COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

Willis, Elder, Bray, Annunziata, Overton, Bumgardner 

and Lemons 

Argued at Richmond, Virginia 

KIMBERLY P. MARTIN, S/K/A 

 KIMBERLY PAIGE MARTIN 

 MEMORANDUM OPINION* BY 

v. Record No. 1556-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JANUARY 12, 1999 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Jay T. Swett, Judge 

 Lindsay G. Dorrier, Jr., for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Kimberly P. Martin (appellant) was convicted in a jury trial 

of grand larceny in violation of Code § 18.2-95 and statutory 

burglary in violation of Code § 18.2-91. On appeal, she 

contended that the trial judge erred in refusing to grant her 

motion to set aside the jury verdicts. In an unpublished 

opinion, Martin v. Commonwealth, No. 1556-97-2 (Va. Ct. App. 

June 9, 1998), a panel of this Court reversed and dismissed the 

convictions. On petition of the Commonwealth, we granted 

rehearing en banc to consider whether the evidence was sufficient 

to sustain the jury verdicts. On rehearing en banc, we affirm 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
- 2 - 

appellant's convictions. 
- 3 - 

 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 

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

S.E.2d 677, 678 (1997). So viewed, the evidence established that 

appellant was employed at Brown's Cleaners until "a couple of 

months" before the store was burglarized in the early morning 

hours of January 8, 1996. One of the co-owners of the store, 

Harry Brown (Brown), had terminated appellant after learning that 

she had given false information in an employment statement. When 

appellant left her job, her key to the premises was recovered but 

the combination to the safe was not changed by Brown. At the 

time of the burglary, the co-owners of the store, four current 

employees, and appellant were the only individuals who knew the 

combination to the safe. 

 On the night of the burglary, Eddie Mawyer (Mawyer) was 

plowing snow from the parking lot of the shopping center in which 

Brown's Cleaners was located. Between 3:00 a.m. and 4:00 a.m., 

Mawyer observed a four-wheel drive vehicle enter the parking lot. 

 He saw two women, one of whom was wearing a Chicago Bulls 

jacket, get out of the car and walk toward Brown's Cleaners. 

After five or ten minutes passed, the women failed to return and 

Mawyer suspected that "something must be going on." He 

approached the side of the dry cleaners, saw that the window had 
- 4 - 

been broken, and noticed "a shadow of people inside." Earlier 

that night, the window to the store had been intact. 

 Mawyer went to a nearby telephone in the parking lot and 

called the police to report the burglary. As he was giving the 

license plate number of the vehicle to the police, a woman, whom 

Mawyer identified as appellant, approached him and began to speak 

with him. 

 Officer Michael Deeds (Deeds) was the first officer to 

arrive at the scene. He noted that the side glass window had 

been broken. There were also footprints, which appeared to be 

made from a "lug-soled" or "mountain climbing-type" boot or shoe, 

that led from the broken glass to the back of the cleaners and 

then to the back of Kmart, another store located in the shopping 

center. 

 Deeds spoke with appellant, who told him that she and her 

companion, Heather Mortenson, had been walking, sledding, and 

tubing in the snow. Mortenson was wearing a Chicago Bulls 

jacket, and appellant was wearing some other sports team jacket. 

 Both women denied entering the cleaners. Deeds then examined 

the soles of appellant's shoes and noted that appellant and 

Mortenson were wearing "lug-soled" shoes. Deeds compared 

appellant's shoes, "as to size," to the footprints in the snow, 

and they were "very similar." The footprints also appeared to be 

"the same impression [as] the bottom of [appellant's] tread." 

 Several other police officers arrived and the two women were 
- 5 - 

later escorted from the scene. However, twenty or thirty minutes 

later both appellant and Mortenson were seen walking behind the 

Kmart store. When the officers asked them why they were in the 

area again, they replied that "they were just walking again." 

Both women denied involvement in the burglary and were released 

within a few minutes. 

 Officers Stephen Upman and Tom McKeen went to the rear of 

the Kmart store and saw two sets of footprints leading away from 

the cleaners along the rear alley. The officers followed these 

footprints and discovered underneath a pile of snow a pillowcase 

containing money, money pouches, a money box, a diskette case, 

and a brick. Officer Upman testified that thirty or forty 

minutes after the police released appellant and Mortensen, he saw 

a man, later identified as William Frazier, and a boy walking 

from behind the Kmart. 

 The evidence further established that Brown's Cleaners 

usually closed at 9:00 p.m. on Sundays, but that it may have 

closed a little earlier on January 7 because of the blizzard. 

While Brown did not personally close the store and lock the safe 

on January 7, he testified that the store's money bags were 

"always" placed in the safe at the end of the day. Brown 

verified that the money found in the pillowcase behind the Kmart 

had been taken from his business. 

 At trial, appellant testified on her own behalf. She 

confirmed that her companion, Mortenson, was wearing a Chicago 
- 6 - 

Bulls jacket on January 7 and that the two women were walking 

through the parking lot to go tubing with some other persons. 

While she denied her involvement in the burglary, she admitted on 

cross-examination that she knew the combination to the safe and 

was aware that at least $150 is left in the safe each night for 

the morning business. 

 The jury convicted Martin of grand larceny and statutory 

burglary. She was sentenced to serve two consecutive 

twelve-month jail sentences. In an unpublished opinion, a panel 

of this Court reversed and dismissed the convictions. On 

petition of the Commonwealth, we granted rehearing en banc to 

consider whether the evidence was sufficient to sustain the jury 

verdicts. 

 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, 

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). 

 In the instant case, the evidence, when viewed in the light 

most favorable to the Commonwealth, was sufficient to prove 

appellant's criminal agency in the burglary and grand theft of 

her former employer. The law is well settled that 
- 7 - 

"'[c]ircumstantial evidence is as competent and is entitled to as 

much weight as direct evidence, provided it is sufficiently 

convincing to exclude every reasonable hypothesis except that of 

guilt.'" McBride v. Commonwealth, 24 Va. App. 603, 606, 484 

S.E.2d 165, 167 (1997) (quoting Coleman v. Commonwealth, 226 Va. 

31, 53, 307 S.E.2d 864, 876 (1983), cert. denied, 465 U.S. 1109 

(1984)). "The fact finder is not required to believe testimony 

that is inconsistent with the facts, may reject testimony that 

has been impeached, and may rely solely upon circumstantial 

evidence to prove an offense, provided the circumstances point 

unerringly to prove the necessary elements of the offense." Doss 

v. Commonwealth, 23 Va. App. 679, 685, 479 S.E.2d 92, 95 (1996). 

 Here, the trier of fact reasonably could have concluded that 

the two persons who exited the four-wheel drive vehicle, 

appellant and Mortenson, were the same individuals who went to 

the dry cleaners, broke its window, and then went inside to steal 

the money and other items from the safe. Both women were wearing 

boots that were similar to the two sets of footprints near the 

scene of the burglary. These footprints led away from the 

cleaners to the back of the Kmart, where the stolen money was 

found in a pillowcase underneath a pile of snow. 

 The evidence established that appellant was aware of the 

procedures used by the cleaners and knew the combination to the 

safe. Although appellant denied any involvement in the burglary, 

the jury was not required to believe her nor give any weight to 
- 8 - 

her testimony. "In its role of judging witness credibility, the 

fact finder is entitled to disbelieve the self-serving testimony 

of the accused and to conclude that the accused is lying to 

conceal [her] guilt." Marable v. Commonwealth, 27 Va. App. 505, 

509-10, 500 S.E.2d 233, 235 (1998). 

 The Commonwealth's evidence was competent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that appellant was guilty of both charges. 

Accordingly, appellant's convictions are affirmed. 

 Affirmed.
- 9 - 

Benton, J., dissenting. 

 The majority holds that the evidence was sufficient to prove 

Kimberly P. Martin's guilt beyond a reasonable doubt. I 

disagree. While we are bound to review the evidence in the light 

most favorable to the Commonwealth, we must not lose sight of the 

fact that "whether a criminal conviction is supported by evidence 

sufficient to prove guilt beyond a reasonable doubt is not a 

question of fact but one of law." Bridgeman v. Commonwealth, 3 

Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). We must reverse 

Martin's convictions if the evidence is insufficient to prove her 

guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 

358, 364 (1970). 

 The evidence creates only a suspicion that Martin may have 

committed the burglary and larceny. The principle is well 

established, however, that "[s]uspicious circumstances '"no 

matter how grave or strong, are not proof . . . beyond a 

reasonable doubt . . . ."'" Burchette v. Commonwealth, 15 Va. 

App. 432, 438-39, 425 S.E.2d 81, 86 (1992) (citations omitted). 

For this reason, we and the Supreme Court have consistently held 

that suspicious circumstances or even probability of guilt are 

insufficient to support a conviction. See Littlejohn v. 

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997) 

(citing Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 

(1977)). 

 The evidence proved that on the night of this incident, the 
- 10 - 

driver of a snowplow was clearing the shopping center parking lot 

following a thirty-inch snowfall. Martin and Mortenson drove 

onto the parking lot and walked toward the cleaners. A 

passageway by the side of the cleaners led to the rear of the 

shopping center and to a hill that sloped down to a residential 

area. When the two women did not return to their vehicle after 

ten minutes, the snowplow driver became curious and pushed snow 

toward the cleaners. Although the snowplow driver saw shadows of 

people inside the building, he neither saw Martin enter the 

building nor saw her inside the building. No evidence proved 

that either Martin or Mortenson went inside the cleaners. When 

the police questioned Martin, she denied being in the building 

and told the police that she and Mortenson were there because 

they had intended to go sledding. At most, the evidence proved 

that Martin walked toward the building and the passageway. 

 Proof that Martin had been employed at the cleaners and knew 

the combination to the safe also raised only a suspicion of 

guilt. The evidence did not establish that the safe was locked 

prior to the burglary or that the money taken from the cleaners 

had been locked in the safe. In fact, during their 

investigation, the police recovered "a red money box that [the 

owner kept] on the desk in the office." The evidence further 

proved that the cleaners unexpectedly closed early the previous 

day because of the heavy snowfall. Thus, the evidence did not 

prove that the burglar opened the safe, did not exclude the 
- 11 - 

possibility that the person who closed the cleaners failed to 

lock the safe that night, or did not even prove that the burglar 

took money from a locked safe. 

 Moreover, the evidence does not exclude the reasonable 

hypothesis that another person committed the crime. Where a 

verdict is based on circumstantial evidence, "'all necessary 

circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Stover v. Commonwealth, 222 Va. 618, 

623, 283 S.E.2d 194, 196 (1981) (quoting Inge v. Commonwealth, 

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). "When, from the 

circumstantial evidence, 'it is just as likely, if not more 

likely,' that a 'reasonable hypothesis of innocence' explains the 

accused's conduct, the evidence cannot be said to rise to the 

level of proof beyond a reasonable doubt." Littlejohn, 24 Va. 

App. at 414, 482 S.E.2d at 859 (quoting Haywood v. Commonwealth, 

20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)). 

 Although the evidence established that Martin's boots were 

"very similar" to the footprints in the snow near the cleaners, 

that evidence merely confirms the snowplow driver's testimony 

that Martin walked toward the building and the passageway. 

Significantly, no evidence proved that the footprints leading to 

the cleaners matched the footprints leading away from the 

cleaners to the money that was hidden behind the Kmart store. 

The evidence also failed to prove that the footprints in the snow 
- 12 - 

leading to the place where the stolen property was hidden had any 

unusual qualities that made it likely that the prints were made 

by Martin's boots. 

 In addition, only thirty to forty minutes after Martin and 

Mortenson were allowed to leave the shopping center, the police 

officers saw two other individuals ten to twenty feet away from 

the location of the stolen property. The police did not examine 

those individuals' shoes or try to match them to the footprints 

in the snow. While the Commonwealth is not required to exclude 

the possibility that another person may have committed the crime, 

see Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 

829, 831 (1991), the Commonwealth is required to exclude 

hypotheses of innocence that flow from the evidence. See id. 

See also Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373 

S.E.2d 328, 338-39 (1988) (stating that the Commonwealth need not 

"'exclude every possible theory or surmise,'" but it must exclude 

those hypotheses "'"which flow from the evidence itself."'" 

(citations omitted)). The existence of these two other 

individuals near the cleaners and only a few feet away from the 

stolen property creates a reasonable hypothesis that someone 

other than Martin committed the burglary. 

 The evidence, even viewed in the light most favorable to the 

Commonwealth, creates only a suspicion or probability of guilt. 

"A conviction based upon a mere suspicion or probability of 

guilt, however strong, cannot stand." Bridgeman, 3 Va. App. at 
- 13 - 

528, 351 S.E.2d at 601-02. Thus, I would reverse Martin's 

convictions and dismiss the indictments.