                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia


SONNY JAMES TURNER
                                            MEMORANDUM OPINION * BY
v.   Record No. 1942-01-3          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 APRIL 9, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HENRY COUNTY
                      David V. Williams, Judge

           Joseph R. Winston, Special Appellate Counsel
           (Public Defender Commission, on briefs), for
           appellant.

           Margaret W. Reed, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     Sonny James Turner (appellant) was convicted in a bench

trial of third offense petit larceny in violation of

Code § 18.2-96.   On appeal, he contends that the circumstantial

evidence was insufficient to prove that he committed the

larceny.   For the following reasons, we affirm the judgment of the

trial court.

                            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 it all reasonable inferences


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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 May 30, 2000,

appellant and two others visited the home of Kermit Bonhams

(Bonhams).   They "just stopped" by and drank beer with him on

his porch.   After ten minutes, appellant asked to use the

bathroom and Bonhams told him to "go ahead."     When appellant

came out of the house, he immediately went to his car and called

for the others to leave with him.     Bonhams was unable to see

appellant from the front due to "the way he – you know, the way

he was walking."    After the three men left, Bonhams went into

his house and discovered that his VCR that was earlier directly

under the television set was missing.     Bonhams had used the VCR

that morning, and no one other than appellant had been in the

house.

     Investigator George Hooker went to Bonhams' house the day

of the theft.    He found a beer can with appellant's fingerprints

on it about ten feet from the television stand in the room where

the VCR had been taken.

     The trial court found appellant guilty of third offense

petit larceny.

                   II.   SUFFICIENCY OF THE EVIDENCE

     In reviewing sufficiency of the evidence, "the judgment of

the trial court sitting without a jury is entitled to the same


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weight as a jury verdict."    Saunders v. Commonwealth, 242 Va.

107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).

     "[T]he trial court's judgment will not be set aside unless

plainly wrong or without evidence to support it."     Hunley v.

Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).

     The credibility of a witness and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination.   See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989).

     Appellant contends that the circumstantial evidence was

insufficient to prove that he committed the petit larceny.    He

argues that the circumstances surrounding his entry and exit of

the house and the fingerprints on the beer can failed to prove

that he stole the VCR.    We disagree.

     "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.'"    Taylor v. Commonwealth, 33 Va. App.

735, 737, 536 S.E.2d 922, 923 (2000) (quoting Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983),

cert. denied, 465 U.S. 1109 (1984)).     "The Commonwealth need not

'exclude every possible theory or surmise', but it must exclude

those hypotheses 'which flow from the evidence itself.'"

Haskins v. Commonwealth, 31 Va. App. 145, 151, 521 S.E.2d 777,

780 (1999) (quoting Cantrell v. Commonwealth, 7 Va. App. 269,
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289-90, 373 S.E.2d 328, 338-39 (1988)).   "'The 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.'"   Floyd v. Commonwealth, 31 Va. App. 193,

198, 522 S.E.2d 382, 384 (1999) (quoting Bishop v. Commonwealth,

227 Va. 164, 169, 313 S.E.2d 390, 392 (1984)).

     Properly viewed, the Commonwealth's evidence established an

unbroken chain linking appellant to the theft of the VCR.     The

VCR was in Bonhams' house before appellant entered and missing

after he left.   Appellant was the only person to enter the house

during this time and he left suddenly, shielding the front of

his body from Bonhams' sight.   He immediately went to his car

and called for his friends to leave.   Appellant's fingerprints

were found on a beer can ten feet from the place where the VCR

was located before the theft.   Bonhams gave appellant permission

to use only the bathroom, not to enter the room with the VCR.

The time, place, means, and opportunity for appellant to commit

the crime were established.   The totality of the circumstances

leaves no reasonable hypothesis of innocence.

     Appellant's reliance on Duncan v. Commonwealth, 218 Va.

545, 238 S.E.2d 807 (1977), is misplaced.    In Duncan, the

evidence established that the defendant and codefendant were

seen near a stopped train about 10:00 a.m.   Later in the day,

car parts stolen from the train were found near the railroad

track where the train had been stopped.   The codefendant
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testified that they were on the train merely to look at the

cars.    The Court found this evidence insufficient to support a

conviction for larceny.

        However, the facts of the instant case are clearly

distinguishable.    Unlike a train, which by its nature is open to

the public, appellant was the only person other than the victim

who had access to the home during the period of time available

for the theft of the VCR.    Fingerprint evidence affirmatively

established that appellant was in the same location as the

stolen VCR.    In Duncan, there was a several hour time lapse

between the theft and the discovery of the stolen car parts.

Here, the time frame between the theft of the VCR and its

discovery by Bonhams was almost immediate.      Appellant's

contention that someone else may have entered the home is

unsupported by the evidence.    "The Commonwealth is only required

to exclude hypotheses of innocence that flow from the evidence,

and not from the imagination of [defense] counsel."      Fordham v.

Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).

        For the foregoing reasons, we affirm.

                                                              Affirmed.




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