COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Frank and Humphreys Argued at Richmond, Virginia

DANIEL LEE DAVIS MEMORANDUM OPINION * BY v. Record No. 0649-03-2 J UDGE ROBERT J. HUMPHREYS MAY 11, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF ORANGE COUNTY Daniel R. Bouton, Judge John R. Maus (Law Of fice of John R. Maus, on brief), for appellant. Josephine F. Whalen, Assistant A ttorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Daniel Lee Davis appeals his convictions, afte r a bench trial, for statutory burglary (in violation of Code § 18.2-91) an d grand larceny (in violation of Code § 18.2-95). Appellant contends the trial court erred in finding the eviden ce sufficient, as a matter of law, to support the convictions. Because we find the evidence presented below was sufficient to establish that appellant committed the offenses, we affirm. “When reviewing the sufficiency of the evid ence after a convicti on, we consider that evidence in the light most favorable to the Co mmonwealth, and we affirm the conviction unless it is plainly wrong or without evidence to support it.” Shackleford v. Commonwealth , 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001). This principle requi res us to “discard the evidence of the accused in conflict with th at of the Commonwealth, and regard as true all the credible evidence

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - favorable to the Commonwealth and all fair infere nces that may be drawn therefrom.” Kelly v. Commonwealth , 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) ( en banc ) (citation omitted). Appellant does not dispute that the alleged cr imes occurred on the date in question at the Orange-Madison Co-op; neither doe s he dispute that the DNA, extr acted from the two drops of blood found below the broken window, matched his DNA profile. Rather, appellant argues that the DNA evidence, standing alone, was insufficient, as a matter of law, to support his convictions. However, this argument does not pr operly frame the sufficiency issue because the DNA evidence at issue was not the sole ev idence upon which his conviction was based. The evidence presented below established that, on the evening of August 8, 2001, when William H. Scott, Jr., the fertilizer manager at the Orange-Madison Co-op, left his office, the doors and windows of the fertilizer building were cl osed and secure. The evidence in the record further suggests that a fence su rrounds the entire Co-op, including th e fertilizer building, and that the gate to the fence was locked that evening. The next morning, Scott found that the window to his office had been broken. “[G]lass [was] sca ttered everywhere. [His] computer had been pushed to one side and [he thought] his desk draw ers had been gone into [sic].” Scott found a partially empty beer bottle on a workbe nch in the fertilizer building shop. Scott ultimately learned that some food a nd beer were missing from the fertilizer building, as well as a pair of bolt cutters. A “g ray pickup that [they] us e[d]” was also missing. The truck, valued at $1,000, had been parked outside of the fertili zer building shop area. Police investigating the break -in found a trash can pushed up against the wall, underneath Scott’s office window, on the outside of the bu ilding. Police found two drops of blood, dark red in color, “[j]ust below the window.” Police al so found the Co-op gate open, and observed that the lock for the gate was missing.- 3 - The next day, police found the truck, abandone d, approximately one-half mile away from the Co-op. All signs on the truck had been spray-painted, but the truck was otherwise undamaged. Police found the bolt cutters sometime later, approxi mately one-eighth of a mile from where the truck had been found. A forensic scientist from the Virginia Di vision of Forensic Science, subsequently contacted police and informed them that the DNA found in the blood drops was consistent with that of appellant. Police then arrested appe llant for the crime, advised him of his Miranda rights and told him “what the warrants were for.” Appella nt claimed that he had been in jail at the time of the break-in. However, police informed him that they had learned, through their earlier investigation, that he had been released from ja il several weeks prior to the break-in at issue. Police further informed appellant that “everyt hing had been recovered” and that there was “very little damage . . . except for the window at the Co-op that needed to be repaired and that [they] recovered the truck.” Po lice were discussing “any restituti on that would be made.” At that time, appellant said “[W]ell, the truck is not damaged, is it[?]” During appellant’s trial, a fore nsic scientist testified that the DNA profile obtained from the blood drops found underneath the window was c onsistent with appellant’s DNA profile. The scientist testified that the DNA analysis she performed on the beer bottle was not complete because she could obtain “results only at three out of the sixteen (16) areas,” but that the partial analysis did not exclude appellan t as a “possible contributor of DNA on that item.” Scott, a seven-year employee of the Co- op, testified that he was famili ar with the employees and the customers at the Co-op and that he did not know appellant to “have any kind of connection with the Orange-Madison Co-op.” This case is strikingly similar to the circum stances presented in the Supreme Court of Virginia’s decision in Avent v. Commonwealth , 209 Va. 474, 164 S.E.2d 655 (1968). In that- 4 - case, Avent’s latent fingerprint was found on a pane of glass from a window at Friedman-Marks Clothing Company, which had been broken in an appa rent attempt to gain entry into the building for the purpose of committing a larceny. Avent appealed his conviction for statutory burglary, contending that evidence of his fingerprint on the glass, standing alone, was insufficient to prove he committed the crime. In affirming Avent’s conviction, the Court quoted approvingly from Lawless v. State , 241 A.2d 155 (Md. App. 1968), stating: [“]A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent.[”] Avent , 209 Va. at 479-80, 164 S.E.2d at 659 (quoting Lawless , 241 A.2d at 159-160). Similarly, in Turner v. Commonwealth , 218 Va. 141, 235 S.E.2d 357 (1977), the Court found: [W]hile defendant’s fingerprint found at the scene of the crime may be sufficient under the circum stances to show defendant was there at some time, nevertheless in order to show defendant was the criminal agent, such evidence mu st be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a tim e other than that of the crime. Such “other circumstances” “need not be circumstances completely independent of th e fingerprint, and may properly include circumstances such as the location of the print, the character of the place or prem ises where it was found and the accessibility of the general public to the object on which the print was impressed.” Those attendant circumstances may demonstrate the accused was at the scene of the crime when it was committed. And if such circumstances do so demonstrate, a rational inference arises that the accused was the criminal agent. 218 Va. at 146-47, 235 S.E.2d at 360 (quoting Avent , 209 Va. App. at 479-80, 164 S.E.2d at 659) (other citations omitted) (emphasis in original).- 5 - In the case at bar, in addition to the DNA evidence, several other circumstances clearly supported the trial court’s reasonable inference th at appellant was “at th e scene of the crime when it was committed.” Id. In particular, appellant’s bl ood was found just beneath the broken office window. A partially empty beer bottle, found inside the buildi ng, contained genetic material that was not inconsistent with appell ant’s DNA. Appellant was not a customer of the Co-op nor an employee of the Co-op, and no evidence suggested he would have had any reason to be on the Co-op premises at any point in tim e. In fact, the evidence suggests that a fence surrounds the Co-op facility and that the gate to the fence is locked during non-business hours. In addition, appellant apparently lied to police about his whereabout s at the time of the break-in.
See Rollston v. Commonwealth , 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) (“A defendant’s false statements are probative to show he is trying to conceal his guilt, and thus [are] evidence of his guilt.”). Fina lly, and of particular significan ce, before police shared any information with appellant concerning the conditi on of the truck, appellant made the spontaneous statement that “the truck [was] not damaged.” Considering this record as a whole, we find no error in the trial court’s determination that the Commonwealth proved, beyond a reasonable doubt , that appellant committed the offenses for which he was charged. It is well settled that, “[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficien tly convincing to exclude every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Nevertheless, “[t]he Co mmonwealth need only exclude reasonable hypotheses of innocence that flow from the eviden ce, 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). Thus, in making a determination concer ning an appellant’s hypothesis of innocence in a circumstantial evidence case, we must determ ine “not whether there is some evidence to- 6 - support” the appellant’s hypothesis of innocence, but rather, “wheth er a reasonable [fact finder], upon consideration of all the evidence, could have rejected [the appellant’s] theories in his defense and found him guilty of [the charged crime] beyond a reasonable doubt.” Hudson v. Commonwealth , 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003) (internal quotations omitted). Moreover, “whether an alternate hypothesis of innocence is reasona ble is a question of fact and, therefore, is binding on appeal unless pl ainly wrong.” Archer v. Commonwealth , 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) (citations omitted). Consistent with these principles, we hold that the trial court could reasonably infer from this evidence that appellant was the criminal agent here. Indeed, the Commonwealth was not required to “affirmatively and conclusively nega te every possibility that [appellant], who was shown to have been at the scene of the crime by his [DNA], was pr esent other than at the time of the commission of the crime.” Avent , 209 Va. at 481, 164 S.E.2d at 660. For these reasons, we affirm appellant’s convictions. Affirmed.