COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Alston Argued at Richmond, Virginia

ANDREW VOJUAN BURROUS OPINION BY v. Record No . 0022-17-2 JUDGE RANDOLPH A. BEALES DECEMBER 12, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF T HE CITY OF FREDERICKSBURG Sarah L. Deneke, Judge Christopher M. Reyes (Spencer, Meyer, Koch & Cornick, PLC, on brief), for appellant. Donald E. Jeffrey, III, Senior Assistant Attorney General (Ma rk R. Herring, Attorney General, on brief), for appellee.
At the conclusion of a bench trial, Andrew Vojuan Burrous (“ap pellant”) was convicted of two counts of robbery, one count of attempted ro bbery, and one count of wearing a mask in public. On appeal, appellant argues tha t the evidence was insufficient “to find Appellant guilty when the only identification of Appellant was through the use of DNA evi dence.” We disagree with appellant’s argument and charact erization of the evidence, and we affirm appellant’s convictions for the following reasons.
B ACKGROUND Viewing the evidence in the li ght most favorable to the Common wealth, as we must since it was the prevailing party in the trial court, Riner v. Common wealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), the evidence at trial established that Karen Moore was a store manager at a Dollar Tree store in Frede ricksburg, Virginia. On Septemb er 5, 2015, at around 10:20 or 10:30 p.m., Moore was walking out o f the Dollar Tree with a cow orker and the coworker’sPUBLISHED- 2 - boyfriend, when two men came running out of the woods toward he r. She managed to get into her car and shut the door. One of the men wrestled the door op en before she could lock it, but Moore was able to push him b ack and then close and lock the doo r, securing herself and her belongings inside her vehicle. At that point, the men walked t oward Moore’s co worker, April B rown, and her boyfriend, Jerome Barnes. One of the robbers wrestled with Bro wn as he ripped off her backpack. The robbers were also successful in taking Barnes’s wallet and a Dollar Tree bag containing some food and sodas. O ne of the assailants came bac k to Moore’s car, and attempted to break the window. He hit it forcefully enough to break the plastic rain guard. Ultimately, the two men ran away toward a pond and awooded area, in the direct ion of a Sport and Health fitness center. Following the incident, the poli ce were called out to the Doll ar Tree. A police canine, who was “trained to track narcot ics and scent apprehension,” wa s used in an attempt to locate evidence. Deputy Sheriff William Wright, the canine handler, t estified that the dog was “looking for the freshest stream of odor.” Wright testified that the do g led him around the retention pond and around a dumpster at the bac k side of the Sport and Health. Within fifteen feet of the dumpster, the dog located a black a nd white cloth bandana. The dog also located a white Dollar Tree plastic bag behind the Sport and Health, and a grey sweats hirt in the pond. The police also recovered a black face mask on the brick ledge encompassing the dumpster. The Commonwealth produced certif icates of analysis from the De partment of Forensic Science, the accuracy of which appellant did not dispute. On the certificate of analysis of the bandana, the results stated, “A DNA profile was developed from the bandana. This profile was searched against the Virgi nia DNA Data Bank and found to be con sistent with the following individual: Name: Andrew V. B urrous.” In contrast, the analy sis of the mask resulted in the- 3 - development of a major profile a nd a minor profile. It stated, “A DNA mixture profile was developed from the interior face area of the mask. The major p rofile developed from this mixture was searched against the Virginia DNA Data Bank and no DNA profile consistent with this profile was found.” The cer tificate also noted that the m inor profile was not suitable for comparison against the National or the Virginia DNA Data Bank. Another certificate of analysis analyzed buccal swabs from appellant and noted that appellant: cannot be eliminated as a contributor of the DNA profile previously developed from the bandana . . . . The probability o f selecting an unrelated individua l with a DNA profile matching t hat developed from the bandana at the PowerPlex® 16 loci is 1 in greater than 7.2 billion (which i s approximately the world population) in the Caucasian, B lack and Hispanic populations. At trial, Barnes testified th at one of the robbers was wearing a bandana while the other was wearing “a ski mask or something.” The Commonwealth introd uced a photograph of the bandana the police canine found at the scene and asked Barnes, “Is that the bandana you saw that night?” to which Barnes responde d, “Yes.” The same photograph was shown to Brown, and she also testified that the bandan a in the photograph was the one w orn by the individual who grabbed her backpack. Brown repeate d her testimony on cross-examinatio n. Defense counsel asked, “Are you sure this is the bandana t hat was worn?” to which Brow n responded, “It was worn across his face.” Sergeant Mary Mason, the primary detective a ssigned to the robbery, was also shown this photograph of the ba ndana, and she confirmed it was the bandana the police found on the night of the robbery. Also introduced were photographs of appellant printed from a F acebook page, several of which also featured a bandana. The trial court ultimately f ound that the Commonwealth had pro ven that Burrous committed the offenses. In coming to this conclusion, the tria l court found that the bandana recovered was the one used to commit the robbery because the po lice canine found it by directly- 4 - tracking it from the scene of the robbery to a nearby area wher e other items identified in the robbery were found and because two of the victims testified tha t it was the bandana used in the robbery. The trial court als o found that the only DNA on the b andana was that of appellant.
A

NALYSIS When considering the sufficien cy of the evidence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at t he trial established guilt beyo nd a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S. E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “W e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Kelly v. C ommonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc )). “This familiar standard gives full play to the responsibil ity of the trier of fact fairly to resolve conflicts in the tes timony, to weigh the evid ence, and to draw reasonable inferences from basic facts t o ultimate facts.” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). The only issue in this case is wh ether the evidence is suffici ent to prove that appellant was one of the robbers. Appellantcontends that our decision i n this case is controlled by Jennings v. Commonwealth, 67 Va. App. 620, 798 S.E.2d 828 (2017 ). In Jennings, this Court reversed a robbery conviction aga inst Calvin Donnell Jennings b ecause the evidence was insufficient to prove that he was the perpetrator of the robbery. Id. at 628, 798 S.E.2d at 832. Jennings was convicted of robbing a Carolina BP gas station and convenience store. Id. at 623, 798 S.E.2d at 829. On the day of the robbery, a person entered the store wearing a black stocking cap, a blue hooded sweatsh irt, black jeans, a scarf wr apped around his face, gloves, and sunglasses. Id. Because his identity was shielded by the clot hing, the store clerk could not- 5 - provide a physical description othe r than that he was “tall” an d “slim.” Id. at 623, 798 S.E.2d at 830. The perpetrator threatened t he clerk with a knife and sto le $38 from the cash register. Id. When the police arrived at the s cene, a police do g located a br own bag at the back of the store and several $5 bills. I d. The dog then alerted on a sto cking cap and a scarf found close together on a wooded path near the store. Id. at 624, 798 S.E. 2d at 830. A hooded sweatshirt was found approximately ten feet off the path. Id. The police also located a knife approximately twenty to twenty-five yards from the path. Id. When shown pho tographs of the recovered items, the clerk identified them as i tems used by the perpetrator duri ng the robbery. Id. DNA was collected from the stoc king cap, the scarf, the knife, and the hooded sweatshirt. Id. Each item contained DNA from more than one individual. Id . The hooded sweatshirt contained “a combination of DNA from multiple individuals, resu lting in a profile ‘too complex’” for any conclusions t o be made. Id. The stocking ca p and the scarf also contained a mixture of DNA, but the testifying f orensic scientist determine d that “Jennings was the ‘major contributor’ of DNA on both of those items, meaning his DNA was the most prominent on them.” Id. DNA was also recove red from the knife, and “Jennin gs’ DNA mixture represented about half of that pres ent on the knife.” Id. On appeal, Jennings argued that the evidence on ly established t hat he came into contact with these items at some point , but it did not establish that h e was the individual wearing or using them at the time of t he robbery. Id. at 626, 798 S.E.2d at 831. Agreeing with Jennings and reversing the conviction, this C ourt stated, “[T]he evidence at best is legally in equipoise, because it equally supports a conclusion that the unknown contr ibutor of DNA is just as likely as Jennings to have been the wearer of the clothing and possessor of the knife, and therefore, the robber.” Id. at 627, 798 S.E.2d at 832.- 6 - Similarly, appellant urges us to hol d that a rational factfind er could not conclude that appellant was the robber because the evidence only proves appel lant wore the bandana at some point, but there was no evidence th at he wore it at the time of the robbery. Appellant argues that the Facebook photographs support his conclusion because they sh ow other individuals coming into contact with the bandana . He argues the evidence did not exclude the hypothesis that “someone else featured in the photographs had access to a banda na that Appellant had touched and then used this bandana in committing these crimes.” We dis agree. The present case differs from Jennings because, unlike in Jenn ings, where multiple DNA profiles were identified, the DNA analysis of the bandana here showed that DNA of only one individual – appellant – was on t he bandana, and the certificat e of analysis stated that the “probability of selecting an unr elated individual with a DNA pr ofile matching” the one developed was approximately 1 in greater than 7.2 billion. The factfinder could infer that no other DNA was present on the banda na because, unlike with the m ask, where a minor profile was also developed, no other DNA profile s were developed from the b andana. Unlike in Jennings, where it was quite possible that a nother individual whose DNA w as found on the items used in the robbery was the assailant, t here is no other DNA here to su ggest that another individual wore the bandana during the robbery. The evidence also supports the trial court’s conclusion that t he bandana located by the dumpster, and containing appellan t’s DNA, was the bandana worn in the commission of the robbery. Shortly after arriving at the scene, the police canin e located the bandana, the Dollar Tree bag, and the sweatshirt – all at places in the direction t hat the robbers had just fled. In addition, both Barnes and Brown tes tified that the bandana foun d near the dumpster was the bandana that the individual who robbed them was wearing. Becau se the bandana located by the police was the bandana used to commit the robbery and appellant ’s DNA was the only DNA- 7 - found on the bandana, the evidence was sufficient for a rationa l factfinder to conclude that appellant was the robber. In addition to his reliance on Jenni ngs, appellant also argues that we should view the DNA evidence in this case in a similar manner as fingerprint ev idence. In Tyler v. Commonwealth, 254 Va. 162, 487 S.E.2d 221 (1997), the Supreme C ourt explained, “When the Commonwealth relies solely upon fin gerprint evidence to identif y a criminal agent, it bears the burden of excluding every reasonable hypothesis of innocence, t hat is, those ‘which flow from the evidence itself, and not fro m the imagination of defendant’ s counsel.’” Id. at 166, 487 S.E.2d 223 (citing Turner v. Com monwealth, 218 Va. 141, 148, 235 S.E.2 d 357, 361 (1977)). In Tyler, the defendant’s fingerprints were found on pieces of a store’s broken plate glass window during an investigation of a burglar y at the store. Id. at 164, 487 S .E.2d at 222. The defendant claimed there were innocent reasons that might explain why his fingerpr ints were on the glass. For example, he argued that a curious individual might pick up brok en glass in front of an “eye-catching, broken window.” Id. at 165, 487 S.E.2d at 222. However, the Court rejected the defendant’s alternate theories. [W]hile defendant’s fingerprint found at the scene of the crime may be sufficient under the circu mstances 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 r easonably exclude the hypothesi s that the print was impressed at a time other than that of the c rime. Such “other circumstances,” . . . “need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or pre mises 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 dem onstrate, a rational inferen ce arises that the accused was the criminal agent.- 8 - Id. at 166, 487 S.E.2d at 223 (citi ng Turner, 218 Va. at 146-47 , 235 S.E.2d at 360). In Tyler, there was “evidence of other c ircumstances tending to reasonabl y exclude the hypothesis that the print was impressed at a time othe r than that of the crime,” in cluding the fact that the defendant had no reason to be near the store , the evidence supported the conclusion that the glass was moved by the perpetrator to avoid c uts as he crawled inside the window, and the fact that the person who had removed the glass placed it back into the base o f the window. Similarly, here, there are othe r circumstances tending to excl ude the possibility that appellant innocently came into c ontact with the bandana at anot her time, such as the evidence that, following the robbery, the police dog tracke d the scent o f the assailants to the bandana, which was located near the scen e of the crime and near other it ems used in the robbery. In addition, the bandana containing a ppellant’s DNA, which was ide ntified by two victims as the bandana used during the robbery, w as not an item accessible to the general public. Thus, the other circumstances in this case reasonably exclude appellant’s alternate hypothesis of innocence.
C ONCLUSION In short, the evidence was sufficient for a rational factfinde r to conclude that appellant committed the robbery on September 5, 2 015. Two of the victims testified that the bandana found in the area near where the robbery occurred was the bandana wor n by one of the robbers. The police canine tracked the scent of the robbers from the scene o f the robbery to the place where the bandana was located, toward which the robbers had been seen fle eing. Furthermore , the trial court found that appellant’s DNA was t he only DNA found on the bandan a. Given the totality of the circumstances, the trial judge, as factfinder, did not err in f inding the evidence sufficient, and we, therefore, affirm appe llant’s convictions. Affirmed.