                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


JOHN JOSEPH WARMOUTH
                                           MEMORANDUM OPINION * BY
v.   Record No. 2281-00-2                JUDGE ROSEMARIE ANNUNZIATA
                                              DECEMBER 11, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                     Thomas V. Warren, Judge

          D. Gregory Carr (Douglas A. Ramseur; Bowen,
          Bryant, Champlin & Carr, on briefs), for
          appellant.

          Michael T. Judge, Assistant Attorney General
          (Randolph A. Beales, Acting Attorney
          General, on brief), for appellee.


     John Joseph Warmouth appeals his August 24, 2000 conviction

by a jury for aggravated malicious wounding on the ground that

the evidence was insufficient to prove his guilt beyond a

reasonable doubt.   For the reasons that follow, we affirm.

                                I.

                            Background

     On July 23, 1996, Mary Ann Worsham arrived home from work

around 11:10 p.m.   She locked the front door, made sure the back

door was locked, and checked on her two sons before she got

ready for bed.   From her bedroom, she telephoned Richard

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Worsham, her future husband.   She ended the call at 11:45 p.m.

and went to sleep.

     Later that night, Mary Ann awakened startled from a sound.

She vaguely recalls that "something was happening and [she] was

trying to stop it."    Although she could not clearly remember

what happened that night, she remembered feeling nauseated,

going to the bathroom and "leaning over the toilet and throwing

up blood."   She also recalled being taken from her home by the

rescue squad, but remembered nothing else until she awoke from a

coma at the Medical College of Virginia (MCV) nine days later.

    Mary Ann suffered ten wounds to the right side of her head

and all the bones on that side of her head "were crushed to

about the size of corn flakes."   As a result of the attack, she

lost forty percent of the hearing in her right ear, sustained

permanent paralysis of her right eyebrow, permanent brain

damage, short term memory problems, dizziness and a "head full

of pins and plates."

     Dr. Malcolm Bullock, a professor of neurosurgery at MCV,

treated Mary Ann as an emergency patient on July 24, 1996.

Bullock noted that she was "in a coma, active, moving around,

unable to obey commands [and] bleeding heavily from a number of

head wounds" on the right side of her head.   Dr. Bullock

believed many of the wounds were "most likely" inflicted by an

instrument "like a hammer."    The results of a CAT scan showed

several blood clots pushing on Mary Ann's brain.   Dr. Bullock

                                - 2 -
observed that "brain material was actually oozing out of some of

the wounds in the temporal region."     Her injuries resulted in

substantial scarring of the temporal lobe, which put her at

permanent risk for seizures and infection in her cranial cavity.

     Mary Ann was married to John, the appellant, for almost

fourteen years.    At the time of the offense, Mary Ann and John

had been separated for almost ten months and had two sons, who

were nine and eleven years old.   Their divorce became final

later that year.

     In the spring of 1995, Mary Ann and John were experiencing

marital difficulties.   John declined Mary Ann's suggestion to

attend marriage counseling.   At the same time, Mary Ann's

employer at the funeral home, Matt Bennett, began making

advances toward her.    She entered into an affair with him, which

ended quickly.

     Mary Ann told John of the affair, hoping he would accede to

her request to work on their marriage.    John, whom Mary Ann

described as "very cold and unfeeling," refused.    After three or

four months of failure to convince John to work on their

marriage, Mary Ann and he discussed separating and eventually

signed a separation agreement at the end of September 1995.

John moved from the marital residence on October 1, 1995.

     On November 21, 1995, Mary Ann found John waiting for her

at the house when she returned from grocery shopping.    John

explained that he wanted to ask her "some questions," and she

                                - 3 -
agreed.   He specifically wanted to know about "this Richard

Worsham" whom the boys had mentioned to him.     She explained that

she met Worsham after they had separated and that Worsham had

taken her and the boys fishing.   John asked her if she planned

on dating Worsham.   When she answered, "its possible," John

"jumped up in a fit of rage and slammed his fists into the

sliding glass door" with such force that he broke one of his

hands.    Mary Ann took him to the hospital for treatment and then

drove him home.

     On December 29, 1995, Mary Ann received a telephone call

from Bennett.   Bennett said that John had called Bennett's wife

and "told her what was happening."      In response, Mary Ann went

to see John at his home that evening.     As she pulled into his

driveway, she noticed all of the lights in the house were on and

that he was standing in his kitchen with a .45 caliber pistol in

his hand.   She told him he was "getting out of control" and that

he was only hurting others.   With the pistol still in his hand,

John walked over to a couch, sat down and then put the pistol

behind a cushion.    In response to Mary Ann's pleas to work

things out "civilly," John looked at her "square in the eye" and

said, "if I don't like what's happening with you and the boys in

the future, I'll kill you and whoever you're with."

     A few months later, in April 1996, John drove up to the

marital residence and parked next to the garage, which was down

the slope of the hill from the house.     The couple's youngest son

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went down to the garage and asked his father for his baseball

glove, which was in John's truck.     John refused.   When the boy

returned to Mary Ann crying, she went down to the garage and

asked John "to please" give her the glove.      John again refused,

telling Mary Ann "he was in control of what goes on" and that

"[h]e was going to call the shots."       Mary Ann went back to the

house and John shouted vulgarities after her.      He refused Mary

Ann's pleas to stop so their sons would not hear him, and he

refused her request to leave.     When she told him she would call

the police, John told her to "go right ahead . . . [a]nd he

handed [her] the phone."   She called the police and they arrived

about ten minutes later.   After the police talked with John for

a few minutes, he left.

     In early July 1996, Mary Ann met with John's attorney,

Barbara Picard.   In response to an inquiry by Picard, Mary Ann

stated that a future marriage to Worsham was a possibility.

    On July 24, 1996, Mary Ann was attacked in her home.       No one

else in the house was harmed. 1    She was not sexually assaulted,

and nothing was stolen from the house.      The police found that

neither the windows nor the doors to the home showed signs of

forced entry.   Mary Ann testified that only she, her mother and

John had keys to the house.   A spare key was kept in a "fake

rock" near the front door; only Mary Ann, her mother, the


     1
        Mary Ann's disabled mother and the couple's sons were
also living in the home at the time of the offense.

                                  - 5 -
babysitter and John knew the location of the spare key.      On the

morning of July 24, 1996, the spare key was missing from the

fake rock; it was later found in nearby shrubs.

    Also that morning, John spoke with his sister, Kathleen

Higgins, while he was at work.    At trial, Higgins testified that

during that call she informed her brother of the attack, which

she learned about from a neighbor.       In cross-examination,

however, she admitted that when she had spoken with her brother

that morning she had not known that Mary Ann had been

"attacked."   Rather, she knew only that "something had happened

to [Mary Ann] and she was being taken to the hospital."      After

he hung up the phone, John told his supervisor that someone had

assaulted his wife.   John's supervisor and a co-worker overhead

him ask repeatedly "are my boys okay?" throughout the telephone

conversation, but did not hear him inquire about Mary Ann.

    When John returned to his house from work that July 24,

Detective Vernon Poe of the Powhatan Sheriff's Office was

waiting to talk with him.   John agreed to speak with Poe.       He

told the detective that he had received a call at work informing

him that his wife had been assaulted.      Poe told him that his

wife was in critical condition, but that she could give a

statement.    When Poe mentioned the possibility of obtaining a

statement from Mary Ann, John's demeanor changed.      His hands

began to shake, his breathing became shallower, he lost eye

contact with Poe and generally "appeared to be nervous."

                                 - 6 -
    John told Poe that his friend, Gordon Batterson, had come

over to his home the prior evening.     The two had a couple of

mixed drinks each, consuming about a half-pint of whiskey

between them.   Batterson left at around 10:30 p.m.   John, who

lives alone, told Poe that he went to bed shortly thereafter.

    Greg Neal, undersheriff with the Powhatan Sheriff's Office,

processed the crime scene.   Neal observed sheets and pillows

saturated with blood, "chunks of hair" on the floor, and blood

on the wall, window and in the bedroom's bathroom.    He also

discovered a bloody palm impression on the bed sheets.    Standing

at the foot of the bed, the palm print was located on the

left-hand side of the bed, towards the headboard.     While the

impression left clear markings, no ridge detail was discernable.

    Robert Hallett, a retired forensic impression examiner

employed by the Virginia Division of Forensic Science at the

time of the investigation, and qualified by the court as an

expert in anatomical impressions, examined the bloody palm

impression.    He testified that although anatomical impressions

do not produce a "positive identification" of the creator of the

impression, they do permit an analysis that excludes

individuals.    Based upon his examination of the impression in

comparison with the palm prints of Mary Ann and John, Hallett

excluded Mary Ann, but not John, as the source of the

impression.    Specifically, Hallett found seventeen points of

similarity and no points of dissimilarity between the

                                - 7 -
characteristics of John's known print and that of the impression

on the bed sheet.   Based upon his examination, Hallett could not

eliminate John as the source of the palm impression.

    Undersheriff Neal also discovered that the telephones were

inoperative and that the telephone line had been cut from the

exterior of the home.   To see the wire, Neal had to move a

garden tool and bend down to within 12-18 inches from the deck

itself.   John had installed the telephone line wiring when the

family moved to the residence in 1991.

    Gene Bradbury, a cable splicer with 34 years of experience

in telephone repair work, examined the phone lines at the

residence and verified that both of the home's phone lines were

dead.   He discovered that one line had a fresh cut at the bottom

of the telephone box that was located approximately two inches

off the deck of the house.   The cut wire was the bottom wire,

the only live wire.   Two uncut lines were covering it such that

the cut wire could not be seen from a standing position.

Bradbury testified that despite his experience in telephone line

repair, he would not be able to determine by looking at the

wires in the box which were "live" and which were not.   He noted

that without prior knowledge of how the phone lines had been set

up, one would have to look at the wires in the pedestal on the

side of the road or open the telephone company side of the phone

box with a 2/16 or 3/8 ratchet to determine that only the bottom

wire was live.   Further, Bradbury testified that if he wanted to

                               - 8 -
disable all the phone service in the house, he would have cut

all the wires.

    On July 26, 1996, two days after the attack, Mary Ann's

brother found a screwdriver on her lawn.    The name of John's

employer, "McLean Rentals," was imprinted on the screwdriver.

At trial, Mary Ann testified that John always carried a similar

screwdriver in his pocket and that she did not keep such objects

around the house for the children's safety.    She also noted that

she had mowed the lawn three days before the attack and had not

come across the screwdriver.

                                 II.

                               Analysis

    John contends the evidence is insufficient to support his

conviction for aggravated malicious wounding.    Specifically, he

argues that the evidence did not support a finding that he was

the individual who committed the assault.    We disagree.

    In reviewing the sufficiency of the evidence, "[t]he

appellate court has the duty to examine the evidence that tends

to support the conviction and to uphold the conviction unless it

is plainly wrong or without evidence to support it."     Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001)

(citations omitted); Code § 8.01-680.     "[W]e consider the record

'in the light most favorable to the Commonwealth, giving it all

reasonable inferences deducible therefrom.'"     Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

                                - 9 -
(citation omitted).    Furthermore, the credibility of witnesses

and the weight assigned their testimony are matters exclusively

for the jury.     Yarbrough v. Commonwealth, 258 Va. 347, 364, 519

S.E.2d 602, 610 (1999).    Therefore, we do not substitute our

judgment for that of the jury.     Hunley v. Commonwealth, 30 Va.

App. 556, 559, 518 S.E.2d 347, 349 (1999) (citing Cable v.

Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).

          When the evidence is wholly circumstantial
          . . . all necessary circumstances proved
          must be consistent with guilt and
          inconsistent with innocence and exclude
          every reasonable hypothesis of innocence.
          The chain of necessary circumstances must be
          unbroken. Nevertheless, it is within the
          province of the jury to determine what
          inferences are to be drawn from proved
          facts, provided the inferences are
          reasonable related to those facts. The
          burden is upon the Commonwealth to prove
          beyond a reasonable doubt that motive, time,
          place, means, and conduct concur in pointing
          out the accused as the perpetrator of the
          crime.

Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68

(1976) (citation omitted); see also Stamper v. Commonwealth, 220

Va. 260, 272, 257 S.E.2d 808, 817 (1979).    "'[E]ach of the five

circumstances of time, place, motive, means and conduct' need

not be proved beyond a reasonable doubt."     Fordham v.

Commonwealth, 13 Va. App. 235, 238, 409 S.E.2d 829, 831 (1991)

(quoting Cantrell v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d

22, 29 (1985)).    However, "those circumstances which are proved

must each be consistent with guilt and inconsistent with


                                - 10 -
innocence, and . . . consistent with each other."     Id.   We find

the circumstances proved exclude the possibility of John's

innocence and support his conviction beyond a reasonable doubt.

     In this case, the evidence that each of the five

circumstances of time, place, motive, means and conduct point to

John is ample.   First, the Commonwealth presented credible

evidence from which the jury could reasonably conclude that John

had a motive to harm Mary Ann. John behaved violently towards

Mary Ann on at least three occasions.    On one occasion, when

Mary Ann told John she might date another man, he flew into a

rage and slammed his hand against a glass door with such force

that he broke his hand.     See Hill v. Commonwealth, 159 Va. 993,

1001, 167 S.E. 264, 267 (1933) ("Of all the human passions which

supply a motive for the commission of crime, history records

that jealousy is paramount.").    On another, just seven months

prior to the crime, John had threatened, "if I don't like what's

happening with you and the boys in the future, I'll kill you and

whoever you're with."     See Clay v. Commonwealth, 262 Va. 253,

258, 546 S.E.2d 728, 730 (2001) (noting that threats to kill

victim were probative of defendant's intent to commit murder).

On yet a third occasion, John verbally assaulted Mary Ann and

would not leave her home until the police spoke with him.

     Second, the jury could infer that John claimed he was

asleep at the time of the crime in order to conceal his guilt.

See Price v. Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 642,

                                - 11 -
647 (1994) (finding that jury may conclude appellant lied during

his testimony to conceal his guilt).     The appellant offered no

evidence to support his explanation of his whereabouts at the

time of the assault.    Thus, the circumstance of "time" points to

John.

        Third, the Commonwealth's proof amply established John's

access to the "place" of the crime and the "means" he employed

as the perpetrator.    His familiarity with the house, possession

of a key, knowledge of a spare key, access to a screwdriver

found on Mary Ann's lawn, and unique knowledge of the phone

lines, coupled with the fact that the perpetrator cut the one

and only wire out of three that was necessary to disable the

phones, established John's opportunity to commit the crime and

the means he used.

        Fourth, John's conduct and statements following the attack

concur in signaling him as the criminal agent.    John told his

supervisor and Detective Poe that his wife had been assaulted,

even though no one had informed him of any such attack.     See

Bramblett v. Commonwealth, 257 Va. 263, 277, 513 S.E.2d 400, 409

(1999) (finding that defendant's statements evidencing knowledge

of the circumstances of the murders supported his conviction for

murder).    In addition, when he allegedly learned of Mary Ann's

injury, he did not inquire into her condition or appear

concerned.     See Bowie v. Commonwealth, 184 Va. 381, 392, 35

S.E.2d 345, 350 (1945) (holding that lack of sympathy for victim

                                - 12 -
is probative of guilt).   Furthermore, John became nervous when

Detective Poe told him that he thought Mary Ann would be able to

provide a statement.   His hands began to shake, his breathing

became shallow, and he lost eye contact with the officer.

     In addition, the Commonwealth's expert found a hand

impression at the scene of the crime, which could not eliminate

John as the criminal agent.    See Epperly v. Commonwealth, 224

Va. 214, 228, 294 S.E.2d 882, 890 (1982) (noting that

circumstantial evidence comes in infinite variety and it is

unnecessary to create artificial rules as to the species of

circumstantial evidence which the jury may consider); see also

Calhoun v. Commonwealth, 35 Va. App. 506, 509, 546 S.E.2d 239,

241 (2001) (noting that evidence is relevant if it has any

logical tendency, however slight, to establish a fact at issue

in the case).   In sum, the Commonwealth provided sufficient

evidence from which the jury could find that the five

circumstances of motive, time, place, means, and conduct

"'concur in pointing to [John] as the perpetrator beyond a

reasonable doubt.'"    Fordham, 13 Va. App. at 238, 409 S.E.2d at

831 (quoting Cantrell, 229 Va. at 398, 329 S.E.2d at 29

(emphasis in original).

     Appellant acknowledges the Commonwealth's evidence, but

argues that the circumstances, absent physical evidence, were

insufficient to prove he was the perpetrator.   He also alleges

that certain evidence is inconsistent with his guilt and that

                               - 13 -
the evidence does not exclude the possibility that Mark Bennett

or his wife was the criminal agent.

        Appellant's analysis is flawed in three respects.   First,

he fails to consider our standard of review which requires this

Court to consider the evidence and all reasonable inferences

that may be inferred from it, in the light most favorable to the

Commonwealth.     DeAmicis v. Commonwealth, 31 Va. App. 437, 440,

524 S.E.2d 151, 152 (2000) (citation omitted).    Second, John's

claimed hypothesis of innocence is predicated on a motive to

harm his wife by Mark Bennett or Bennett's wife, that someone

other than John could have used the spare key, and that "any

intruder" was capable of figuring out how to cut the only live

wire.    Assuming without deciding that John's hypotheses of

innocence are reasonable and "flow from the evidence," Hamilton

v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993),

the Commonwealth's evidence, taken as a whole, excludes them.

Harrell v. Commonwealth, 11 Va. App. 1, 9-10, 396 S.E.2d 680,

684 (1990) (citations omitted).    "[I]t frequently happens that

the combined force of many concurrent and related circumstances,

each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion."     Peoples v. Commonwealth, 147 Va.

692, 704, 137 S.E. 603, 606 (1927) (internal quotation omitted).

Finally, contrary to John's contention, we have no requirement

that the Commonwealth produce physical or scientific evidence to

support a conviction.     See, e.g., Carter v. Commonwealth, 223

                                - 14 -
Va. 528, 531, 533, 290 S.E.2d 865, 866, 867 (1982) (holding

evidence of possession of tools with intent to commit larceny

sufficient despite absence of physical evidence); Verlander v.

Commonwealth, 5 Va. App. 482, 483, 487, 364 S.E.2d 531, 531, 534

(1988) (holding evidence of robbery and felony murder sufficient

despite absence of physical evidence); Yates v. Commonwealth, 4

Va. App. 140, 143, 145, 355 S.E.2d 14, 15, 16 (1987) (holding

evidence sufficient to support conviction for robbery and use of

firearm in commission of felony despite absence of physical

evidence).

     For these reasons, we find that the Commonwealth has met

its burden of proving the charge beyond a reasonable doubt and

affirm the conviction.



                                                        Affirmed.




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