                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


KIRK CHAMBERS, A/K/A
 KIRK LAMONT CHAMBERS
                                            MEMORANDUM OPINION * BY
v.   Record No. 0943-98-2                    JUDGE MARVIN F. COLE
                                                OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
                    Richard S. Blanton, Judge

          Phyllis L. Bean for appellant.

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


     Appellant, Kirk Chambers, was convicted in a bench trial of

robbery and use of a firearm in the commission of robbery.     He

contends that the evidence is insufficient to prove him guilty of

either offense beyond a reasonable doubt.    We disagree and affirm.

     When the sufficiency of the evidence is challenged on appeal,

we view the evidence "in the light most favorable to the

Commonwealth and give it all reasonable inferences fairly

deducible therefrom."   Higginbothan v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).   "A conviction will be affirmed

unless it appears from the evidence that it is plainly wrong or

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
without evidence to support it."   Sutphin v. Commonwealth, 1 Va.

App. 241, 243, 337 S.E.2d 897, 898 (1985) (citation omitted); Code

§ 8.01-680.   "The weight which should be given to evidence and

whether the testimony of a witness is credible are questions which

the fact finder must decide."   Bridgeman v. Commonwealth, 3 Va.

App. 523, 528, 351 S.E.2d 598, 601-02 (1986).

     So viewed, the evidence clearly established that on June 18,

1997, someone robbed Davis Service Center (Center), a convenience

store, by using and displaying a firearm in a threatening manner.

The crux of appellant's claim of insufficient evidence is that the

eyewitness identification of him as the robber was unreliable and

the corroborating testimony of Clarence Johnson was unworthy of

belief.   Appellant claims that on the night in question he was at

home with his mother.

     Johnson testified that on June 18, 1997, at the request of

appellant, he drove appellant to the Center.    In a statement to

the police investigating the robbery, Johnson said that en route

to the Center appellant said that he was going there to rob it.

However, at trial Johnson testified he "wasn't 100 per cent sure"

what appellant had said.   Upon arriving at the Center, Johnson

left the parking lot for a short period of time and returned to

pick up appellant.   When he got back, he saw appellant through the

window.   He had his arms on the cash register and was leaning on

the counter, but Johnson could not see the person to whom

appellant spoke.

                                - 2 -
     When appellant came out of the store, he dropped what

appeared to Johnson to be a single bill of money.    Appellant

picked it up, went back into the store, picked up something else

and came straight back to the car.

     Johnson testified that appellant wore dark clothing, blue

jeans, some kind of dark shirt, and a hat.   He testified that when

appellant returned to the car, he heard a paper sound in

appellant's pants.   Johnson said, "I could hear a crunchy sound

like paper."

     Cindy Davis, who was working at the Center, testified that

as she washed the front door, a man approached, displayed a gun,

and ordered her back into the store.    The man told Davis and

Nancy Burris, who was also working, to get on the floor.     The

women complied.   Davis opened the cash register, and the man

took money from the drawer.   The man left momentarily, then

returned.   Davis looked "right in his face."   Davis picked

appellant's photo from a display, and identified appellant in

court as the robber.   Davis had "no doubt" of her

identification.

     Burris testified that appellant was not the person who

robbed the store.    However, Burris testified that she was trying

not to look at the robber and that she was paying more attention

to Davis, because she feared for Davis' safety.

     The victims inaccurately described appellant's complexion,

height and age at the time of the robbery.

                                - 3 -
     Although the admissibility of the identification is not

challenged, the factors enunciated in Neil v. Biggers, 409 U.S.

188 (1972), are significant circumstances that may be

considered, along with other evidence, in determining the

sufficiency of the evidence.   The factors include

          the opportunity of the witness to view the
          criminal at the time of the crime, the
          witness' degree of attention, the accuracy
          of the witness' prior description of the
          criminal, the level of certainty
          demonstrated by the witness at the
          confrontation, and the length of time
          between the crime and the confrontation.

Id. at 199-200.   The trial court is capable of "measuring

intelligently the weight of identification testimony that has

some questionable feature. . . .   The defect, if there be one,

goes to weight and not to substance."   Manson v. Brathwaite, 432

U.S. 98, 116-17 (1977).

     Davis recounted her observation of the robber, which was

more extensive than that of Burris, who consciously tried not to

look at him.   Davis was certain of her identification, and her

identification was supported by Johnson's testimony.

     The testimony of the Commonwealth's witnesses was

competent, was not inherently incredible, and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of

robbery and use of a firearm in its commission.

                                                         Affirmed.




                               - 4 -
Benton, J., dissenting.

     "It is a canon of criminal law that it is not sufficient to

create a suspicion or possibility of guilt, but the evidence

must go further and exclude every reasonable hypothesis except

that the accused is guilty of the offense charged in the

indictment."     Stone v. Commonwealth, 176 Va. 570, 578, 11 S.E.2d

728, 731 (1940).

          [W]hether a criminal conviction is supported
          by evidence sufficient to prove guilt beyond
          a reasonable doubt is not a question of fact
          but one of law. A conviction based upon a
          mere suspicion or probability of guilt,
          however strong, cannot stand.

               It can be safely said that in Virginia
               there is no principle more firmly
               imbedded in the body of the law, or
               one that has been more often stated,
               than the principle that in every criminal
               case the evidence of the Commonwealth
               must show, beyond a reasonable doubt,
               every material fact necessary to
               establish the offense for which a defendant
               is being tried.

          A criminal defendant is entitled to the
          benefit of a reasonable doubt arising from
          the evidence of the Commonwealth as well as
          from his own evidence.

Bridgeman v. Commonwealth, 3 Va. App. 523, 528-29, 351 S.E.2d

598, 601 (1986) (citations omitted).

     These well established principles govern our review of Kirk

Chambers' appeal of these convictions for robbery and use of a

firearm in the commission of robbery.    As in Smallwood v.

Commonwealth, 14 Va. App. 527, 418 S.E.2d 567 (1992), the


                                 - 5 -
evidence in this case created only a suspicion or possibility of

Chambers' guilt.   This Court held in Smallwood that similar

evidence of equivocal identification and inconsistencies was

insufficient to prove Smallwood's guilt beyond a reasonable

doubt.   Specifically, we noted the following:

           While unequivocal evidence of identification
           immediately following the offense may
           provide sufficient corroboration to overcome
           difficulties arising from in-court
           identifications, all of the pre-trial
           identifications of Smallwood were uncertain.
           Moreover, the length of time between the
           crime and [the witness'] identification of
           Smallwood was approximately five weeks.
           [The witness'] testimony also proved that
           her pre-trial identification of Smallwood's
           photograph occurred after she was
           suggestively asked to select from the
           photographic array "the person that [she]
           thought [she] had seen the night of the
           robbery." In addition, there are
           significant inconsistencies between [the
           witness'] pre-trial description of Smallwood
           and her acknowledgement of his actual
           appearance at trial. . . . [T]he
           discrepancies between her descriptions of
           [Smallwood's] coloring and skin condition
           have added significance.

14 Va. App. at 532, 418 S.E.2d at 569-70 (citation omitted).

     As the majority correctly notes, immediately after the

robbery, both Nancy Burris and Cindy Davis gave the responding

police officer a physical description of the robber that was

inconsistent with the physical description of Chambers.   On the

night of the robbery, both Burris and Davis identified the

robber as a light-skinned black male, age 30-32, who was 5 feet

7 inches tall, and wearing baggy pants.   Both also recalled that

                               - 6 -
the robber had short hair on his head and no facial hair.      The

evidence, however, established that Chambers is six feet tall

and twenty-four years of age.      Further, Chambers had long hair

on the day of the robbery and has had a mustache all his adult

life.

        During the incident, the robber "was right there in

[Burris'] face" and three times ordered Burris to the floor

before she responded.      Burris testified that she clearly saw the

robber and that the description she gave the police the night of

the robbery was accurate.      Indeed, Burris testified that

Chambers "does not look like the robber."       She elaborated on her

testimony as follows:

             [JUDGE:] To make sure I'm clear: How do
             you see the defendant in the courtroom? Not
             putting words in your mouth, but you feel
             like you got a good, substantial look at the
             robber?

             [BURRIS:]   Yes, sir, I did.

             [JUDGE:] You are saying to the Court that
             you are convinced that that is not the
             person.

             [BURRIS:] I'm pretty well convinced, yes,
             sir, because I know what I saw that night
             and reported that night. It is--

             [JUDGE:]    That is not the man?

             [BURRIS:]   In my opinion, yes, sir.   In my
             opinion.

        Although the robber wore a "railroad" cap, no evidence

linked such a cap to Chambers.      Moreover, the shoe print found



                                   - 7 -
at the scene of the crime was never connected to Chambers.     The

evidence also proved that the police found a fingerprint on the

cash register, which had been jerked open by the robber.

However, the fingerprints found on the cash register and the

exterior glass door did not match Chambers' fingerprints.

     Four months after the robbery, Davis, the other store

clerk, identified Chambers' photograph under questionable

circumstances.   Davis selected Chambers' photograph from an

array of photographs only after she was told that the suspect's

photograph was in the array.   Moreover, Davis' trial testimony

concerning the robber was so inconsistent with her pretrial

statements as to create uncertainty about her identification of

Chambers as the robber.   Although on the night of the robbery

Davis reported that the robber was wearing baggy pants, at trial

and at the preliminary hearing, Davis was adamant that the

robber's pants were "definitely not baggy."   On the night of the

robbery, Davis also reported the robber as being light-skinned.

Yet, at the preliminary hearing, she stated that Chambers had

"medium" skin.   Finally, at trial, Davis described Chambers as

"between light and dark," then stated his complexion was

"medium."   When confronted about this discrepancy, she stated,

"Well, I was upset [on the night of the robbery.]"

     When identification evidence is equivocal and unreliable,

we must look to the totality of the other evidence to determine

whether the trier of fact could have found Chambers guilty

                               - 8 -
beyond a reasonable doubt.   See Burrows v. Commonwealth, 224 Va.

317, 319, 295 S.E.2d 893, 895 (1982) (holding that an equivocal

identification and other suspicious circumstances were

insufficient to sustain a robbery conviction).   Through Clarence

Johnson, however, the Commonwealth only created additional

suspicion through conjecture.    The police initially suspected

that Johnson, a four-time convicted felon who is thirty-four

years of age, was the robber.    Although Johnson had been a paid

police informant since July 1997, a month following the robbery,

Johnson did not insinuate that Chambers was involved until

October 1997, nearly four months after the robbery.   Johnson

made this disclosure only after the police focused their

investigation on Johnson and began to question him as a suspect

in the robbery.

     At trial, Johnson testified that on the day of the robbery,

while Johnson was "getting high" on cocaine, Chambers asked him

for a ride to the store.   He testified that he drove Chambers to

the store and then drove to a nearby "wayside" to "use the

bathroom" while Chambers was in the store.   When he returned to

the store, he saw Chambers leaning on the counter.    Johnson

could not recall whether Chambers was wearing a hat, and he

never saw Chambers with a gun.    He only claimed to "hear a

crunchy sound like paper" coming from Chambers' pocket when

Chambers left the store and entered the vehicle.   Significantly,



                                 - 9 -
he did not testify that he saw Chambers rob the clerks or that

Chambers admitted robbing the clerks.

     On an important issue, Johnson's testimony contradicts the

testimony of Davis.   Davis testified that while the robber was

walking away, but was still behind the customer counter, the

robber dropped money and returned to retrieve it.   She testified

that the robber never re-entered the store after he took the

money and left the store.   Johnson testified that he saw

Chambers leave the store, re-enter the store to retrieve

something, and then leave the store again.   That discrepancy is

significant because the record also reveals that the dispatcher

erroneously reported on the night of the robbery that the robber

left the store and then re-entered the store.    Johnson's

testimony, which is consistent with the dispatcher's erroneous

report, raises significant doubt as to the veracity of his

testimony and basis of his personal knowledge.

     The evidence in this case consists solely of the unreliable

identification of only one of the victims of the crime, the

questionable testimony of a convicted felon, who himself was a

suspect in the crime until he implicated Chambers, and the

testimony of Burris, that Chambers was not the perpetrator.    In

its totality, the evidence was insufficient to move the

Commonwealth's proof beyond the realm of speculation, suspicion,

and innuendo.   "[E]ven probability of guilt is not sufficient



                              - 10 -
[to support a conviction]."   Gordon v. Commonwealth, 212 Va.

298, 300, 183 S.E.2d 735, 737 (1971).

     For these reasons, I believe this evidence raises

reasonable doubt whether Chambers was the robber.   I would

reverse the convictions and dismiss the indictments.




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