COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

TROY LEE ATKINS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2740-96-2 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 24, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Carl C. Muzi for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Troy Lee Atkins, Jr., was convicted of second degree murder. 

 On appeal, he argues that the trial judge abused his discretion 

by allowing a witness to be recalled to testify at trial after 

the witness violated the trial judge's order not to discuss the 

case with other witnesses. He also argues that the evidence was 

insufficient to support his conviction. We affirm the 

conviction. 

 I. 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting it all reasonable inferences fairly 

deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 

349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the evidence 

proved that in the early morning hours of December 27, 1995, 

 

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

designated for publication. 
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Atkins drove from Emporia to Richmond with Sara Lee Odom, two of 

their children, and another couple. Atkins and Odom registered 

at a motel and put the children to bed. 

 A registered nurse testified that Atkins arrived at the 

hospital emergency room on the afternoon of December 27. When 

the nurse went outside to see Odom in Atkins' truck, Odom did not 

have a pulse. Atkins told the nurse that several girls attacked 

Odom after Odom went to a store. He said when Odom returned 

home, Odom told Atkins what happened and complained of a 

headache. Atkins said when he asked Odom if she wanted to go to 

the hospital, Odom refused and said she would be fine after 

taking a shower. 

 Atkins also spoke with a clinical social worker in the 

emergency room and repeated the same events. The social worker 

noted that Atkins was upset. Atkins said that he brought Odom to 

the hospital after she passed out. The social worker informed 

Atkins that Odom's situation was life threatening. She also told 

him that if Odom was attacked, criminal assault charges would be 

filed against the assailants. Atkins walked through the 

emergency room entrance to smoke a cigarette and never returned. 

 Detective Leonard testified that when he went to the 

hospital on December 27, Odom's body had been removed by the 

medical examiner. Detective Leonard visited Emporia several 

times looking for Atkins and left his business cards with Atkins' 

friends and family. Atkins was apprehended in North Carolina on 
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February 6, 1996, brought to Richmond for questioning, and gave a 

lengthy statement to the Richmond police explaining the events 

that occurred on December 27. 

 Testifying from Atkins' written statement, Detective Leonard 

stated that Atkins said he and Odom were waiting in Atkins' truck 

for a friend at 6:00 a.m. on December 27 when Odom decided to go 

to a nearby store for sodas and cigarettes. About twenty minutes 

later, Atkins heard loud "fussing" outside his truck. When he 

exited the truck, he saw Odom with a stick. Odom told Atkins 

that two or three women were "messing with her." After Atkins 

yelled at the women, they ran. He saw two or three people 

running off. Odom had a gash and two scratches on her face and a 

bleeding finger. When Atkins told Odom she should go to the 

hospital, she said she was fine and asked him to take her to the 

motel. 

 Atkins said that when he arrived at the motel he sent the 

children to get a soda for Odom. Odom then went into the room 

and got into the bathtub. Atkins said Odom complained because he 

made the water too hot and at one point said "ouch." Atkins said 

that he asked Odom if she had been hit with sticks and she said 

that she had. After the children returned, Odom sat on the bed, 

changed her clothes, talked and joked with the children, walked 

around the room, smoked cigarettes, and drank a soda. Atkins 

said that Odom asked him to not mention the beating to the 

children. At Odom's request, he took the children to a friend's 
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house. 

 Atkins' statement further recited that when he took the 

children to the friend's house, Odom's daughter saw blood in the 

truck. She accused Atkins of fighting with her mother and asked 

him where the blood came from. She said "I know you and 

mama . . . got mad and been fighting." Atkins said he told her 

she was being "nosy." In his statement, Atkins admitted that he 

and Odom had had fights before but never so severe as to require 

medical attention. 

 After leaving the children, Atkins went to a store and 

purchased something for Odom's pain. When he returned to the 

motel, Odom was dressed. Odom said she did not have a headache 

and was not sore. Although he rubbed the ointment on her, Odom 

did not take the medicine he purchased for her pain. 

 Atkins said that later in the afternoon he and Odom went to 

Atkins' uncle's house and remained inside for twenty minutes. 

Odom said she couldn't breath, and she fainted. With the 

assistance of another woman, Atkins gave Odom mouth-to-mouth 

resuscitation. Atkins then took Odom to the hospital. Atkins 

said that he did not contact the police after leaving the 

hospital because he did not have their phone number and because 

he was afraid a warrant would be issued for his arrest. 

 Later in his statement, Atkins gave another version of the 

events. Atkins said that when he was sitting in the truck and 

heard the voices, he jumped out of the truck and saw Odom coming 
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toward him. Odom had a gash on her face. Later, when Odom was 

taking her bath and Atkins saw her injuries, he told her it 

looked as if she had been hit with sticks. She told him she had 

been beaten with sticks. 

 Odom's fourteen-year-old daughter testified that at 8:00 

a.m. on December 27, her mother was seated motionless in Atkins' 

truck in front of the motel room. Atkins got a coat from the 

motel room. Odom's daughter next saw the coat over her mother's 

shoulders. Atkins sent the two children to get sodas, and he 

told them he and Odom were going to visit another couple in the 

motel. When the children returned with the sodas, Atkins and 

Odom were in the bathroom of the motel room. Odom's daughter 

passed a soda through the slightly opened door and heard her 

mother say "ouch." Later, Odom's daughter saw her mother lying 

in bed with the sheets pulled up to her shoulders. Odom's 

daughter said her mother never spoke to her or the other child. 

She never saw Odom walking around, smoking, talking, or drinking 

her soda. 

 Later, when the children awoke, Atkins left Odom at the 

motel and took the two children to a friend's house. The 

daughter saw blood in Atkins' truck on the rear passenger window 

and headrest. When she asked Atkins if he had been fighting with 

her mother, he just smiled. He asked her why she asked, and she 

replied "[b]ecause I see blood." She testified that Atkins made 

no further comment. 
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 Dr. Jack Daniel, the assistant medical examiner, opined that 

Odom died of acute head trauma. He testified that "her entire 

back, her buttocks, . . . the entire extent of her left arm, 

[and] much of her right arm were covered with prominent bruises. 

 Associated with those bruises were a large number of small 

angular . . . lacerations." Four lacerations on Odom's head 

caused "a great deal of bleeding into her scalp" and bleeding on 

the top of her brain. Odom had bruising and abrasions on the 

front of both of her lower legs and her right knee, and she had 

extensive bruising and swelling on both hands. Her right ring 

finger was broken. Dr. Daniel testified that Odom also had 

abrasions on the tip and sides of her nose and around her mouth. 

 The most severe injury on her face was a deep laceration about a 

quarter of an inch long on the right side of her face near her 

nose. Dr. Daniel further testified that if a stick had been used 

in the beating, he would have expected a broken nose rather than 

this type of injury. 

 Dr. Daniel opined that the "very, very severe bruising," the 

extensive tissue damage, and the absence of major bone fractures 

indicated that a flexible instrument was used to inflict Odom's 

injuries. He testified that all of the marks, including the 

angular irregular marks, were "entirely consistent" with having 

been inflicted with a belt buckle. He also opined that the 

configuration of a belt and its buckle recovered by the police 

from Atkins' truck was "entirely consistent" with Odom's 
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injuries. He testified, however, that any other belt could have 

been used and that he could not rule out the possibility that a 

tree branch was used to inflict these injuries. Dr. Daniel 

further testified that Odom's injuries were inflicted by a dozen 

or more blows and that the severity of Odom's injuries would have 

been immediately apparent to anyone who saw her. 

 Dr. Daniel was recalled to testify after several witnesses 

had testified. When Atkins' counsel objected to his further 

testimony, Dr. Daniel was questioned to determine whether he had 

violated the judge's admonition not to discuss the case with 

others. During the course of this voir dire, Dr. Daniel 

testified that a North Carolina detective, who had testified 

earlier in the trial and had sat through Dr. Daniel's testimony, 

talked with him during lunch. After further voir dire, the trial 

judge overruled the objection. 

 Dr. Daniel testified again and opined that while Odom might 

have been conscious for several hours after the injuries were 

inflicted, he could not say "with any confidence" that she would 

have been coherent. He stated that Odom would have become 

"progressively less coherent, less responsive over a period of 

hours if in fact she did not lose consciousness immediately." 

 At the conclusion of the evidence, the trial judge convicted 

Atkins of second degree murder. 

 II. 

 Atkins first contends that the trial judge erred in not 
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barring Dr. Daniel's second testimony. Atkins argues that Dr. 

Daniel violated the judge's order not to discuss the case with 

others and that the doctor had been prepared by other 

Commonwealth's witnesses to answer certain questions prior to 

being recalled to testify. Atkins asserts that he was prejudiced 

by the testimony because without it, the Commonwealth would not 

have established when Odom was beaten. 

 On voir dire, before his second testimony, Dr. Daniel 

testified that when he spoke to the North Carolina detective at 

lunch, "there was some question as to whether or not . . . 

certain questions that might have been asked . . . about the 

length of survival" and "what [the victim] might have been 

capable of doing." Dr. Daniel stated that his opinions were not 

changed as a result of his conversation with the detective. When 

questioned by the trial judge, Dr. Daniel testified that although 

he was aware of the nature of the questions he was about to be 

asked by the Commonwealth's attorney, any response he would give 

was unrelated to his conversation with the detectives. 

 The North Carolina detective testified that during their 

walk to lunch he said to Dr. Daniel, "in North Carolina one of 

the questions . . . would have asked the time. How long she 

would have lived." He said that Dr. Daniel's response was "that 

would have been a responsible or respectable question." 

 Detective Leonard, who testified after the lunch recess, 

overheard the conversation. He testified that the North Carolina 
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"detective . . . asked him -- he didn't understand why . . . the 

Commonwealth attorney didn't ask Dr. Daniel . . . what the girl 

could do after the beating. What she would be able to do." 

Detective Leonard could not recall Dr. Daniel's response and 

stated that he did not remember contributing to the conversation. 

 The Commonwealth's attorney stated that after lunch he 

realized that he had forgotten to ask Dr. Daniel several 

important questions. The Commonwealth's attorney stated that he 

did not discuss these questions with Detective Leonard or the 

North Carolina detective and that the questions were in his notes 

but that he simply forgot to ask them. 

 Defense counsel asked the trial judge to prohibit Dr. Daniel 

from testifying or to declare a mistrial. The judge denied the 

motion and ruled as follows: 

 The paramount question in the Court's mind is 

whether the conversations that took place 

outside of this courtroom that should not 

have taken place is likely to change the 

testimony to be offered at this time by Dr. 

Daniel. The Court has concluded that those 

conversations and the manner in which this 

situation arose will not affect the testimony 

by Dr. Daniel as to whatever questions he may 

be asked at this point during the remainder 

of his time on the stand as a witness and for 

that reason the Court sees no useful purpose 

would be served by declaring a mistrial and I 

shall not do that. 

 "The purpose of excluding witnesses from the courtroom is, 

of course, to deprive a later witness of the opportunity of 

shaping his testimony to correspond to that of an earlier one." 

Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279 
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(1950). "A judge's admonition to witnesses not to discuss 

[their] testimony with third parties until the trial is completed 

. . . [is intended to] lessen the danger that [a witness'] 

testimony will be influenced by hearing what other witnesses have 

to say, and to increase the likelihood that [witnesses] will 

confine themselves to truthful statements based on their own 

recollections." Perry v. Leeke, 488 U.S. 272, 281 (1989). 

 "A trial [judge] has discretion to decide whether a witness 

who violates an exclusion order should be prevented from 

testifying." Bennett v. Commonwealth, 236 Va. 448, 465, 374 

S.E.2d 303, 314 (1988). On review, we must consider "whether 

there was prejudice to the defendant . . . [,] whether there was 

intentional impropriety attributable to the prosecution . . . [,] 

whether the out-of-court comments concerned any substantive 

aspect of the case[,] and whether [the comments] had any effect 

on the witness' testimony." Id. Thus, "we cannot reverse the 

trial court's action in permitting [Dr. Daniel] to testify unless 

it appears that [Atkins] was prejudiced by such action." Satcher 

v. Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 836 (1992). 

 Although Dr. Daniel's testimony regarding the length of time 

Odom would be conscious after the beating and Odom's degree of 

coherence was damaging to Atkins, that is not the test of 

prejudice. Rather, prejudice occurs where the violation of the 

exclusion order somehow influences the testimony of the witness 

on the stand. See Bennett, 236 Va. at 464-65, 374 S.E.2d at 
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314-15 (no abuse of discretion where witness did not change 

testimony as result of information obtained from Commonwealth in 

violation of exclusion order); Jury v. Commonwealth, 10 Va. App. 

718, 721, 395 S.E.2d 213, 215-16 (1990) (abuse of discretion to 

refuse to allow witness who unintentionally remained in courtroom 

in violation of exclusion order to testify because there was no 

showing that witness' presence in courtroom influenced his 

testimony). No evidence proved that Dr. Daniel's testimony was 

influenced by his conversation with the North Carolina detective. 

 Although the conversation between Dr. Daniel and the North 

Carolina detective violated the nondiscussion order, it did not 

constitute a "coaching session" as Atkins suggests. The North 

Carolina detective merely commented that the Commonwealth's 

attorney forgot to ask a pivotal question, and Dr. Daniel agreed. 

 The detective did not prepare Dr. Daniel to answer certain 

questions; indeed, he and Dr. Daniel did not discuss Dr. Daniel's 

responses to any questions. Furthermore, Dr. Daniel testified 

that although he knew what he would be testifying about, his 

answer to the question was based on his autopsy and examination 

of the victim, not on his lunch time conversation. 

 Having examined the record, we hold that the trial judge did 

not abuse his discretion in permitting the witness to testify. 

 III. 

 We also hold that the evidence was sufficient to support 

Atkins' conviction for second degree murder. Although the 
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evidence in this case is entirely circumstantial, the principle 

is well established that circumstantial evidence alone may be 

sufficient to support a conviction. See Johnson v. Commonwealth, 

2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). When a case 

is based on circumstantial evidence, the circumstances proved 

must be consistent with guilt and exclude every reasonable 

hypothesis of innocence. See Garland v. Commonwealth, 225 Va. 

182, 184, 300 S.E.2d 783, 784 (1983). The Commonwealth "'is not 

required to disprove every remote possibility of innocence, but 

is, instead, required only to establish guilt of the accused to 

the exclusion of a reasonable doubt.'" Cantrell v. Commonwealth, 

7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation 

omitted). 

 Atkins argues that his mere presence with Odom was 

insufficient to support his conviction and that the evidence does 

not exclude the hypothesis suggested by his statements to police 

that Odom was injured when she was attacked on the street by a 

group of people. The principle is firmly established that 

"[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). Here, there is substantial other 

circumstantial evidence that supports the trial judge's finding. 

 Atkins' statement that Odom was functioning normally several 
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hours after receiving her injuries was contradicted by the 

medical evidence presented by Dr. Daniel and the testimony of 

Odom's daughter. Dr. Daniel testified that by the nature and 

severity of Odom's injuries, she could not have functioned as 

Atkins suggests. If Odom had not been rendered unconscious by 

the beating, Odom would have become progressively less coherent 

and responsive. Odom's daughter's testimony further contradicts 

Atkins' statements about Odom's behavior after the beating. She 

did not see Odom smoke, drink, walk around, or even talk after 

Odom and Atkins arrived at the motel. 

 The trial judge was not required to accept Atkins' version 

of events. See Rollston v. Commonwealth, 11 Va. App. 535, 547, 

399 S.E.2d 823, 830 (1991). The trial judge could disregard 

Atkins' versions of events and chose to believe the testimony of 

Dr. Daniel and Odom's daughter. "[D]eterminations of credibility 

lie within the purview of the fact finder, who may reject a 

witness' testimony and base a finding of guilt upon contradictory 

statements. The fact finder may conclude that the defendant lied 

to conceal his guilt." Moore v. Commonwealth, 25 Va. App. 277, 

289, 487 S.E.2d 864, 870 (1997). See Sheppard v. Commonwealth, 

250 Va. 379, 389, 464 S.E.2d 131, 137 (1995). Indeed, Atkins' 

contradictory statements to police and witnesses about the events 

leading up to Odom's death render doubtful the hypothesis 

suggested by Atkins that Odom's injuries were caused by others. 

The trial judge could reasonably infer that Odom could not have 
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functioned normally as Atkins suggests but that she would be 

increasingly approaching a state of unconsciousness. 

 In summary, Atkins was present when Odom was injured and 

bleeding; he gave several contradictory statements about the 

events in question; and Atkins' version of Odom's functioning 

ability after the beating was contradicted by the medical 

evidence. In addition, the belt found in Atkins' truck was 

consistent with the marks on Odom's body. Atkins fled the 

hospital, left the jurisdiction, and intentionally evaded the 

police for one and a half months after the incident. See

Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476, 

480 (1991) (an inference of guilty conduct arises from evidence 

and avoidance of the police). Viewed in the light most favorable 

to the Commonwealth, the evidence was sufficient to prove beyond 

a reasonable doubt Atkins' guilt of the offense of second degree 

murder. 

 For the foregoing reasons, we affirm the conviction. 

 Affirmed.