Anthony Leroy Perry v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 21, 2000
• Docket: 2667992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

ANTHONY LEROY PERRY MEMORANDUM OPINION * BY v. Record No. 2667-99-2 JUDGE JERE M. H. WILLIS, JR. NOVEMBER 21, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL Robert G. O'Hara, Jr., Judge

Thomas E. Dempsey (Vergara & Associates, on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Anthony Leroy Perry (appellant) was convicted in a bench

trial of breaking and entering with the intent to commit assault

and battery or larceny in violation of Code § 18.2-91. On

appeal, he contends that the trial court erred: (1) in refusing

to strike the Commonwealth's evidence, and (2) in overruling his

objection to the Commonwealth's attorney's referral to his

height during closing argument. We affirm the judgment of the

trial court.

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

On December 12, 1998, Perry, Antonio Goode, and Jermaine

Sample, knocked on Tracy Taylor's door and asked whether

"Ernest" was there. She told them that he was not there. The

three men walked away, but returned shortly thereafter in a

Lincoln Continental. Ms. Taylor saw Goode exit the car and run

around to the back of her house. Thereafter, she heard a

gunshot and the sound of her back door being kicked down. She

ran across the street to Faye Parson's house and screamed for

someone to call the police. Ms. Taylor testified that from Ms.

Parson's doorstep she saw Goode come out of her house and get

into the Lincoln driven by Sample.

Ms. Parson, Ms. Taylor's neighbor, testified that she saw

two black individuals exit Ms. Taylor's home and get into the

car. She stated that one was about 5'1" or 5'2" tall and the

other "looked like a little boy" and was about her height --

4'11" tall.

Shortly after receiving a police dispatch, Sergeant Joseph

Sumner saw the Lincoln. He testified that he looked "very

carefully" at the faces of the occupants. He identified Sample

as the driver and Goode and Perry as front and rear seat

passengers, respectively. Sergeant Sumner's attention was

particularly drawn to Perry, who "tried to hide himself in the

back." When Sergeant Sumner attempted to stop the car, it sped

off and a high speed chase ensued. When the car eventually came

- 2 - to a halt, Goode and Perry attempted to flee on foot, but were

apprehended.

At the conclusion of the Commonwealth's case, Perry moved

to strike the evidence. The trial court denied the motion.

Perry offered no evidence and renewed his motion to strike,

arguing that nothing linked him to the scene of the crime. The

Commonwealth argued that Perry's physical appearance was

consistent with the description given by Ms. Parson who saw two

men exit Ms. Taylor's house. The Commonwealth's attorney

stated, "[t]he Court can see today that Mr. Perry is somewhat

shorter [than Goode]." Perry objected to this comment, arguing

that nothing had been entered into evidence concerning his

height. The court overruled Perry's objection and found him

guilty of breaking and entering.

II. SUFFICIENCY OF THE EVIDENCE

Perry first contends that the evidence was insufficient to

sustain his conviction. He argues that all reasonable

hypotheses of his innocence were not eliminated, specifically

the possibility that he entered the car after the offense

occurred or, if he was in the car during the offense, that he

remained in the car as a mere passenger.

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

- 3 - 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). When the sufficiency of the evidence is challenged on

appeal, "it is our duty to look to that evidence which tends to

support the verdict and to permit the verdict to stand unless

plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121

S.E.2d 452, 457 (1961). Furthermore, "[c]ircumstantial evidence

alone is sufficient to sustain a conviction." Johnson v.

Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167

(1986).

Perry appeared on Ms. Taylor's porch with Goode and Sample

immediately before the break-in, supposedly looking for someone

they believed lived in her home. He was present in the car with

Goode and Sample immediately following the break-in. He

attempted to conceal himself as the get-away car passed by

Sergeant Sumner. He fled on foot when the car was eventually

stopped. Moreover, Ms. Parson, who witnessed the incident,

testified that she observed two black men leave Ms. Taylor's

home. She testified that one was about 5'1" or 5'2" tall and

the other "looked like a little boy" and was about her size --

4'11" tall. Perry and Goode fit Ms. Parson's general

description of the race and height of the men she saw leaving

Ms. Taylor's home.

- 4 - "Whether the Commonwealth relies upon either direct or

circumstantial evidence, it is not required to disprove every

remote possibility of innocence, but is, instead, required only

to establish guilt of the accused to the exclusion of a

reasonable doubt." Bridgeman v. Commonwealth, 3 Va. App. 523,

526-27, 351 S.E.2d 598, 600 (1986) (citation omitted). Indeed,

"[t]he Commonwealth need only exclude reasonable hypotheses of

innocence that flow from the evidence, not those that spring

from the imagination of the defendant." Hamilton v.

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

(citations omitted).

A theory of innocence based upon speculation that Perry

entered the car after the offense occurred or, if in the car

during the offense, remained in the car as a mere passenger,

does not flow from the evidence. The credibility of the

witnesses, the weight accorded the testimony and the inferences

to be drawn from proven facts lie solely within the province of

the trier of fact, provided such inferences are justified and

reasonable. See Spivey v. Commonwealth, 23 Va. App. 715, 724,

479 S.E.2d 543, 548 (1997). It was not error for the trial

court, having heard all the evidence, to infer that Perry

participated in the breaking and entering of Ms. Taylor's house.

III. THE COMMONWEALTH'S ATTORNEY'S COMMENT

Perry next contends that the comment by the Commonwealth's

attorney in closing argument referring to his height was

- 5 - improper and the court erred in overruling his objection. We

disagree.

In this case, the identity of the person seen leaving Ms.

Taylor's house was a fact at issue. Thus, the Commonwealth

called Ms. Parson, Ms. Taylor's neighbor who witnessed the

event, to testify. She gave a description of two black men who

exited Ms. Taylor's house. Although she could not specifically

identify Perry as one of those individuals, her description was

consistent with Perry's physical characteristics. This evidence

was sufficient to support the comment of the Commonwealth's

attorney during his closing argument. As the trier of fact, the

trial judge was entitled to weigh Ms. Parson's testimony in

light of his own observations of Perry's physical

characteristics and to draw reasonable inferences regarding the

identity of the man Ms. Parson saw leaving Ms. Taylor's house.

See Spivey, 23 Va. App. at 724, 479 S.E.2d at 548 (stating that

the credibility of witnesses, the weight accorded the testimony

of witnesses, and the inferences to be drawn from proven facts

are questions within the province of the trier of fact).

Therefore, the court did not err in overruling Perry's objection

to the Commonwealth's attorney's comment referring to Perry's

height.

The judgment of the trial court is affirmed.

Affirmed.

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