                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia


MOHAMED SOLEIMAN MUSTAMANDI
                                       MEMORANDUM OPINION * BY
v.   Record No. 0715-99-4            JUDGE ROSEMARIE ANNUNZIATA
                                            JUNE 27, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                    Benjamin N. A. Kendrick, Judge

           Stephen D. Halfhill (Allred, Bacon,
           Halfhill, Landau & Young, P.C., on brief),
           for appellant.

           Jeffrey S. Shapiro, Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellee.


     Appellant, Mohamed Soleiman Mustamandi, appeals his

conviction for robbery on the sole ground that the evidence was

insufficient to sustain the finding of guilt beyond a reasonable

doubt.   For the reasons stated in this opinion, we reverse the

conviction.

                                FACTS

     On appeal, the Court views the evidence in the light most

favorable to the Commonwealth, the party prevailing below.    See

Taylor v. Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298

(1999) (en banc).    On June 15, 1997, Emebet Lizzanu was robbed

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
at gun-point by two men.    Mustamandi was subsequently indicted

for one count of robbery, one count of the use of a firearm in

the commission of robbery, and one count of conspiracy to commit

robbery.

        Lizzanu testified that at approximately 8:30 p.m. on the

date in question, she observed a car follow her into the parking

lot of her apartment complex.    After she parked, the other car

passed her, turned around and came back towards her.      Lizzanu

exited her car and began walking towards her apartment while the

other car backed into a parking space between her and the

apartment building.    She saw two men talking to someone in a

white van, and as she approached her apartment she saw the same

two men standing next to the parked car with both car doors

open.

        As she walked past the car, she heard someone behind her

say, "excuse me, ma'am."    She turned around and saw the two men

who had been standing near the parked car, one of whom pointed a

gun at her and demanded her purse.       The other man stood a few

feet behind her as she handed her purse to the gunman.

Lizzanu's purse contained several items, including the faceplate

to her car stereo.    After the robbery, both men told Lizzanu not

to shout, but to "just go home," and she ran to her apartment.

        Mustamandi admitted he was at Lizzanu's apartment complex

at the time of the robbery.    He claimed he was there trying to


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reach a friend who lived in the apartment complex.   He also

stated that two of the men accompanying him, named Mauricio and

Mario, left his car and disappeared for some period of time, and

that upon their return they told Mustamandi to hurry out of the

lot.   He stated that he learned of the robbery at that time.

       Later that evening, Mustamandi and three or four other men

came into the Domino's pizza restaurant in Arlington, where

Mustamandi was then employed, to get pizza.   By his own

admission, Mustamandi went to the restaurant with these men

after being at Lizzanu's apartment complex at the time of the

robbery.   He and the others discussed the robbery and sorted

through Lizzanu's purse.

       The faceplate to Lizzanu's car stereo was found in

Mustamandi's car, and Lizzanu's purse was found in the dumpster

behind the Domino's pizza restaurant.    Prior to trial, Lizzanu

failed to identify Mustamandi at an identification session held

in the front lobby of the Alexandria police department.     Lizzanu

had a difficult time recalling the details of the robbery

because of her frightened state of mind; however, she identified

Mustamandi at trial as one of the perpetrators of the robbery,

stating he was the individual with the gun.   She also stated she

recognized Mustamandi's voice.    She described the two robbers as

"probably Spanish" because they were neither white nor black,

and she noted that the gunman had an accent that was "possibly"


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Spanish, but that the second man spoke "pretty good English."

While she could not remember the type of hair or haircut the

gunman had, and denied he had the beard that Mustamandi

presented at trial, Lizzanu testified that she remembered

Mustamandi's face as that of the robber she saw.

     Following a bench trial held on February 17, 1999,

Mustamandi was found guilty of robbery as a principal in the

second degree, but the court dismissed the charges of conspiracy

to commit the robbery and use of a firearm in the commission of

robbery.   The court noted specifically that it believed

Mustamandi was the individual who stood behind Lizzanu during

the robbery.

     Mustamandi contends that because Lizzanu testified that

Mustamandi was the man standing in front of her, pointing the

gun at her and robbing her of her purse, and never described the

individual who stood behind her, the evidence was insufficient

to sustain the conviction.

                             ANALYSIS

     When a defendant challenges the sufficiency of the evidence

on appeal, the reviewing court must accord the judgment of the

trial court sitting without a jury the same weight as a jury

verdict.   See Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998); Beck v. Commonwealth, 2 Va. App. 170,

172, 342 S.E.2d 642, 643 (1986).   It is the appellate court's


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duty to examine the evidence that tends to support the

conviction and to permit it to stand unless it is plainly wrong

or without evidentiary support.   See Commonwealth v. Presley,

256 Va. 465, 466, 507 S.E.2d 72, 72 (1998); Commonwealth v.

Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998).

     "While a conviction of guilt may properly be based upon

circumstantial evidence, suspicion or even probability of guilt

is not sufficient.   There must be an unbroken chain of

circumstances establishing the guilt of [the defendant] to the

exclusion of any other rational hypothesis and to a moral

certainty."   Craig v. Commonwealth, 215 Va. 260, 261, 208 S.E.2d

744, 745 (1974).   "Suspicious circumstances . . . are not proof

of guilt sufficient to support a verdict of guilty."      Burchette

v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d 81, 86

(1992) (citation omitted); see Nelson v. Commonwealth, 12

Va. App. 268, 271, 403 S.E.2d 384, 386 (1991) ("[A] suspicion of

guilt, however strong, or even a probability of guilt, is

insufficient to support a criminal conviction.").   "Proof by

circumstantial evidence is not sufficient if it engenders only a

suspicion or even a probability of guilt.   Conviction cannot

rest upon conjecture.   All necessary circumstances proved must

be consistent with guilt and inconsistent with innocence

. . . ."   Haskins v. Commonwealth, 31 Va. App. 145, 151, 521

S.E.2d 777, 779 (1999) (citations omitted).


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     Applying these principles of law to the evidence before us,

we hold the trier of fact had no evidence before it upon which

it could conclude that Mustamandi was the man who stood behind

Lizzanu during the robbery.   Mustamandi admitted being present

in the parking lot of Lizzanu's apartment complex at the time of

the robbery, and to going through her purse at the Domino's

pizza restaurant afterward with his companions, whom he alleges

committed the crime.   Lizzanu identified Mustamandi as one of

the two robbers.   Although direct evidence consisting of

in-court identification of the perpetrator is sufficient to

establish identity, see Floyd v. Commonwealth, 31 Va. App. 193,

198-99, 522 S.E.2d 382, 384-85 (1999), the trial court, as

finder of fact, disbelieved Lizzanu's identification of

Mustamandi as the gunman.   The court found instead that

Mustamandi was the man standing behind Lizzanu during the

robbery, despite Lizzanu's inability to identify that individual

and the absence of any other evidence identifying that person.

     Although the facts admitted by Mustamandi provide

circumstantial evidence that he might have participated in the

robbery, neither they, the presence of Lizzanu's stereo face

plate in Mustamandi's car, nor the evidence provided by Lizzanu

establish beyond a reasonable doubt that Mustamandi committed

the crime.   Other than Lizzanu's identification of Mustamandi as

the gunman, which the court disbelieved, the only direct


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evidence offered in her testimony possibly establishing

Mustamandi's involvement in the robbery was her assertion that

she recognized his voice.   However, she described the gunman's

accent as "possibly Spanish," and noted that the second robber

spoke "pretty good English."   Neither of these statements

affirmatively identifies Mustamandi, who is of Afghani heritage.

Because "[s]uspicious circumstances . . . are not proof of guilt

sufficient to support a verdict of guilty," Burchette, 15

Va. App. at 438-39, 425 S.E.2d at 86, and because "[t]here must

be an unbroken chain of circumstances establishing the guilt of

[the defendant] to the exclusion of any other rational

hypothesis," Craig, 215 Va. at 261, 208 S.E.2d at 745, we

conclude that the Commonwealth failed to adduce evidence that

proved beyond a reasonable doubt that Mustamandi was present

when Lizzanu was robbed and committed the crime as a principal

in the second degree.

     Thus, for the reasons stated, we reverse the decision of

the trial court.

                                                          Reversed.




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