                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


MARLON GERMAINE WATSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 0494-00-1                  JUDGE G. STEVEN AGEE
                                              APRIL 24, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                   Westbrook J. Parker, Judge

          Michael J. Lutke (Office of the Public
          Defender, on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Marlon Germaine Watson (Watson) was convicted and sentenced

in a bench trial in the Circuit Court of Southampton County for

one count of robbery in violation of Code § 18.2-58, and one

count of malicious wounding in violation of Code § 18.2-51.     He

appeals the robbery conviction averring that the evidence was

insufficient to support his conviction.   For the reasons set

forth below, we affirm.

                               I.

     In the months of June and July 1998, Watson, then a

twenty-one-year-old seasonal farm worker, shared a rented room


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
with two or three other farm workers at the Courtland Inn Motel

in Southampton County.   On July 23, 1998, however, Watson

obtained a separate room for himself for one night.   Watson

verbally provided his name as "James Peters" but failed to

produce any identification.   Watson's signature on the motel's

registration card, however, provided the name "Watson."

     Between 8:30 p.m. and 9:00 p.m. on July 24, 1998, Jagmohan

Shah (Shah), the seventy-year-old motel manager, found Watson

waiting for him outside the motel's locked office.    Watson told

Shah he "want[ed] to pay the rent" even though Watson had never

before handled the arrangements for the workers' room.    Shah,

who always kept the office door locked and the keys on his

person, unlocked the door of the office.   As soon as Shah

entered the office, Watson pushed him, causing Shah to fall.

Watson locked the door and dragged Shah into his living

quarters, adjacent to the office.   Watson started beating Shah

on the left side of his head, and then attempted to choke the

elderly manager with a towel.   When Watson was unable to choke

Shah, he beat Shah's face and ear so hard that the ear was

"displaced"; Shah lost consciousness.

     At approximately 11:00 p.m., Annette Flythe (Flythe), a

motel employee, arrived at the motel to deliver laundry.     Watson

approached her minutes later and asked her for a ride to the

store.   Once he was in the car, however, Watson directed Flythe

to "keep going" whereupon she drove until Watson eventually

                                - 2 -
exited the car in North Carolina.   Watson did not pay Flythe for

the ride, but she did not think that was unusual.   Watson took

no personal belongings with him.

     Shah slowly regained consciousness and called 911 at

approximately 11:12 p.m.    While placing the emergency call from

the office phone, Shah realized the desk drawer containing the

motel's cash box had been broken into.   Shah fell unconscious

again.

     The first sheriff's deputy arrived at the motel at

approximately 11:15 p.m.    The investigating officer, R.W.

Carwile, arrived at 11:29 p.m. and found residents of the motel

"milling around" outside.    Approaching the crime scene, the

officer found the door to the office closed, but unlocked.

Inside, Officer Carwile found the drawer where the cash box was

kept broken into, the cash box had the key in it, and the

motel's money was missing.   Shah estimated the cash box held

$1,200 that evening.   (The money was never recovered.)

     Shah slipped in and out of consciousness several times and

spent the night at a local hospital.    Initially he could not

remember what had happened, however his memory returned the

following day and he recalled the incident "exactly."     Shah was

certain Watson was his assailant.   Only Watson had been in the

room when Shah was beaten, and Watson was the only person who

had come to pay the rent that night.    Shah identified Watson

from a photo array on July 31, 1998.    Flythe also identified

                                - 3 -
Watson from the array.   Watson was subsequently arrested in the

state of Georgia in 1999.

     These details were presented at trial by the Commonwealth.

At the close of the Commonwealth's case, Watson moved to strike

the evidence, arguing the Commonwealth had not proven when the

robbery occurred or that Watson had committed the crime.    Watson

argued that while Shah was unconscious, someone other than

Watson could have entered the unlocked office and committed the

robbery.   The trial court overruled the motion.   Watson

presented no evidence in his behalf, and the court rendered its

decision of guilty.   With regard to the robbery, the judge said:

           [W]hat we have in th[is] case is a man who
           attacks Mr. Shah, leaves him unconscious.
           When Mr. Shah wakes up the money's gone and
           shortly thereafter, sometime during that
           same period of time an employee takes this
           man to North Carolina to flee with no
           property, not his blue calendar, no luggage,
           not nothing. So it's a circumstantial case.
           The question is whether or not he robbed the
           man and the answer is obvious. Of course he
           did. That's the reason he beat him up. He
           beat him up, took the money and escaped to
           North Carolina and stayed gone until they
           found him in Georgia . . . .

                                II.

     When the sufficiency of the evidence is challenged, we

consider all the evidence, and any reasonable inferences fairly

deducible therefrom, in the light most favorable to the party

that prevailed at trial, which is the Commonwealth in this case.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,


                               - 4 -
537 (1975).   Witness credibility, the weight accorded the

testimony and the inferences to be drawn from proven facts are

matters to be determined by the fact finder.    See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The trial court's judgment will not be disturbed on appeal

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

See Code § 8.01-680.   We will not substitute our judgment for

that of the trier of fact.   See Cable v. Commonwealth, 243 Va.

236, 239, 415 S.E.2d 218, 220 (1992).

     To convict Watson of robbery, the Commonwealth was required

to show beyond a reasonable doubt that Watson committed "the

taking, with intent to steal, of the personal property of

another, from his person or in his presence, against his will,

by violence or intimidation."    Johnson v. Commonwealth, 209 Va.

291, 293, 163 S.E.2d 570, 572-73 (1968).

     It is well established that circumstantial evidence is just

as competent and 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).     The

Commonwealth's evidence, however, need not affirmatively

disprove all theories which might negate the conclusion that the

defendant committed the crimes; the conviction will instead be

sustained if the evidence excludes every reasonable hypothesis

of innocence.   Higginbotham, 216 Va. at 353, 218 S.E.2d at 537.

                                - 5 -
The chain of necessary circumstances supporting guilt must be

unbroken.   The 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.     Stover v.

Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981).

     In this case, the only reasonable hypothesis flowing from

the evidence is that Watson took the money from the cash box in

the motel office after he savagely beat the elderly manager, who

possessed the office keys, into unconsciousness.   This

hypothesis is supported by a chain of circumstances, which

provides more than a strong suspicion of guilt.

     Watson had been staying in a room with several other men

but obtained his own room for one night, using a false name.

Watson gained entry into the locked office by falsely telling

Shah he wanted to pay rent, something he had never before

handled.    Once inside, Watson pushed Shah down, locked the door,

forced the elderly man into an adjacent room and then

maliciously beat him.

     Upon investigating the attack against Shah it was

discovered that the motel's money was missing, taken with the

use of the manager's keys last known to be in the manager's

possession when he was attacked by Watson.   He is the last

person known to have been aware of where Shah was located and

the last person known to have been in the office before police

arrived.    There is no evidence that anyone other than Watson

                                - 6 -
entered the office or adjacent living quarters while Shah was

unconscious.   The only evidence that someone else might have

been near the crime scene is the investigating officer's

testimony that when he arrived, approximately fifteen minutes

after the first officers responded to the 911 call, motel

residents were "milling around," but outside the motel office.

     While there was no specific testimony or evidence

surrounding the theft, "[o]pportunity . . . when reinforced by

other incriminating circumstances, may be sufficient to

establish criminal agency beyond a reasonable doubt."     Christian

v. Commonwealth, 221 Va. 1078, 1082, 227 S.E.2d 205, 208 (1981);

see also Phan v. Commonwealth, 258 Va. 506, 514, 521 S.E.2d 282,

286 (1999) (each single piece of evidence may be insufficient,

but "the combined force of many concurrent and related

circumstances . . . may lead a reasonable mind irresistibly to a

conclusion" (citations omitted)).

     Further, Shah's unconscious state, which facilitated the

theft, was a direct result of having been beaten severely by

Watson.   The record contains no evidence of animosity between

Watson and Shah that might explain the beating.   The reasonable

inference, then, is that Watson's violent attack on Shah was a

precursor to the robbery.   For what other purpose would a

twenty-one-year-old man savagely beat and choke a

seventy-year-old man without provocation after luring him into a

closed office where the cash box was kept?   See Ingram v.

                               - 7 -
Commonwealth, 192 Va. 794, 803, 66 S.E.2d 846, 851 (1951) ("for

what purpose [except rape] would a man attack a defenseless

woman, at night, dressed in her nightclothes").   "Inferences and

deductions from human conduct may be properly drawn when they

follow naturally from facts proven."   Id.   Accord Green v.

Commonwealth, 223 Va. 706, 711-12, 292 S.E.2d 605, 608-09 (1982)

(affirming a fifteen year old's conviction for an attempted rape

of a sixty-five-year-old woman who threw the victim to the floor

and removed her clothes after entering her house on pretext, but

fled when her husband approached).

     The dissent relies on Commonwealth v. Smith, 259 Va. 780,

529 S.E.2d 78 (2000), to find the evidence insufficient to

support Watson's robbery conviction.   We find the case

distinguishable.

     In Smith, the victim had been drinking heavily when Smith

approached him and spoke a few instigating words regarding

Smith's relationship with the victim's spouse.    Smith then

punched the victim as he began to walk away.   The victim kept

walking away, but then fell unconscious on a public street.

When the victim awoke, hours later in a hospital, he was being

treated for knife wounds.   No evidence was produced relating to

what happened in the interval time between the victim falling

unconscious and then awaking in the hospital to find that he had

been stabbed.   The only evidence that Smith had committed the

crime, on a public street, was that some of the knife wounds

                               - 8 -
were in the same place Smith had punched the victim.    The victim

testified he did not see Smith with any weapon nor did he see

blood when Smith punched him.    Smith's conviction was overturned

on appeal based on the holding that the evidence raised no more

than a suspicion of guilt.

        In contrast to Smith, Watson had no reason to maliciously

beat Shah.    There is no evidence of animosity or conflict

between the two men.    Shah's unconscious state, allowing for the

theft to occur, was caused by Watson's actions.    Shah's beating

did not take place in public, but rather just prior to the

robbery in a private, locked office where the motel's money was

kept.    Watson is the last person known to have access to that

office which he gained by subterfuge and subsequent use of

violent force.    There is also the evidence that Watson remained

on the motel's premises shortly thereafter until he could flee,

without any of his belongings, including personal property that

provided police with his true identity, originally thought to be

"James Peters."

        From the totality of these circumstances, the trial judge

could conclude beyond a reasonable doubt that Watson committed

the Courtland Inn Motel robbery.    We find that the Commonwealth

met its burden of proving the guilt of Watson for the crime of

robbery to the exclusion of every reasonable hypothesis

consistent with his innocence.    Finding there was sufficient



                                 - 9 -
evidence for the trial court to convict the appellant of

robbery, we affirm the conviction.

                                                  Affirmed.




                             - 10 -
Benton, J., dissenting.

     The Commonwealth bears the burden of proving every element of

a criminal offense beyond a reasonable doubt.     Adkins v.

Commonwealth, 20 Va. App. 332, 342, 457 S.E.2d 382, 387 (1995).

Thus, when a conviction is based on circumstantial evidence, "all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence."   Inge v. Commonwealth, 217 Va. 360,

366, 228 S.E.2d 563, 567 (1976).   "[M]ere opportunity to commit an

offense raises only 'the suspicion that the defendant may have

been the guilty agent.'"   Christian v. Commonwealth, 221 Va. 1078,

1082, 227 S.E.2d 205, 208 (1981) (citation omitted).     The

principle is well established, however, that "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).

     Although the evidence proved beyond a reasonable doubt that

Marlon Germaine Watson severely beat Jagmohan Shah, no evidence

proved who took the money from the office.     During the beating,

Shah lapsed into unconsciousness and remained in the office for

almost three hours before the police arrived.     No evidence proved

what transpired in the interval of time between the beating and

the arrival of the police officers.      The officer who responded to

Shah's telephone call testified that the door to the office was

unlocked when he arrived and that people were gathered around



                                - 11 -
outside the office.    No one saw when or under what circumstances

the money was taken.

     Citing two robbery cases, People v. Adams, 81 Cal. Reptr.

378, 380 (Cal. App. 1969), and Sinks v. State, 133 N.E.2d 563, 565

(Ind. 1956), the Commonwealth argues that the evidence was

sufficient to convict Watson for robbery even though no person saw

the theft and Shah was unconscious.      In Adams, the evidence proved

the following:

          The [victim, the defendant and the
          defendant's acquaintance] started walking
          down the street [at 3:00 a.m.]. Defendant
          suddenly put his arm around [the victim's]
          neck, forced him to the ground and fell on
          top of him. [The victim] was greatly
          frightened. He asked what defendant wanted
          and defendant replied that he wanted all of
          [the victim's] money. [The victim] could
          feel defendant going through his pockets.
          [The victim] was rendered unconscious. He
          awoke in a pool of blood and found his
          wallet gone and the pocket in which it had
          been kept torn. Also missing were the
          contents of his wallet: about $50.00 in
          cash, four credit cards, his driver's
          license and miscellaneous identification.

81 Cal. Reptr. at 378-79.

     In Sinks, the evidence proved that the victim drank beer

for hours with the two defendants.       133 N.E.2d at 564.   As the

victim left to go to a hotel with the defendants, they assured

him that his money could be safely left with the hotel clerk and

that they would not take his money.       Id.   The evidence further

proved the following:



                                - 12 -
             They had gone only a few steps when [one
             defendant], without saying a word, turned
             around and struck [the victim], knocking him
             down on the sidewalk and rendering him
             unconscious. At the time [one defendant]
             struck him, [the other defendant] had his
             hand on [the victim's] shoulder.

                About three minutes after the three left
             the tavern, the tavern owner looked out the
             window and saw [the victim] lying on the
             sidewalk. Between the time the three left
             the tavern and [the victim] was seen lying
             on the sidewalk, no one came through the
             front door of the tavern, and no one was
             seen going by the place where he was lying.
             . . . [The defendants] were arrested about
             a half hour later at an all night restaurant
             . . . . As a result of a search, $27.35 was
             found on [one defendant] and $16 on [the
             other defendant]. Both men at the time
             stated they had borrowed the money. In the
             presence of a police officer the next
             morning at the County Jail, [the victim]
             accused both [defendants] of striking him
             and robbing him, and each of them offered to
             repay [the victim] if he would not have them
             prosecuted.

Id.

        Both cases are inapposite to the circumstances of this

case.    In Adams, the evidence proved that the defendant demanded

money from the victim and searched his pockets before the victim

lost consciousness.    In Sinks, the evidence proved that after

beating the victim, the defendants lied about borrowing money

from the victim and sought to reimburse the victim when accused

of robbery.    In addition, the evidence in Sinks affirmatively

proved no other person approached the victim after the assault.




                                - 13 -
No such similar circumstances or evidence in this case tends to

prove Watson took the money from the drawer.

     Neither the testimony of Shah nor any other evidence tends

to prove the circumstances surrounding the theft of the money.

As in Commonwealth v. Smith, 259 Va. 780, 529 S.E.2d 78 (2000),

the record contains insufficient evidence to prove who committed

the offense.   The Commonwealth argues that Smith is not

controlling because the victim in Smith "was not aware he had

been stabbed until he 'came to' later in a hospital."

Therefore, the Commonwealth contends it is left to surmise who

stabbed the victim after the accused beat him.    That lack of

evidence is precisely the flaw in the Commonwealth's proof

concerning the robbery of Shah.   Although the evidence proved

beyond a reasonable doubt the assault, no evidence tends to

prove the identity of the person who took the money.    Watson

made no demands for money from Shah.    Moreover, Shah was

unconscious for hours after the beating.    The Commonwealth's own

evidence proved that the door to the office was not locked when

the officer responded to Shah's telephone call and that people

were milling around outside the office.

     As in Smith, the evidence proved that the accused committed

a criminal act against the victim.     Here, Watson maliciously

wounded Shah and was convicted for that act.    Similarly, as in

Smith, the evidence is not inconsistent with the hypothesis that

someone else committed the separately charged offense.     "The

                              - 14 -
guilt of a party is not to be inferred because the facts are

consistent with his guilt, but they must be inconsistent with his

innocence."   Cameron v. Commonwealth, 211 Va. 108, 110-11, 175

S.E.2d 275, 276 (1970).

     The evidence proved that Watson left the motel two and a half

hours after beating Shah.   This conduct is as consistent with

guilt of the felonious wounding as with any other hypothesis.

When, as here, the evidence raises only an inference concerning

the identity of the thief of the property and the evidence does

not exclude the hypothesis that Watson was not the taker, the

evidence amounts only to a suspicion of Watson's guilt.   Evidence

that proves the accused committed one offense and, because of his

mere presence, had the opportunity to commit a second offense

provides only the suspicion that the accused committed the second

offense.   See Smith, 259 Va. at 784, 529 S.E.2d at 79.   That

suspicion "'no matter how strong is insufficient to sustain a

conviction.'"   Id.

     For these reasons, I would reverse the robbery conviction

and dismiss the indictment.




                               - 15 -
