                     COURT OF APPEALS OF VIRGINIA


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


DANIEL BIZZOCO
                                                  OPINION BY
v.   Record No. 0604-97-4                   JUDGE CHARLES H. DUFF
                                                 JUNE 16, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                  William G. Plummer, Judge Designate
            John M. Tran (David S. Bracken; Greenberg,
            Bracken & Tran, P.C., on briefs), for
            appellant.

            Richard B. Smith, Assistant Attorney General
            (Richard Cullen, Attorney General, on brief),
            for appellee.



     Daniel Bizzoco appeals his conviction for burglary and grand

larceny.    He contends the evidence was insufficient to prove he

entered the burglarized townhouse. 1   We disagree and affirm.
     1
      In his brief, appellant also contends the evidence was
insufficient to prove he entered in the nighttime. Appellant was
indicted for violating Code § 18.2-89, common law burglary, an
element of which is that the entry occur in the nighttime.
     In the final order of conviction, the trial court pronounced
that appellant was "convicted of two felonies, to-wit: Count
One: Statutory Burglary and Count Two: Grand Larceny." The
Sentencing Guidelines prepared by the probation officer listed
the "Primary Offense" as "Stat. Burglary" and referenced Code
§ 18.2-91, the statutory burglary code section.
     Common law burglary is a Class 3 felony punishable by a term
of imprisonment for a minimum of five years and a maximum of
twenty years. See Code §§ 18.2-10, 18.2-89. Statutory burglary
is punishable by a term of imprisonment "for not less than one or
more than twenty years or, in the discretion of the jury or
[judge sitting] without a jury, be confined in jail for a period
not exceeding twelve months." Code § 18.2-91. The trial judge
imposed a three-year sentence for the burglary conviction,
suspending imposition of all three years.
     At oral argument, appellant's counsel conceded that
                                I.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."     Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     So viewed, the evidence proved that Claudia Zarikow and

Maria Gillespie shared a townhouse apartment at 1426 Woodbine

Street in the City of Alexandria.     Zarikow and Gillespie went

upstairs to bed around 11:00 p.m. on June 10, 1996.    At that

time, the doors were locked; however, they left a downstairs

window ajar about six to eight inches.    Zarikow testified that,

when she arrived downstairs the next morning, June 11, she

noticed the window open all the way and that the screen had been

removed and was leaning against the inside wall.    Zarikow's

laptop computer and school bag were missing.
     While identifying a photograph of the exterior of her

townhouse apartment, Zarikow was asked, "[W]hat, if anything,

unusual did you notice about the area around the window?"

Zarikow replied, "Well, I had planted plants here.    In the

morning, these were trampled because somebody had been trying to

enter.   In this [photograph], you can see [the plants] are

crooked there."

     Maria Gillespie corroborated much of Zarikow's testimony.

appellant was convicted and punished for statutory burglary and
that the nighttime element was no longer an issue on appeal.
Therefore, we do not address that issue.



                                -2-
Gillespie's "bag" containing personal property was also missing.

     Darrell Linville, a fingerprint expert, examined latent

fingerprints found outside of the window.    Linville testified

that the prints were those of appellant.    The police examined the

interior of the residence and recovered no fingerprints belonging

to appellant.

     Detective Robert Hickman interviewed appellant as part of

his investigation of the burglary.    Hickman telephoned appellant,

and appellant agreed to meet with Hickman.   Hickman met with

appellant outside appellant's apartment building.   Hickman

identified himself and "asked [appellant] to speak with [him]

concerning the burglary [he] was investigating on Woodbine

Street."   Hickman provided the following testimony:
           [Appellant] said he didn't know where that
           was. And I explained to him where it was by
           pointing out the area. North Quaker Lane
           [appellant's apartment building location] was
           fairly, you know, where we were at, the 1200
           block, was very close to Woodbine. I told
           him it was behind Lindsay Cadillac and where
           the 7-Eleven is there, the 1600 block of
           North Quaker Lane.
                And [appellant] acknowledged that he
           understood where I meant. And I asked him
           had he been back there, and he said, no, he
           doesn't go back there. I asked him if there
           was any reason why anyone would say they saw
           him or that his finger prints would be on
           Woodbine Street, and he said, no.


     Hickman then "handed" appellant a supplementary police

report containing Linville's confirmation that appellant's

"latents [fingerprints] were lifted from exterior P.O.E. window."

After reading the report, appellant stated, "there is a mistake,



                                -3-
that's not me."       Appellant also stated that "he had been home

that night."    Hickman denied telling appellant that the burglary

occurred at night, and he testified as follows:
          I asked [appellant], what night was that?
          Knowing that I hadn't asked him or advised
          him of the date of the offense. I do that
          purposely, so later if the interrogation is
          claimed to have been, you know, fed by me, I
          can say, he gave me the date or a close date
          to the offense, and I hadn't given it to him.
               So I knew at that point when he said,
          that night, that I hadn't given him the date.
           And he said, the night that you are talking
          about.

     Although dated, the supplementary report contained no

offense date for the burglary.      None of the stolen goods were

recovered.

                                    II.

             "[W]hile defendant's fingerprint found at the

             scene of the crime may be sufficient under

             the circumstances to show defendant was there

             at some time, nevertheless in order to show

             defendant was the criminal agent, such

             evidence must be coupled with evidence of

             other circumstances tending to reasonably

             exclude the hypothesis that the print was

             impressed at a time other than that of the

             crime.    Such 'other circumstances,' . . .

             'need not be circumstances completely

             independent of the fingerprint, and may



                                    -4-
          properly include circumstances such as the

          location of the print, the character of the

          place or premises where it was found and the

          accessibility of the general public to the

          object on which the print was impressed.'

          Those attendant circumstances may demonstrate

          the accused was at the scene of the crime

          when it was committed.   And if such

          circumstances do so demonstrate, a rational

          inference arises that the accused was the

          criminal agent."

Tyler v. Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223

(1997) (quoting Turner v. Commonwealth, 218 Va. 141, 146-47, 235

S.E.2d 357, 360 (1977) (citations omitted)).
          The Commonwealth always bears the burden of
          proving guilt beyond a reasonable doubt.
          When the Commonwealth relies solely upon
          fingerprint evidence to identify a criminal
          agent, it bears the burden of excluding every
          reasonable hypothesis of innocence, that is,
          those "which flow from the evidence itself,
          and not from the imagination of defendant's
          counsel."

Id. (quoting Turner, 218 Va. at 148, 235 S.E.2d at 361).

     Here, the fingerprint evidence confirming appellant's

presence at the scene of the crime was "coupled with evidence of

other circumstances tending to reasonably exclude" appellant's

hypothesis that his presence at the crime scene was unrelated to

the commission of that crime.   As the record showed, appellant




                                -5-
denied knowledge of the townhouse location.    After Detective

Hickman described in detail the location, appellant "acknowledged

that he understood where [Hickman] meant."    Appellant denied he

had ever been to the townhouse and was unable to explain why his

fingerprints would be found there.     As in Tyler, "that

circumstance reinforces the inference raised by the fingerprint

evidence."    See id. at 167, 487 S.E.2d at 224.   Moreover, when

confronted with the police report unequivocally indicating the

presence of appellant's fingerprints, appellant said it was a

mistake, and he again failed to provide any explanation for their

presence.    Finally, in denying any involvement with the crime,

appellant disclosed his knowledge that the crime had been

committed at night, a fact which, to that point in the police

interview of appellant, had not been revealed.
     Another such circumstance is detailed in the testimony of

Zarikow, who testified that she had planted flowers below the

window, but when she awoke on the morning of June 11, 1996, the

plants "were trampled."

     We hold that the fingerprint evidence and the other evidence

of the attendant circumstances were sufficient to support the

trial judge's finding that appellant was the criminal agent.

Accordingly, we will affirm the judgment of the trial court.

                                                            Affirmed.




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