Melvin James Marshall, Jr. v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: April 25, 2000
• Docket: 0576994
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

MELVIN JAMES MARSHALL, JR. MEMORANDUM OPINION * BY v. Record No. 0576-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 25, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Haddock, Judge

Frank G. Aschmann (Aschmann & Aschmann, on brief), for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Melvin James Marshall, Jr. (appellant) was convicted in a

bench trial of grand larceny, in violation of Code § 18.2-95. The

sole issue raised on appeal is whether the evidence was sufficient

to establish that he was the perpetrator of the crime. Finding

the evidence sufficient, we affirm.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "The burden is upon the Commonwealth, however, to prove beyond a

reasonable doubt that [the defendant] was the perpetrator of the

crimes." Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d

662, 668 (1991). "Additionally, circumstantial evidence is as

competent, and entitled to the same weight, as direct testimony

if such evidence is sufficiently convincing." Id. It is true

that, in a case based upon circumstantial evidence, the

Commonwealth must exclude every reasonable hypothesis of

innocence. See Cantrell v. Commonwealth, 7 Va. App. 269, 289,

373 S.E.2d 328, 338 (1988). "However, '[w]hether 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.'" Id. (quoting Bridgeman v. Commonwealth, 3 Va. App.

523, 526-27, 351 S.E.2d 598, 600 (1986)).

In the present case, all the evidence presented by the

Commonwealth was circumstantial. Any criminal charge may be

proved by circumstantial evidence "[w]here all the circumstances

of time, place, motive, means, opportunity and conduct concur in

pointing out the accused as the perpetrator of the crime."

Schlimme v. Commonwealth, 16 Va. App. 15, 18, 427 S.E.2d 431,

433-34 (1993) (citations omitted). Thus, "we consider the

evidence as a whole in deciding whether it is sufficient to

support the jury's findings that [the defendant] was the

- 2 - perpetrator of the crimes." Chichester v. Commonwealth, 248 Va.

311, 329, 448 S.E.2d 638, 650 (1994).

Viewed in the light most favorable to the Commonwealth, the

evidence established that after appellant made a delivery to Jay

Elliot on the second floor of JLE Productions, appellant went

downstairs. From the upstairs loft, Elliot saw appellant enter

Edit Room 2, which did not have an exit to the outside.

Although Elliot could not see appellant in the editing room, he

heard a cable drop on the floor. After hearing the outside door

close, Elliot went downstairs and discovered that a laptop

computer, which he had been working on five to fifteen minutes

before appellant arrived, was missing. The laptop cable

remained on the floor. No one else entered the office during

that time. At trial, Elliot identified appellant as the courier

in his office on September 29, 1998.

In addition to the factors of time, place, means and

conduct, the circumstantial evidence established motive, from

which the trial court could infer that appellant was the

perpetrator. Appellant testified that he owed the IRS $3,000 in

taxes and, when confronted with his log sheet for the day, he

admitted he had falsified the entries to change the order of his

deliveries. Although appellant testified that he did not take

the laptop computer from JLE Productions, "[i]n its role of

judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to

- 3 - conclude that the accused is lying to conceal his guilt."

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d

233, 235 (1998).

The Commonwealth presented evidence as to each factor in

Schlimme and the inference of guilt was "reasonable, justified

and compelling and left no reasonable room for doubt." Fisher

v. Commonwealth, 16 Va. App. 447, 453, 431 S.E.2d 886, 890

(1993) (citation omitted). The Commonwealth's evidence was

competent, was not inherently incredible and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of

grand larceny. Accordingly, appellant's conviction is affirmed.

Affirmed.

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