COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

HOWARD CHARLES ROBENOLT, S/K/A 

 HOWARD C. ROBENHOLT 

 MEMORANDUM OPINION* BY 

v. Record No. 2413-95-2 JUDGE SAM W. COLEMAN III 

 JUNE 4, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Alexander M. Clarke, Jr. (Oxenham, Rohde & 

Clarke, on briefs), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 In this criminal appeal, Howard Charles Robenolt contends 

that the evidence is insufficient to prove that he was the person 

who committed the burglary of a restaurant. We hold that the 

evidence is sufficient and affirm the defendant's conviction. 

 The Commonwealth first argues that the defendant is barred 

by Rule 5A:18 from challenging the sufficiency of the evidence on 

appeal because he did not state specific grounds in the trial 

court for his motion to strike the evidence. However, the record 

reveals that the defendant moved to strike the evidence at the 

close of the Commonwealth's case and renewed the motion in lieu 

of presenting evidence. The defendant's contention that the 

evidence failed to prove that he was the criminal agent was 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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clearly presented to and considered by the trial judge. 

Accordingly, the issue of the sufficiency of the evidence was 

properly preserved for appeal. See Previtire v. Commonwealth, 16 

Va. App. 869, 870-71, 433 S.E.2d 515, 516 (1993). 

 When the sufficiency of the evidence is challenged on 

appeal, "we review the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248, 

250, 356 S.E.2d 443, 444 (1987). "The judgment of the trial 

court shall not be set aside unless it appears from the evidence 

that said judgment is plainly wrong or without evidence to 

support it." Id. at 250-51, 356 S.E.2d at 444. 

 The evidence proved that the defendant was a patron sitting 

at the bar of the Southern Knights Restaurant at approximately 

10:00 p.m. on September 13, 1994, when Tracy Richardson, a 

bartender at the restaurant, informed him that it was "last 

call." Richardson testified that the defendant "had a flash 

light in his hand" when he came into the bar. She testified that 

this aroused her suspicion because she had seen the defendant in 

the bar on prior occasions and he had never brought a flashlight 

with him. Richardson did not see the defendant leave the 

restaurant, but she testified that he was not sitting at the bar 

when she began to lock up. She "looked around inside the 

restaurant" and then went outside to the parking lot, but did not 

see the defendant. Richardson then locked all of the doors and 
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placed a fitted bar across the back door. 

 Patricia Butner, the owner of the restaurant, arrived at the 

restaurant around 4:30 a.m. the following morning and found that 

money had been taken from the juke box and the pool tables. 

Butner discovered that there were more lights on than usual and 

that the bar used to secure the back door "was off of the back 

door sill."1

 Officer Shawn Diasparra arrived at the restaurant 

soon thereafter. Butner informed him that an undetermined amount 

of money had been stolen from the pool tables and the juke box. 

Butner also directed Officer Diasparra to talk to the defendant 

because he had been in the bar prior to closing. 

 Officer Diasparra went to the defendant's home around 6:00 

a.m. and found the defendant asleep. Diasparra informed the 

defendant that he was investigating a burglary at the Southern 

Knights Restaurant. The defendant responded that he had been at 

home sleeping since 12:30 a.m. The defendant then stated that he 

had purchased a six-pack of Miller Lite beer from a convenience 

store the previous evening "because . . . he drinks . . . Miller 

Lite Beer and not Miller Beer." He showed Officer Diasparra a 

cooler that contained cans of Miller Lite and restated that he 

did not drink Miller beer. 

 Officer Diasparra testified that he found the defendant's 

statements concerning the beer odd because he did not ask the 

 1 The police later determined that the burglar entered the 

attic of the building through the roof and removed some ceiling 

tiles in order to get into the restaurant. 
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defendant about beer. Diasparra also testified that the 

defendant did not provide him any information about the burglary 

at the restaurant. On cross-examination, Officer Diasparra 

stated that "a Mr. Kennard Dameron was staying with [the 

defendant]" at his home. 

 The night following the burglary, Butner discovered that two 

cases of Miller beer were missing from the restaurant. Butner 

did not report the missing beer to the police, however, because 

she "figured that [Officer Diasparra] would be back in touch with 

[her]" and that she could report the missing beer later. 

 Approximately two weeks after the burglary, the defendant 

went to the restaurant, ordered a Miller Lite, and asked Butner 

if she knew who had broken into the restaurant. She responded 

that she did not. The defendant then volunteered to her "that 

some guy named Kennard and Marshall Ferguson" were involved in 

the burglary. The defendant also stated that the police had 

questioned him at 4:30 a.m. on the morning of the burglary. 

Butner told him that was impossible because she did not report 

the burglary until 5:00 a.m. Then, the defendant told Butner 

"that the policeman asked him what kind of beer he drank and he 

said, 'I drink Miller Lite.'" According to the defendant, the 

police officer responded, "[t]hat lets you off the hook. They 

took two cases of Miller Beer." At that time, Butner had not 

informed the police about the missing cases of beer, and she told 

the defendant that the officer could not have mentioned the beer 
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because he did not know about it. Butner testified that at the 

time the defendant mentioned the missing beer to her, only 

Richardson and a close friend named Pat Rickman knew about the 

missing cases of beer. 

 The evidence, viewed in the light most favorable to the 

Commonwealth, proves that the defendant, who acted suspiciously 

on the night of the burglary by bringing a flashlight into the 

bar, had the opportunity to commit the burglary. He was seen in 

the restaurant immediately before closing on the evening of the 

burglary. Although opportunity to commit a crime is not of great 

moment in proving one's guilt, the defendant's statements to 

Officer Diasparra, the morning following the burglary, that he 

did not drink Miller beer, and his conversation with Butner two 

weeks after the burglary, where he claimed that Officer Diasparra 

told him that two cases of Miller beer had been stolen and that 

he was "off of the hook" because he drank Miller Lite, were 

highly incriminating. They revealed a knowledge about specific 

facts pertaining to the burglary that were not common knowledge 

and only the burglar or someone he told would know. Officer 

Diasparra testified that he knew nothing about the missing beer 

when he talked to the defendant, and Butner still had not 

reported the missing beer to the police when the defendant talked 

to her. The trial court was entitled to infer guilty knowledge 

from these statements. See Speight v. Commonwealth, 4 Va. App. 

83, 89, 354 S.E.2d 95, 99 (1987) (en banc). The court was also 
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free to reject the defendant's self-serving statement to Butner 

"that some guy named Kennard and Marshall Ferguson" were involved 

in the burglary. See Black v. Commonwealth, 222 Va. 838, 842, 

284 S.E.2d 608, 610 (1981) (holding that "[t]he fact finder need 

not believe the accused's explanation and may infer that he is 

trying to conceal his guilt"); Rollston v. Commonwealth, 11 Va. 

App. 535, 547-48, 399 S.E.2d 823, 830 (1991) (holding that the 

trier of fact "is not required to accept in toto an accused's 

statement, but may rely on it in whole, in part, or reject it 

completely"). 

 The defendant contends that the evidence does not exclude 

the hypothesis that he learned about the stolen cases of beer 

from Kennard Dameron, who Officer Diasparra confirmed was living 

with the defendant. However, because the defendant first 

indicated that he had knowledge of the crime on the morning of 

September 14 when he spoke with Officer Diasparra, and because he 

told Diasparra that he had been asleep from 12:30 a.m. until the 

time Diasparra arrived, the defendant could only have learned 

about the burglary from Dameron, if that was his source as he 

argues, sometime between 10:00 p.m. and 12:30 a.m. No evidence 

suggests that Dameron was present at the house when Officer 

Diasparra questioned the defendant; nothing in the record 

indicates that the defendant and Dameron had been together 

between 10:00 p.m. and 12:30 a.m. Moreover, the defendant did 

not mention Dameron to Officer Diasparra, nor did he tell 
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Diasparra that he had information about the burglary when 

Diasparra questioned him. Accordingly, the hypothesis of 

innocence raised by the defendant is not suggested or supported 

by evidence. It is not reasonable because it is purely 

speculative and does not flow from the evidence. Black, 222 Va. 

at 841, 284 S.E.2d at 609 (holding that "[t]he hypotheses which 

the prosecution must reasonably exclude are those 'which flow 

from the evidence itself, and not from the imagination of 

defendant's counsel'") (quoting Turner v. Commonwealth, 218 Va. 

141, 148, 235 S.E.2d 357, 361 (1977)). 

 The circumstantial evidence is sufficient to prove beyond a 

reasonable doubt that the defendant was the criminal agent and, 

therefore, we affirm the defendant's conviction. 

Affirmed.
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BENTON, J., dissenting. 

 A conviction may not be based upon speculation, surmise, or 

conjecture. Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d 

388, 391 (1948). "The Due Process Clause protects the accused 

against conviction except upon proof beyond a reasonable doubt of 

every fact necessary to constitute the crime with which he is 

charged." In re Winship, 397 U.S. 358, 364 (1970). 

 It is, of course, a truism of the criminal 

law that evidence is not sufficient to 

support a conviction if it engenders only a 

suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture. The 

evidence must be such that it excludes every 

reasonable hypothesis of innocence. The 

giving by the accused of an unclear or 

unreasonable or false explanation of his 

conduct or account of his doings are matters 

for the jury to consider, but they do not 

shift from the Commonwealth the ultimate 

burden of proving by the facts or the 

circumstances, or both, that beyond all 

reasonable doubt the defendant committed the 

crime charged against him. 

Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533 

(1951). See also Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977). 

 The evidence proved that the intruder entered the 

restaurant's building from the outside and through the attic. No 

evidence tended to prove that Howard Robenholt, who regularly 

patronized the restaurant, was that intruder. His presence with 

another patron in the restaurant until it closed established 

nothing probative regarding proof of the burglary. 
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 The only items known to be missing following the burglary 

were coins taken from the pool table and the "juke box." The 

money in the cash register had not been removed. The owner 

looked in the stock room and noted that no beer was missing. 

 The majority makes much of Robenholt's statement to the 

police officer concerning beer. The record proved, however, that 

when the officer woke Robenholt at his home the morning following 

the burglary, he explained to Robenholt that he was investigating 

the burglary and asked Robenholt to explain his activities. 

During Robenholt's explanation of his activities after he left 

the restaurant, he told the officer that he purchased Miller Lite 

beer on his way home. He showed the officer the container of 

beer and said he knew nothing of the burglary. The evidence 

permits only "suspicious inferences" to be drawn from Robenholt's 

statements and conduct. Id.

 After the officer questioned him, Robenholt believed that he 

had been accused of the burglary. Two days later he protested to 

the owner's daughter, who had served Robenholt in the restaurant 

the night before the burglary. She told him to talk to her 

mother, the owner. 

 A week later, Robenholt went to the restaurant, ordered a 

Miller Lite beer, and asked the owner if she had discovered who 

broke into the restaurant. During the conversation he informed 

her that he believed the intruders had been two men whom he 

identified by name. One of the men lived in the same residence 
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where Robenholt lived. 

 The owner testified that the night following the burglary, 

after the restaurant had been open for business the entire day 

and evening, she discovered that two cases of Miller beer were 

not in her stock. The owner did not then inform the police that 

the beer was missing or that she suspected it was taken during 

the burglary. Indeed, no evidence proved that two cases of 

Miller beer were taken during the burglary. The record proved 

only that the cases were discovered missing after the restaurant 

had been open a day and a night after the burglary. Furthermore, 

two weeks after the burglary, when Robenholt talked to the owner 

about his suspicions that a person who lived in his residence had 

committed the burglary, the owner had not yet reported the 

missing beer. 

 At best, the evidence only proved that Robenholt made 

statements that the majority deems suspicious. However, the 

context in which those statements were made was not so 

unambiguous that the statements can be deemed proof beyond a 

reasonable doubt of Robenholt's participation in the burglary. 

No evidence proved that Robenholt, who had patronized the 

restaurant for over a year, was the person who committed the 

burglary. "While it may be possible to draw suspicious 

inferences from . . . [Robenholt's] contradictory statements, 

. . . in the face of the presumption of innocence, such 

inferences are insufficient to prove beyond a reasonable doubt 
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that [Robenholt] committed the crimes." Id.

 For these reasons, I would reverse the conviction.