                      COURT OF APPEALS OF VIRGINIA


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


WILLARD SMITH
                                            MEMORANDUM OPINION * BY
v.            Record No. 2130-97-2       JUDGE JERE M. H. WILLIS, JR.
                                                MARCH 2, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                         Donald W. Lemons, Judge

              Robert P. Geary for appellant.

              Donald E. Jeffrey, III, Assistant Attorney
              General (Mark L. Earley, Attorney General, on
              brief), for appellee.

         On appeal from his conviction for maiming, in violation of

Code § 18.2-51, Willard Smith contends that the evidence is

insufficient to support his conviction.        We agree and reverse the

judgment of the trial court.

                   On appeal, we review the evidence in the
              light most favorable to the Commonwealth,
              granting to it all reasonable inferences
              fairly deducible therefrom. The judgment of
              a trial court sitting without a jury is
              entitled to the same weight as a jury verdict
              and will not be set aside unless it appears
              from the evidence that the judgment is
              plainly wrong or without evidence to support
              it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

         On March 28, 1997, at an unspecified time, Andrew Taylor and

another man were standing on a street corner drinking beer, which
     *
     Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
they had been doing since 6:00 a.m.     Sometime later that day,

Smith approached Taylor and said, "I know you are mad . . .

because I got your wife."   When Taylor walked away, Smith hit him

in the back and stomach.    Taylor walked around the corner and

passed out.   When he woke up, he was being treated in the

emergency room for stab wounds.

     When questioned by the police, Taylor told them he had been

attacked by "Smoky," which is Smith's nickname.    He testified

that he did not perceive that he was being stabbed, but that some

of the stab wounds were in the same places that he recalled being

hit by Smith.   Taylor testified that Smith hit him with his fists

and that he saw no weapons in Smith's hands.

     No evidence disclosed the time of Smith's attack on Taylor,

the length of time Taylor was unconscious on the sidewalk, the

time at which he was taken to the hospital, or what transpired

between Taylor's loss of consciousness on the sidewalk and his

arrival at the hospital.    Although at least one witness saw the

altercation, only Taylor and an investigating detective

testified.
     Smith told police he knew that Taylor had been stabbed, but

that he had not wounded Taylor.   Smith acknowledged an

altercation between the two men but stated that he only hit

Taylor and did nothing to break his skin.

     The Commonwealth's case is based wholly on circumstantial

evidence.    "The circumstances of motive, time, place, means, and

conduct must all concur to form an unbroken chain which links the



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defendant to the crime beyond a reasonable doubt."      Sam v.

Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)

(citation omitted).   Here, no evidence disclosed what time the

altercation took place or what time Taylor arrived at the

hospital.   There is no way to determine how long he was

unconscious on the sidewalk or what may have happened to him

after the altercation.   Taylor had consumed a great deal of

alcohol and could easily have passed out from intoxication.         He

was not aware that he had been stabbed until after he was at the

hospital.

     The evidence raises no more than a suspicion of Smith's

guilt.    Suspicion will not support a conviction.    See Betancourt

v. Commonwealth, 26 Va. App. 363, 374-76, 494 S.E.2d 873, 878-79

(1998).

     The judgment of the trial court is reversed, and the charge

is ordered dismissed.
                                          Reversed and dismissed.




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