no evidence in the record from which one can reasonably
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infer that any other person was present.
Considering the evidence as a whole and according the fact
finder all of the inferences fairly deducible therefrom, I would
hold that there is sufficient credible evidence in the record to
support the trial court's determination that the defendant
committed the crimes. I cannot say the trial judge as fact
finder was clearly wrong.
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