                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Willis and
          Senior Judge Overton
Argued at Alexandria, Virginia


ASHLEY JEFFERSON GRISSETTE
                                           MEMORANDUM OPINION * BY
v.   Record No. 0409-00-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               JANUARY 23, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       Donald M. Haddock, Judge

            J. Amy Dillard, Deputy Public Defender
            (Office of the Public Defender, on brief),
            for appellant.

            Shelly R. James, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.


     Ashley Grissette (appellant) was convicted in a bench trial

of breaking and entering with the intent to commit larceny, in

violation of Code § 18.2-91 and petit larceny, in violation of

Code § 18.2-96.   On appeal, he contends (1) the trial court erred

in denying his motion to suppress out-of-court and in-court

identifications and (2) the evidence was insufficient to find him

guilty of the crimes charged.   We disagree and affirm his

convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             I.   Background

        Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to that evidence all reasonable

inferences fairly deducible therefrom.     See Juares v.

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

So viewed, the evidence established that on July 6, 1999, Gloria

Burke-Vitalis (Vitalis) was working as a secretary in a second

floor office on North Washington Street.       Richard Martin (Martin)

owned the only other office on the floor.       Martin was away on

vacation and had left a key with Vitalis so that she could collect

his mail and place it in his office while he was away.

        On July 6, 1999, Vitalis heard a loud thump in the hallway.

She opened the office door and observed appellant, carrying a

backpack, on his knees next to Martin's office doorway.      Vitalis

asked appellant why he was in the hallway.      Appellant stated that

he was a "personal injury client" of a lawyer with an office in

the building.    Appellant was not in fact a client of Vitalis'

employer, the only attorney in the building.       Vitalis told

appellant that the attorney she worked for would be back later and

asked appellant for his name.     Appellant gave Vitalis a name, but

not "Ashley Grissette."    The conversation lasted between a minute

and ninety seconds, and Vitalis returned to her office and called

the building owner to check the hallway to see if appellant had

left.    Appellant was gone when the building owner arrived.

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        The next day, as Vitalis was taking Martin's mail to his

office, she noticed that the transom window above Martin's office

door was missing and that the door was unlocked.    The window was

found in Martin's office.    Prior to being removed, the window was

located above the office door, approximately seven feet off the

ground at the bottom, extending another eighteen inches above the

door.    Appellant's fingerprint was found on the outside surface

(the hallway side) of the window in the upper left-hand corner.

        When Martin returned from vacation he discovered that several

bottles of alcohol and four blank checks were missing from the

office.    Martin did not know appellant and had not given him

permission to enter his office.

        Detective Robert Hickman (Hickman), obtained a photo of

appellant after his arrest.    Hickman created a photo lineup by

choosing photos that looked similar to appellant.    He chose all

African-American men of the same age, with similar head shape,

hair and facial hair.    None of the photographs depicted an

extremely light-skinned man and four, including appellant, wore a

white or light-colored t-shirt.    Prior to showing her the photo

spread, Hickman informed Vitalis that the person she observed in

the hallway might not be present.    Vitalis concentrated on two of

the photos and concluded by choosing appellant.    She had no doubt

that appellant was the man she observed on July 6.    Vitalis also

identified appellant as the man she observed when she testified in

court.

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     Prior to trial, appellant moved to suppress the out-of-court

identification and any in-court identification as impermissibly

suggestive because appellant was the darkest colored man in the

lineup and was the only one wearing a white t-shirt.    The trial

court denied appellant's motion finding that the lineup was not

unduly suggestive, at least four of the individuals were "dark"

and three wore white t-shirts.

                    II.   Identification of Appellant

     Appellant first contends that the out-of-court identification

was inadmissible as unduly suggestive because appellant was the

only dark-skinned black male wearing a white t-shirt.    "An

out-of-court identification is admissible if either (1) the

identification was not unduly suggestive; or (2) the procedure was

unduly suggestive, but the identification was so reliable that

there is no substantial likelihood of misidentification."      Charity

v. Commonwealth, 24 Va. App. 258, 261, 482 S.E.2d 59, 60 (1997)

(emphasis in original).     A valid photo lineup does not require

"'that all the suspects or participants be alike in appearance and

have the same description, as long as there is nothing to single

out the accused from the rest.'"     Id. at 261-62, 482 S.E.2d at 60

(quoting Williamson v. Commonwealth, 211 Va. 57, 59, 175 S.E.2d

285, 287 (1970)).    In the instant case, the photo lineup is

clearly neutral and includes six photos of individuals who

possessed "similar hair, facial hair, obviously black males

roughly the same age."     All six have a similar "shape of the

                                  - 4 -
head."   At least four of the men are wearing t-shirts, four of

which are light colored.    None of the men has exceptionally

light-colored skin.

     When Hickman presented the photo lineup to Vitalis he told

her that "[j]ust because I [am] showing [you] the sheet of

photographs [does not] necessarily mean that the person who did

the crime [is] on that sheet."      Vitalis initially narrowed the

choice to two men pictured in the photo sheet and then chose

appellant after 10 seconds.       Based on the record before us, we

cannot say that the out-of-court identification was unduly

suggestive.

     Appellant next contends that the in-court identification

should have been suppressed because it was based upon the unduly

suggestive out-of-court identification.      Since we hold that the

out-of-court identification was admissible and not unduly

suggestive, the trial court did not err in allowing the in-court

identification of appellant.

                           III.    Sufficiency

     Appellant next contends that the evidence was insufficient

to convict him of breaking and entering with the intent to

commit larceny and petit larceny.       Appellant concedes that the

Commonwealth established that a burglary took place and items

were taken from Martin's office.       Thus the only issue is whether

the evidence was sufficient to prove appellant was the criminal

agent.   "The Commonwealth bears the burden of 'proving beyond a

                                   - 5 -
reasonable doubt each and every constituent element of a crime

before an accused may stand convicted of that particular

offense.'"     Bruce v. Commonwealth, 22 Va. App. 264, 268, 469

S.E.2d 64, 67 (1996) (citation omitted).

             [Appellant's] fingerprint found at the scene
             of the crime may be sufficient under the
             circumstances to show [appellant] was there
             at some time, nevertheless in order to show
             defendant was the criminal agent, such
             evidence 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. Such "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."
             Those attendant circumstances may
             demonstrate the accused was at the scene of
             the crime when it was committed. And if
             such circumstances do so demonstrate, a
             rational inference arises that the accused
             was the criminal agent.

Tyler v. Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223

(1997) (second and third emphasis added) (quoting Turner v.

Commonwealth, 218 Va. 141, 146-47, 235 S.E.2d 357, 360 (1977)).

     In the instant case, Vitalis heard a thump in the hallway.

Upon investigating the noise Vitalis observed appellant, on his

hands and knees carrying a backpack, on the second floor of an

office building which had only two offices on the floor.    After

being confronted, appellant gave a fake name and claimed he was

there to see a lawyer.    Appellant had no legitimate reason for

                                 - 6 -
being on the second floor of the building, nor for being in the

hallway outside of Martin's office.    Appellant's fingerprint was

found in the upper corner of an eighteen inch high transom

window located almost eight feet high.   The mode of entry into

the office was through the same transom window.   The height of

the window indicates that it was not readily accessible to the

general public passing by the office.    It could be reached and

touched only by "conscious and deliberate effort."    The

identification of appellant coupled with the fingerprint found

on the transom window provides sufficient evidence to establish

appellant as the criminal agent in the burglary and larceny.

See Avent v. Commonwealth, 209 Va. 474, 480-81, 164 S.E.2d 655,

659-60 (1968).   Accordingly, the judgment of the trial court is

affirmed.

                                                     Affirmed.




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