COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
JOHN SILAS BYARD
MEMORANDUM OPINION *
v. Record No. 0638-95-1 BY JUDGE JOSEPH E. BAKER
APRIL 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Lawrence H. Woodward, Jr. (Shuttleworth,
Ruloff & Giordano, on brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In this appeal by John Silas Byard (appellant), the sole
issue presented is whether the evidence is sufficient to support
his bench trial conviction by the Circuit Court of the City of
Virginia Beach (trial court) of grand larceny in violation of
Code § 18.2-95. We have reviewed the evidence contained in this
record and find that it is sufficient to support the judgment of
the trial court.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On April 14, 1994, Sharon Winstead (the victim) reported
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
early for work at the Radisson Hotel in Virginia Beach. She
arrived at the hotel at approximately 6:05 to 6:10 a.m. and
visited with the security guard in his office. The security
office is located on the first floor of the hotel, near the rear
exit. She carried with her a purse containing car keys, a
wallet, credit cards, $55, two checks, and a ring. Upon arriving
at the security office, she placed her purse on the floor, under
a chair, by the back door.
About fifteen to twenty minutes after her arrival, she went
to the kitchen, which is on the second floor, to get coffee. She
returned to the office "a couple of minutes later." At that
time, her purse was where she had left it. Both the victim and
the security guard were called away from the office to the hotel
lobby by Jonathan Kastner (Kastner), an assistant general
manager. They were gone from the office for approximately five
to ten minutes. When the victim returned to the office from the
lobby, her purse was missing. She immediately reported the theft
to Kastner.
Over this time period, appellant, a former employee at the
hotel, was seen in various locations throughout the hotel.
Calvert Johnson (Johnson), a cook, who knew appellant from his
former employment, testified that appellant spoke with him about
employment opportunities around 6:20 to 6:30 a.m. on the basement
level of the hotel. Johnson told appellant that if he wanted a
job to find Kastner or to wait in the employees' lounge until the
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personnel office opened. The victim, who knew appellant from his
prior employment, saw him in the second floor kitchen when she
left the security office on the first occasion. Kastner
testified that he spoke with appellant about 5:50 to 6:00 a.m. in
the kitchen and, learning that he had previously been fired from
the staff, refused him a job, and ordered him to leave the
building. Kastner observed appellant head toward the rear of the
hotel and down to the first floor rear exit, which is adjacent to
the security office. Kastner testified that it was probably
within five to ten minutes of talking to appellant that he called
the victim away from the security office to work in the lobby,
and no more than fifteen minutes after talking to appellant that
the victim reported the theft to him. Kastner stated that he was
not specific about the times of day he testified to, but that he
knew it was very early in the morning. Mary Mayo, an employee,
testified that she saw appellant on the first floor walking
toward the cafeteria.
Detective Robert L. Christman, Jr. testified that he
recovered the victim's ring on April 21, 1994, at a pawn shop
located about three blocks from the hotel. According to pawn
shop records, the ring had been pawned by appellant at
approximately 5:47 p.m. on April 14, 1994.
Steven P. Roebuck, an employee at the pawn shop, identified
appellant as the person who pawned the ring the day of the theft
and stated that the ring produced at trial matched the
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description of the ring received from appellant. At trial, the
victim identified the ring as the one stolen from her purse.
When the Commonwealth rested, thereafter, appellant
presented no evidence in his own behalf.
Appellant contends that his unsworn statement to the police,
that on the day of the theft he purchased the ring from a person
identified only as "Kim," and that he was working in Portsmouth
and hence could not have been at the hotel when and where the
theft occurred, is evidence of a reasonable hypothesis of
innocence that entitled him to be acquitted. We disagree.
As the Commonwealth observes, for appellant's hypothesis of
innocence to be accepted as a matter of law, the trial court
would had to have believed that the person identified only as
"Kim" or someone other than appellant (1) slipped into the
security office, unnoticed by any of the witnesses who testified
to seeing appellant in the vicinity of the office at the time,
within the five to ten minutes in which it was unattended; (2)
stole the victim's purse; (3) exited the hotel unseen; and (4)
sold the ring to appellant later that day. In addition, the
trial court would have been required to believe (1) that
appellant was not at the hotel on April 14, 1994, despite the
testimony of four witnesses to the contrary; (2) that he was,
instead, in Portsmouth for all or most of the day; and (3) that
he returned to Virginia Beach in time to purchase and pawn the
ring by that evening.
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The combined force of the evidence leads unmistakably to
appellant as the criminal agent and reasonably excludes the
hypothesis advanced by appellant. See Turner v. Commonwealth,
218 Va. 141, 148, 235 S.E.2d 357, 361 (1977).
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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