                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Kelsey
Argued at Richmond, Virginia


DAVID MARK HALES
                                                          MEMORANDUM OPINION* BY
v.     Record No. 2989-03-2                           CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                                MARCH 22, 2005
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Walter W. Stout, III, Judge

                 Michael E. Hollomon for appellant.

                 Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       David M. Hales (appellant) appeals from his jury trial conviction for burglary. On

appeal, he contends the court erroneously (1) refused to instruct the jury regarding the inferences

to be drawn from the fact that his fingerprint was found on a window at the scene of the

residential burglary and (2) concluded the evidence was sufficient to prove he was the burglar.

We hold the trial court’s rejection of the proffered instruction was not error and that the evidence

was sufficient to support appellant’s conviction. Thus, we affirm.

                                  I. FACTUAL BACKGROUND

       Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       Viewed in this light, the evidence established that on November 18, 2003, a burglary took

place at the home of William Malanima (Malanima). At 10:15 a.m. on the day of the burglary,

both Malanima and his wife left the home separately within a short period of time. The home’s

doors and windows were secured when they left. When Malanima returned home at 1:15 p.m.,

he found the front door open. He knew his wife had not left it open, as “[s]he [was] very careful

about things such as that.” Malanima saw that a front window had been completely broken. The

window was about five feet from the front door, and was accessible from the covered front porch

that was about fifteen feet from the public sidewalk. When Malanima entered the house, he

found that some of his computer equipment was missing from the dining room.

       Detective Dexter Gadston, Sr. (Gadston) responded to the burglary, and concluded that

the broken window was the point of entry and that the burglar threw an ashtray from the front

porch through the window to break it. On the floor inside the home near the broken window,

Gadston found three fingerprints on glass from the window. Two of the fingerprints did not

provide sufficient information for an identification. However, an expert testified that the third

fingerprint matched appellant’s with 100% certainty. Malanima testified that he had cleaned the

windows with Windex approximately one to two months prior to the burglary. He also testified

that he did not know appellant and that he was not aware of appellant ever visiting his home for

any reason.

                                  II. PROCEDURAL BACKGROUND

       After the Commonwealth presented its evidence, appellant moved to strike on the ground

that the evidence failed to prove that he was at the residence at the time of the burglary. The trial

court denied the motion. Appellant presented no evidence and renewed his motion to strike on

the same basis. The trial court took the motion under advisement.




                                                -2-
       The trial court then addressed the issue of jury instructions. Appellant proffered the

following jury instruction:

               A latent fingerprint found at the scene of the crime tends to show
               that the accused was at the scene of the crime; however, only if the
               circumstances regarding the fingerprint show that the accused was
               at the scene of the crime at the time the crime was committed, may
               one rationally infer that the accused committed the crime.

The trial court refused the instruction because the standard “[is] not [‘]may one rationally

infer.[’] [That] is not what the standard is. You are giving them a different standard than what

the law is. It is inappropriate for that reason.”

       The jury convicted appellant of breaking and entering. After excusing the jury, the trial

court noted it still had appellant’s motion to strike under advisement. The trial court again

overruled the motion and stated:

               Mr. Malanima testified that he had cleaned the windows in
               September or October, that [appellant] had never been to the
               house, had no business at the house, legitimate business at the
               house, and hadn’t been there to his knowledge. The print was
               found on the window. There are two sets of windows, an outer
               window and an inner window. The debris was found inside the
               house on the radiator. That is where the print was found.

               With those factors, the Court feels like the evidence is sufficient to
               go [to] the jury for them to make a decision on those
               circumstances.

The jury recommended a sentence of twenty years, which the trial court imposed. The trial court

ordered that ten years of that sentence run concurrently with an unrelated sentence appellant was

presently serving.

                                     III. JURY INSTRUCTION

       “The purpose of any jury instruction is to inform the jury of the law guiding their

deliberations and verdict.” Keen v. Commonwealth, 24 Va. App. 795, 807, 485 S.E.2d 659, 665

(1997). “A proposed jury instruction submitted by a party, which constitutes an accurate


                                                    -3-
statement of the law applicable to the case, shall not be withheld from the jury solely for its

nonconformance with model jury instructions.” Code § 19.2-263.2 (emphasis added); see Davis

v. Commonwealth, 17 Va. App. 666, 673, 440 S.E.2d 426, 431 (1994). However, a statement is

“not necessarily proper language for a jury instruction” simply because it is “made in the course

of a judicial decision.” Yeager v. Commonwealth, 16 Va. App. 761, 766, 433 S.E.2d 248, 250

(1993).

          “‘The trial judge has broad discretion in giving or denying instructions requested.’”

Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc) (quoting

John L. Costello, Virginia Criminal Law and Procedure § 60.6-8, 810 (2d ed. 1995)). “A

reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has been

clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Darnell

v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v.

Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). The trial judge commits error by not

instructing the jury on a matter when, in the absence of such instruction, the jury may make

findings based upon a mistaken belief of the law. See Martin v. Commonwealth, 218 Va. 4, 7,

235 S.E.2d 304, 305 (1977).

          However, where a proffered instruction contains a “correct statement of the legal

principles involved and the trial court, in its discretion, could properly have given the instruction,

it does not follow that it was reversible error to refuse it.” Lincoln v. Commonwealth, 217 Va.

370, 375, 228 S.E.2d 688, 692 (1976). “‘When granted instructions fully and fairly cover a

principle of law, a trial court does not abuse its discretion in refusing another instruction relating

to the same legal principle.’” Gaines, 39 Va. App. at 568, 574 S.E.2d at 778 (quoting Stockton

v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984)).




                                                 -4-
       Here, appellant’s proffered instruction advised the jury that the presence of the accused’s

fingerprint at the scene of a crime “tends to show that the accused was at the scene of the crime”

but that “only if the circumstances regarding the fingerprint show” the accused was there “at the

time the crime was committed” may the jury “rationally infer that the accused committed the

crime.” Assuming without deciding this instruction embodied an accurate statement of the law,

this legal principle was (1) likely to be obvious to any rational juror applying his or her common

sense and (2) covered by other, more general jury instructions, which allowed counsel for

appellant to argue these principles forcefully to the jury in closing argument. Thus, we hold the

trial court’s refusal to give the proffered instruction did not constitute an abuse of discretion.

       The trial court gave standard jury instructions that the accused is presumed innocent, that

suspicion or probability of guilt is insufficient, and that an accused has no burden to produce any

evidence. It also instructed the jury that circumstantial evidence will support a conviction only if

the evidence excludes every reasonable theory of the accused’s innocence. Based on these

instructions, appellant argued to the jury that, assuming the fingerprint on the window was

appellant’s, “[t]he whole case boils down to this; when was that fingerprint placed on the

window?” Appellant also urged the jury not to

               let [the Commonwealth] say they know that print was placed [on
               the window] [the] day [of the burglary]. That is not a true
               statement. They have to admit to you that it is possible that that
               print could have been there a week before, a month before, two
               months before. Don’t let them try to convince you otherwise.

               There is a serious lack of evidence in this case, folks. We can’t be
               sure about that print. We can’t be sure more importantly about the
               time of the print. That is what this whole case comes down to.

       We note that “[i]nstructions should be ‘simple, impartial, clear and concise . . . .’ When

they are, they do not need clarification. . . . We presume the jury will understand and will follow

their instructions.” Gaines, 39 Va. App. at 567, 574 S.E.2d at 777 (quoting Bryant v.

                                                 -5-
Commonwealth, 216 Va. 390, 392, 219 S.E.2d 669, 671 (1975) (citations omitted)). Applying

these principles here, we conclude the trial court did not abuse its discretion in refusing

appellant’s proffered instruction.

                            IV. SUFFICIENCY OF THE EVIDENCE

       In reviewing a challenge to the sufficiency of the evidence on appeal, we view the

evidence in the light most favorable to the Commonwealth, granting to the evidence all

reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987). “Circumstantial 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.” Coleman v. Commonwealth, 226 Va. 31, 53, 307

S.E.2d 864, 876 (1983).

               “A latent fingerprint found at the scene of the crime, shown to be
               that of the 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.”

Avent v. Commonwealth, 209 Va. 474, 479-80, 164 S.E.2d 655, 659 (1968) (quoting Lawless v.

State, 241 A.2d 155, 160 (Md. Ct. Spec. App. 1968) (footnote omitted)). These “other

circumstances” “‘need not be circumstances completely independent of the fingerprint, 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. (quoting Lawless, 241 A.2d at 159-60).

       The Supreme Court applied these principles to affirm a conviction in Avent. Avent

involved the burglary of a clothing warehouse. Id. at 475, 164 S.E.2d at 656. The evidence

established the perpetrator gained entry “by breaking a window . . . the bottom casement [of

                                                -6-
which was] approximately 7 feet from the ground or street level.” Id. Avent’s fingerprint was

obtained from the glass, and the business’ personnel manager testified “that he did not know

defendant Avent; that defendant to his knowledge, extending over 32 years, had never worked

for [the company], and would have no business being on the premises there.” Id. In affirming

the conviction, the Court observed as follows:

               By the mode of entry, the location of the window, and the positive
               identification of the print on the broken pane, it was a rational
               inference that defendant was there unlawfully, and there was no
               evidence to the contrary. Defendant was not an employee [of the
               company] and had no business in or around the premises. The
               height of the window shows it was not designed to attract a view of
               the inside by the general public or by people passing along the
               street. It could be reached and touched only by conscious and
               deliberate effort. Admittedly, from the evidence it would have
               been possible for defendant to have reached the window and
               impressed his fingerprints thereon at a time other than when the
               building was burglarized. However, . . . the law [does not]
               requir[e] that the Commonwealth affirmatively and conclusively
               negate every possibility that defendant, who was shown to have
               been at the scene of the crime by his fingerprint, was present other
               than at the time of the commission of the crime. The trial court
               concluded that the fingerprint evidence was sufficient to convict
               when coupled with evidence of other circumstances which tended
               to reasonably exclude the hypothesis that the print was impressed
               at a time other than that of the crime[, and] . . . [w]e are unable to
               say there is no legally sufficient evidence . . . .

Id. at 480-81, 164 S.E.2d at 659-60.

       Similarly in appellant’s case, the circumstances surrounding the fingerprint found on the

broken window of the victim’s residence supported the inference that it was left by the

perpetrator at the time of the burglary, permitting the trial court’s finding that appellant was the

burglar. The Commonwealth’s fingerprint expert testified she was “100 percent [certain]” that

the print was appellant’s. The broken window glass on which appellant’s print was impressed

was inside the house on the radiator near the point of entry. It was five feet away from the

residence’s front door and at least fifteen feet from the sidewalk adjacent to the property. The

                                                 -7-
victim testified that he had washed the window in question no more than two months prior to the

burglary. He testified further that, “to [his] knowledge,” appellant had never been to the

residence for any legitimate reason. The burglarized premises in this case was a private

residence rather than a business establishment as in Avent, making it even less likely that

appellant could have had a legitimate reason for being on the premises without the victim’s

knowledge. The only reasonable hypothesis flowing from this evidence, viewed in the light most

favorable to the Commonwealth, is that appellant was the person who broke and entered the

victim’s home and stole his computer equipment.

       For these reasons, we conclude the trial court did not err by refusing the proffered jury

instruction and convicting appellant as the burglar. Thus, we affirm the conviction.

                                                                                         Affirmed.




                                               -8-
Elder, J., concurring, in part, and dissenting, in part.

        I concur in the majority’s ruling that the trial court’s rejection of the proffered fingerprint

instruction was not error. However, I believe the fingerprint evidence was insufficient to support

appellant’s conviction for burglary. Thus, I respectfully dissent from this portion of the

majority’s opinion.

        When a conviction is based entirely on circumstantial evidence, “all necessary

circumstances proved must be consistent with guilt and inconsistent with innocence and must

exclude every reasonable hypothesis of innocence, [and] [t]he circumstances of motive, time,

place, means, and conduct must all concur to form an unbroken chain which links the defendant

to the crime beyond a reasonable doubt.” Boothe v. Commonwealth, 4 Va. App. 484, 492, 358

S.E.2d 740, 745 (1987). If facts are susceptible to two different interpretations, “one of which is

consistent with the innocence of the accused, the jury or the judge trying the case cannot

arbitrarily adopt the interpretation which incriminates him.” Williams v. Commonwealth, 193

Va. 764, 772, 71 S.E.2d 73, 77 (1952). Instead, “[t]he interpretation more favorable to the

accused should be adopted unless it is untenable under all the facts and circumstances of the

case.” Id.

        Evidence that the accused’s fingerprint was found at the scene of the crime “‘“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.”’” Avent v. Commonwealth, 209

Va. 474, 479, 164 S.E.2d 655, 659 (1968) (quoting Lawless v. State, 241 A.2d 155, 158 (Md. Ct.

Spec. App. 1968) (quoting McNeil v. State, 176 A.2d 338, 339 (Md. 1961))). These “other

circumstances” “‘need not be circumstances completely independent of the fingerprint, and may

properly include circumstances such as the location of the print, the character of the place or




                                                  -9-
premises where it was found and the accessibility of the general public to the object on which the

print was impressed.’” Id. (quoting Lawless, 241 A.2d at 159-60).

       In the case of commercial premises or an object that was once in the stream of commerce,

Virginia’s appellate courts have found it equally plausible, absent specific evidence to the

contrary, to conclude that a defendant left his fingerprint on the premises or object in any number

of innocent ways. See, e.g., Granger v. Commonwealth, 20 Va. App. 576, 459 S.E.2d 106

(1995) (holding evidence of defendant’s fingerprint on broken bottle of liquor used to

incapacitate robbery victim was insufficient to exclude hypothesis that defendant may have

handled the bottle for an innocent purpose before the robbery); Varker v. Commonwealth, 14

Va. App. 445, 417 S.E.2d 7 (1992) (holding evidence of defendant’s hand print on wall inside

dance studio but outside office broken into was insufficient to permit inference that he left print

contemporaneously with break-in). Although claims of innocence are less plausible in cases

involving fingerprints found at residential premises, the mere fact that a fingerprint is found

outside a residence does not, without further evidence, exclude the reasonable hypothesis that the

person who left the print did so while present for an innocent purpose. As the Georgia Court of

Appeals has acknowledged,

               The mere finding of the defendant’s fingerprints on a window
               which has been broken to gain access to the house, when there are
               other fingerprints on the window, and where those in question
               could have been lawfully made by the defendant, the window
               being so situated as to make it accessible to the public generally, is
               not sufficient to form the basis of a conviction.

Anthony v. State, 68 S.E.2d 150, 152 (Ga. Ct. App. 1951) (involving theft of money from pinball

machine “located in a place of business where the public are invited”).

       Here, the Commonwealth’s fingerprint expert was “100 percent [certain]” that the print

was appellant’s, but she admitted it was impossible to “tell the age of a fingerprint.” The

window on which appellant’s fingerprint was found was readily accessible from the duplex’s
                                               - 10 -
covered front porch, which was about fifteen feet from the public sidewalk that ran along “the

whole block of Grace Street” on which the Richmond duplex was located. The homeowner’s

testimony presumably eliminated the possibility that appellant left the fingerprint while present

to perform some task for which the homeowner had hired him. Nevertheless, the evidence did

not exclude the reasonable hypothesis that appellant left the fingerprint on the outside of the

window while present on the front porch for an innocent purpose unknown to the homeowner,

such as to deliver a package, sell magazine subscriptions, attempt to obtain a charitable

contribution, or seek shelter from the rain. The homeowner admitted that “if a person were to

walk up to [his] door, knock on the door, and if no one was home, if they were to look in the

window, peer in the window like so, they would only have to move maybe four or five feet down

the front porch” in order to do so.

       The facts in appellant’s case are distinguishable from those in Avent, in which the

window bearing the fingerprint was located at such a height that “[i]t could be reached and

touched only by conscious and deliberate effort” and the personnel officer of the burglarized

company testified Avent had never been a company employee or had any legitimate reason for

coming in contact with the window. 209 Va. at 480, 164 S.E.2d at 659. The facts of appellant’s

case also are distinguishable from those in Turner v. Commonwealth, 218 Va. 141, 147-48, 235

S.E.2d 357, 360-61 (1977), in which the fingerprint found on a flashlight at the scene was left in

blood, providing sufficient evidence to indicate the print was left contemporaneously with the

break-in and bloody beating for which the defendant was on trial. Finally, they are

distinguishable from those in Tyler v. Commonwealth, 254 Va. 162, 167, 487 S.E.2d 221, 224

(1997), in which the defendant’s fingerprints were found on both sides of five different pieces of

a store’s broken plate glass window, in positions indicating they were left on the glass only after




                                               - 11 -
it had been shattered, as the perpetrator removed the remaining shards so as to be able to enter to

commit the burglary without cutting himself.

       Rather, the facts in appellant’s case are more like those in Varker, in which the

fingerprint of the accused was found on the wall of a dance studio outside the door to the

burglarized business and we concluded the evidence was insufficient to support a conviction. 14

Va. App. at 447-48, 417 S.E.2d at 9. The Commonwealth contends Varker is distinguishable

from appellant’s case because Varker provided testimony giving an innocent explanation for his

presence at the location where his fingerprint had been found. This factual distinction lacks legal

significance. The trier of fact in Varker was entitled to reject Varker’s explanation as not

credible, and this Court, on appeal, was required (1) to assume the trier of fact did just that and

(2) to proceed based solely on other evidence--the presence of Varker’s fingerprint and Varker’s

statements that were alleged to have constituted an admission of guilt. We held this evidence

was insufficient to support Varker’s conviction. Id.

       Here, the presence of appellant’s fingerprint on the window of the burglarized residence

established appellant was at the scene of the burglary, but it did not sufficiently establish he was

there at the time of the burglary. The evidence did not exclude the reasonable hypothesis that

appellant left his fingerprint on the window at some other time, either in the two months since

the homeowner had cleaned the window or at some time prior to that but on a portion of the

window the homeowner did not clean sufficiently. Further, no evidence established that the print

was left on the inside of the window, which evidence would have been sufficient, coupled with

the homeowner’s testimony that appellant had no legitimate business inside the premises, to

prove it was left at the time of the burglary. See, e.g., Mallard v. State, 531 S.E.2d 774, 776 (Ga.

Ct. App. 2000) (holding evidence sufficient to support conviction where defendant’s fingerprints

were found on outside and inside of victim’s kitchen window pane, victim testified defendant

                                                - 12 -
lacked permission to be on premises, and evidence established defendant could not have handled

glass after break-in at time he claimed to have done so).

       The fingerprint evidence is highly suspicious, but I believe a holding that the unexplained

presence of one’s fingerprint on a readily accessible portion of a residential window is sufficient,

without more, to support a burglary conviction would impermissibly shift the burden of proof.

See Bizzoco v. Commonwealth, 27 Va. App. 513, 500 S.E.2d 237 (1998) (recognizing principle

that “[w]hen the Commonwealth relies solely on fingerprint evidence to identify a criminal

agent, it bears the burden of excluding every reasonable hypothesis of innocence” flowing from

the evidence and upholding conviction where evidence of fingerprints found outside window of

burglarized residence was accompanied by defendant’s denial that he could have left the prints in

any legitimate visit to the premises and his statement to police that he was at home on the night

of the offense when the officer had not told him the date or time of the crime). In the absence of

evidence that appellant left his print on the window at the time of the burglary, the evidence was

insufficient to exclude the reasonable hypothesis that the burglary was committed by someone

else. Compare Turner, 218 Va. at 148-49, 235 S.E.2d at 361 (holding presence of fingerprint in

blood on flashlight at scene of break-in and bloody beating was sufficient to establish accused

was present at time of crimes and that, absent accused’s production of credible evidence to

negate this hypothesis, this was only hypothesis flowing from evidence and was sufficient to

support conviction, despite accused’s argument, unsupported by any evidence, that blood could

have been animal blood left on flashlight as result of use during hunting trip, theory that still did

not explain how flashlight itself came to be in victim’s home).

       Thus, I would hold the presence of appellant’s fingerprint on one side of a piece of glass

from the broken window--which, although it had been washed two months earlier, was located

adjacent to the residence’s front door and at a height easily reachable by anyone wishing to peer

                                                - 13 -
into the window from the covered front porch, itself located only 15 feet from a sidewalk

spanning the entire block--was insufficient to support appellant’s conviction because “there was

no ‘evidence of other circumstances tending to reasonably exclude the hypothesis that the print

was impressed at a time other than that of the crime.’” Granger, 20 Va. App. at 578, 459 S.E.2d

at 107 (quoting Avent, 209 Va. at 480, 164 S.E.2d at 658).

       For these reasons, I respectfully dissent from the portion of the majority opinion

concluding the evidence was sufficient to support appellant’s burglary conviction.




                                              - 14 -
