Opinion
Record No. 0802-92-4
August 10, 1993
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY HERMAN A. WHISENANT, JR., JUDGE.
Albert J. Ahern, Jr. (Louis Koutoulakos, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Luba Pavlov (appellant) was convicted by a jury of grand larceny in violation of Code § 18.2-95. On appeal, she contends that the trial court erred: (1) by failing to grant her motion to strike the evidence as insufficient; (2) when it allowed a police officer to express an opinion as to whether she appeared in a surveillance video tape; (3) in admitting into evidence a document prepared for the prosecution containing pictures of the stolen property; and (4) in failing to grant a mistrial because of prejudicial statements made during the Commonwealth's closing argument. We agree that the trial court erred in failing to strike the evidence. Accordingly, we reverse the conviction.
Because of our disposition of this case we do not reach appellant's additional assignments of error.
BACKGROUND
At approximately 7:00 p.m., on November 16, 1990, the store manager of Evans Distributors and Jewelers in Manassas discovered that all the "lay-away" diamonds were missing from the store safe. The safe is a large double-door safe that is unlocked and inventoried each morning by the manager and left on "day lock" while the store is open. The police were called to the store to investigate a possible employee embezzlement, at which point a copy of the store's five-camera surveillance video tape was reviewed. One of the store cameras covers the door to the back "secure area," which is marked "Employees only." No camera is located inside the room with the safe.
"Day lock" is a "semi-locked" condition where all that is necessary to open the door of the safe is to turn the knob back to a specific number, permitting the handles to be turned and the safe doors to be opened.
The surveillance tape, narrated by Detective Van Kirk of the Prince William County Police, was played for the jury. The detective explained that the tape showed areas of the store, sequentially, over a period of time. The detective pointed out to the jury the movements of a person in the back area of the store near the door to the room containing the safe.
The store manager testified that when he reviewed the tape he noticed something unusual. The "jewelry manager went out onto the floor to assist a heavy volume of traffic, which was unusual because [it] had been slow and, all of a sudden, boom, [it was] very busy." When she did this she had pushed her chair back so that it was in the middle of the back room. Although the jewelry manager did not reenter this room, the tape subsequently showed that the chair had been moved back to its original location. The store manager then described how, "all of a sudden, . . . [the tape showed] someone coming out of the room in a crouched position." The manager testified that the person was not an employee and was not authorized to be back in the restricted area of the store.
The manager further testified that he recognized the appellant as the person shown at various locations in the store on "three different occasions in the tape" and was able to identify her in the tape "without a doubt." In addition, Detective Kurzrock, a police officer from the Coral Springs, Florida, Police Department, who knew appellant, testified that he recognized her in the videotape. Along with appellant, the detective also identified several other people on the tape who were her friends.
The store manager explained that the stolen jewelry were all "lay-away" items. A copy of the eight-digit identification number for each "lay-away" item is retained by the store in another location. The store manager compiled a list of the stolen items by using these numbers and matching them against a picture in the store catalog. The manager cut out the matching picture for each stolen item and listed their respective retail prices. This compiled document was admitted into evidence over appellant's objection on hearsay grounds. The jewelry was never recovered.
SUFFICIENCY OF THE EVIDENCE
On appeal, "we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Taverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
This case is based solely on circumstantial evidence. It is well settled that "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983), cert. denied, 465 U.S. 1109 (1984); see also Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). Where, as here, the evidence relied upon is circumstantial, we have consistently held:
"[I]f the proof relied upon by the Commonwealth is wholly circumstantial . . . then to establish guilt beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome the presumption of innocence and exclude all reasonable conclusions inconsistent with that of guilt."
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975) (quoting LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)).
In order to sustain a conviction for grand larceny based solely on circumstantial evidence "the chain of circumstances [relied upon] must be unbroken and the evidence as a whole must be sufficient to satisfy the guarded judgment that both thecorpus delicti and the criminal agency of the accused have been proved to the exclusion of any other reasonable hypothesis and to a moral certainty." Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963) (citations omitted).
The evidence as a whole, when viewed in the light most favorable to the Commonwealth, creates a strong suspicion that appellant was the individual who stole the jewelry from the store's safe. "But a suspicion of guilt, however strong, or even a probability of guilt, is insufficient to support a criminal conviction." Bishop v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984) (citing Webb, 204 Va. at 34, 129 S.E.2d at 29).
The Commonwealth failed to prove the criminal agency of appellant and failed to exclude any other reasonable hypothesis of innocence. The record indicates that the safe was unlocked by the co-manager at approximately 8:45 a.m. The co-manager testified that the "lay-away" jewelry was present at that time. It was not until 7:30 p.m. that the jewelry was discovered missing. This evidence establishes that the jewelry was stolen at some point during the eleven hour period that the safe was on "day-lock."
It is undisputed that several store employees had access to the back room and the safe throughout this eleven hour time frame. Indeed, the police were called to the store to investigate possible employee embezzlement. It was not until the videotape from the security cameras showed the unexplained movement of the appellant walking in a crouched position out of the "employees only" room that the suspicion of grand larceny arose. This evidence establishes only that appellant was in a restricted area of the store, and that jewelry was stolen from a safe at some point during an eleven hour time frame.
For the reasons set forth above, we conclude that the Commonwealth failed to prove the criminal agency of the accused and to exclude any other reasonable hypothesis of innocence. Therefore, the trial court erred in failing to strike the evidence as insufficient. Accordingly, we reverse the conviction and dismiss the case.
Reversed and dismissed.