Burrows v. Com., 812008

• Citation: 295 S.E.2d 893,224 Va. 317
• Decision Date: 15 October 1982
• Docket Number: No. 812008,812008
• Parties: Beverly Jolsen BURROWS, III v. COMMONWEALTH of Virginia. Record
• Court: Supreme Court of Virginia

Page 893

295 S.E.2d 893

224 Va. 317

Beverly Jolsen BURROWS, III v. COMMONWEALTH of Virginia.

Record No. 812008.

Supreme Court of Virginia.

Oct. 15, 1982.

Jeffrey M. Steingold, Richmond, for appellant.

Donald R. Curry, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Elizabeth C. Gay, Asst. Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

STEPHENSON, Justice.

Following a bench trial, Beverly Jolsen Burrows, III, was convicted of robbery and malicious wounding. The dispositive issue in this appeal is whether the evidence is sufficient as a matter of law to prove the defendant was the criminal agent. Finding the evidence insufficient, we reverse the convictions and dismiss the indictments.

The victim testified that he was at a large Labor Day party in King William County. While he was in a patch of woods, someone came up from behind and started hitting him. The victim testified he was struck four or five times, his nose was broken, and he "couldn't see anything." The assailant took his wallet and fled. When asked to identify the attacker at trial, the victim responded, "Well, it looks like that gentleman there [referring to Burrows], but ... I can't say absolutely sure, because it happened so fast. Like I said, he came from behind me."

Herman Johnson testified that sometime after the robbery he saw the defendant with four or five other people near a river which flowed through the party site. He observed a wallet floating in the river and requested that Burrows retrieve it, which he did.

Johnson and another man grabbed the defendant in an attempt to hold him until the police arrived. They later released Burrows, who immediately left the scene. Johnson testified the defendant had no apparent injuries and had no blood on him when he first saw him, but that the defendant fell and injured himself after escaping from Johnson. Johnson further testified he saw the victim after the incident and that he was covered with blood.

Burrows testified he attended the party with his brother. He confirmed Johnson's testimony and stated he fled the scene because he did not know why Johnson and the other man were holding him and he was scared. He denied seeing the victim at the party or attacking him. When questioned about a statement he had given the police that he did not know where King William County was, the defendant testified he was unaware in what county the party was located.

We have often times stated the standards to be used when passing on the sufficiency of the evidence. "The evidence and all just and reasonable inferences therefrom must be viewed on appeal in the light most favorable to the appellee. In addition, the verdict of the trial court will not be disturbed unless it appears to be plainly wrong or without evidence to support it." Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). When a case 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.' " Carter, 223 Va. at 532, 290 S.E.2d at 867; Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976).

In the present case, the evidence of the victim alone is insufficient to prove the defendant was the criminal agent. The victim candidly admitted his assailant came from behind, that he was unable to see him, and he was not sure Burrows was his attacker. The Commonwealth concedes the identification was "tentative" and that its case is based on circumstantial evidence.

The only other evidence linking the defendant to the crime was that he was seen near the wallet. However, by the Commonwealth's own witness, four or five other people were in the vicinity, and the defendant retrieved the wallet at Johnson's request. This is not sufficient to prove the defendant's guilt.

The Commonwealth argues the trier of fact was free to draw inferences of guilt from the facts that Burrows fled the scene and that he gave a statement to the police denying he knew where King William County was. However, the defendant explained his conduct, and these facts are not inconsistent with his innocence.

Based on the evidence as a whole, the Commonwealth did not prove beyond a reasonable doubt Burrows was the criminal agent. The most that can be stated is that the evidence created a suspicion Burrows was the perpetrator. "Suspicion, however, no matter how strong, is insufficient to sustain a criminal conviction." Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981).

Accordingly, the judgments of conviction will be reversed and the indictments dismissed.

Reversed and dismissed.

RUSSELL, J., dissenting.

THOMPSON, J., joins in dissent.

RUSSELL, Justice, dissenting:

The majority opinion correctly states the law governing our review of a criminal conviction based on alleged insufficiency of the evidence. We must view the evidence in the light most favorable to the Commonwealth and disturb the verdict only if we find that it is plainly wrong or without evidence to support it. Code § 8.01-680. If we depart from that standard of review, we take over the function of the fact-finder who actually saw and heard the witnesses, substituting our own judgment as to the weight to be given their testimony. See Ware v. Commonwealth, 214 Va. 520, 523, 201 S.E.2d 791, 793 (1974).

The evidence in this case seems to me to give adequate support to the trial court's finding. The victim was attacked from behind and hit in the face with fists four or five times with such force that his nose was broken and both eyes blackened. After he fell to the ground he was kicked several times and his wallet was taken. The victim testified that his attacker was "blond-headed" and that he looked like the defendant; but that he wasn't absolutely sure the defendant was his attacker because of the suddenness and violence of the attack, and because the attacker had approached him from behind. There is no requisite that testimony of this kind reach absolute certainty. It is entitled to such weight as the fact-finder may give it in the light of the surrounding circumstances, as shown by all evidence in the case. Hammer v. Commonwealth, 207 Va. 159, 163, 148 S.E.2d 892, 895 (1966).

The defendant was seen by Johnson and Murphy a few minutes after the attack. He was standing "in the briars" at the bank of the river near the victim's wallet, which had evidently just been emptied of money...