Michael Anthony Yarzebinski v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: September 11, 2001
• Docket: 1451003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Clements and Agee Argued at Salem, Virginia

MICHAEL ANTHONY YARZEBINSKI MEMORANDUM OPINION * BY v. Record No. 1451-00-3 JUDGE JEAN HARRISON CLEMENTS SEPTEMBER 11, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY Diane McQ. Strickland, Judge

Thomas E. Wray for appellant.

Susan M. Harris, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Michael Anthony Yarzebinski was convicted in a bench trial of

breaking and entering in violation of Code § 18.2-91 and larceny

of a firearm in violation of Code § 18.2-108.1. On appeal, he

contends the evidence was not sufficient to sustain the

convictions. We disagree and affirm the convictions.

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

proceedings as necessary to the parties' understanding of this

appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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 (1987). We may 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). 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." Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).

In this case, Yarzebinski does not dispute on appeal that the

Commonwealth's evidence was sufficient to establish that the

victim's home was broken into without the permission of the

victim. Likewise, he does not dispute that the evidence was

sufficient to show that larceny of a firearm occurred as a result

of the break-in and that both offenses were committed at the same

time, by the same person, and as a result of the same criminal

enterprise. Rather, Yarzebinski contends that he was improperly

convicted solely on circumstantial evidence. That evidence—his

fingerprint on the victim's kitchen window—was, he argues,

insufficient by itself to reasonably exclude the hypothesis that

it was impressed there when he visited the home two weeks earlier.

Furthermore, he adds, no stolen gun was found in his possession

- 2 - and he made no confession or incriminating statements. Thus, he

concludes, the Commonwealth's evidence was insufficient, as a

matter of law, to prove beyond a reasonable doubt that he was the

person who committed the offenses.

"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 alternative 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)).

To establish Yarzebinski's criminal agency, evidence that his

fingerprint was found at the scene of the crime "'must be coupled

with evidence of other circumstances tending to reasonably exclude

the hypothesis that the print was impressed at a time other than

that of the crime.'" Avent v. Commonwealth, 209 Va. 474, 479, 164

S.E.2d 655, 659 (1968) (quoting McNeil v. State, 176 A.2d 338, 339

(Md. 1961)). The other circumstances, however, need not be

totally independent of the fingerprint itself and "may properly

include circumstances such as the location of the print, the

- 3 - character of the place or premises where it was found and the

accessibility of the general public to the object on which the

print was impressed." Id.

Here, there was no direct evidence that linked Yarzebinski to

the burglary and theft of the firearm. However, the evidence did

establish that on September 28, 1998, Todd Elliott Mick's home in

Roanoke County was burglarized and his .380 caliber automatic

pistol and children's games were stolen. When Mick left for work

that morning, all windows and doors were closed and the screen on

the kitchen window in the back of the house was in place. The

pistol was hidden in his closet.

When Mick returned home from work, he found the kitchen

window cracked open and the screen off. The screen was lying on a

deck located behind the house and beneath the window. The window,

a large sliding window, was four or five feet from the ground and

only accessible from the deck. The window had not been broken.

Mick then discovered that the pistol had been stolen. The gun was

never recovered.

Officer Fred Altimore testified that he lifted fingerprints

and palm prints from the outside of Mick's rear kitchen window.

Richard Taylor, a fingerprint examiner, testified he matched the

only print of value, a latent left index fingerprint taken from

the outside of Mick's rear kitchen window, with known fingerprints

of Yarzebinski.

- 4 - Mick testified that he met Yarzebinski for the first time

less than two weeks before the burglary when Yarzebinski, along

with a group of four or five other people, came to the residence

to trade the .380 pistol for Mick's go-cart. The group was there

fifteen to thirty minutes. Although the group, including

Yarzebinski, did go into the side and back yards, Yarzebinski

never left the group and never went up on the deck. The screen

was always on the window. Mick was with Yarzebinski the entire

time he was there that day. Mick stated that, in the five years

he had lived at the residence, Yarzebinski had never been there

before.

The presence of Yarzebinski's fingerprint on the window

leaves no doubt that he touched the outside of the rear kitchen

window, where the thief broke into and entered Mick's house. The

fingerprint was on the window frame from which the burglar had

removed the covering screen, putting it on the deck. The window,

which was four to five feet off the ground, was in the rear of the

house and only accessible from Mick's deck. Thus, the crime was

committed on private property, in an area not readily accessible

to the general public.

Yarzebinski had been to Mick's home only once, approximately

two weeks before the burglary. On that occasion, Mick, who was

with Yarzebinski the entire time, never saw Yarzebinski go on the

deck or near the window. Yarzebinski was aware that Mick

possessed the gun, having given it to him as part of a trade

- 5 - approximately two weeks earlier. Furthermore, the record

discloses no evidence to support Yarzebinski's hypothesis that his

fingerprint was impressed on Mick's rear kitchen window when he

was at the residence two weeks before the burglary and theft.

We hold, therefore, that the trial court could reasonably

infer from Yarzebinski's unexplained fingerprint on Mick's rear

kitchen window, coupled with the other evidence presented tending

to reasonably exclude Yarzebinski's hypothesis, that Yarzebinski

was the burglar and thief. Hence, the evidence presented was

sufficient to prove beyond a reasonable doubt that Yarzebinski was

guilty of breaking and entering and larceny of a firearm.

Accordingly, we affirm the convictions.

Affirmed.

- 6 -