                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia


DERRICK C. TUCKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1288-02-2                 JUDGE SAM W. COLEMAN III
                                                JUNE 17, 2003
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                       Leslie M. Osborn, Judge

          Buddy A. Ward, Public Defender, for
          appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Derrick C. Tucker ("appellant") appeals his bench trial

convictions for burglary and petit larceny.   He contends the trial

court erred by finding the evidence sufficient to support his

convictions.   For the reasons that follow, we disagree and affirm

his convictions.

                             BACKGROUND

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

        So viewed, the evidence proved Michele Tucker ("Tucker")

left her home at approximately 11:15 p.m. on July 24, 2000 to go

to work.    She secured the premises when she left and did not

return until 9:00 a.m. the following morning.      Upon her return,

she discovered her house had been broken into through the front

door.    Her jewelry and a compact disc player were missing from

the residence.

        Tasha Rosser testified she was at the home of her aunt,

Wynetta Jones, on the night of the burglary.      Jones lived next

door to Tucker.    Rosser heard a noise coming from Tucker's house

during the night.    She explained it sounded "like somebody had

. . . pushed on the door or something."      She reported the sound

to Jones, who told her Tucker was away for the night.      Ten or

fifteen minutes later Rosser looked out the window and saw

appellant "coming from over there," meaning from the direction

of Tucker's home next to her aunt's.      She also saw a wire or

cord dangling from appellant's pocket.      Appellant looked up, saw

Rosser looking at him, and cursed.       He pushed the cord deeper

into his pocket, mounted his bicycle, and rode from the scene.

        David Byrd spoke to appellant the day after the burglary.

Appellant denied involvement in the burglary and stated he had

been at his mother's house down the street the previous night.



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Later, appellant told the police he was at his girlfriend's

house twenty-five miles away on the night of the burglary.

                               ANALYSIS

        "When a conviction is based upon circumstantial evidence,

such evidence 'is as competent and is entitled to as much weight

as direct evidence, provided it is sufficiently convincing to

exclude every reasonable hypothesis except that of guilt.'"

Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400

(1994) (citation omitted).    "The Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence,

not those that spring from the imagination of the defendant."

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29

(1993).

        Rosser reported she heard a loud banging noise at Tucker's

house.    She described the noise as sounding like someone beating a

drum.    Tucker was away from home at the time Rosser heard the

noise.    Shortly thereafter, Rosser saw appellant walking away from

Tucker's residence with an electrical cord dangling from his

person.    Tucker testified that a compact disc player had been

stolen from her house.    Appellant walked to and mounted a bicycle

from next to Jones' house.    When he saw Rosser observing him, he

cursed aloud.    Appellant provided inconsistent statements

regarding his whereabouts on the night of the burglary.




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     The trial court reasonably concluded appellant was causing

the banging noise and entered Tucker's residence.   Furthermore,

the court reasonably inferred that the electrical cord hanging

from appellant's pocket belonged to the compact disc player stolen

from Tucker's residence.   Appellant's reaction upon seeing Rosser

observing him leaving the burglary scene indicates a consciousness

of guilt.   Additionally, appellant gave inconsistent alibis.   The

Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable doubt

that appellant was guilty of burglary and petit larceny.

     Accordingly, we affirm appellant's convictions.

                                                            Affirmed.




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Benton, J., dissenting.

     To convict Derrick C. Tucker of burglary, the Commonwealth

must prove he broke and entered the dwelling house in the

nighttime with intent to commit a felony or any larceny in the

house.   See Code § 18.2-89.   To convict him of petit larceny,

the Commonwealth must prove he took and carried away goods and

chattels of value less than $200 with the intent to permanently

deprive the owner of possession.    See Code § 18.2-96; Lund v.

Commonwealth, 217 Va. 688, 691, 232 S.E.2d 745, 748 (1977).

Because the circumstantial evidence failed to establish

appellant committed either burglary or petit larceny, I dissent.

     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 (1970).   Thus, although

"[i]nconsistencies and contradictions in statements made by an

accused may support an inference of guilty knowledge and raise a

suspicion of guilt, . . . convictions may not rest upon

suspicion."   Hyde v. Commonwealth, 217 Va. 950, 954, 234 S.E.2d

74, 77 (1977).   Indeed, it is well established that "[e]ven when

the contradictions are material and sufficiently significant to

elevate suspicion to the level of probability, they do not

relieve the Commonwealth of the burden of producing evidence




                                - 5 -
which establishes guilt beyond a reasonable doubt."     Id. at 954,

234 S.E.2d at 77-78.

             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 established that Michele Tucker locked the

doors and windows of her residence when she left for work at

11:15 p.m.    Returning at 9:00 a.m. the next morning, she

discovered that her front door had been "busted in."    The

intruder took jewelry, a few of her daughter's things, and a

compact disc walkman; the intruder also consumed food and beer

from the refrigerator.    Tucker informed the investigating

officer that she had noticed two neighborhood boys, not

appellant, in the area when she went to work.

     Tasha Rosser, a teenager who was "staying" at her aunt's

house adjacent to Tucker's residence, testified that appellant

and a few friends were at her aunt's house on the night of the

incident.    About half an hour after appellant and the others



                                 - 6 -
left, Rosser "heard a noise coming from over there."   She

characterized the noise as "a loud drum sound."   Ten or fifteen

minutes after hearing the sound, Rosser looked out a window and

saw appellant.   When she first saw appellant, he was "between

the two houses" and near a "light pole" that was thirty feet

from Tucker's residence.   Appellant was walking to his bicycle,

which was parked beside the window.    She also saw "a cord or

something" dangling from his pocket.   As appellant approached

his bicycle, he "said the S word," pushed "whatever was in his

pocket" into the pocket, and left on his bicycle.

     The day after the incident, appellant told Tucker and

Tucker's male friend that he had been at his own home, which is

less than a mile away from Tucker's residence.    He denied

breaking into the residence.   When questioned a week later,

appellant again denied involvement in the burglary but told the

investigating officer he was at his girlfriend's house.

     The Commonwealth's hypothesis of guilt is no more likely

than a hypothesis of innocence.   The Commonwealth's evidence

proved only that ten to fifteen minutes after Rosser heard a

drum-like loud noise she saw Tucker walking to his bicycle.      She

did not see him walk toward her aunt's house from Tucker's

residence.   Instead, she testified that she saw him near a light

pole that was in between the two houses.   Rosser then heard

Tucker cuss and saw him push a cord into his pocket before



                               - 7 -
leaving on his bicycle.   She never saw appellant at Tucker's

residence.

     No one saw appellant break into the residence.    No one saw

him inside Tucker's residence.    Moreover, no fingerprint

evidence was produced to prove he had been inside the residence.

Furthermore, no evidence proved appellant had any of the stolen

items.    Even though Rosser saw "a cord or something" dangling

from his pocket, the trier of fact had to speculate that the

cord belonged to the stolen walkman.

     While the majority interprets cussing and pushing something

inside a pocket as evidence of consciousness of guilt, Rosser

clearly testified that appellant was not looking at her when he

cursed.   The evidence does not establish why appellant cursed or

that he knew someone was observing him.   Rosser's testimony that

he "looked like he knew somebody was looking" was a sheer

conjecture.   The evidence equally supports the hypothesis that

appellant said the "S word" and pushed a cord into his pocket in

preparation to ride his bicycle.    In short, the evidence in the

record is simply insufficient to prove appellant's involvement

beyond a reasonable doubt.

     "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.



                                 - 8 -
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 Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d

251, 253 (1969)).

     The evidence proved appellant had been at Rosser's aunt's

house with other teenagers that night.    After congregating there

with his friends, appellant approached his bicycle, which was

near a window of Rosser's aunt's house.   Because he lived in the

neighborhood, his presence was not unusual or incriminating.

Moreover, no evidence indicates the noise Rosser heard was

related to the break-in.   Indeed, the time of the burglary was

established only in a general way between 11:00 p.m. and

9:00 a.m.

     The evidence that connects appellant to the burglary is far

too tenuous to support a finding of guilt.   Simply put, the

evidence is insufficient to prove appellant committed the

burglary and petit larceny because the Commonwealth failed to

exclude every reasonable hypothesis save that of guilt.    For

these reasons, I would reverse the convictions and dismiss the

indictments.



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