[17]*17Opinion
BENTON, J.
Robert Owen Maynard was convicted by a jury of rape, forcible oral sodomy, and breaking and entering in the nighttime with intent to commit larceny. Code §§ 18.2-61, 18.2-67.1, and 18.2-89. On appeal, he argues that the evidence was insufficient to support the conviction of breaking and entering with intent to commit larceny and that the trial judge unreasonably limited his cross-examination of two prosecution witnesses. For the reasons that follow, we reverse the convictions.
Under familiar principles, where the sufficiency of the evidence is challenged on appeal, we view the evidence in the light most favorable to the Commonwealth and grant to the evidence all reasonable inferences. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). When so viewed, the evidence in this record established that at approximately 3:00 a.m., the victim awakened suddenly when she felt her bed move. Before going to bed she had latched the front screen door but had left the front door partially open for ventilation. The bedroom was only faintly lit by the light of a digital alarm clock on the night stand. As she awakened, an intruder placed his hand over her mouth and said, “shut up. . . . you should not have woken up.” He then raped and sodomized her.
When the intruder left, the victim telephoned for assistance. She told the police that she believed Maynard, who lived next door, was the intruder. Later that morning, as the victim searched through her purse for a telephone number to report her absence from work, she discovered that $80 was missing from her wallet. The wallet was described as a man’s folded wallet wrapped with a rubber band. The purse containing the wallet was on the floor beside the dresser in the victim’s bedroom during the attack.
Where, as in this case, “an indictment charges an offense which consists of an act combined with a particular intent, proof of the intent is essential to conviction.” Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). Although the Commonwealth may prove by circumstantial evidence the specific intent to steal, that proof must be, as in all criminal cases, beyond a reasonable doubt. Jones v. Commonwealth, 3 Va. App. 295, 299, 349 S.E.2d 414, 417 (1986).
[18]*18The circumstantial evidence in this record fails to support an inference beyond a reasonable doubt that the intruder entered the victim’s dwelling with the intent to commit larceny. The evidence established that the intruder entered the victim’s dwelling sometime between 1:30 a.m. and 3:00 a.m. by cutting through the front door screen. He then assaulted the victim over the course of the next two hours. These circumstances, standing alone, reflect an intent to rape or ravish rather than an intent to steal from the victim.
Th§ Commonwealth argues, however, that Maynard’s intent to commit larceny may be inferred from the fact of the completed crime. See Smyth v. Morrison, 200 Va. 728, 734, 107 S.E.2d 430, 435 (1959) (“Where larceny has actually been committed that is the best evidence of the intent with which the breaking was committed”). To conclude on the record before us that a larceny in fact occurred, however, would require speculation. The most that was proved or that reasonably can be inferred from the evidence is that a sum of money was discovered missing from the victim’s wallet on the morning after the assault. Even if we were to assume from this evidence that the money was stolen rather than misplaced, the evidence nevertheless fails to exclude the reasonable hypothesis that someone other than the intruder took the money on another occasion. By her own admission, the victim could not recall the last time she had seen the money. She further acknowledged that she did not keep her purse in a secure place while at work.
Other facts in the record render improbable the Commonwealth’s theory that the intruder intended to steal and did steal the money before raping the victim. According to the victim’s testimony, the bedroom was quite dark. The wallet had been wrapped several times with a rubber band and tucked inside her purse on the floor. When she retrieved her purse from its resting spot the morning after the attack, she noticed nothing unusual about its appearance. Neither the purse nor the wallet bore any obvious signs of tampering. Furthermore, nothing else in the victim’s home was moved or reported missing. On this evidence, the trier of fact could find an intent to commit larceny only by resorting to surmise and speculation. See Patterson, 215 Va. at 699, 213 S.E.2d at 753. “Whenever the evidence leaves indifferent which of several hypotheses is true, or merely establishes only [19]*19some finite probability in favor of one hypothesis, such evidence does not amount to proof beyond a reasonable doubt.” Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985). We, therefore, reverse the conviction for breaking and entering with intent to commit larceny.
Maynard next contends that the trial judge erred in restricting his cross-examination of Detective Valentine. On the Commonwealth’s direct examination, Valentine testified that he interviewed Maynard the afternoon of August 14 after the victim had named Maynard as a suspect. When the Commonwealth’s attorney asked why Maynard was not arrested on August 14, Valentine responded that he was “involved in this matter only temporarily” and was “only to keep things in a holding pattern until a Crimes Against Persons Investigator could become involved.” During cross-examination, Maynard’s counsel sought to impeach Valentine’s testimony by asking questions that sought to establish that Valentine had not arrested Maynard on August 14 because the detective believed that the evidence was insufficient to arrest Maynard.1 The trial judge refused to allow this line of questioning, ruling that the inquiry would be misleading to the jury in view of Valentine’s testimony on direct that he was only handling the case temporarily. The judge also refused to allow defense counsel to impeach Valentine by his previous testimony. We conclude that the trial judge erred.
The right of cross-examination is fundamental to the truth-finding process and is an absolute right preserved to the accused by the constitutional guarantee of confrontation. Barrett v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986); [20]*20Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). The trial judge may exercise discretion to prohibit the abuse of cross-examination, but this discretion may only be employed after the right to cross-examine the witness has been substantially and fairly exercised. Barrett, 231 Va. at 108, 341 S.E.2d at 194.
Free access — add to your briefcase to read the full text and ask questions with AI
[17]*17Opinion
BENTON, J.
Robert Owen Maynard was convicted by a jury of rape, forcible oral sodomy, and breaking and entering in the nighttime with intent to commit larceny. Code §§ 18.2-61, 18.2-67.1, and 18.2-89. On appeal, he argues that the evidence was insufficient to support the conviction of breaking and entering with intent to commit larceny and that the trial judge unreasonably limited his cross-examination of two prosecution witnesses. For the reasons that follow, we reverse the convictions.
Under familiar principles, where the sufficiency of the evidence is challenged on appeal, we view the evidence in the light most favorable to the Commonwealth and grant to the evidence all reasonable inferences. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). When so viewed, the evidence in this record established that at approximately 3:00 a.m., the victim awakened suddenly when she felt her bed move. Before going to bed she had latched the front screen door but had left the front door partially open for ventilation. The bedroom was only faintly lit by the light of a digital alarm clock on the night stand. As she awakened, an intruder placed his hand over her mouth and said, “shut up. . . . you should not have woken up.” He then raped and sodomized her.
When the intruder left, the victim telephoned for assistance. She told the police that she believed Maynard, who lived next door, was the intruder. Later that morning, as the victim searched through her purse for a telephone number to report her absence from work, she discovered that $80 was missing from her wallet. The wallet was described as a man’s folded wallet wrapped with a rubber band. The purse containing the wallet was on the floor beside the dresser in the victim’s bedroom during the attack.
Where, as in this case, “an indictment charges an offense which consists of an act combined with a particular intent, proof of the intent is essential to conviction.” Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). Although the Commonwealth may prove by circumstantial evidence the specific intent to steal, that proof must be, as in all criminal cases, beyond a reasonable doubt. Jones v. Commonwealth, 3 Va. App. 295, 299, 349 S.E.2d 414, 417 (1986).
[18]*18The circumstantial evidence in this record fails to support an inference beyond a reasonable doubt that the intruder entered the victim’s dwelling with the intent to commit larceny. The evidence established that the intruder entered the victim’s dwelling sometime between 1:30 a.m. and 3:00 a.m. by cutting through the front door screen. He then assaulted the victim over the course of the next two hours. These circumstances, standing alone, reflect an intent to rape or ravish rather than an intent to steal from the victim.
Th§ Commonwealth argues, however, that Maynard’s intent to commit larceny may be inferred from the fact of the completed crime. See Smyth v. Morrison, 200 Va. 728, 734, 107 S.E.2d 430, 435 (1959) (“Where larceny has actually been committed that is the best evidence of the intent with which the breaking was committed”). To conclude on the record before us that a larceny in fact occurred, however, would require speculation. The most that was proved or that reasonably can be inferred from the evidence is that a sum of money was discovered missing from the victim’s wallet on the morning after the assault. Even if we were to assume from this evidence that the money was stolen rather than misplaced, the evidence nevertheless fails to exclude the reasonable hypothesis that someone other than the intruder took the money on another occasion. By her own admission, the victim could not recall the last time she had seen the money. She further acknowledged that she did not keep her purse in a secure place while at work.
Other facts in the record render improbable the Commonwealth’s theory that the intruder intended to steal and did steal the money before raping the victim. According to the victim’s testimony, the bedroom was quite dark. The wallet had been wrapped several times with a rubber band and tucked inside her purse on the floor. When she retrieved her purse from its resting spot the morning after the attack, she noticed nothing unusual about its appearance. Neither the purse nor the wallet bore any obvious signs of tampering. Furthermore, nothing else in the victim’s home was moved or reported missing. On this evidence, the trier of fact could find an intent to commit larceny only by resorting to surmise and speculation. See Patterson, 215 Va. at 699, 213 S.E.2d at 753. “Whenever the evidence leaves indifferent which of several hypotheses is true, or merely establishes only [19]*19some finite probability in favor of one hypothesis, such evidence does not amount to proof beyond a reasonable doubt.” Sutphin v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985). We, therefore, reverse the conviction for breaking and entering with intent to commit larceny.
Maynard next contends that the trial judge erred in restricting his cross-examination of Detective Valentine. On the Commonwealth’s direct examination, Valentine testified that he interviewed Maynard the afternoon of August 14 after the victim had named Maynard as a suspect. When the Commonwealth’s attorney asked why Maynard was not arrested on August 14, Valentine responded that he was “involved in this matter only temporarily” and was “only to keep things in a holding pattern until a Crimes Against Persons Investigator could become involved.” During cross-examination, Maynard’s counsel sought to impeach Valentine’s testimony by asking questions that sought to establish that Valentine had not arrested Maynard on August 14 because the detective believed that the evidence was insufficient to arrest Maynard.1 The trial judge refused to allow this line of questioning, ruling that the inquiry would be misleading to the jury in view of Valentine’s testimony on direct that he was only handling the case temporarily. The judge also refused to allow defense counsel to impeach Valentine by his previous testimony. We conclude that the trial judge erred.
The right of cross-examination is fundamental to the truth-finding process and is an absolute right preserved to the accused by the constitutional guarantee of confrontation. Barrett v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194 (1986); [20]*20Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). The trial judge may exercise discretion to prohibit the abuse of cross-examination, but this discretion may only be employed after the right to cross-examine the witness has been substantially and fairly exercised. Barrett, 231 Va. at 108, 341 S.E.2d at 194. “Subject to such reasonable limitations as the trial court may impose, a party has an absolute right to cross-examine his opponent’s witness on a matter relevant to the case, which the opponent has put in issue by direct examination of the witness.” Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985). As our Supreme Court stated in Baltimore, Chesapeake & Atlantic Ry. v. Hudgins, 116 Va. 27, 81 S.E. 48 (1914), “it is not irrelevant to inquire of the witness whether he has not on some former occasion given a different account of a matter of fact to which he has already testified, in order to lay a foundation for impeaching his testimony by contradicting it.” Id. at 32, 81 S.E. at 49 (emphasis in original). This is so even though the matter is collateral or immaterial to the issue in the case. Id. at 31, 81 S.E. at 49; see also Avocet Dev. Corp. v. McLean Bank, 234 Va. 658, 668-69, 364 S.E.2d 757, 763 (1988).
On four occasions during direct examination the Commonwealth asked the detective why he did not arrest Maynard. Although Valentine had previously testified under oath that he had two reasons for not arresting Maynard, on this examination Valentine gave only the reason that he was in a “holding pattern” waiting for another investigator to arrive. Thus, despite Valentine’s prior sworn testimony that he did not arrest Maynard because he did not believe he had sufficient evidence, the Commonwealth, through its questions on direct examination, sought to convince the jury that Valentine did not arrest Maynard because Valentine was awaiting assistance from other officers. The trial judge’s restriction on the cross-examination of the detective may have caused the jury to assign more weight to his testimony than it otherwise might have done, thus indirectly bolstering the victim’s testimony.
Considering the circumstances surrounding the victim’s identification of Maynard as the intruder, including the lighting conditions, the fact that the victim was not wearing her contact lenses, and the different height estimates she provided of the intruder, the [21]*21facts linking Maynard to the crime were not conclusive. The excluded evidence in this case was pertinent to explain Detective Valentine’s testimony on direct examination. Having opened the door to inquiry in this area on direct examination, the Commonwealth cannot now be heard to complain that Detective Valentine’s reasons for not arresting Maynard were irrelevant to the issues in the case. By refusing to permit the defendant to cross-examine Valentine concerning matters that Valentine testified to on the Commonwealth’s direct examination, the trial judge deprived the defendant of the fair exercise of his right of cross-examination.
Maynard next argues that because the victim had sworn on a Bible to tell the truth, an inquiry into the victim’s possible Satanic belief was relevant to impeach her truthfulness. We find no error in the court’s refusal to limit examination of the victim concerning the meaning of certain tattoos on her body and her beliefs.
At trial, the victim testified that during the attack, the intruder revealed knowledge of the presence and location of tattoos on her body. She described one of these tattoos as a crescent moon with stars surrounding it. Defense counsel informed the trial judge that his cross-examination of the victim would include the following:
His Honor will recall she testified previously, and I am going to lay a foundation, she said that several years ago she had gotten away from the Christian faith and that is when she got these tattoos, ten years ago. She described the one with the crescent moon and the stars. I intend to ask her if she is aware that that is the symbol of a Satan. I have contacted a Tattoo parlor and I think that she has taken an oath to testify to tell the truth, so help me God, and she has testified at one point in time that she has gotten away from the Christian faith. I think I am entitled to question her as to the relevance of that.
The trial judge refused to allow this inquiry but allowed defense counsel “to ask her what significance, if any, she has attached to [the tattoo].”
The record of the cross-examination of the witness reflects that she testified that she was not aware of the significance of the symbols:
[22]*22Q: It is a crescent moon with some stars around it; is that correct?
A: Yes, sir.
Q: Does that have any significance to you?
A: Not besides the fact that I thought it was attractive when I picked it out.
Q: That is the only significance it has to it?
A: Yes, sir.
Q: You testified, did you, that you got those tattoos about the time that you started getting away from being a Christian; is that correct?
A: Not away from being a Christian, but a little rebellious and going out and staying out late.
Q: If I told you that your statement on February 11th was that, I had gotten away, I had been raised a Christian and I had gotten away from it, is that true or not true?
A: That is true.
Q: That is the time you got the moon with the stars?
A: Yes, sir.
In view of the victim’s professed lack of knowledge concerning the tattoo symbol and in the absence of a proffer on the record of the further evidence sought to be introduced, see Barrett, 231 Va. at 108, 341 S.E.2d at 194, we conclude that the trial judge did not err in limiting the examination of the victim concerning her beliefs.
In summary, we find the evidence insufficient to sustain the conviction of breaking and entering with intent to commit larceny. We, therefore, reverse that conviction and dismiss the indictment as to that charge. Because of the limitation of the cross-examination of Detective Valentine, we also reverse the conviction of the rape and forcible sodomy charges and remand the case with leave to retry Maynard if the Commonwealth be so advised.
Reversed and dismissed in part; reversed and remanded in part.
Baker, J., concurred.