                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Alston and Senior Judge Clements
Argued at Richmond, Virginia


JOHNNIE RENARD GILLISON
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1910-08-2                                    JUDGE LARRY G. ELDER
                                                                  OCTOBER 27, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Richard D. Taylor, Jr., Judge

                 Cassandra M. Hausrath, Assistant Public Defender (Office of the
                 Public Defender, on briefs), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Johnnie Renard Gillison (appellant) appeals from his bench trial convictions for statutory

burglary and petit larceny. On appeal, he contends the circumstantial evidence was insufficient

to support his convictions. We hold the evidence was insufficient to prove either offense. Thus,

we reverse and dismiss both convictions.

                                                  I.

       In reviewing the sufficiency of the evidence on appeal, we examine the record in the light

most favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987). The credibility of a witness, the weight accorded the testimony, and the inferences to be

drawn from proven facts are matters to be determined by the fact finder. Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). In its role of judging

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
credibility, the fact finder is entitled to disbelieve the self-serving statements of the accused and

to conclude that the accused has lied to conceal his guilt. Speight v. Commonwealth, 4 Va. App.

83, 88, 354 S.E.2d 95, 98 (1987) (en banc); see also Tarpley v. Commonwealth, 261 Va. 251,

256-57, 542 S.E.2d 761, 764 (2001) (noting the fact that the accused lied provided a basis for

rejecting the accused’s testimony but was not substantive evidence of guilt).

       “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.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E. 2d 864, 876 (1983); see

Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E. 2d 781, 785 (2003) (noting the

“statement that circumstantial evidence must exclude every reasonable theory of innocence is

simply another way of stating that the Commonwealth has the burden of proof beyond a

reasonable doubt”). If the Commonwealth fails to establish any fact necessary to prove an

element of the charged offense, the evidence is insufficient as a matter of law to support the

conviction. See Powell v. Commonwealth, 31 Va. App. 167, 173, 521 S.E.2d 787, 790 (1999).

It is not sufficient that the evidence creates a suspicion or possibility of guilt; the evidence must,

instead, exclude every reasonable hypothesis that is consistent with the innocence of the accused.

Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970); Sutphin v.

Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898 (1985).

       Appellant was indicted and convicted for the form of statutory burglary requiring proof

that he “did feloniously and unlawfully break and enter the building permanently affixed to

realty belonging to Anthony Jerome Ambers, with the intent to commit larceny” therein. See

Code §§ 18.2-90, -91. He was indicted and convicted for larceny requiring proof of the unlawful




                                                 -2-
stealing of property belonging to Anthony Jerome Ambers. The trial court convicted him of at

least the burglary offense as a principal in the second degree. 1

       A principal in the second degree is one who “consented to the felonious purpose” of the

perpetrator and “contributed to [the] execution [of that felonious purpose].” McMorris v.

Commonwealth, 276 Va. 500, 505, 666 S.E.2d 348, 350 (2008). “To prove that a defendant is

guilty as a principal in the second degree, the Commonwealth must establish that the defendant

procured, encouraged, countenanced or approved the criminal act.” Brickhouse v.

Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160, 162 (2008). “This rule cannot be interpreted

to mean that any overt act that is advantageous to the principal’s criminal plan is sufficient; the

defendant must also share in the principal’s criminal intent. The overt act must be ‘knowingly in

furtherance of the commission of the crime.’” McMorris, 276 Va. at 505, 666 S.E.2d at 351

(emphases added). Thus, it cannot be said that a defendant “procured, encouraged,

countenanced, approved or knowingly committed an overt act in furtherance of the [crime]

without the knowledge that the crime was occurring.” Id. at 506, 666 S.E.2d at 351 (involving

the reversal of a conviction for robbery of a wallet and cell phone that occurred while the

defendant was attacking the victim, where the evidence permitted the inference that the robbery,

committed by another, was an opportunistic crime and failed to prove the defendant shared the

criminal intent to rob).

       Because the trial court found appellant guilty of burglary as a principal in the second

degree and because the only possible principal in the first degree about whom the record contains




       1
         The record does not make clear whether the trial court convicted appellant of larceny as
a principal in the first or the second degree.
                                               -3-
any evidence is “Pop,” 2 we examine the sufficiency of the evidence for appellant’s conviction as

if the trial court considered Pop the actual perpetrator.

       Under settled principles,

               The Commonwealth can establish a prima facie case that a
               [particular person] broke and entered by (1) proving that goods
               have been stolen from a house into which someone has broken and
               entered; (2) justifying the inference that both offenses were
               committed at the same time, by the same person, as part of a
               criminal enterprise; and (3) proving that these goods were found
               soon thereafter in the possession of the defendant.

Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-24 (1979). Applying these

principles in Finney v. Commonwealth, 277 Va. 83, 671 S.E.2d 169 (2009), the Court concluded

that the evidence left open a reasonable hypothesis of innocence. In Finney, Garber, who owned

a residence and an adjacent shed, was in the process of moving to a different residence. Id. at 86,

671 S.E.2d at 171. When Garber received a telephone call from a neighbor, prompting him to

check the property, he had last visited the shed and his adjacent home seven or eight days

previously at a time when the shed door and nearby fence were intact. Id. at 86-87, 671 S.E.2d at

171. Upon inspection in response to the phone call, Garber found that several boards had been

removed from his fence, the doorjamb to the shed “had been ‘ripped apart,’” and one of the

windows to his garage had been opened. Id. at 86, 671 S.E.2d at 171. Missing from the shed

and garage were numerous small and large tools and various articles of landscaping equipment

that had been in the shed and garage when Garber was last there. Id. Garber’s neighbor reported

that on the previous day, he had seen defendant Finney walk by the neighbor’s house “carrying




       2
         We recognize the identification or conviction of the principal is not a prerequisite to the
conviction of appellant as a principal in the second degree, as long as the record proves the
occurrence of the underlying offense. See, e.g., Taylor v. Commonwealth, 260 Va. 683, 688,
537 S.E.2d 592, 594 (2000).

                                                 -4-
‘an arm full of items’ . . . includ[ing] an extension cord, a saw, and a drill” and that Finney had

offered to sell those items to him. Id. at 86-87, 671 S.E.2d at 171.

       Garber and his neighbor remained to watch Garber’s property, and later that day, they

saw Finney enter Garber’s property through the opening in the fence and go into the shed, where

he began “‘rifling through’ the various items still inside the shed.” Id. at 87, 671 S.E.2d at

171-72. When Garber and his neighbor approached to confront Finney, Finney fled. Id. at 87,

671 S.E.2d at 172. As he did so, he shouted that he did not steal any of Garber’s property but

knew who did. Id. Finney later told police that he knew who took Garber’s belongings and

could get them back and said “he had been on the property looking for a friend named ‘Red.’”

Id.

       Finney was convicted for statutory burglary in violation of Code § 18.2-91, but the

Supreme Court reversed on appeal. Id. at 91, 671 S.E.2d at 174. The Court noted that the

Commonwealth was required to prove an “ent[ry] in the nighttime or . . . [an] ent[ry] after

breaking at any time, day or night.” Id. at 88, 671 S.E.2d at 172. Because the Commonwealth

did not allege Finney entered the shed in the nighttime and he was seen in the shed only during

the daytime, the Court concluded “the issue is whether he committed a breaking in order to enter

the shed on the occasion that he was found there or at some other time.” Id. It held Finney’s

presence within the shed did not prove “he [was the person who] forced the door to the shed

from its hinges.” Id. at 89, 671 S.E.2d at 173. It also held that Finney’s possession of the tools

he was seen carrying the previous day was not direct evidence that he had entered the shed the

previous day or, even if he had, “that he was required to use any physical force to do so.” Id.

Citing Guynn’s three-pronged test for establishing a prima facie case of breaking and entering,

the Court held as follows:

               [T]he circumstantial evidence does not justify the inference that
               the breaking of the shed door, the entering of the shed, and the
                                                -5-
               larceny of Garber’s tools in the shed were committed at the same
               time and by the same person. There is no dispute that the evidence
               established that Garber had last visited his property seven or eight
               days prior to July 22, 2006. At that time, the shed door was intact.
               The breaking of the shed door could have occurred at any time
               during the seven or eight days that Garber was away from his
               property. Additionally, Garber testified that he believed it would
               have taken more than one person to remove all the missing tools.
               All of these factors combined elicit the reasonable hypothesis that
               another individual or individuals may have committed the breaking
               and that Finney subsequently entered the shed without the
               necessity of a breaking to do so. Accordingly, while the evidence
               creates a strong suspicion of Finney’s guilt, it does not establish
               beyond a reasonable doubt that he was required to use any physical
               force to enter Garber’s shed and, thus, committed a breaking as
               required by Code § 18.2-91.

Id. at 90, 671 S.E.2d at 173-74.

       The evidence in appellant’s case was insufficient to support a finding that appellant

himself committed the break-in of Apartment A of Anthony Ambers’ triplex, and the

Commonwealth does not contend otherwise. We hold the evidence is also insufficient to prove

appellant knowingly contributed as a principal in the second degree to a breaking and entering of

Apartment A committed by “Pop” or any other person. Appellant was not seen in the house and

admitted only to being on the front porch. Moreover, the evidence established only that Pop

came out of “the house”—which contained three apartments—and did not prove that Pop came

from the burgled apartment.

       Even if the evidence permitted the inference that Pop had emerged from the burgled

apartment, just like in Finney, the evidence of the broken window and open door may have

established that a breaking had occurred but failed to establish that Pop was the perpetrator or

that appellant participated in the breaking. Victim Ambers, like the victim in Finney, had been

away from the property for seven or eight days, and could not establish when the breaking

occurred. The record does not permit a finding that the breaking must have occurred the same

day that Ambers received a call from a female tenant “alert[ing] him that something might ha[ve]
                                               -6-
happened.” It is true that the area where the break-in occurred was less secluded than in Finney.

Here, the two adjacent apartments in the same building were occupied contemporaneously with

the break-in. In Finney, by contrast, the break-in involved the shed and garage of a temporarily

unoccupied single-family dwelling. However, the evidence of the extent of the damage to

Ambers’ triplex was less severe than in Finney, permitting the inference that the tenant who

called Ambers may or may not have detected the break-in immediately after it occurred.

       The record contains no description of what the female tenant saw to cause her to “alert

[Ambers] that something might have happened.” Ambers testified that when he arrived at the

burgled apartment, he noticed the door was “ajar” and that one of the windowpanes, which had

been intact the week before, had “a little crack in the window where the lock is,” but that the

window remained latched. Ambers described no damage to the door, stating merely that it was

“ajar” and not stating how widely “ajar” it was. Further, a photograph of the “little crack” in the

window, where the lock was, indicated that the window contained an upper and lower sash and

that the “little crack” was in only one of twenty-five individually segmented small glass panes

that comprised the upper window sash. In addition, the window remained closed and latched.

Here, as in Finney, “these factors combined elicit the reasonable hypothesis that another

individual or individuals may have committed the breaking [at an earlier time] and that [Pop],”

assuming the evidence supported a finding that he entered the burgled apartment, “entered the

[apartment] without the necessity of a breaking to do so.” Id.

       Finally, even if the evidence supported a finding that Pop entered the burgled apartment

and committed a breaking in order to do so, nothing in the record proves that appellant shared

Pop’s intent in committing that burglary. The fact that appellant helped Pop, whom he was

aware was a known burglar, carry the bags from the porch of the burgled triplex “around the

corner” to sell to “Junnie,” whom he knew was Pop’s “fence,” does not prove appellant shared

                                               -7-
Pop’s criminal intent in entering the burgled apartment. In Virginia, only larceny, not burglary,

has been held to be a continuing offense. See Moehring v. Commonwealth, 223 Va. 564, 568,

290 S.E.2d 891, 892 (1982); see also United States v. Hull, 456 F.3d 133, 146 n.7 (3d Cir. 2006)

(noting “courts differ as to whether burglary is a continuing offense”). Although these

circumstances are highly suspicious, they do not eliminate the reasonable hypothesis that

appellant encountered Pop only after the breaking and entering had been completed by Pop or

some other person and, thus, that appellant did not share Pop’s criminal intent in committing the

burglary offense. Thus, the evidence is insufficient to support appellant’s conviction for

burglary.

       The evidence, viewed in the light most favorable to the Commonwealth, also is

insufficient to support appellant’s conviction for larceny. “Larceny is the taking and carrying

away of the goods and chattels of another with intent to deprive the owner of the possession

thereof permanently.” Lund v. Commonwealth, 217 Va. 688, 691, 232 S.E.2d 745, 748 (1977).

“[P]roof of possession of recently stolen goods establishes a prima facie case that the defendant

received them with guilty knowledge” and shifts to the defendant “the burden . . . to go forward

with evidence in explanation.” Covil v. Commonwealth, 268 Va. 692, 695, 604 S.E.2d 79, 81

(2004). “Because larceny is a continuing offense, anyone who knows that personal property is

stolen and assists in its transportation or disposition is guilty of larceny.” Moehring, 223 Va. at

568, 290 S.E.2d at 892.

       Here, the circumstances, although highly suspicious, fail to prove that the items appellant

helped Pop carry from the triplex were the items belonging to Ambers that were stolen from

Apartment A. As discussed above, Ambers had not been to the burgled apartment in seven or

eight days, and the evidence failed to establish when during that time period the breaking had

occurred. Ambers testified that the damage to the window was “a little crack . . . where the lock

                                                -8-
is” but that the window remained latched, and he identified no damage to the door, which he

described merely as being “ajar” when he arrived several hours after appellant had been present

on the porch. Appellant wrote in his statement merely that, when he agreed to help Pop move

the bags that were already on the porch, Pop had come from “the house” with a box. No

evidence established that Pop came from the burgled apartment rather than one of the two

occupied apartments or that Pop did not own or have permission from the owner to possess or

sell the items in the bags. The evidence further fails to prove that the items in the bag were tools.

Detective Foultz testified appellant “didn’t make mention of” “what the stuff was that he was

moving.” The Commonwealth argues the record established that appellant “was familiar with

what [Detective Foultz] was talking about” when the detective “went to investigate a burglary of

these items,” the tools, but the record fails to indicate whether appellant “was familiar with”

what the detective was talking about because the detective mentioned the tools or because, as the

detective admitted, he “specifically mention[ed]” “the house, the location, the address.” Thus,

although the evidence is highly suspicious, a reasonable inference remains that the bags

contained something other than Ambers’ missing tools from Apartment A. Because a reasonable

hypothesis of innocence remains, the evidence was insufficient to support appellant’s conviction.

                                                 II.

       For these reasons, we hold the evidence was insufficient to support appellant’s

convictions for statutory burglary and petit larceny. Thus, we reverse and dismiss both

convictions.

                                                                           Reversed and dismissed.




                                                -9-
