COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpa trick, Judge Willis and Senior Judge Overton Argued at Alex andria, Virginia

ASHLEY JEFFERSON GRISSETTE MEMORANDUM OPINION * BY v. Record No. 0409-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 23, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Ha ddock, Judge J. Amy Dillard, De puty Public Defender (Office of the Public Defender, on brief), for appellant. Shelly R. James, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Ashley Grissette (a ppellant) was convicted in a bench trial of breaking and enteri ng with the intent to commit larceny, in violation of Code § 18 .2-91 and petit larceny, in violation of Code § 18.2-96. On appeal, he contends (1 ) the trial court erred in denying his motion to suppress out-of -court and in-court identification s and (2) the eviden ce was insufficie nt to find him guilty of the cr imes charged. We di sagree and affirm his convictions.I. Background Under familiar princi ples of appell ate review, we examine the evidence in the light most favorable to the Common wealth, the prevailing party below, granting to that ev idence all reasonable inferences fairly de ducible ther efrom. See Juares v. Commonwealth , 26 Va. App. 154, 156, 49 3 S.E.2d 677, 678 (1997). So viewed, the ev idence establishe d that on July 6, 1999, Gloria Burke-Vitalis (Vitalis) was work ing as a secretary in a second floor office on North Washingt on Street. Richar d Martin (Martin) owned the only other of fice on the fl oor. Martin was away on vacation and had left a key with Vitalis so that she could collect his mail and place it in hi s office while he was away. On July 6, 1999, Vi talis heard a lo ud thump in th e hallway. She opened the office door and observed ap pellant, carrying a backpack, on his knees next to Martin's offi ce doorway. Vitalis asked appellant wh y he was in the hallway. Appell ant stated that he was a "personal inju ry client" of a lawyer with an office in the building. Appellan t was not in fact a client of Vitalis' employer, the on ly attorney in the bu ilding. Vitalis told appellant that the atto rney she worked for wo uld be back later and asked appellant fo r his name. Appellant ga ve Vitalis a name, but not "Ashley Grisse tte." The conver sation lasted be tween a minute and ninety seconds, an d Vitalis return ed to her office and called the building owner to check the hallwa y to see if appellant had left. Appellant was gone when the buil ding owner arrived.

- 2 -The next day, as Vitalis was taki ng Martin's mail to his office, she notice d that the transo m window above Martin's office door was missing and th at the door was unlocked. The window was found in Martin's offi ce. Prior to being re moved, the window was located above the office door, approximat ely seven feet off the ground at the bo ttom, extending an other eighteen in ches above the door. Appellant's fi ngerprint was fo und on the ou tside surface (the hallway side) of the window in the upper left -hand corner. When Martin returned from vacation he di scovered th at several bottles of alcohol and four blank checks were missing from the office. Martin did not know appellant an d had not given him permission to en ter his office. Detective Robert Hi ckman (Hickman ), obtained a photo of appellant after hi s arrest. Hickman crea ted a photo lineup by choosing photos that looked similar to appe llant. He chose all African-American men of the same age, with similar head shape, hair and facial hair . None of the phot ographs depi cted an extremely ligh t-skinned man and four, including ap pellant, wore a white or light-colored t-shirt. Prio r to showing her the photo spread, Hickman in formed Vitalis that the person she observed in the hallway might not be present. Vitalis concentr ated on two of the photos and conclude d by choosing appellan t. She had no doubt that appellant was the man she observed on July 6. Vitalis also identified appellant as the man she ob served when sh e testified in

court. - 3 -Prior to trial, appellant moved to suppre ss the out-of-court identification and any in-court identification as impermissibly suggestive because ap pellant was the darkest colore d man in the lineup and was the only one wearing a white t-shirt. The trial court denied appellant' s motion finding that the lineup was not unduly suggestive, at least four of the individuals were "dark" and three wore white t-shirts. II. Identificati on of Appellant Appellant first contends that the out-of-court identification was inadmissib le as unduly suggestive because appell ant was the only dark-skinned black male wearing a white t-shirt. "An out-of-court identifi cation is admi ssible if either (1) the identification was no t unduly suggestive; or (2) the pr ocedure was unduly suggestive, but the identificati on was so reliable that there is no su bstantial likeli hood of miside ntification." Charity v. Commonwealth , 24 Va. App. 258, 261, 482 S.E.2d 59 , 60 (1997) (emphasis in original). A valid phot o lineup does not require "'that all the suspects or participants be al ike in appearance and have the same descriptio n, as long as there is nothing to single out the accused fr om the rest.'" Id. at 261-62, 482 S.E.2d at 60 (quoting Williamson v. Commonwealth , 211 Va. 57, 59 , 175 S.E.2d 285, 287 (1970)). In the instant case, the photo li neup is clearly neutral and includes six photos of indivi duals who possessed "simil ar hair, facial hair, obviously bl ack males roughly the same age." All six have a similar "sha pe of the

- 4 -head." At least four of the men ar e wearing t-shir ts, four of which are light colored. None of the men ha s exceptionally light-colo red skin. When Hickman presen ted the photo li neup to Vita lis he told her that "[j]ust beca use I [am] showing [you] the sheet of photographs [d oes not] necessar ily mean that th e person who did the crime [is] on that sheet." Vitalis initially na rrowed the choice to two me n pictured in the photo sheet and then chose appellant after 10 seconds. Base d on the record before us, we cannot say that the out-of-court identifi cation was unduly suggestive. Appellant next cont ends that the in-cou rt identification should have been supp ressed because it was based upon the unduly suggestive out-of-court identification . Since we hold that the out-of-court identification wa s admissible and not unduly suggestive, the tr ial court did not err in allowing the in-court identification of appellant. III. Su fficiency Appellant next contends that the evidence was insufficient to convict him of breaking and entering with the intent to commit larceny and petit larceny. Appellant concedes that the Commonwealth established that a burglary took place and items were taken from Martin's office. Thus the only issue is whether the evidence was sufficient to prove appellant was the criminal agent. "The Commonwealth bears the burden of 'proving beyond a

- 5 -reasonable doubt each and every constituent element of a crime before an accused may stand convicted of that particular offense.'" Bruce v. Commonwealth , 22 Va. App. 264, 268, 469 S.E.2d 64, 67 (1996) (citation omitted). [Appellant's] fingerprint found at the scene of the crime may be sufficient under the circumstances to show [appellant] was there at some time , nevertheless in order to show defendant was the criminal agent, such evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. 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 premises 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. Tyler v. Commonwealth , 254 Va. 162, 166, 487 S.E.2d 221, 223 (1997) (second and third emphasis added) (quoting Turner v. Commonwealth , 218 Va. 141, 146-47, 235 S.E.2d 357, 360 (1977)). In the instant case, Vitalis heard a thump in the hallway. Upon investigating the noise Vitalis observed appellant, on his hands and knees carrying a backpack, on the second floor of an office building which had only two offices on the floor. After being confronted, appellant gave a fake name and claimed he was there to see a lawyer. Appellant had no legitimate reason for

- 6 -being on the second floor of the building, nor for being in the hallway outside of Martin's office. Appellant's fingerprint was found in the upper corner of an eighteen inch high transom window located almost eight feet high. The mode of entry into the office was through the same transom window. The height of the window indicates that it was not readily accessible to the general public passing by the office. It could be reached and touched only by "conscious and deliberate effort." The identification of appellant coupled with the fingerprint found on the transom window provides sufficient evidence to establish appellant as the criminal agent in the burglary and larceny.
See Avent v. Commonwealth , 209 Va. 474, 480-81, 164 S.E.2d 655, 659-60 (1968). Accordingly, the judgment of the trial court is affirmed. Affirmed.

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