Sutphin v. Com.

• Decision Date: 03 December 1985
• Docket Number: No. 0149-85,0149-85
• Citation: 337 S.E.2d 897,1 Va.App. 241
• Parties: Floyd Edward SUTPHIN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 897

337 S.E.2d 897

1 Va.App. 241

Floyd Edward SUTPHIN v. COMMONWEALTH of Virginia.

Record No. 0149-85.

Court of Appeals of Virginia.

Argued June 25, 1985.

Decided Dec. 3, 1985.

Allan Garrett, Danville, for appellant.

Lucy H. Allen, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

The appellant, Floyd Edward Sutphin (Sutphin), challenges the sufficiency of the evidence to support his convictions for breaking and entering and grand larceny and contends the trial court erred by taking notice of the circumstances surrounding an unrelated crime. We agree with both contentions and reverse the convictions.

The standard for review of criminal convictions requires that we consider the evidence in the light most favorable to the Commonwealth, giving it all inferences fairly deducible therefrom. A conviction will be affirmed unless it appears from the evidence that it is plainly wrong or without evidence to support it. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The circumstnaces of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.

Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984) (citations omitted).

In a bench trial, the Commonwealth proved that George's Market in Danville was burglarized on April 23, 1984, at about 2:00 a.m. Considerable merchandise was missing from the market and never recovered. Entry into the market was accomplished by breaking a glass door with a piece of cinder block. The investigating officer collected glass fragments from the broken door for analysis. Sutphin, who was arrested on another charge within three hours of the George's Market burglary, was discovered to have glass particles on his clothing and a shoe. These glass particles were compared by a forensic laboratory with those from the broken door. The laboratory report, placed in evidence, concluded that numerous glass particles from Sutphin's shoe and clothing had the same optical qualities as those from George's Market. Also, the Commonwealth proved that Sutphin resided immediately behind George's Market and established through cross examination of Sutphin that he had given false information on two earlier occasions concerning his whereabouts at the time of the burglary.

This evidence created, at most, only a suspicion of Sutphin's involvement in the crimes charged. A conviction resting on circumstances which cast "a suspicion of guilt, however strong, or even a probability of guilt, is insufficient to support a criminal conviction." Bishop v. Commonwealth, 227 Va. at 170, 313 S.E.2d at 393 (1926). In an effort to implicate Sutphin as the criminal agent, the Commonwealth offered evidence of Sutphin's conviction of a separate attempted burglary which had been obtained only a few hours earlier before the same judge. The trial court accepted in evidence the record of the prior trial on the theory that it tended to prove identity and a common scheme. The probative weight which the court gave to the evidence of the earlier conviction is apparent from its finding that the evidence of the prior conviction, along with the other evidence, was sufficient to prove guilt of the offense charged beyond a reasonable doubt.

The facts of the other crime were that on April 23, 1984, at approximately 4:13 a.m., the police arrived at Peebles Department Store in Danville in response to a tripped alarm. They discovered that a brick had been thrown through the glass entrance doors of the store. Glass fragments found inside and outside the doors were collected as evidence. Sutphin was arrested nearby and at the police station his clothing was removed and submitted to the state forensic laboratory along with the glass fragments for analysis and comparison. Although Sutphin denied intending to burglarize Peebles, he admitted throwing a brick through the door. Sutphin was convicted of attempted breaking and entering.

Evidence of other independent acts of an accused is inadmissible if relevant only to show a probability that the accused committed the crime for which he is on trial because he is a person of bad or criminal character. Cleary, McCormick on Evidence § 190 (3d ed. 1984). Likewise, evidence of other criminal acts by an accused is not admissible, even though it is of the same nature as the one charged, if the only purpose is to show that the crime charged was also probably committed by the accused. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). The policy underlying the exclusion of such evidence protects the accused against unfair prejudice resulting from the consideration of prior criminal conduct in determining guilt. See Fleenor v. Commonwealth, 200 Va. 270, 274-75, 105 S.E.2d 160, 163 (1958).

There are numerous exceptions to the general rule excluding evidence of other offenses. To be admissible, evidence of other offenses must be relevant to an issue or element in the present case. Kirkpatrick v. Commonwealth, 211 Va. at 272, 176 S.E.2d at 805. The circumstances surrounding a separate crime may be relevant: (1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part. Additionally, it may be necessary to allow evidence of other crimes when it is so intimately connected and blended with facts proving the commission of the offense charged that it cannot be separated with propriety. Id. at 272-73, 176 S.E.2d at 805-06; see also Eccles v. Commonwealth, 214 Va. 20, 197 S.E.2d 332 (1973); McWhorter v. Commonwealth, 191 Va. 857, 63 S.E.2d 20 (1951); Huffman v. Commonwealth, 168 Va. 668, 190 S.E. 265 (1937).

The trial court admitted the evidence of Sutphin's attempted burglary at Peebles under the theory that it tended to prove a general plan or scheme and tended to prove Sutphin's identity as perpetrator of the crime charged. Application of the "common scheme or plan" exception is appropriate where a prior criminal act or acts tend to show a system or uniform plan from which motive, criminal intent, or knowledge may be inferred. Minor v. Commonwealth, 213 Va. 278, 280, 191 S.E.2d 825, 827 (1972). Typically, for example, such evidence may be probative of a conspiracy. See Dorantes v. Commonwealth, ...