Opinion
Record No. 1765-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS, Randolph T. West, Judge
Reversed and dismissed.
Ray Yeatts Jones for appellant.
Donald R. Curry, Senior Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Willis and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Ervin Simms was convicted in a bench trial for attempted robbery and use of a firearm in the commission of a felony. The issue presented in this appeal is whether the evidence is sufficient to support the convictions. Based upon our review of the record and the argument and authorities presented, we reverse Simms's convictions.
We shall first consider the Commonwealth's contention that the appellant failed to preserve his sufficiency of the evidence claim for appellate review because he failed to renew his motion to strike after he testified and the defense rested. In Campbell v. Commonwealth, 12 Va. App. 476, 479-81, 405 S.E.2d 1, 2-3 (1991) (en banc), we held that a defendant could preserve his sufficiency claim by arguing it to the trial judge in a bench trial. However, the Commonwealth contends that the final argument has not been transcribed, and the record does not establish what was argued to the trial judge.
Appellant made a motion to strike at the conclusion of the Commonwealth's evidence. The only argument advanced to support the motion was the insufficiency of the evidence. The court denied the motion without comment. The transcript does not contain a statement that final arguments were made on behalf of the defendant and the Commonwealth. The trial judge gave a lengthy explanation of his decision. He reviewed the evidence and stated that "the telling factor in this case is certainly circumstantial." He explained that the statement, "I didn't even have a gun," was the "telling tale" in the case and adjudged the defendant guilty. We find that the comments of the trial judge show that he was well aware that the only issue was the sufficiency of the evidence. Under the principle set forth in Campbell, we hold that the trial judge had an opportunity to, and did, consider and resolve the issue now raised on appeal. We, therefore, are not barred from addressing the issue of sufficiency of the evidence on appeal.
When the sufficiency of the evidence for a criminal conviction is challenged on appeal, we will consider all 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). The credibility of witnesses, the weight accorded their testimony, and the inferences to be drawn from proven facts are matters for the fact finder's determination. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
An accused is clothed with a presumption of innocence which is a basic component of a fair trial under our system of criminal justice. Miller v. Commonwealth, 7 Va. App. 367, 371, 373 S.E.2d 721, 723 (1982). He or she is entitled to this indicia of innocence until guilt is established by the trier of fact from the evidence presented at trial. The Commonwealth is required to prove at trial all elements of the offenses beyond a reasonable doubt. Bruce v. Commonwealth, 9 Va. App. 298, 301, 387 S.E.2d 279, 280 (1990).
Glen Roberts, the restaurant manager, testified that he left the restaurant at 9:30 a.m. on October 11, 1991, to pick up an employee who needed a ride to work. When Roberts entered his truck that was parked in the parking lot near some bushes, a man put a gun to his head and ordered him to "[g]ive it up." The man was wearing a gray ski mask, black gloves, and a dark sweat suit. The would-be robber searched Roberts's belt, and, finding no money, he pushed him down onto the floorboard and ran away.
The Commonwealth contends that there are a number of circumstances which prove that motive, time, place, means, and conduct concurred in pointing to the defendant as the perpetrator of the crimes. The restaurant manager explained in his testimony that he routinely put cash receipts in his belt and deposited them in the bank between 9:00 a.m. and 10:00 a.m. He testified that appellant worked the evening shift, although he did come in a few mornings. He could not say, however, whether defendant ever saw him put money in his belt. Appellant denied any knowledge of Roberts's method of carrying and depositing money, and no evidence in the record imputes such knowledge to appellant.
At trial, Roberts did not recognize and could not identify appellant as the attempted robber, either by voice, size, or other observable characteristic. When asked what clothing the assailant wore, Roberts testified, "[i]t was a jogging suit, a dark jogging suit with bright orange-red stripes on it." He stated that one stripe went down each arm.
The police executed a search warrant at appellant's sister's apartment, where appellant resided, and recovered a black sweat suit with orange stripes down the arms and a box of handgun ammunition. According to Officer Gaddis, when Roberts was first shown the sweat suit, his "eyes opened up wider and he physically started shaking and trembling." However, Roberts could not say whether the sweatsuit that the detectives showed him was the one worn by the robber. In fact, he said it was a common suit customarily worn by joggers. In comparing what the robber wore with the sweat suit shown him, Roberts testified that the suit shown to him was "different," a more orange-looking color than the one worn by the robber, the robber's being more red. The record further indicates that the jogging suit obtained from appellant's closet had the word "ADIDAS" prominently written on the back, a fact that Roberts never mentioned in describing the attempted robber's suit.
In searching Simms's living quarters at his sister's apartment, the police did not find a gun, black gloves, or a ski mask. They did find a box of ammunition. However, no evidence connected the ammunition to the gun used in the robbery. There was no evidence identifying the type of gun used or the caliber of amumunition found.
On November 7, 1991, at about 5:00 p.m., Police Officers White and Vollmer were checking on drug activity in the area of 31st and Chestnut Streets. Officer White testified that Simms was seen in the area, and, when he looked at the officers, he fled and was subsequently caught. Simms explained this incident by stating that he and some other people were drinking beer in public when someone yelled "Police," thereby causing him and others in the area to run. When caught by the police, he did not possess any drugs and was not charged with any offenses. The Commonwealth contends that fleeing from the scene constituted a consciousness of guilt and, thus, of guilt itself. However, fleeing from an alleged drug scene does not tend to prove that appellant fled from the robbery scene.
Before releasing appellant, Officer White conducted a warrant check and learned that there were outstanding warrants against appellant for attempted robbery and use of a firearm in the commission of a felony. He verified these warrants by Simms's name, date of birth, and social security number. He then arrested appellant on these charges. At that point, appellant stated to White, "I didn't even have a gun."
After the arrest, Detective Gaddis questioned appellant about the charges against him and his comment about the gun made to Officer White. Appellant "started talking about his belief in a Supreme Being." He indicated to Gaddis that "if you do something wrong, you'll have to pay for it later in life."
Appellant, who had no criminal record, took the stand and denied any involvement in the crime. He denied owning a ski mask, a gun, or black gloves at any time. He admitted owning the jogging suit introduced in evidence; he said he purchased it from the A N Store and that he owned several other warm-up suits. Regarding the comment about a Supreme Being, the appellant testified that he told the officers:
I believe in God. I wonder why it's happening because of the simple fact that I did not do it. I am innocent and I just said I was going to leave it up to God and I prayed. That's all I could do.
Regarding the statement made to Officer White, appellant did not recall anything like it, unless the officer asked whether he owned a gun. He recalled that at the interview with Detective Gaddis he was asked several times whether he owned a pistol. Appellant denied owning one at any time. The trial judge commented, "but for his statement that, 'I didn't have a gun,' I would not have convicted this defendant."
The trial judge made a finding of fact that the appellant made the statement at the time of arrest. However, when the evidence is wholly circumstantial: all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The 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.
Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
"Circumstantial evidence must always be scanned with great caution, and can never justify a verdict of guilty . . . unless the circumstances proved are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of the guilt of the accused beyond all reasonable doubt."
Chrisman v. Commonwealth, 3 Va. App. 371, 377, 349 S.E.2d 899, 903 (1986).
When Officer White arrested the appellant and charged him with attempted robbery and with use of a firearm in the commission of that offense, he did not have the warrants in his possession. He only knew that they were at the police information desk. The record does not show that Simms was advised of the time and place of the crimes; in fact, the record indicates that he was only advised of the charges, to which he responded, "I didn't have a gun." The clear indication that can be gained from this statement is that he did not commit a crime involving use of a firearm because he did not have a gun in his possession. This circumstantial evidence must be examined with great caution, and the circumstances must be inconsistent with innocence and exclude every reasonable hypothesis of innocence. We believe that this statement does not exclude every reasonable hypothesis of innocence under the circumstances of this case.
For the reasons stated, the judgments of the trial court are reversed, and the indictments are dismissed.
Reversed and Dismissed.