                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


DAVIS RANDOLPH BROWN
                                       MEMORANDUM OPINION * BY
v.   Record No. 0107-97-2      CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           JUNE 16, 1998
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                  Arthur W. Sinclair, Judge Designate
            David L. Heilberg for appellant.

            Richard B. Campbell, Assistant Attorney
            General (Mark L. Earley, Attorney General;
            John K. Byrum, Jr., Assistant Attorney
            General, on brief), for appellee.




     Davis Randolph Brown (appellant) was convicted in a bench

trial of three counts of breaking and entering with the intent to

commit larceny in violation of Code § 18.2-91 and three counts of

petit larceny in violation of Code § 18.2-96.       Appellant contends

the evidence was insufficient to prove beyond a reasonable doubt

that he committed any of the offenses charged.      We find no error

and affirm.

                                  I.

         Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
therefrom.   See Juares v. Commonwealth, 26 Va. App. 154, 156, 493

S.E.2d 677, 678 (1997).   The only evidence presented at trial was

the testimony of the three larceny victims, Muscoe Garnett, Mary

Scott Kaiser and Christopher Spanos, and one additional witness,

John McAllister.

     At approximately 8:00 a.m. on January 17, 1996, John

McAllister, a University of Virginia student, was asleep in his

loft bed at the Zeta Psi fraternity house.   He awoke when an

unknown man, whom he identified at trial as appellant, opened the

door to his room, walked in, and asked him if he had tickets to

the Virginia-North Carolina basketball game that night.

McAllister responded that he did not.   Appellant picked up

McAllister's wallet from a desk near the door, turned away from

McAllister, and sifted through the contents.   He then wrote down

a number where he said McAllister could reach him if he "got wind

of any tickets," and left the room.    McAllister came down from

the loft, checked his wallet and found the contents, including

three dollars, intact.    Appellant was not charged with any crimes

relating to this incident.
     Immediately after this encounter, McAllister walked down the

hall of the fraternity house past the room of Muscoe Garnett.      As

he passed, McAllister heard Garnett talking to someone whose

voice sounded "like the same person that was just in my room."

     At approximately 8:30 a.m. that day, Muscoe Garnett was in

his loft bed in his room with the door closed.   A man matching



                                 -2-
appellant's description entered Garnett's room and asked him for

tickets to the North Carolina basketball game.     Garnett answered

that he had none, and the intruder "bent down" in the vicinity of

where Garnett had left his pants on the floor under the end of

the loft.   After the man left, Garnett climbed down from the

loft, checked his pants pocket, and found his wallet, containing

thirty to forty dollars, missing.      He confronted the intruder,

who denied having taken the wallet.     The intruder left the

fraternity house, and Garnett called police.     Garnett was unable

to identify appellant as the man in his room.
     At approximately 11:25 a.m. on the following day, January

18, 1996, Mary Scott Kaiser left her office in Clark Hall at the

University of Virginia and walked to an adjacent office suite.

Her office was "one of the back offices in a suite of offices.

To get there from the hall, you would have to go through one

central . . . door and then back [along] a hallway to my office

and through another door."   Kaiser left her purse under a ledge

behind a box of paper next to her desk, and she closed both the

door to her office and the door to her office suite.     No one else

was in her office suite at that time.     When Kaiser returned

approximately five minutes later she encountered a man, whom she

identified at trial as appellant, leaving her office suite.

Appellant asked her where the buildings and grounds offices were

located.    Kaiser gave him directions, but as he left she realized

those offices were closed at that time, and she became




                                 -3-
suspicious.    She immediately checked the contents of her purse

and discovered her wallet, containing twenty dollars, missing.

        Between 5:30 and 6:00 a.m. the following day, January 19,

1996, University of Virginia student Christopher Spanos, his

roommate, and three guests were asleep in Spanos' bedroom on the

third floor of the Kappa Sigma fraternity house, which was

located next door to the Zeta Psi house.    The bedroom door was

closed.    Spanos awoke to find a man, whom he identified at trial

as appellant, standing at his desk, which was within arm's reach

of his bed.    Spanos confronted the intruder and asked what he was

doing.    Appellant said he was "a friend of Dave's from

downstairs."    When Spanos informed him that there was no "Dave"

living downstairs, appellant "backed up" and claimed to be "a

homeless guy looking for a place to stay."    Spanos replied that

he could not stay in the fraternity house, and appellant left the

room.    When Spanos checked, he discovered that his wallet and $7

were missing.
        The trial court found that "the Commonwealth's evidence

meets the burden of proof" and convicted appellant of three

counts of statutory burglary and three associated petit

larcenies.

                                  II.

        On appeal, "[w]e may not disturb the trial court's judgment

unless it is 'plainly wrong or without evidence to support it.'"

 Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901,




                                  -4-
904 (1998) (citation omitted).   In addition, "the inferences to

be drawn from proven facts are matters solely for the fact

finder's determination."    Marshall v. Commonwealth, 26 Va. App.

627, 633, 496 S.E.2d 120, 123 (1998).

     "Proof of the elements of an offense . . . includes proof of

the corpus delicti."    Watkins v. Commonwealth, 238 Va. 341, 350

n.3, 385 S.E.2d 50, 55 n.3 (1989), cert. denied, 494 U.S. 1074

(1990).   "Where the charge is merely larceny, the corpus delicti

is the larceny of the goods.   Where the charge is breaking and

entering with the intent to commit larceny, the corpus delicti is
the breaking and entering with that intent."       Drinkard v.

Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935).

"'Direct evidence is not essential to prove the corpus delicti.

It may be proved by circumstantial evidence.'"       Fisher v.

Commonwealth, 16 Va. App. 447, 452, 431 S.E.2d 886, 889 (1993)

(citation omitted).

     Appellant asserts that because the police never recovered

the stolen wallets or the money, either in appellant's possession

or elsewhere, the Commonwealth failed to establish that the

charged crimes had been committed.      This argument is without

merit.    Proof that appellant was in exclusive possession of

recently stolen property would be necessary to invoke the larceny

presumption, but the Commonwealth does not rely upon the

presumption in the instant case.       Recovery of the stolen property

is not essential to establish the corpus delicti of larceny.       See




                                 -5-
id.

      In the instant case, the testimony of Garnett, Spanos and

Kaiser that their money and wallets were taken from their rooms

and office, respectively, was sufficient to establish the corpus

delicti of larceny, and the undisputed evidence that the intruder

entered through closed doors at each location at the time of the

theft was sufficient to prove the three offenses of statutory

burglary.
      Appellant also contends the evidence established only

opportunity and the Commonwealth failed to exclude the

possibility that some other person was the criminal agent.    We

disagree.

      Where the evidence is wholly circumstantial, "'[t]he

circumstances 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.'"    Betancourt v. Commonwealth,

26 Va. App. 363, 375, 494 S.E.2d 873, 879 (1998) (quoting Sam v.
Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)).

"'[A]ll necessary circumstances proved must be consistent with

guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'"    Fisher v. Commonwealth, 16

Va. App. 447, 452, 431 S.E.2d 886, 889 (1993) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).       The

Commonwealth need not "exclude every possible theory or surmise,"

but must exclude those hypotheses "'which flow from the evidence



                                -6-
itself.'"     Cantrell v. Commonwealth, 7 Va. App. 269, 289-90, 373

S.E.2d 328, 338-39 (1988) (citation omitted).      "Further '[w]hile

no single piece of evidence may be sufficient, the combined force

of many concurrent and related circumstances, each insufficient

in itself, may lead a reasonable mind irresistibly to a

conclusion.'"      Shurbaji v. Commonwealth, 18 Va. App. 415, 423,

444 S.E.2d 549, 553 (1994) (quoting Stamper v. Commonwealth, 220

Va. 260, 273, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S.

972 (1980)).      Additionally, although opportunity alone cannot

support a conviction, "[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).

     The facts presented here, taken as a whole, were sufficient

to prove appellant's criminal agency beyond a reasonable doubt.

The evidence placed appellant in the office or rooms from which

the property was taken immediately before the thefts were
              1
discovered.       He had no rationale for being in the Garnett and

Spanos bedrooms and rifling through the victims' wallets at

6:00 a.m. or 8:00 a.m.      Nor did he have a reason for having
     1
      This fact distinguishes the instant case from Lewis v.
Commonwealth, 211 Va. 497, 498-99, 178 S.E.2d 530, 531-32 (1971);
Varker v. Commonwealth, 14 Va. App. 445, 447-48, 417 S.E.2d 7, 9
(1992); and Thomas v. Commonwealth, 187 Va. 265, 270-72, 46
S.E.2d 388, 390-91 (1948), in which the evidence proved the
defendants' presence at the crime scenes but could not establish
the time with any certainty.



                                   -7-
entered Kaiser's office suite through a closed door.   Further,

the trial court could reasonably infer that, when confronted,

appellant gave each victim a false explanation of his presence

and intentions at the time of each theft.   The trial court was

not plainly wrong when it concluded that appellant was the person

who broke and entered the premises and took the missing items.

                                                   Affirmed.




                               -8-
Benton, J., dissenting.



     The principle is well established that "mere opportunity to

commit an offense raises only 'the suspicion that the defendant

may have been the guilty agent; and suspicion is never enough to

sustain a conviction.'"     Christian v. Commonwealth, 221 Va. 1078,

1082, 277 S.E.2d 205, 208 (1981) (citation omitted).    "While a

conviction may properly be based on circumstantial evidence,

suspicion or even probability of guilt is not sufficient.    There

must be an unbroken chain of circumstances proving the guilt of

the accused to the 'exclusion of any other rational hypotheses

and to a moral certainty.'"     Gordon v. Commonwealth, 212 Va. 298,

300, 183 S.E.2d 735, 737 (1971) (citation omitted).    "Suspicious

circumstances, '"no matter how grave or strong, are not proof of

guilt sufficient to support a verdict of guilty.    The actual

commission of the crime by the accused must be shown by evidence

beyond a reasonable doubt to sustain his conviction."'"

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

81, 86 (1992) (citations omitted).

     The evidence proved that Mary Scott Kaiser left her office

for about five minutes.   The suite of offices leading into her

office and her office were unlocked while she left the premises.

The evidence also proved that Kaiser never saw Brown enter or

exit her personal office.    When Kaiser saw Brown coming out of

the suite of offices where her office was located, Brown asked

Kaiser where the maintenance department was located.    Kaiser


                                  -9-
testified that up until two months prior to that time, the

maintenance department had been located on the basement floor of

Kaiser's building.   Kaiser also testified that although one has

to travel through the suite of offices to leave her office, there

are twelve to fifteen different ways to get out of the building

from her office.

     Muscoe Garnett was unable to identify Brown in a photo

lineup and did not identify him at trial.   Garnett testified that

he could not see what the man in his room was doing but he was

sure the man was bent over in the area where Garnett had

discarded his pants.   Garnett did not see the man with his

wallet.   Garnett's bedroom door was not locked.   Garnett also

testified that the front door of the fraternity house has no lock

and that "people came in pretty freely."
     Christopher Spanos testified that he was asleep when the man

entered his room.    Spanos testified that he did not see the man

with his wallet.    Although he identified Brown at trial as the

man who was in his room, at the preliminary hearing he was not

sure that Brown was the man in his room.    Other people, who

attended a party in the fraternity house the night before, were

asleep in Spanos' room.   Spanos also testified that his door was

shut but not locked and that the doors to the fraternity house

remained unlocked.   Fraternity pledges recovered Spanos' wallet.

However, no evidence proved when or where the wallet was found.

     Both Spanos and Garnett were tentative in their




                                -10-
identifications of Brown as the man they saw in their respective

bedrooms.   The evidence also proved that the fraternity houses,

the bedrooms, the office suite, and Kaiser's office were unlocked

and that other people had access to these locations.   Thus, other

individuals had an opportunity to steal the missing property.

Simply put, the Commonwealth failed to exclude the reasonable

hypothesis that someone else was the criminal agent responsible

for the larceny and burglary offenses.   Therefore, I would hold

that the Commonwealth failed to prove beyond a reasonable doubt

that Brown committed these offenses, and I would reverse Brown's

convictions.




                               -11-
