                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia


MATTHEW DEAN WYATT
                                           MEMORANDUM OPINION * BY
v.   Record No. 0553-97-3             JUDGE RUDOLPH BUMGARDNER, III
                                              AUGUST 4, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                        B. A. Davis, III, Judge
             (Mary E. Harkins, on brief), for appellant.
             Appellant submitting on brief.

             (Richard Cullen, Attorney General; Michael T.
             Judge, Assistant Attorney General, on brief),
             for appellee. Appellee submitting on brief.



     The defendant was charged with breaking and entering and

grand larceny of the Barry M. Dudley, Sr. and James Allen Mills,

Jr. homes.    The defendant argues that there was insufficient

evidence to link the defendant to the crimes.       Finding that the

evidence does establish the criminal agency of the defendant, we

affirm.

     Where an appellant challenges the sufficiency of the

evidence, the evidence must be viewed in the light most favorable

to the Commonwealth, granting it all reasonable inferences fairly

deducible from it.     See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).    This Court does not

substitute its judgment in determining the facts for that of the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fact finder.    See Cable v. Commonwealth, 243 Va. 236, 239, 415

S.E.2d 218, 220 (1992).   Unless that finding is plainly wrong, or

without evidence to support it, it shall not be disturbed on

appeal.   Code § 8.01-680; George v. Commonwealth, 242 Va. 264,

278, 411 S.E.2d 12, 20 (1991).

     Barry Dudley, Sr. returned home July 7, 1996 after being

away seven to eight days.   His house had been broken and entered

and the gun safe damaged.   Several rifles, pistols, and shotguns

had been stolen from his house.    The same day, James Allen Mills,

Jr. returned home between 4:00 and 5:00 p.m. and learned that his

house had been broken into and guns, a knife set, and other items

were taken.    Both parties recovered at least one stolen gun from

Tommy Dent.
     John Wilson testified that sometime in July 1996 the

defendant and Amy Phillippi came to his home, arriving in a black

vehicle, with five guns and Mills' knife set to sell.   The

defendant brought the weapons into Wilson's house.   Phillippi was

the defendant's girlfriend and was the daughter of victim James

Allen Mills, Jr.   Wilson bought the guns and knife set.   When

asked whether he paid any money or anything over to Wyatt, Wilson

responded "I think it was drugs, probably; she (Phillippi) got

the money and drugs."

     Wilson also testified that the defendant only came into his

house once.    Wilson had observed the defendant in the car on

numerous occasions when Phillippi came to his house to sell



                                  -2-
weapons.    The defendant admitted being inside Wilson's home at

least four times when he purchased drugs for cash.     Phillippi

also admitted being there with the defendant.     Later in his

testimony, Wilson said that the defendant sold him only one gun,

but Phillippi had sold him others.      Wilson said he could not

identify the specific gun he purchased from the defendant.

        Todd Smith identified Mills' knife set and Dudley's shotgun

as two items Wilson had given him to sell.     Smith sold these

items to Dent.    The sheriff's department returned a rifle and

knife set to Mills.    Dent called Dudley and asked him to come

over.    Dent told Dudley he would return a shotgun to him if he

could identify it.    Dent returned the shotgun to Dudley.
        The defendant testified that he was dating Phillippi, but he

denied breaking in either home.    He admitted selling a gun to

Wilson but said that he had traded for it.     He said he got the

gun he sold from Lee Doss and he traded it for $40 with someone

named Freeman Muse.    He admitted going to Wilson's home several

times.    When he went to Wilson's he went only to buy drugs.      He

was not aware that Phillippi had ever gone there without him.       He

was usually with her when she went there but would not let her go

in a place like that.    He denied that she sold guns and said

Wilson was lying when he said she had.

        Phillippi testified she went to Wilson's home to buy drugs,

but did not take any guns.    She did not know anything about the

charges.    She testified that she and the defendant were camping




                                  -3-
July 4-7, during which time the crimes could have occurred, and

she was always with the defendant then.   He did not break in

either place, and she was not aware of him selling or pawning a

gun.   At first, Phillippi said she was in the car when the

defendant brought his gun to Wilson's to sell.    She later stated

that she was not there on the same occasion but knew about it

because he had told her.   Both Phillippi and the defendant were

doing drugs but neither was working.   She had two children to

support.
       Presented with material conflicts in evidence, we find that

the trial court was entitled to believe Wilson and disbelieve the

defendant and Phillippi.   The trial court, sitting as the trier

of fact, was entitled to assess which witnesses were credible and

the weight to be given the testimony; on appeal the trial court's

factual findings are entitled the same weight as a jury's

verdict.    See Lane v. Lane, 184 Va. 603, 611, 35 S.E.2d 749, 752

(1945).

       The trial judge found Wilson was credible and based upon his

testimony found that Phillippi and the defendant were acting

together in the break-ins and in the sale of the stolen articles.

He convicted the defendant of both charges of breaking and

entering and grand larceny.

       The evidence establishes that both homes were

            broken into and goods were taken from both.

            It shows that immediately after the



                                 -4-
burglaries, the defendant and Phillippi sold

various guns to Wilson.      At least the knife

set stolen from the Mills home and one

shotgun stolen from the Dudley home were

traced through Wilson to the defendant and

Phillippi.   Although Wilson testified that he

only bought one gun directly from the

defendant, he also testified that on the

other occasions that he bought guns from

Phillippi, the defendant had brought the guns

there and waited for Phillippi in the car.

At another time in his testimony, he said he

bought five guns and the knives from them,

including both the defendant and Phillippi in

the reference.   It is for the trial court to

sort out the truth from the conflicting

testimony.       The Commonwealth can establish

a prima facie case that a defendant broke and
entered by (1) proving that goods have been

stolen from a house into which someone has

broken and entered; (2) justifying the

inference that both offenses were committed

at the same time, by the same person, as a

part of the same criminal enterprise; and (3)

proving that these goods were found soon




                       -5-
             thereafter in the possession of the

             defendant.


Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24

(1979).
             [T]he rule in Virginia is that when the
             Commonwealth's evidence proves a breaking and
             entering and a theft of goods and justifies
             an inference that both offenses were
             committed at the same time by the same person
             as a part of the same criminal enterprise, if
             the evidence proves further that the goods
             stolen were found soon thereafter in the
             possession of the accused, the Commonwealth
             has made a prima facie case that the accused
             broke and entered. At that point, although
             the ultimate burden of proof remains with the
             Commonwealth, the burden of going forward
             with the evidence shifts to the accused. If
             the accused fails to go forward with evidence
             in justification of possession, his failure
             is an inculpatory circumstance which,
             considered with the circumstance of
             possession, is sufficient to support a
             conviction of breaking and entering. If the
             accused elects to go forward with the
             evidence, he bears the burden of proving the
             truth of his evidence in justification of
             possession, and if he fails, his failure is
             another such inculpatory circumstance.
Brown v. Commonwealth, 213 Va. 748, 749-50, 195 S.E.2d 703, 705

(1973).

     This case turned on the credibility of the witnesses.     The

defense argued that the Commonwealth's witnesses were not worthy

of belief.    However, the judge specifically ruled that they were

credible.    The evidence taken in the light most favorable to the

Commonwealth shows that the homes were broken and entered.   The

defendant and his girlfriend were in possession of the items




                                  -6-
taken and were selling them.   The evidence clearly shows they

were acting together and their dominion and control over the

stolen property was joint.

     The trial court was able to observe the witness' demeanor

and evaluate their credibility.    The court was entitled to

conclude based on all the evidence that the defendant's testimony

was incredible.   Thus the court was entitled to infer that the

defendant lied to conceal his guilt.    See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).

     Finding that there is sufficient evidence to support the

trial court's decision, we affirm the convictions.

                                                         Affirmed.




                                  -7-
Benton, J., dissenting.


     In a criminal case, where the quantum of proof must be

beyond a reasonable doubt, the imperative to secure convictions

free of speculation, surmise, and conjecture is constitutionally

based.   See In re Winship, 397 U.S. 358, 364 (1970).   Thus, it is

well established in Virginia 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) (quoting Simmons v. Commonwealth, 208 Va.

778, 783, 160 S.E.2d 569, 573 (1968)).
             Where the Commonwealth, in a criminal
          case, undertakes to prove the guilt of the
          accused by circumstantial evidence, as it did
          in the present case, not only must it prove
          the circumstances, but it must overcome the
          presumption of innocence and establish his
          guilt beyond a reasonable doubt. All
          necessary circumstances proved must be
          consistent with guilt and inconsistent with
          innocence. It is not sufficient that the
          evidence create a suspicion of guilt, however
          strong, or even a probability of guilt, but
          must exclude every reasonable hypothesis save
          that of guilt. To accomplish that the chain
          of circumstances must be unbroken and the
          evidence as a whole must be sufficient to
          satisfy the guarded judgment that both the
          corpus delicti and the criminal agency of the
          accused have been proved to the exclusion of
          any other reasonable hypothesis and to a
          moral certainty.


Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

     The evidence proved that in July 1996, someone broke and

entered the Dudley residence and stole numerous guns and other



                                -8-
items.    That same month, someone broke and entered the Mills

residence and stole several guns, a stereo system, several pieces

of jewelry, some chainsaws, a set of knives, and numerous other

items.    One of the shotguns was later returned to Dudley by Tommy

Dent, who had purchased the shotgun from Todd Smith.        Tommy Dent

also returned a 410 shotgun to Mills.

        The Commonwealth sought to prove Wyatt's participation in

the burglary through the testimony of John T. Wilson, a convicted

felon who purchased the stolen items from Mills' daughter, Amy

Phillippi.       Wilson's testimony clearly established that he

purchased stolen goods from Mills' daughter.        He testified that

he purchased weapons and knives from "Amy [Phillippi] and Todd,

this guy."
        Wilson's testimony proved, however, that he only bought one

gun from Wyatt.      Wilson testified that Mills' daughter and Wyatt

came to Wilson's residence and "brought some guns there for

[Wilson] to purchase."      Wyatt "may have come in once; most of the

time [Amy] came in" alone while Wyatt "was outside . . . in the

car."    Wilson stated that he talked to Wyatt "[o]n one occasion

. . . [a]bout a price for the gun."         Wilson further elaborated as

follows concerning the gun he purchased from Wyatt:
          Q Okay; are there any items that you
          purchased specifically from [Wyatt]? I mean,
          in other words, you said he only came in once
          or so. Did he actually bring any of the
          items in himself?

             A    Yes, the gun.

             Q    And which one was that?



                                    -9-
          A I am not for sure exactly. It was a rifle
          or shotgun; one or the other.
          Q It could have been a shotgun or a rifle?

          A It could have been either one of them,
          but, you know, I am not positive.

          Q Was that the only item that he
          specifically sold to you?

          A   Yes, and the rest of them Amy sold.


     In convicting Wyatt, the trial judge stated that the

evidence proved "[Wyatt] had a shotgun that came from . . .

Dudley's home."   Nothing in the record supports that finding.

Wilson could not identify whether Wyatt had a rifle or a shotgun

and could not testify that the gun was one of the stolen guns.

"Whenever the evidence leaves indifferent which of several

hypotheses is true, or merely establishes only some finite

probability in favor of one hypothesis, such evidence does not

amount to proof of guilt beyond a reasonable doubt."    Sutphin v.

Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985).

Thus, where the evidence "'is equally susceptible of two

interpretations one of which is consistent with the innocence of

the accused, [the trier of fact] cannot arbitrarily adopt that

interpretation which incriminates'" the accused.    Harrell v.

Commonwealth, 11 Va. App. 1, 11, 396 S.E.2d 680, 685 (1990)

(quoting Corbet v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d

251, 253 (1969)).   Wilson could not identify the rifle or shotgun

that Wyatt sold to him.   Thus, the evidence failed to prove that

the gun he purchased from Wyatt was stolen from either residence.



                               -10-
     Wilson's testimony linking the defendant to the identified

stolen property was woefully ambiguous.   He could only recall

Wyatt entering his residence once to sell a gun that he could not

identify.   He testified that on all other occasions, Wyatt

remained outside in the car.   Wilson's testimony failed to link

Wyatt to possession of any of the stolen items because Wilson's

testimony was so imprecise and equivocal regarding Wilson's

presence in the residence when Mills' daughter sold the stolen

items.   That testimony cannot support a finding that Wyatt

possessed the stolen items.
     The most that can be said with reasonable certainty is that

Wyatt sat in the car while Mills' daughter entered Wilson's

residence and sold stolen property, including property that came

from her father's residence.   Wyatt's presence in the car outside

while Mills' daughter sold the items to Wilson does not establish

beyond a reasonable doubt that Wyatt possessed the stolen

property or broke and entered the residences.   See Hall v.
Commonwealth, 225 Va. 533, 537, 303 S.E.2d 903, 905 (1983) (mere

presence is not proof beyond a reasonable doubt of participation

in a crime).

     For these reasons, I would reverse the conviction.




                               -11-
