                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


TROY LEE ATKINS, JR.
                                            MEMORANDUM OPINION * BY
v.   Record No. 2740-96-2                 JUDGE JAMES W. BENTON, JR.
                                              FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge
           Carl C. Muzi for appellant.

           Leah A. Darron, Assistant Attorney General
           (Richard Cullen, Attorney General, on brief),
           for appellee.



      Troy Lee Atkins, Jr., was convicted of second degree murder.

 On appeal, he argues that the trial judge abused his discretion

by allowing a witness to be recalled to testify at trial after

the witness violated the trial judge's order not to discuss the

case with other witnesses.   He also argues that the evidence was

insufficient to support his conviction.    We affirm the

conviction.

                                I.

      On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting it all reasonable inferences fairly

deducible therefrom.   See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).    So viewed, the evidence

proved that in the early morning hours of December 27, 1995,
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Atkins drove from Emporia to Richmond with Sara Lee Odom, two of

their children, and another couple.     Atkins and Odom registered

at a motel and put the children to bed.

     A registered nurse testified that Atkins arrived at the

hospital emergency room on the afternoon of December 27.     When

the nurse went outside to see Odom in Atkins' truck, Odom did not

have a pulse.   Atkins told the nurse that several girls attacked

Odom after Odom went to a store.   He said when Odom returned

home, Odom told Atkins what happened and complained of a

headache.   Atkins said when he asked Odom if she wanted to go to

the hospital, Odom refused and said she would be fine after

taking a shower.
     Atkins also spoke with a clinical social worker in the

emergency room and repeated the same events.     The social worker

noted that Atkins was upset.    Atkins said that he brought Odom to

the hospital after she passed out.      The social worker informed

Atkins that Odom's situation was life threatening.     She also told

him that if Odom was attacked, criminal assault charges would be

filed against the assailants.   Atkins walked through the

emergency room entrance to smoke a cigarette and never returned.

     Detective Leonard testified that when he went to the

hospital on December 27, Odom's body had been removed by the

medical examiner.   Detective Leonard visited Emporia several

times looking for Atkins and left his business cards with Atkins'

friends and family.   Atkins was apprehended in North Carolina on




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February 6, 1996, brought to Richmond for questioning, and gave a

lengthy statement to the Richmond police explaining the events

that occurred on December 27.

     Testifying from Atkins' written statement, Detective Leonard

stated that Atkins said he and Odom were waiting in Atkins' truck

for a friend at 6:00 a.m. on December 27 when Odom decided to go

to a nearby store for sodas and cigarettes.   About twenty minutes

later, Atkins heard loud "fussing" outside his truck.   When he

exited the truck, he saw Odom with a stick.   Odom told Atkins

that two or three women were "messing with her."   After Atkins

yelled at the women, they ran.    He saw two or three people

running off.    Odom had a gash and two scratches on her face and a

bleeding finger.   When Atkins told Odom she should go to the

hospital, she said she was fine and asked him to take her to the

motel.
     Atkins said that when he arrived at the motel he sent the

children to get a soda for Odom.    Odom then went into the room

and got into the bathtub.   Atkins said Odom complained because he

made the water too hot and at one point said "ouch."    Atkins said

that he asked Odom if she had been hit with sticks and she said

that she had.   After the children returned, Odom sat on the bed,

changed her clothes, talked and joked with the children, walked

around the room, smoked cigarettes, and drank a soda.   Atkins

said that Odom asked him to not mention the beating to the

children.   At Odom's request, he took the children to a friend's




                                 - 3 -
house.

     Atkins' statement further recited that when he took the

children to the friend's house, Odom's daughter saw blood in the

truck.    She accused Atkins of fighting with her mother and asked

him where the blood came from.    She said "I know you and

mama . . . got mad and been fighting."    Atkins said he told her

she was being "nosy."   In his statement, Atkins admitted that he

and Odom had had fights before but never so severe as to require

medical attention.
     After leaving the children, Atkins went to a store and

purchased something for Odom's pain.     When he returned to the

motel, Odom was dressed.   Odom said she did not have a headache

and was not sore.    Although he rubbed the ointment on her, Odom

did not take the medicine he purchased for her pain.

     Atkins said that later in the afternoon he and Odom went to

Atkins' uncle's house and remained inside for twenty minutes.

Odom said she couldn't breath, and she fainted.    With the

assistance of another woman, Atkins gave Odom mouth-to-mouth

resuscitation.   Atkins then took Odom to the hospital.   Atkins

said that he did not contact the police after leaving the

hospital because he did not have their phone number and because

he was afraid a warrant would be issued for his arrest.

     Later in his statement, Atkins gave another version of the

events.   Atkins said that when he was sitting in the truck and

heard the voices, he jumped out of the truck and saw Odom coming




                                 - 4 -
toward him.   Odom had a gash on her face.   Later, when Odom was

taking her bath and Atkins saw her injuries, he told her it

looked as if she had been hit with sticks.   She told him she had

been beaten with sticks.

     Odom's fourteen-year-old daughter testified that at 8:00

a.m. on December 27, her mother was seated motionless in Atkins'

truck in front of the motel room.   Atkins got a coat from the

motel room.   Odom's daughter next saw the coat over her mother's

shoulders.    Atkins sent the two children to get sodas, and he

told them he and Odom were going to visit another couple in the

motel.   When the children returned with the sodas, Atkins and

Odom were in the bathroom of the motel room.   Odom's daughter

passed a soda through the slightly opened door and heard her

mother say "ouch."    Later, Odom's daughter saw her mother lying

in bed with the sheets pulled up to her shoulders.   Odom's

daughter said her mother never spoke to her or the other child.

She never saw Odom walking around, smoking, talking, or drinking

her soda.
     Later, when the children awoke, Atkins left Odom at the

motel and took the two children to a friend's house.   The

daughter saw blood in Atkins' truck on the rear passenger window

and headrest.   When she asked Atkins if he had been fighting with

her mother, he just smiled.   He asked her why she asked, and she

replied "[b]ecause I see blood."    She testified that Atkins made

no further comment.




                                - 5 -
        Dr. Jack Daniel, the assistant medical examiner, opined that

Odom died of acute head trauma.    He testified that "her entire

back, her buttocks, . . . the entire extent of her left arm,

[and] much of her right arm were covered with prominent bruises.

Associated with those bruises were a large number of small

angular . . . lacerations."    Four lacerations on Odom's head

caused "a great deal of bleeding into her scalp" and bleeding on

the top of her brain.    Odom had bruising and abrasions on the

front of both of her lower legs and her right knee, and she had

extensive bruising and swelling on both hands.      Her right ring

finger was broken.    Dr. Daniel testified that Odom also had

abrasions on the tip and sides of her nose and around her mouth.

The most severe injury on her face was a deep laceration about a

quarter of an inch long on the right side of her face near her

nose.    Dr. Daniel further testified that if a stick had been used

in the beating, he would have expected a broken nose rather than

this type of injury.
        Dr. Daniel opined that the "very, very severe bruising," the

extensive tissue damage, and the absence of major bone fractures

indicated that a flexible instrument was used to inflict Odom's

injuries.    He testified that all of the marks, including the

angular irregular marks, were "entirely consistent" with having

been inflicted with a belt buckle.       He also opined that the

configuration of a belt and its buckle recovered by the police

from Atkins' truck was "entirely consistent" with Odom's




                                 - 6 -
injuries.   He testified, however, that any other belt could have

been used and that he could not rule out the possibility that a

tree branch was used to inflict these injuries.    Dr. Daniel

further testified that Odom's injuries were inflicted by a dozen

or more blows and that the severity of Odom's injuries would have

been immediately apparent to anyone who saw her.

     Dr. Daniel was recalled to testify after several witnesses

had testified.   When Atkins' counsel objected to his further

testimony, Dr. Daniel was questioned to determine whether he had

violated the judge's admonition not to discuss the case with

others.   During the course of this voir dire, Dr. Daniel

testified that a North Carolina detective, who had testified

earlier in the trial and had sat through Dr. Daniel's testimony,

talked with him during lunch.    After further voir dire, the trial

judge overruled the objection.

     Dr. Daniel testified again and opined that while Odom might

have been conscious for several hours after the injuries were

inflicted, he could not say "with any confidence" that she would

have been coherent.   He stated that Odom would have become

"progressively less coherent, less responsive over a period of

hours if in fact she did not lose consciousness immediately."

     At the conclusion of the evidence, the trial judge convicted

Atkins of second degree murder.

                                  II.

     Atkins first contends that the trial judge erred in not



                                 - 7 -
barring Dr. Daniel's second testimony.   Atkins argues that Dr.

Daniel violated the judge's order not to discuss the case with

others and that the doctor had been prepared by other

Commonwealth's witnesses to answer certain questions prior to

being recalled to testify.    Atkins asserts that he was prejudiced

by the testimony because without it, the Commonwealth would not

have established when Odom was beaten.

     On voir dire, before his second testimony, Dr. Daniel

testified that when he spoke to the North Carolina detective at

lunch, "there was some question as to whether or not . . .

certain questions that might have been asked . . . about the

length of survival" and "what [the victim] might have been

capable of doing."   Dr. Daniel stated that his opinions were not

changed as a result of his conversation with the detective.     When

questioned by the trial judge, Dr. Daniel testified that although

he was aware of the nature of the questions he was about to be

asked by the Commonwealth's attorney, any response he would give

was unrelated to his conversation with the detectives.
     The North Carolina detective testified that during their

walk to lunch he said to Dr. Daniel, "in North Carolina one of

the questions . . . would have asked the time.   How long she

would have lived."   He said that Dr. Daniel's response was "that

would have been a responsible or respectable question."

     Detective Leonard, who testified after the lunch recess,

overheard the conversation.   He testified that the North Carolina



                                - 8 -
"detective . . . asked him -- he didn't understand why . . . the

Commonwealth attorney didn't ask Dr. Daniel . . . what the girl

could do after the beating.   What she would be able to do."

Detective Leonard could not recall Dr. Daniel's response and

stated that he did not remember contributing to the conversation.

     The Commonwealth's attorney stated that after lunch he

realized that he had forgotten to ask Dr. Daniel several

important questions.   The Commonwealth's attorney stated that he

did not discuss these questions with Detective Leonard or the

North Carolina detective and that the questions were in his notes

but that he simply forgot to ask them.
     Defense counsel asked the trial judge to prohibit Dr. Daniel

from testifying or to declare a mistrial.   The judge denied the

motion and ruled as follows:
          The paramount question in the Court's mind is
          whether the conversations that took place
          outside of this courtroom that should not
          have taken place is likely to change the
          testimony to be offered at this time by Dr.
          Daniel. The Court has concluded that those
          conversations and the manner in which this
          situation arose will not affect the testimony
          by Dr. Daniel as to whatever questions he may
          be asked at this point during the remainder
          of his time on the stand as a witness and for
          that reason the Court sees no useful purpose
          would be served by declaring a mistrial and I
          shall not do that.


     "The purpose of excluding witnesses from the courtroom is,

of course, to deprive a later witness of the opportunity of

shaping his testimony to correspond to that of an earlier one."

Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279



                               - 9 -
(1950).   "A judge's admonition to witnesses not to discuss

[their] testimony with third parties until the trial is completed

. . . [is intended to] lessen the danger that [a witness']

testimony will be influenced by hearing what other witnesses have

to say, and to increase the likelihood that [witnesses] will

confine themselves to truthful statements based on their own

recollections."     Perry v. Leeke, 488 U.S. 272, 281 (1989).

     "A trial [judge] has discretion to decide whether a witness

who violates an exclusion order should be prevented from

testifying."    Bennett v. Commonwealth, 236 Va. 448, 465, 374

S.E.2d 303, 314 (1988).    On review, we must consider "whether

there was prejudice to the defendant . . . [,] whether there was

intentional impropriety attributable to the prosecution . . . [,]

whether the out-of-court comments concerned any substantive

aspect of the case[,] and whether [the comments] had any effect

on the witness' testimony."     Id.   Thus, "we cannot reverse the

trial court's action in permitting [Dr. Daniel] to testify unless

it appears that [Atkins] was prejudiced by such action."        Satcher

v. Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 836 (1992).

     Although Dr. Daniel's testimony regarding the length of time

Odom would be conscious after the beating and Odom's degree of

coherence was damaging to Atkins, that is not the test of

prejudice.   Rather, prejudice occurs where the violation of the

exclusion order somehow influences the testimony of the witness

on the stand.     See Bennett, 236 Va. at 464-65, 374 S.E.2d at




                                - 10 -
314-15 (no abuse of discretion where witness did not change

testimony as result of information obtained from Commonwealth in

violation of exclusion order); Jury v. Commonwealth, 10 Va. App.

718, 721, 395 S.E.2d 213, 215-16 (1990) (abuse of discretion to

refuse to allow witness who unintentionally remained in courtroom

in violation of exclusion order to testify because there was no

showing that witness' presence in courtroom influenced his

testimony).   No evidence proved that Dr. Daniel's testimony was

influenced by his conversation with the North Carolina detective.
     Although the conversation between Dr. Daniel and the North

Carolina detective violated the nondiscussion order, it did not

constitute a "coaching session" as Atkins suggests.   The North

Carolina detective merely commented that the Commonwealth's

attorney forgot to ask a pivotal question, and Dr. Daniel agreed.

The detective did not prepare Dr. Daniel to answer certain

questions; indeed, he and Dr. Daniel did not discuss Dr. Daniel's

responses to any questions.   Furthermore, Dr. Daniel testified

that although he knew what he would be testifying about, his

answer to the question was based on his autopsy and examination

of the victim, not on his lunch time conversation.

     Having examined the record, we hold that the trial judge did

not abuse his discretion in permitting the witness to testify.

                               III.

     We also hold that the evidence was sufficient to support

Atkins' conviction for second degree murder.   Although the



                              - 11 -
evidence in this case is entirely circumstantial, the principle

is well established that circumstantial evidence alone may be

sufficient to support a conviction.      See Johnson v. Commonwealth,

2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986).     When a case

is based on circumstantial evidence, the circumstances proved

must be consistent with guilt and exclude every reasonable

hypothesis of innocence.     See Garland v. Commonwealth, 225 Va.

182, 184, 300 S.E.2d 783, 784 (1983).     The Commonwealth "'is not

required to disprove every remote possibility of innocence, but

is, instead, required only to establish guilt of the accused to

the exclusion of a reasonable doubt.'"      Cantrell v. Commonwealth,

7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation

omitted).

     Atkins argues that his mere presence with Odom was

insufficient to support his conviction and that the evidence does

not exclude the hypothesis suggested by his statements to police

that Odom was injured when she was attacked on the street by a

group of people.    The principle is firmly established that

"[o]pportunity is always a relevant circumstance . . . and, when

reinforced by other incriminating circumstances, may be

sufficient to establish criminal agency beyond a reasonable

doubt."     Christian v. Commonwealth, 221 Va. 1078, 1082, 277

S.E.2d 205, 208 (1981).    Here, there is substantial other

circumstantial evidence that supports the trial judge's finding.

     Atkins' statement that Odom was functioning normally several




                                - 12 -
hours after receiving her injuries was contradicted by the

medical evidence presented by Dr. Daniel and the testimony of

Odom's daughter.   Dr. Daniel testified that by the nature and

severity of Odom's injuries, she could not have functioned as

Atkins suggests.   If Odom had not been rendered unconscious by

the beating, Odom would have become progressively less coherent

and responsive.    Odom's daughter's testimony further contradicts

Atkins' statements about Odom's behavior after the beating.     She

did not see Odom smoke, drink, walk around, or even talk after

Odom and Atkins arrived at the motel.
     The trial judge was not required to accept Atkins' version

of events.    See Rollston v. Commonwealth, 11 Va. App. 535, 547,

399 S.E.2d 823, 830 (1991).   The trial judge could disregard

Atkins' versions of events and chose to believe the testimony of

Dr. Daniel and Odom's daughter.    "[D]eterminations of credibility

lie within the purview of the fact finder, who may reject a

witness' testimony and base a finding of guilt upon contradictory

statements.   The fact finder may conclude that the defendant lied

to conceal his guilt."    Moore v. Commonwealth, 25 Va. App. 277,

289, 487 S.E.2d 864, 870 (1997).    See Sheppard v. Commonwealth,

250 Va. 379, 389, 464 S.E.2d 131, 137 (1995).   Indeed, Atkins'

contradictory statements to police and witnesses about the events

leading up to Odom's death render doubtful the hypothesis

suggested by Atkins that Odom's injuries were caused by others.

The trial judge could reasonably infer that Odom could not have




                               - 13 -
functioned normally as Atkins suggests but that she would be

increasingly approaching a state of unconsciousness.

     In summary, Atkins was present when Odom was injured and

bleeding; he gave several contradictory statements about the

events in question; and Atkins' version of Odom's functioning

ability after the beating was contradicted by the medical

evidence.   In addition, the belt found in Atkins' truck was

consistent with the marks on Odom's body.   Atkins fled the

hospital, left the jurisdiction, and intentionally evaded the

police for one and a half months after the incident.    See

Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476,

480 (1991) (an inference of guilty conduct arises from evidence

and avoidance of the police).    Viewed in the light most favorable

to the Commonwealth, the evidence was sufficient to prove beyond

a reasonable doubt Atkins' guilt of the offense of second degree

murder.

     For the foregoing reasons, we affirm the conviction.
                                                         Affirmed.




                                - 14 -
