                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


DAVID S. BUTCHEE
                                            MEMORANDUM OPINION * BY
v.   Record No. 3050-99-1                 JUDGE JAMES W. BENTON, JR.
                                              FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                    Rodham T. Delk, Jr., Judge

          Michael J. Lutke (Office of the Public
          Defender, on brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted David S. Butchee of robbery and the use of a

firearm during the commission of a robbery in violation of Code

§§ 18.2-58 and 18.2-53.1, respectively.    Butchee contends the

evidence was insufficient to support the convictions.    We disagree

and affirm the convictions.

                                 I.

     The evidence proved that during the morning of November 24,

1997, someone stole a white Jeep Cherokee vehicle from a residence

in the City of Virginia Beach.   At 8:00 p.m. that night, Sergeant

Gerald Wayne Lloyd of the Stafford County Sheriff's Office


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
received a report concerning the stolen vehicle.    Shortly after

receiving the report, Lloyd saw Butchee putting gas into the

vehicle in Stafford County.    When Lloyd attempted to speak with

Butchee, Butchee ran.    After Lloyd apprehended Butchee, Lloyd

searched the vehicle and found a stainless steel handgun.

        Lloyd testified that Butchee said he had stolen the vehicle

from the residence in Virginia Beach.    Butchee also said "he

didn't know about the gun."    During his testimony, Lloyd

identified two photographs of Butchee that were taken after his

arrest.    The photographs show Butchee wearing a hooded sweatshirt

with lettering.    Although the letters are not distinct in the

photograph, Lloyd testified that Butchee was wearing a gray

sweatshirt with the words "Penn State."

        The evidence also proved that at approximately 3:00 p.m. on

November 24, a man entered a post office in the City of Franklin,

demanded money from Joseph E. Edwards, Jr., a postal clerk, and

placed a gun on the counter pointing at Edwards.    After Edwards

gave the man "a handful of twenty-dollar-bills," the man left the

bank.    Edwards alerted co-workers to the robbery and then exited

the post office with a co-worker to see where the man went.

Edwards saw the man "open the front door and get in and back up" a

white Jeep Cherokee.    Edwards and his co-worker testified that the

vehicle the man drove was similar to a photograph of the vehicle

which Butchee stole earlier that day in Virginia Beach.



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     Edwards testified that he focused on the gun and could not

identify the man who robbed him.   He testified that the "silver

colored gun" the robber used was similar to the gun recovered from

the vehicle after Butchee was arrested.   He also testified that

the robber wore "a hooded sweatshirt with the hood pulled up" and

also wore "dark gloves with the fingers cut out of them."     Edwards

saw a part of the robber's face, could not see his hair, and knew

the robber was a black male.    He did not notice lettering on the

sweatshirt.

     Jessica Tillett, an employee at a bank in Franklin, testified

that a man in a "white hooded Penn State sweatshirt . . . [and]

cutoff black gloves" came into the bank after 1:00 p.m. that

afternoon.    Tillett identified a photograph of that man taken from

the bank surveillance camera.   The photograph, which is in

evidence, depicts a man wearing a hooded sweatshirt, which has the

lettering "Penn State," and wearing a glove with the finger

material cut off.    Tillett testified that the bank is located one

block from the post office.

     Robert J. Ferguson saw a man in Franklin that same afternoon

wearing a gray, hooded sweatshirt with a college logo that

included the word "State."    Between 12:00 and 1:00 p.m., the man

was standing in the vicinity of the post office near a white Jeep

Cherokee, which Ferguson testified was identical to the one

Butchee stole in Virginia Beach.   Vernon Babb also saw this man

near the Jeep Cherokee.   Both Ferguson and Babb identified the man

                                - 3 -
in the bank surveillance camera photograph as the man they saw

standing by the Jeep Cherokee.    Ferguson and Babb also testified

that at approximately 3:00 p.m. the Jeep Cherokee departed the

area "mighty fast" and "squalling tires."      They did not see the

driver.

     A detective testified that he questioned Butchee several

months after the robbery.   Butchee denied both that he had robbed

the post office and that he knew where Franklin was located.

Later, after the detective showed Butchee the photograph from the

bank surveillance tape, Butchee asked where the detective had

gotten the photograph of him.    Butchee then admitted that he had

been in Franklin on the day of the robbery and explained that he

had gone into the bank to ask for directions to the highway.

     The jury convicted Butchee of robbery and of using a firearm

in the commission of that robbery.       The trial judge sentenced

Butchee according to the jury's verdict to 30 years in prison for

the robbery and 3 years in prison for the use of the firearm.

                                  II.

     Butchee challenges the sufficiency of the evidence

identifying him as the perpetrator of the robbery.      He contends

that the Commonwealth did not meet its burden of proving identity

beyond a reasonable doubt because no one could identify him as the

robber.   He argues that although he may have had clothing, a gun,

and a vehicle similar to those of the robber, the jury speculated

to conclude that he was that robber.

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     "'Circumstantial evidence . . . is evidence of facts or

circumstances not in issue from which facts or circumstances in

issue may be inferred.'"   Byers v. Commonwealth, 23 Va. App. 146,

151, 474 S.E.2d 852, 854 (1996) (citation omitted).

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.   Id.

          Where the Commonwealth relies upon
          circumstantial evidence to establish guilt,
          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.

Comer v. Commonwealth, 211 Va. 246, 249, 176 S.E.2d 432, 434

(1970).

     The evidence proved that Butchee was in Franklin shortly

before the robbery.   After initially denying that he knew where

Franklin was located, Butchee told the detective he was in

Franklin and identified his photograph from the bank's camera.

His statement and the other evidence, thus, proved that Butchee

was in the bank less than two hours before the robbery.     He was

wearing a hooded sweatshirt with the lettering "Penn State" and

gloves with the finger material cut off.   He matched the

physical description of the robber; he wore clothing similar to




                               - 5 -
the robber; and he drove a vehicle identical to that of the

robber.

     Moreover, two witnesses identified the man who was beside

and in a white Jeep Cherokee in the vicinity of the post office

as the same man photographed in the bank on the day of the

robbery.   Thus, the evidence proved Butchee was by the vehicle

and in the vicinity of the post office in downtown Franklin at

the approximate time of the robbery.    No evidence proved that

any other person was at or in the Jeep Cherokee with Butchee.

     The postal clerk testified that the robber was wearing a

gray hooded sweatshirt and black gloves with the finger material

cut off.   He saw the robber enter the driver's seat of the Jeep

Cherokee and drive away.   Butchee was the only person seen in or

near the vehicle in Franklin, and he was the only person in it

when he was arrested.

     The jury was entitled to infer from the postal clerk's

description of the robber and of the robber's escape in the

white Jeep Cherokee that the robber was the same individual seen

by the other witnesses who testified.   The jury also was

entitled to infer from Ferguson and Babb's testimony that

Butchee was the person standing around the Jeep Cherokee on the

day of the robbery and that Butchee left "mighty fast" at

3:00 p.m. in that vehicle.   The jury viewed a photograph of

Butchee in the bank and the photographs of Butchee taken after

his arrest.   Those photographs are clear and depict the same man

                               - 6 -
with a hooded sweatshirt.    In addition, the jury was entitled to

infer from the evidence that the gun in Butchee's possession

when he was arrested was the same gun used in the robbery.      The

jury was also entitled to infer from Butchee's initial denials

of being in Franklin and possessing the gun that he was trying

to avoid prosecution for the robbery.     See Rollston v.

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)

(holding that a defendant's false statements permit an inference

he is trying to conceal his guilt).

     As in Harward v. Commonwealth, 5 Va. App. 468, 364 S.E.2d

511 (1988), and Comer, the jury convicted the accused without a

clear identification by the victim.     As in those cases, Butchee

wore clothing similar to the perpetrator of the crime and

possessed items, in this case the Jeep Cherokee and a gun, which

the robber would have had.   This evidence, in combination with

Butchee's presence in Franklin, provides an adequate basis for

the jury to find beyond a reasonable doubt that Butchee was the

robber.

     For these reasons, we affirm the convictions below.

                                                            Affirmed.




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