COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

DAVIS RANDOLPH BROWN 

 MEMORANDUM OPINION* BY 

v. Record No. 0107-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 16, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Arthur W. Sinclair, Judge Designate 

 David L. Heilberg for appellant. 

 Richard B. Campbell, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

John K. Byrum, Jr., Assistant Attorney 

General, on brief), for appellee. 

 Davis Randolph Brown (appellant) was convicted in a bench 

trial of three counts of breaking and entering with the intent to 

commit larceny in violation of Code § 18.2-91 and three counts of 

petit larceny in violation of Code § 18.2-96. Appellant contends 

the evidence was insufficient to prove beyond a reasonable doubt 

that he committed any of the offenses charged. We find no error 

and affirm. 

 I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

 

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

designated for publication. 
 -2- 

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 

S.E.2d 677, 678 (1997). The only evidence presented at trial was 

the testimony of the three larceny victims, Muscoe Garnett, Mary 

Scott Kaiser and Christopher Spanos, and one additional witness, 

John McAllister. 

 At approximately 8:00 a.m. on January 17, 1996, John 

McAllister, a University of Virginia student, was asleep in his 

loft bed at the Zeta Psi fraternity house. He awoke when an 

unknown man, whom he identified at trial as appellant, opened the 

door to his room, walked in, and asked him if he had tickets to 

the Virginia-North Carolina basketball game that night. 

McAllister responded that he did not. Appellant picked up 

McAllister's wallet from a desk near the door, turned away from 

McAllister, and sifted through the contents. He then wrote down 

a number where he said McAllister could reach him if he "got wind 

of any tickets," and left the room. McAllister came down from 

the loft, checked his wallet and found the contents, including 

three dollars, intact. Appellant was not charged with any crimes 

relating to this incident. 

 Immediately after this encounter, McAllister walked down the 

hall of the fraternity house past the room of Muscoe Garnett. As 

he passed, McAllister heard Garnett talking to someone whose 

voice sounded "like the same person that was just in my room." 

 At approximately 8:30 a.m. that day, Muscoe Garnett was in 

his loft bed in his room with the door closed. A man matching 
 -3- 

appellant's description entered Garnett's room and asked him for 

tickets to the North Carolina basketball game. Garnett answered 

that he had none, and the intruder "bent down" in the vicinity of 

where Garnett had left his pants on the floor under the end of 

the loft. After the man left, Garnett climbed down from the 

loft, checked his pants pocket, and found his wallet, containing 

thirty to forty dollars, missing. He confronted the intruder, 

who denied having taken the wallet. The intruder left the 

fraternity house, and Garnett called police. Garnett was unable 

to identify appellant as the man in his room. 

 At approximately 11:25 a.m. on the following day, January 

18, 1996, Mary Scott Kaiser left her office in Clark Hall at the 

University of Virginia and walked to an adjacent office suite. 

Her office was "one of the back offices in a suite of offices. 

To get there from the hall, you would have to go through one 

central . . . door and then back [along] a hallway to my office 

and through another door." Kaiser left her purse under a ledge 

behind a box of paper next to her desk, and she closed both the 

door to her office and the door to her office suite. No one else 

was in her office suite at that time. When Kaiser returned 

approximately five minutes later she encountered a man, whom she 

identified at trial as appellant, leaving her office suite. 

Appellant asked her where the buildings and grounds offices were 

located. Kaiser gave him directions, but as he left she realized 

those offices were closed at that time, and she became 
 -4- 

suspicious. She immediately checked the contents of her purse 

and discovered her wallet, containing twenty dollars, missing. 

 Between 5:30 and 6:00 a.m. the following day, January 19, 

1996, University of Virginia student Christopher Spanos, his 

roommate, and three guests were asleep in Spanos' bedroom on the 

third floor of the Kappa Sigma fraternity house, which was 

located next door to the Zeta Psi house. The bedroom door was 

closed. Spanos awoke to find a man, whom he identified at trial 

as appellant, standing at his desk, which was within arm's reach 

of his bed. Spanos confronted the intruder and asked what he was 

doing. Appellant said he was "a friend of Dave's from 

downstairs." When Spanos informed him that there was no "Dave" 

living downstairs, appellant "backed up" and claimed to be "a 

homeless guy looking for a place to stay." Spanos replied that 

he could not stay in the fraternity house, and appellant left the 

room. When Spanos checked, he discovered that his wallet and $7 

were missing. 

 The trial court found that "the Commonwealth's evidence 

meets the burden of proof" and convicted appellant of three 

counts of statutory burglary and three associated petit 

larcenies. 

 II. 

 On appeal, "[w]e may not disturb the trial court's judgment 

unless it is 'plainly wrong or without evidence to support it.'" 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 
 -5- 

904 (1998) (citation omitted). In addition, "the inferences to 

be drawn from proven facts are matters solely for the fact 

finder's determination." Marshall v. Commonwealth, 26 Va. App. 

627, 633, 496 S.E.2d 120, 123 (1998). 

 "Proof of the elements of an offense . . . includes proof of 

the corpus delicti." Watkins v. Commonwealth, 238 Va. 341, 350 

n.3, 385 S.E.2d 50, 55 n.3 (1989), cert. denied, 494 U.S. 1074 

(1990). "Where the charge is merely larceny, the corpus delicti

is the larceny of the goods. Where the charge is breaking and 

entering with the intent to commit larceny, the corpus delicti is 

the breaking and entering with that intent." Drinkard v. 

Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935). 

"'Direct evidence is not essential to prove the corpus delicti. 

It may be proved by circumstantial evidence.'" Fisher v. 

Commonwealth, 16 Va. App. 447, 452, 431 S.E.2d 886, 889 (1993) 

(citation omitted). 

 Appellant asserts that because the police never recovered 

the stolen wallets or the money, either in appellant's possession 

or elsewhere, the Commonwealth failed to establish that the 

charged crimes had been committed. This argument is without 

merit. Proof that appellant was in exclusive possession of 

recently stolen property would be necessary to invoke the larceny 

presumption, but the Commonwealth does not rely upon the 

presumption in the instant case. Recovery of the stolen property 

is not essential to establish the corpus delicti of larceny. See
 -6- 

id.

 In the instant case, the testimony of Garnett, Spanos and 

Kaiser that their money and wallets were taken from their rooms 

and office, respectively, was sufficient to establish the corpus

delicti of larceny, and the undisputed evidence that the intruder 

entered through closed doors at each location at the time of the 

theft was sufficient to prove the three offenses of statutory 

burglary. 

 Appellant also contends the evidence established only 

opportunity and the Commonwealth failed to exclude the 

possibility that some other person was the criminal agent. We 

disagree. 

 Where the evidence is wholly circumstantial, "'[t]he 

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.'" Betancourt v. Commonwealth, 

26 Va. App. 363, 375, 494 S.E.2d 873, 879 (1998) (quoting Sam v. 

Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)). 

 "'[A]ll necessary circumstances proved must be consistent with 

guilt and inconsistent with innocence and exclude every 

reasonable hypothesis of innocence.'" Fisher v. Commonwealth, 16 

Va. App. 447, 452, 431 S.E.2d 886, 889 (1993) (quoting Inge v. 

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). The 

Commonwealth need not "exclude every possible theory or surmise," 

but must exclude those hypotheses "'which flow from the evidence 
 -7- 

itself.'" Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 

S.E.2d 328, 338-39 (1988) (citation omitted). "Further '[w]hile 

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.'" Shurbaji v. Commonwealth, 18 Va. App. 415, 423, 

444 S.E.2d 549, 553 (1994) (quoting Stamper v. Commonwealth, 220 

Va. 260, 273, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S. 

972 (1980)). Additionally, although opportunity alone cannot 

support a conviction, "[o]pportunity is always a relevant 

circumstance . . . and when reinforced by other incriminating 

circumstances, may be sufficient to establish criminal agency 

beyond a reasonable doubt." Christian v. Commonwealth, 221 Va. 

1078, 1082, 277 S.E.2d 205, 208 (1981). 

 The facts presented here, taken as a whole, were sufficient 

to prove appellant's criminal agency beyond a reasonable doubt. 

The evidence placed appellant in the office or rooms from which 

the property was taken immediately before the thefts were 

discovered.1

 He had no rationale for being in the Garnett and 

Spanos bedrooms and rifling through the victims' wallets at 

6:00 a.m. or 8:00 a.m. Nor did he have a reason for having 

 

 1This fact distinguishes the instant case from Lewis v. 

Commonwealth, 211 Va. 497, 498-99, 178 S.E.2d 530, 531-32 (1971); 

Varker v. Commonwealth, 14 Va. App. 445, 447-48, 417 S.E.2d 7, 9 

(1992); and Thomas v. Commonwealth, 187 Va. 265, 270-72, 46 

S.E.2d 388, 390-91 (1948), in which the evidence proved the 

defendants' presence at the crime scenes but could not establish 

the time with any certainty. 
 -8- 

entered Kaiser's office suite through a closed door. Further, 

the trial court could reasonably infer that, when confronted, 

appellant gave each victim a false explanation of his presence 

and intentions at the time of each theft. The trial court was 

not plainly wrong when it concluded that appellant was the person 

who broke and entered the premises and took the missing items. 

 Affirmed.
 -9- 

Benton, J., dissenting. 

 The principle is well established that "mere opportunity to 

commit an offense raises only 'the suspicion that the defendant 

may have been the guilty agent; and suspicion is never enough to 

sustain a conviction.'" Christian v. Commonwealth, 221 Va. 1078, 

1082, 277 S.E.2d 205, 208 (1981) (citation omitted). "While a 

conviction may properly be based on circumstantial evidence, 

suspicion or even probability of guilt is not sufficient. There 

must be an unbroken chain of circumstances proving the guilt of 

the accused to the 'exclusion of any other rational hypotheses 

and to a moral certainty.'" Gordon v. Commonwealth, 212 Va. 298, 

300, 183 S.E.2d 735, 737 (1971) (citation omitted). "Suspicious 

circumstances, '"no matter how grave or strong, are not proof of 

guilt sufficient to support a verdict of guilty. The actual 

commission of the crime by the accused must be shown by evidence 

beyond a reasonable doubt to sustain his conviction."'" 

Burchette v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d 

81, 86 (1992) (citations omitted). 

 The evidence proved that Mary Scott Kaiser left her office 

for about five minutes. The suite of offices leading into her 

office and her office were unlocked while she left the premises. 

 The evidence also proved that Kaiser never saw Brown enter or 

exit her personal office. When Kaiser saw Brown coming out of 

the suite of offices where her office was located, Brown asked 

Kaiser where the maintenance department was located. Kaiser 
 -10- 

testified that up until two months prior to that time, the 

maintenance department had been located on the basement floor of 

Kaiser's building. Kaiser also testified that although one has 

to travel through the suite of offices to leave her office, there 

are twelve to fifteen different ways to get out of the building 

from her office. 

 Muscoe Garnett was unable to identify Brown in a photo 

lineup and did not identify him at trial. Garnett testified that 

he could not see what the man in his room was doing but he was 

sure the man was bent over in the area where Garnett had 

discarded his pants. Garnett did not see the man with his 

wallet. Garnett's bedroom door was not locked. Garnett also 

testified that the front door of the fraternity house has no lock 

and that "people came in pretty freely." 

 Christopher Spanos testified that he was asleep when the man 

entered his room. Spanos testified that he did not see the man 

with his wallet. Although he identified Brown at trial as the 

man who was in his room, at the preliminary hearing he was not 

sure that Brown was the man in his room. Other people, who 

attended a party in the fraternity house the night before, were 

asleep in Spanos' room. Spanos also testified that his door was 

shut but not locked and that the doors to the fraternity house 

remained unlocked. Fraternity pledges recovered Spanos' wallet. 

 However, no evidence proved when or where the wallet was found. 

 Both Spanos and Garnett were tentative in their 
 -11- 

identifications of Brown as the man they saw in their respective 

bedrooms. The evidence also proved that the fraternity houses, 

the bedrooms, the office suite, and Kaiser's office were unlocked 

and that other people had access to these locations. Thus, other 

individuals had an opportunity to steal the missing property. 

Simply put, the Commonwealth failed to exclude the reasonable 

hypothesis that someone else was the criminal agent responsible 

for the larceny and burglary offenses. Therefore, I would hold 

that the Commonwealth failed to prove beyond a reasonable doubt 

that Brown committed these offenses, and I would reverse Brown's 

convictions.