Jennings v. Commonwealth

• Decision Date: 02 May 2017
• Docket Number: Record No. 1088-16-1
• Citation: 798 S.E.2d 828,67 Va.App. 620
• Parties: Calvin Donnell JENNINGS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 620

798 S.E.2d 828

Calvin Donnell JENNINGS

v.COMMONWEALTH of Virginia

Record No. 1088-16-1

Court of Appeals of Virginia, Norfolk.

MAY 2, 2017

Stephen B. Plott (Law Office of Stephen B. Plott, PLC, on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Petty and AtLee

OPINION BY JUDGE ROBERT J. HUMPHREYS

Calvin Donnell Jennings ("Jennings") appeals the June 10, 2016 decision by the Circuit Court of the City of Suffolk (the "circuit court") convicting him of robbery, in violation of Code § 18.2-58. Jennings' single assignment of error is that the circuit court erred in finding the evidence sufficient to prove beyond a reasonable doubt that he was guilty of robbery because the only evidence against him was "items of clothing and a weapon used at the time of the robbery," which contained both his own DNA and that of other unknown person(s).

I. Background

On October 13, 2013, between 5:30 a.m. and 5:45 a.m., S.C. was working as a sales clerk at the Carolina BP, a gas station and convenience store in Suffolk, Virginia. During her shift and while she was alone in the store, a person entered wearing a black stocking cap, a blue hooded sweatshirt, black jeans with white embroidery on the rear pockets, a scarf wrapped around his face, gloves, and sunglasses. After S.C. informed the person of the store's policy prohibiting customers from wearing hoods inside, the person leapt over the counter to where S.C. stood and produced a knife. He then demanded that S.C. open the cash register and threatened to "cut" her. Once S.C. opened the cash register, the perpetrator took the $38 that was on top¹ and left the way he came in.

Because the perpetrator's identity was so concealed by his clothing, the only physical description S.C. could give was that he was "tall" and "slim;" she could not identify the race of the perpetrator. She also stated that the pants the robber wore contained "script written in white letters" on the rear pockets. Further, S.C. described the knife as having a silver blade with ridges, and a black handle. The store's video surveillance system captured the entire event and was shown at trial.

James Babor ("Babor"), a police canine officer with the Suffolk Police Department ("SPD"), testified at trial as an expert in canine searching and handling. Babor processed the scene with his police dog. When they arrived at the scene at 7:43 a.m. on the morning of the robbery, the police dog led Babor back into the woods behind the Carolina BP, where the dog first alerted on a "brown bag" and several $5 bills. The bag was completely dry even though it had rained the previous night, indicating that the bag had been deposited there sometime that morning. The police dog then alerted on a black stocking cap and a scarf, which were close together on the wooded path. A hooded sweatshirt was also discovered approximately ten feet off the path. Finally, the police dog alerted on a pair of blue jeans and black tennis shoes.

Detective K. Hutt ("Hutt"), then a detective with the SPD, was working with Babor that day and secured the items identified by the police dog. Hutt additionally discovered a black-handled, serrated knife approximately twenty to twenty-five yards off the path. When shown pictures of the recovered items about ten days after the robbery, S.C. positively identified each of the items as having been worn by her assailant during the robbery.

A forensic scientist in the field of forensic biology, Gloria Hill ("Hill"), testified as an expert regarding the scientific analysis of the recovered stocking cap, the scarf, a swab of the knife, and the hooded sweatshirt. The hooded sweatshirt contained a combination of DNA from multiple individuals, resulting in a profile "too complex for [Hill] to make any conclusions." Although there was also a mixture of DNA from multiple people on both the stocking cap and the scarf, Hill determined that Jennings was the "major contributor" of DNA on both of those items, meaning his DNA was the most prominent on them. Finally, Hill testified that Jennings' DNA mixture represented about half of that present on the knife. Hill did not testify to any DNA testing with respect to the jeans or sneakers. Jennings became a suspect in the case after a DNA "cold hit"—when the DNA profile on some of the items matched Jennings' DNA profile in the state forensic databank. His DNA was later confirmed by buccal swab. Aside from the DNA profiles on each of the above-referenced items, there was no other evidence presented by the Commonwealth as to the identity of the robber.

At the conclusion of the Commonwealth's evidence, the defense moved to strike the charge of robbery, arguing that the DNA evidence was insufficient to prove Jennings was the person using those items during the robbery, and was therefore insufficient to prove he was the robber. The circuit court denied the motion, and the jury convicted Jennings of robbery, sentencing him to fifteen years of imprisonment. On June 10, 2016, the circuit court, by order, imposed the jury's recommended sentence.

II. Analysis

A. Standard of Review

"When [reviewing a defendant's] challenge to the sufficiency of the evidence to sustain a conviction, this Court reviews the evidence in the light most favorable to [the Commonwealth, as] the prevailing party at trial [,] and consider[s] all inferences fairly deducible from that evidence." Allen v. Commonwealth , 287 Va. 68, 72, 752 S.E.2d 856, 858-59 (2014) (quoting Crawford v. Commonwealth , 281 Va. 84, 111, 704 S.E.2d 107, 123 (2011) ). This "examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.... [A]n appellate court must consider all the evidence admitted at trial that is contained in the record." Perry v. Commonwealth , 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth , 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008) ). The sole responsibility to determine the credibility of witnesses, the weight given to their testimony, and the inferences to be drawn from proven facts lies solely with the fact finder. Commonwealth v. McNeal , 282 Va. 16, 22, 710 S.E.2d 733, 736 (2011).

An appellate court may "only reverse the judgment of the trial court if the judgment ‘is plainly wrong or without evidence to support it.’ " Crawford , 281 Va. at 112, 704 S.E.2d at 123 (quoting Wilson v. Commonwealth , 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) ; Code § 8.01-680 ). "If there is evidence to support the convictions, the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial." Crawford , 281 Va. at 112, 704 S.E.2d at 123 (quoting Commonwealth v. Jenkins , 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998) ). The issue on appeal is whether the record contains evidence from which "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McMillan v. Commonwealth , 277 Va. 11, 19, 671 S.E.2d 396, 399 (2009) (quoting Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) ).

B. Sufficiency of the Evidence of Identity

Jennings argues that the evidence only established that he came into contact with the stocking cap, the scarf, and the knife at some point in time, and thus was not sufficient as a matter of law to convict him of the robbery.

"[T]he evidence supporting a conviction must ‘exclude every reasonable hypothesis of innocence’ that flows from the evidence." Thorne v. Commonwealth , 66 Va.App. 248, 254, 784 S.E.2d 304, 307 (2016) (quoting Dowden v. Commonwealth , 260 Va. 459, 468, 536 S.E.2d 437, 441-42 (2000) ). "Whether an alternative hypothesis of innocence is reasonable is a question of fact" that will be reversed on appeal only if plainly wrong. Stevens v....