David Wayne Murphy v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 23, 2002
• Docket: 1198012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Clements and Senior Judge Coleman Argued at Richmond, Virginia

DAVID WAYNE MURPHY MEMORANDUM OPINION * BY v. Record No. 1198-01-2 JUDGE JEAN HARRISON CLEMENTS JULY 23, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL James A. Luke, Judge

(Jacqueline R. Waymack; Butterworth & Waymack, on brief), for appellant. Appellant submitting on brief.

Amy L. Marshall, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

David Wayne Murphy was convicted in a bench trial of

statutory burglary in violation of Code § 18.2-91 and grand

larceny in violation of Code § 18.2-95. On appeal, he contends

the evidence was insufficient to sustain the convictions. Finding

the evidence insufficient to convict Murphy of statutory burglary

and sufficient to convict him of grand larceny, we reverse in part

and affirm in part the judgment of the trial court.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the

disposition of this appeal.

When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1997). "In so doing, we must discard

the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may be

drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998). We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the fact finder's determination." Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). We will not

disturb the conviction unless it is plainly wrong or unsupported

by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

Murphy first contends the evidence was insufficient to

convict him of statutory burglary because it failed to establish

the essential element of "breaking." Specifically, Murphy argues

the evidence did not prove beyond a reasonable doubt that he

gained access to the Ahepa Center by the use of force or that his

entry into the Ahepa Center was without permission.

- 2 - The indictment charged Murphy with breaking and entering "the

Ahepa Center" in violation of Code § 18.2-91. Thus, to sustain a

conviction under Code § 18.2-91, the Commonwealth had to prove

beyond a reasonable doubt, inter alia, that Murphy broke and

entered the Ahepa Center.

"Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Merely pushing open a door, turning the key, lifting the latch or resort to other slight physical force is sufficient to constitute this element of the crime. . . . But a breaking, either actual or constructive, to support a conviction of burglary, must have resulted in an entrance contrary to the will of the occupier of the [premises]."

Robertson v. Commonwealth, 31 Va. App. 814, 821, 525 S.E.2d 640,

644 (2000) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110

S.E. 356, 357 (1922) (emphasis added)).

Viewed in the light most favorable to the Commonwealth, the

evidence proved that, around 4:00 p.m. on Friday, May 5, 2001,

John Trotter, Sr., accompanied by his grandchildren, went to the

Ahepa Center, a community center used for many activities

including bingo three days a week, to clean up after a bingo game

held the previous night. When closed, the building, which had an

alarm tab, was normally accessed by using a key to unlock the

door. However, when Trotter prepared to unlock the door, he

noticed the door was already unlocked. He walked in and saw that

the light in the kitchen was on. Going into the kitchen, he

observed Murphy, with whom he was familiar, walking back and forth

- 3 - in the kitchen. Trotter looked around the building to see if

someone who might have let Murphy in was there, but saw nobody

else there. Trotter testified that he had not given Murphy

permission to be in the building and that he had no such authority

anyway.

Trotter then observed Murphy, who had picked up a box of

food, leave the kitchen, walk past his grandchildren, and run out

the side door of the Ahepa Center. One of Trotter's grandsons

chased after him for a short distance but stopped when Murphy

dropped the box of food. The box contained shrimp, chicken, and

ham, valued at $65.

A subsequent examination of the kitchen revealed that the

locks on the reach-in and walk-in refrigerators had been broken.

Food was scattered throughout the walk-in refrigerator.

The next day, Antonio Afifantis, who ran the bingo games and

concession sales at the Ahepa Center, discovered that over $600 in

cash was missing from the reach-in refrigerator. Afifantis had

locked the money from Thursday night's bingo games and concession

sales in the reach-in refrigerator. Afifantis, who had the only

key to that refrigerator, had not opened the refrigerator after

locking the money inside or given anyone else permission to do so.

Nicholas Doukas, the executive secretary and manager of the

Ahepa Center, testified that Murphy had been coming to the center

for three years but that he had not given him permission "to be

back in the kitchen area or to go in the refrigerator" on May 5,

- 4 - 2001. According to him, the only people that would have

permission to go back in that area were people who work there, "or

members of the order, or guests of the people that are there, or

if someone has permission to be back there."

When asked how many people had access to the Ahepa Center,

Gary Metry, a member of the Ahepa Order and current bingo

chairman, testified: "Honestly, at this point, I cannot tell you.

There are several keys, and we are having problems of accounting,

who has got keys." That problem, he testified, has "probably been

in existence over several years, quite frankly."

In finding the Commonwealth's evidence sufficient to prove

that Murphy broke into the Ahepa Center, the trial judge relied,

in large part, upon the evidence of the damaged and broken lock of

the refrigerator in the kitchen, which was, he determined, "part

of the building used for safety." However, it is a "well-settled

principle that the force [necessary to constitute a breaking] must

be applied to something attached to the premises and relied upon

by the occupant for safety." Johns v. Commonwealth, 10 Va. App.

283, 286-87, 392 S.E.2d 487, 489 (1990). Here, there was no

evidence that the refrigerator was attached to the premises or

that the lock on it was intended to protect anything other than

the contents of the refrigerator itself. Thus, the trial court's

reliance on this evidence to establish a forceful entry into the

building was misplaced.

- 5 - Moreover, we find no evidence in the record that supports the

trial court's finding that Murphy was in the Ahepa Center without

permission. There was no evidence of physical damage to either

door to the center following Murphy's entry or that his entry had

triggered the alarm. Indeed, Trotter simply found the front door

unlocked when he approached the building. Furthermore, while

Trotter testified that he had not given Murphy permission to enter

the building, Doukas and Afifantis testified only that they had

not given anyone permission to be in the kitchen or the

refrigerator. Doukas further testified that anyone who worked at

the Ahepa Center, "or members of the order, or guests of the

people that are there, or . . . someone [who had] permission to be

back there" could enter the kitchen area. Additionally, Metry

could not say how many people had access to the center or who had

keys to the building. Plainly, Murphy, who consistently attended

the bingo games at the Ahepa Center, was well known to the members

of the center, its officers, and those who worked there. It was

not shown that he did not have the permission of a member or other

person in authority to be in the building.

We, therefore, conclude that the evidence presented at trial

failed to prove beyond a reasonable doubt that Murphy entered the

Ahepa Center that day without permission. Accordingly, we hold

the trial court erred in finding the evidence sufficient to

convict Murphy of statutory burglary.

- 6 - Murphy next contends the evidence was insufficient to convict

him of grand larceny because he was only seen leaving the building

with a box of food valued at $65. The missing cash was only

linked to him because he stole the box of food, he argues.

To convict Murphy of grand larceny the Commonwealth had to

prove beyond a reasonable doubt that the goods stolen by him were

valued at $200 or more. See Code § 18.2-95(ii). "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).

"However, 'the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those

that spring from the imagination of the defendant.' Whether an

alternate hypothesis of innocence is reasonable is a question of

fact, and therefore, is binding on appeal unless plainly wrong."

Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832

(1997) (citation omitted) (quoting Hamilton v. Commonwealth, 16

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

The uncontroverted evidence of the Commonwealth proved that,

on Thursday evening after bingo had concluded, Afifantis counted

the monies from the concession sales and bingo proceeds and locked

them in the refrigerator in the kitchen. He had the only key. On

Friday afternoon, Trotter found Murphy leaving the kitchen with a

box of stolen food. Trotter then saw the broken refrigerator

- 7 - locks and food strewn all over the walk-in refrigerator. When

Afifantis examined the refrigerator and its contents the next day,

the $600 in cash was missing. We conclude that this evidence was

sufficient for the trial court to reasonably infer that Murphy,

who had been seen stealing the food, had also stolen the missing

cash. Johnson v. Commonwealth, 141 Va. 452, 456, 126 S.E. 5, 6-7

(1925) (holding that the unexplained exclusive possession of part

of the stolen property warrants inference that thief stole all of

it). We hold, therefore, that the trial court did not err in

convicting Murphy of grand larceny.

- 8 - Accordingly, we reverse Murphy's conviction of breaking and

entering and dismiss the indictment and affirm his conviction of

grand larceny.

Affirmed in part, and reversed in part.

- 9 -