COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Willis and 

 Senior Judge Overton 

Argued at Alexandria, 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. Haddock, Judge 

 J. Amy Dillard, Deputy Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Shelly R. James, Assistant Attorney 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 (appellant) was convicted in a bench trial 

of breaking and entering 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 

identifications and (2) the evidence was insufficient to find him 

guilty of the crimes charged. We disagree and affirm his 

convictions. 
I. Background 

 Under familiar principles of appellate review, we examine the 

evidence in the light most favorable to the Commonwealth, the 

prevailing party below, granting to that evidence 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 on July 6, 1999, Gloria 

Burke-Vitalis (Vitalis) was working as a secretary in a second 

floor office on North Washington Street. Richard Martin (Martin) 

owned the only other office on the floor. Martin was away on 

vacation and had left a key with Vitalis so that she could collect 

his mail and place it in his office while he was away. 

 On July 6, 1999, Vitalis heard a loud thump in the hallway. 

She opened the office door and observed appellant, carrying a 

backpack, on his knees next to Martin's office doorway. Vitalis 

asked appellant why he was in the hallway. Appellant stated that 

he was a "personal injury client" of a lawyer with an office in 

the building. Appellant was not in fact a client of Vitalis' 

employer, the only attorney in the building. Vitalis told 

appellant that the attorney she worked for would be back later and 

asked appellant for his name. Appellant gave Vitalis a name, but 

not "Ashley Grissette." The conversation lasted between a minute 

and ninety seconds, and Vitalis returned to her office and called 

the building owner to check the hallway to see if appellant had 

left. Appellant was gone when the building owner arrived. 

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 The next day, as Vitalis was taking Martin's mail to his 

office, she noticed that the transom window above Martin's office 

door was missing and that the door was unlocked. The window was 

found in Martin's office. Prior to being removed, the window was 

located above the office door, approximately seven feet off the 

ground at the bottom, extending another eighteen inches above the 

door. Appellant's fingerprint was found on the outside surface 

(the hallway side) of the window in the upper left-hand corner. 

 When Martin returned from vacation he discovered that several 

bottles of alcohol and four blank checks were missing from the 

office. Martin did not know appellant and had not given him 

permission to enter his office. 

 Detective Robert Hickman (Hickman), obtained a photo of 

appellant after his arrest. Hickman created a photo lineup by 

choosing photos that looked similar to appellant. He chose all 

African-American men of the same age, with similar head shape, 

hair and facial hair. None of the photographs depicted an 

extremely light-skinned man and four, including appellant, wore a 

white or light-colored t-shirt. Prior to showing her the photo 

spread, Hickman informed Vitalis that the person she observed in 

the hallway might not be present. Vitalis concentrated on two of 

the photos and concluded by choosing appellant. She had no doubt 

that appellant was the man she observed on July 6. Vitalis also 

identified appellant as the man she observed when she testified in 

court. 

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 Prior to trial, appellant moved to suppress the out-of-court 

identification and any in-court identification as impermissibly 

suggestive because appellant was the darkest colored 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. Identification of Appellant 

 Appellant first contends that the out-of-court identification 

was inadmissible as unduly suggestive because appellant was the 

only dark-skinned black male wearing a white t-shirt. "An 

out-of-court identification is admissible if either (1) the 

identification was not unduly suggestive; or (2) the procedure was 

unduly suggestive, but the identification was so reliable that 

there is no substantial likelihood of misidentification." Charity 

v. Commonwealth, 24 Va. App. 258, 261, 482 S.E.2d 59, 60 (1997) 

(emphasis in original). A valid photo lineup does not require 

"'that all the suspects or participants be alike in appearance and 

have the same description, as long as there is nothing to single 

out the accused from 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 lineup is 

clearly neutral and includes six photos of individuals who 

possessed "similar hair, facial hair, obviously black males 

roughly the same age." All six have a similar "shape of the 

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head." At least four of the men are wearing t-shirts, four of 

which are light colored. None of the men has exceptionally 

light-colored skin. 

 When Hickman presented the photo lineup to Vitalis he told 

her that "[j]ust because I [am] showing [you] the sheet of 

photographs [does not] necessarily mean that the person who did 

the crime [is] on that sheet." Vitalis initially narrowed the 

choice to two men pictured in the photo sheet and then chose 

appellant after 10 seconds. Based on the record before us, we 

cannot say that the out-of-court identification was unduly 

suggestive. 

 Appellant next contends that the in-court identification 

should have been suppressed because it was based upon the unduly 

suggestive out-of-court identification. Since we hold that the 

out-of-court identification was admissible and not unduly 

suggestive, the trial court did not err in allowing the in-court 

identification of appellant. 

III. Sufficiency 

 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 

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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 

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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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