                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Moon, Judge Annunziata and Senior Judge
Duff        Argued at Alexandria, Virginia


WILLIAM LEE TYLER
                                                   OPINION BY
v.       Record No. 0364-95-4                JUDGE CHARLES H. DUFF
                                                 JUNE 11, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       Donald M. Haddock, Judge
             Thierry Barston (James C. Love, IV; Love,
             Kielsgard & Associates, on brief), for
             appellant.

             Thomas C. Daniel, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



        William Lee Tyler (appellant) was convicted of burglary and

grand larceny.    On appeal, appellant contends that the evidence

of his finger and thumb prints, found on both sides of pieces of

the store's broken window glass, was insufficient to sustain his

convictions.    We disagree and affirm the trial court's judgment.

                                  I.

        On September 4, 1993, at approximately 2:30 p.m., Roger

Wall, owner of Granny's Place children's clothing stores, locked

and left the warehouse store located on Fairfax Avenue in

Alexandria.    The store's plate glass window was intact at that

time.    Wall returned to the store the next morning after he was

contacted about a break-in there.      Upon his return, Wall saw that

the plate glass window had been broken.     Wall determined that

clothing, valued at $4400, was missing from the store.
      A police evidence technician recovered numerous latent

fingerprints from pieces of broken glass "laying right at the

base of the window where it was broken."    The evidence technician

discovered pieces of glass containing fingerprints, outside and

inside of the business.    On most of the "lifts," he discovered

fingerprints on both sides of a piece of glass, "as if someone

had picked it up . . . and set it aside."

      A latent fingerprint examiner compared the latent

fingerprints with known fingerprints of appellant and determined

that appellant's fingerprints were on the pieces of broken

glass. 1   Appellant was not an employee of the store and did not

conduct business with the store.

                                  II.

      The issue presented on appeal is the sufficiency of the

evidence to establish appellant as the criminal agent.    "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).

      To establish a defendant's criminal agency, evidence that

his fingerprint was found at the scene of a crime "'"must be

coupled with evidence of other circumstances tending to

      1
      When asked at trial by the court to state how many points
of comparison she found between the latent prints and appellant's
known prints, the examiner testified that in one of the exhibits
she counted seventy-five points of comparison.



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reasonably exclude the hypothesis that the print was impressed at

a time other than that of the crime."'"   Avent v. Commonwealth,

209 Va. 474, 479, 164 S.E.2d 655, 659 (1968) (citations omitted).

The other circumstances, however, need not be totally

independent of the fingerprint itself and "'may 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.'"   Id. (citation omitted).

     In Avent, the defendant's fingerprint was found on a piece

of glass which had fallen from a window, located seven feet off

the ground, into the burglarized store.   Avent presented no

evidence to explain the presence of his fingerprint.

     The Virginia Supreme Court affirmed Avent's burglary

conviction, holding that:
          "A latent fingerprint found at the scene of
          the crime, shown to be that of an accused,
          tends to show that he was at the scene of the
          crime. The attendant circumstances with
          respect to the print may show that he was at
          the scene of the crime at the time it was
          committed. If they do so show, it is a
          rational inference, consistent with the rule
          of law both as to fingerprints and
          circumstantial evidence, that the accused was
          the criminal agent."

Id. at 479-80, 164 S.E.2d at 659 (citation omitted).    The Court

held that the mode of entry into the store, the inaccessibility

of the window to the public, and the fact that Avent was not an

employee of the store and had no business in or around the store,




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provided "a rational inference that defendant was there

unlawfully, and there was no evidence to the contrary."    Id. at

480, 164 S.E.2d at 659.

     In Turner v. Commonwealth, 218 Va. 141, 235 S.E.2d 357

(1977), the Supreme Court affirmed burglary and murder

convictions where the defendant's fingerprint was found,

impressed in blood, on a flashlight in the murdered woman's

bedroom.   The defendant had denied to the police that he knew

anything about the crimes and told them they would find nothing

with his fingerprints at the crime scene.    Id. at 144, 235 S.E.2d

at 359.    Following Avent, the Court in Turner held that the

evidence was sufficient to establish Turner's criminal agency.

The Court noted that the "significant fact" in the case was that

a crime of violence was involved and the fingerprint was

impressed in blood.    Id. at 147, 235 S.E.2d at 360.

     The same year that Turner was decided, the Court, in Ricks

v. Commonwealth, 218 Va. 523, 237 S.E.2d 810 (1977), affirmed the

burglary and grand larceny convictions of a defendant whose

fingerprint was found on an applesauce jar, which had contained

pennies, located in the bedroom of the burglarized home.   Ricks

told the police that he had never been in the victim's house.    At

trial, Ricks testified that he had touched the jar when he had

trespassed in the house several months prior to the burglary.

Id. at 525, 237 S.E.2d at 811.

     The Court noted that the fingerprint was found on an object



                                 -4-
which was stored in the bedroom of a private home, a place

inaccessible to the public in general and Ricks in particular.

"Thus, evidence of the print has been coupled with evidence of

'other circumstances' which tend to reasonably exclude the

hypothesis that the fingerprint was impressed at a time other

than during the commission of the crimes."      Id. at 527, 237

S.E.2d at 812.    The Court held that the fingerprint and attendant

facts established that Ricks was at the scene when the crimes

were committed, giving rise to the rational inference that Ricks

was the criminal agent.     Id.

     In Parrish v. Commonwealth, 17 Va. App. 361, 437 S.E.2d 215

(1993), we affirmed the robbery conviction of a defendant whose

palm print and thumb prints were found on a bank deposit slip

which had been attached to money in a deposit bag stolen from the

restaurant manager as he attempted to leave the restaurant to

make a deposit.   Laboratory analysis of the deposit slip revealed

that Parrish's left and right thumb prints were on the front of

the slip and a partial left palm print was on the back.

     We noted that Parrish's palm print on the back of the

deposit slip could only be explained if pressure had been applied

to the back of the document.      We held that the jury could infer

that some solid object must have been behind the deposit slip

when the palm print was left and that the solid object was the

roll of stolen money.     Id. at 365, 437 S.E.2d at 217.

     We concluded that the "unexplained circumstances of the



                                   -5-
placement of the palm print on the bank deposit slip and the two

thumb prints on the front within such a short time after robbery

were sufficient for a rational finder of fact to conclude beyond

a reasonable doubt that Parrish was the robber." 2     Id. at 365,

437 S.E.2d at 218.

                                  III.

     The instant case is analogous to Avent.      Appellant's

fingerprints were found on both sides of individual pieces of

broken glass from the window.      The glass fragments containing

appellant's prints were found inside and outside of the
            3
business.       Most of the latent "lifts" showed the prints of

fingers on one side of the glass piece and a thumb print on the

other.   Thus, appellant unquestionably handled the glass pieces

after the breaking occurred.

     As in Avent, appellant was not employed by the store and had

no business dealings there.      As in Avent, appellant presented no

evidence to explain the presence of his fingerprints.

     This case also is similar to Parrish.      While the timing of

the crimes in this case was not determined with the precision in

Parrish, as in Parrish, the unexplained placement of appellant's
     2
      The victim in Parrish testified that from the time he was
robbed until the police returned to him with the deposit slip was
thirty to forty-five minutes.
     3
      While the evidence technician could not state which
specific glass fragments containing prints were located inside
the store and which ones were found outside of the store, he
testified that he found fragments containing latent prints both
outside and inside of the business.



                                   -6-
thumb and fingerprints on both sides of the glass pieces found

inside and outside the store provided sufficient evidence for a

rational fact finder to conclude beyond a reasonable doubt that

appellant committed the crimes.

       Moreover, this case, where prints were found on both sides

of glass fragments, is unlike Granger v. Commonwealth, 20 Va.

App. 576, 459 S.E.2d 106 (1995).    There, we reversed the robbery

conviction of a defendant whose fingerprints on the liquor bottle

used to injure the victim provided the only evidence of his

guilt.   We noted that Granger's fingerprints were located "on the

handle and body of the half-gallon bottle, a location not

inconsistent with someone holding the bottle to pour from it."
Id. at 578, 459 S.E.2d at 106-07.       We stated that the evidence

did not establish when Granger had touched the bottle or that he

touched it at the scene of the crime.       Id. at 578, 459 S.E.2d at

106.   Thus, the evidence did not "exclude the hypothesis that

Granger may have handled the bottle for an innocent purpose

before the robbery."    Id. at 577, 459 S.E.2d at 106.

         Here, however, no reasonable hypothesis of innocence

flowed from the evidence before the trial court.         Thus, the court

did not err when it found sufficient evidence to convict

appellant of the burglary and larceny charges.

       We affirm the judgment of the trial court.

                                             Affirmed.




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