                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia


HOWARD CHARLES ROBENOLT, S/K/A
 HOWARD C. ROBENHOLT
                                         MEMORANDUM OPINION * BY
v.        Record No. 2413-95-2          JUDGE SAM W. COLEMAN III
                                              JUNE 4, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF HENRICO COUNTY
                     George F. Tidey, Judge
          Alexander M. Clarke, Jr. (Oxenham, Rohde &
          Clarke, on briefs), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     In this criminal appeal, Howard Charles Robenolt contends

that the evidence is insufficient to prove that he was the person

who committed the burglary of a restaurant.    We hold that the

evidence is sufficient and affirm the defendant's conviction.

     The Commonwealth first argues that the defendant is barred

by Rule 5A:18 from challenging the sufficiency of the evidence on

appeal because he did not state specific grounds in the trial

court for his motion to strike the evidence.   However, the record

reveals that the defendant moved to strike the evidence at the

close of the Commonwealth's case and renewed the motion in lieu

of presenting evidence.    The defendant's contention that the

evidence failed to prove that he was the criminal agent was
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
clearly presented to and considered by the trial judge.

Accordingly, the issue of the sufficiency of the evidence was

properly preserved for appeal.     See Previtire v. Commonwealth, 16

Va. App. 869, 870-71, 433 S.E.2d 515, 516 (1993).

     When the sufficiency of the evidence is challenged on

appeal, "we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).    "The judgment of the trial

court shall not be set aside unless it appears from the evidence

that said judgment is plainly wrong or without evidence to

support it."   Id. at 250-51, 356 S.E.2d at 444.

     The evidence proved that the defendant was a patron sitting

at the bar of the Southern Knights Restaurant at approximately

10:00 p.m. on September 13, 1994, when Tracy Richardson, a

bartender at the restaurant, informed him that it was "last

call."   Richardson testified that the defendant "had a flash

light in his hand" when he came into the bar.    She testified that

this aroused her suspicion because she had seen the defendant in

the bar on prior occasions and he had never brought a flashlight

with him.   Richardson did not see the defendant leave the

restaurant, but she testified that he was not sitting at the bar

when she began to lock up.   She "looked around inside the

restaurant" and then went outside to the parking lot, but did not

see the defendant.   Richardson then locked all of the doors and



                                 - 2 -
placed a fitted bar across the back door.

     Patricia Butner, the owner of the restaurant, arrived at the

restaurant around 4:30 a.m. the following morning and found that

money had been taken from the juke box and the pool tables.

Butner discovered that there were more lights on than usual and

that the bar used to secure the back door "was off of the back

door sill." 1   Officer Shawn Diasparra arrived at the restaurant

soon thereafter.    Butner informed him that an undetermined amount

of money had been stolen from the pool tables and the juke box.

Butner also directed Officer Diasparra to talk to the defendant

because he had been in the bar prior to closing.
     Officer Diasparra went to the defendant's home around 6:00

a.m. and found the defendant asleep.     Diasparra informed the

defendant that he was investigating a burglary at the Southern

Knights Restaurant.    The defendant responded that he had been at

home sleeping since 12:30 a.m.    The defendant then stated that he

had purchased a six-pack of Miller Lite beer from a convenience

store the previous evening "because . . . he drinks . . . Miller

Lite Beer and not Miller Beer."    He showed Officer Diasparra a

cooler that contained cans of Miller Lite and restated that he

did not drink Miller beer.

     Officer Diasparra testified that he found the defendant's

statements concerning the beer odd because he did not ask the
     1
       The police later determined that the burglar entered the
attic of the building through the roof and removed some ceiling
tiles in order to get into the restaurant.



                                 - 3 -
defendant about beer.   Diasparra also testified that the

defendant did not provide him any information about the burglary

at the restaurant.   On cross-examination, Officer Diasparra

stated that "a Mr. Kennard Dameron was staying with [the

defendant]" at his home.

     The night following the burglary, Butner discovered that two

cases of Miller beer were missing from the restaurant.   Butner

did not report the missing beer to the police, however, because

she "figured that [Officer Diasparra] would be back in touch with

[her]" and that she could report the missing beer later.
     Approximately two weeks after the burglary, the defendant

went to the restaurant, ordered a Miller Lite, and asked Butner

if she knew who had broken into the restaurant.   She responded

that she did not.    The defendant then volunteered to her "that

some guy named Kennard and Marshall Ferguson" were involved in

the burglary.   The defendant also stated that the police had

questioned him at 4:30 a.m. on the morning of the burglary.

Butner told him that was impossible because she did not report

the burglary until 5:00 a.m.    Then, the defendant told Butner

"that the policeman asked him what kind of beer he drank and he

said, 'I drink Miller Lite.'"   According to the defendant, the

police officer responded, "[t]hat lets you off the hook.    They

took two cases of Miller Beer."   At that time, Butner had not

informed the police about the missing cases of beer, and she told

the defendant that the officer could not have mentioned the beer




                                - 4 -
because he did not know about it.   Butner testified that at the

time the defendant mentioned the missing beer to her, only

Richardson and a close friend named Pat Rickman knew about the

missing cases of beer.

     The evidence, viewed in the light most favorable to the

Commonwealth, proves that the defendant, who acted suspiciously

on the night of the burglary by bringing a flashlight into the

bar, had the opportunity to commit the burglary.   He was seen in

the restaurant immediately before closing on the evening of the

burglary.   Although opportunity to commit a crime is not of great

moment in proving one's guilt, the defendant's statements to

Officer Diasparra, the morning following the burglary, that he

did not drink Miller beer, and his conversation with Butner two

weeks after the burglary, where he claimed that Officer Diasparra

told him that two cases of Miller beer had been stolen and that

he was "off of the hook" because he drank Miller Lite, were

highly incriminating.    They revealed a knowledge about specific

facts pertaining to the burglary that were not common knowledge

and only the burglar or someone he told would know.   Officer

Diasparra testified that he knew nothing about the missing beer

when he talked to the defendant, and Butner still had not

reported the missing beer to the police when the defendant talked

to her.   The trial court was entitled to infer guilty knowledge

from these statements.    See Speight v. Commonwealth, 4 Va. App.

83, 89, 354 S.E.2d 95, 99 (1987) (en banc).    The court was also




                                - 5 -
free to reject the defendant's self-serving statement to Butner

"that some guy named Kennard and Marshall Ferguson" were involved

in the burglary.   See Black v. Commonwealth, 222 Va. 838, 842,

284 S.E.2d 608, 610 (1981) (holding that "[t]he fact finder need

not believe the accused's explanation and may infer that he is

trying to conceal his guilt"); Rollston v. Commonwealth, 11 Va.

App. 535, 547-48, 399 S.E.2d 823, 830 (1991) (holding that the

trier of fact "is not required to accept in toto an accused's

statement, but may rely on it in whole, in part, or reject it

completely").
     The defendant contends that the evidence does not exclude

the hypothesis that he learned about the stolen cases of beer

from Kennard Dameron, who Officer Diasparra confirmed was living

with the defendant.   However, because the defendant first

indicated that he had knowledge of the crime on the morning of

September 14 when he spoke with Officer Diasparra, and because he

told Diasparra that he had been asleep from 12:30 a.m. until the

time Diasparra arrived, the defendant could only have learned

about the burglary from Dameron, if that was his source as he

argues, sometime between 10:00 p.m. and 12:30 a.m.   No evidence

suggests that Dameron was present at the house when Officer

Diasparra questioned the defendant; nothing in the record

indicates that the defendant and Dameron had been together

between 10:00 p.m. and 12:30 a.m.   Moreover, the defendant did

not mention Dameron to Officer Diasparra, nor did he tell



                               - 6 -
Diasparra that he had information about the burglary when

Diasparra questioned him.   Accordingly, the hypothesis of

innocence raised by the defendant is not suggested or supported

by evidence.   It is not reasonable because it is purely

speculative and does not flow from the evidence.   Black, 222 Va.

at 841, 284 S.E.2d at 609 (holding that "[t]he hypotheses which

the prosecution must reasonably exclude are those 'which flow

from the evidence itself, and not from the imagination of

defendant's counsel'") (quoting Turner v. Commonwealth, 218 Va.
141, 148, 235 S.E.2d 357, 361 (1977)).

     The circumstantial evidence is sufficient to prove beyond a

reasonable doubt that the defendant was the criminal agent and,

therefore, we affirm the defendant's conviction.

                                                           Affirmed.




                               - 7 -
BENTON, J., dissenting.



     A conviction may not be based upon speculation, surmise, or

conjecture.     Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d

388, 391 (1948).    "The Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is

charged."     In re Winship, 397 U.S. 358, 364 (1970).
                It is, of course, a truism of the criminal
             law that evidence is not sufficient to
             support a conviction if it engenders only a
             suspicion or even a probability of guilt.
             Conviction cannot rest upon conjecture. The
             evidence must be such that it excludes every
             reasonable hypothesis of innocence. The
             giving by the accused of an unclear or
             unreasonable or false explanation of his
             conduct or account of his doings are matters
             for the jury to consider, but they do not
             shift from the Commonwealth the ultimate
             burden of proving by the facts or the
             circumstances, or both, that beyond all
             reasonable doubt the defendant committed the
             crime charged against him.

Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533

(1951).     See also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).

     The evidence proved that the intruder entered the

restaurant's building from the outside and through the attic.      No

evidence tended to prove that Howard Robenholt, who regularly

patronized the restaurant, was that intruder.    His presence with

another patron in the restaurant until it closed established

nothing probative regarding proof of the burglary.




                                 - 8 -
     The only items known to be missing following the burglary

were coins taken from the pool table and the "juke box."   The

money in the cash register had not been removed.   The owner

looked in the stock room and noted that no beer was missing.

     The majority makes much of Robenholt's statement to the

police officer concerning beer.    The record proved, however, that

when the officer woke Robenholt at his home the morning following

the burglary, he explained to Robenholt that he was investigating

the burglary and asked Robenholt to explain his activities.

During Robenholt's explanation of his activities after he left

the restaurant, he told the officer that he purchased Miller Lite

beer on his way home.   He showed the officer the container of

beer and said he knew nothing of the burglary.   The evidence

permits only "suspicious inferences" to be drawn from Robenholt's

statements and conduct.   Id.

     After the officer questioned him, Robenholt believed that he

had been accused of the burglary.    Two days later he protested to

the owner's daughter, who had served Robenholt in the restaurant

the night before the burglary.    She told him to talk to her

mother, the owner.

      A week later, Robenholt went to the restaurant, ordered a

Miller Lite beer, and asked the owner if she had discovered who

broke into the restaurant.   During the conversation he informed

her that he believed the intruders had been two men whom he

identified by name.   One of the men lived in the same residence



                                 - 9 -
where Robenholt lived.

     The owner testified that the night following the burglary,

after the restaurant had been open for business the entire day

and evening, she discovered that two cases of Miller beer were

not in her stock.   The owner did not then inform the police that

the beer was missing or that she suspected it was taken during

the burglary.   Indeed, no evidence proved that two cases of

Miller beer were taken during the burglary.   The record proved

only that the cases were discovered missing after the restaurant

had been open a day and a night after the burglary.   Furthermore,

two weeks after the burglary, when Robenholt talked to the owner

about his suspicions that a person who lived in his residence had

committed the burglary, the owner had not yet reported the

missing beer.
     At best, the evidence only proved that Robenholt made

statements that the majority deems suspicious.   However, the

context in which those statements were made was not so

unambiguous that the statements can be deemed proof beyond a

reasonable doubt of Robenholt's participation in the burglary.

No evidence proved that Robenholt, who had patronized the

restaurant for over a year, was the person who committed the

burglary.   "While it may be possible to draw suspicious

inferences from . . . [Robenholt's] contradictory statements,

. . . in the face of the presumption of innocence, such

inferences are insufficient to prove beyond a reasonable doubt




                              - 10 -
that [Robenholt] committed the crimes."   Id.

     For these reasons, I would reverse the conviction.




                             - 11 -
