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APRIL 24, 2001

Record No. 0494-00-1

Present: Judges Benton, Agee and Senior Judge

Argued at Chesapeake, Virginia





Westbrook J. Parker, Judge


Michael J. Lutke (Office of the Public
Defender, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

Marlon Germaine Watson (Watson) was convicted
and sentenced in a bench trial in the Circuit Court of
Southampton County for one count of robbery in violation of Code
? 18.2-58, and one count of malicious wounding in violation
of Code ? 18.2-51. He appeals the robbery conviction
averring that the evidence was insufficient to support his
conviction. For the reasons set forth below, we affirm.


In the months of June and July 1998, Watson,
then a twenty-one-year-old seasonal farm worker, shared a rented
room with two or three other farm workers at the Courtland Inn
Motel in Southampton County. On July 23, 1998, however, Watson
obtained a separate room for himself for one night. Watson
verbally provided his name as "James Peters" but failed
to produce any identification. Watson’s signature on the motel’s
registration card, however, provided the name "Watson."

Between 8:30 p.m. and 9:00 p.m. on July 24,
1998, Jagmohan Shah (Shah), the seventy-year-old motel manager,
found Watson waiting for him outside the motel’s locked office.
Watson told Shah he "want[ed] to pay the rent" even
though Watson had never before handled the arrangements for the
workers’ room. Shah, who always kept the office door locked and
the keys on his person, unlocked the door of the office. As soon
as Shah entered the office, Watson pushed him, causing Shah to
fall. Watson locked the door and dragged Shah into his living
quarters, adjacent to the office. Watson started beating Shah on
the left side of his head, and then attempted to choke the
elderly manager with a towel. When Watson was unable to choke
Shah, he beat Shah’s face and ear so hard that the ear was
"displaced"; Shah lost consciousness.

At approximately 11:00 p.m., Annette Flythe
(Flythe), a motel employee, arrived at the motel to deliver
laundry. Watson approached her minutes later and asked her for a
ride to the store. Once he was in the car, however, Watson
directed Flythe to "keep going" whereupon she drove
until Watson eventually exited the car in North Carolina. Watson
did not pay Flythe for the ride, but she did not think that was
unusual. Watson took no personal belongings with him.

Shah slowly regained consciousness and called
911 at approximately 11:12 p.m. While placing the emergency call
from the office phone, Shah realized the desk drawer containing
the motel’s cash box had been broken into. Shah fell unconscious

The first sheriff’s deputy arrived at the motel
at approximately 11:15 p.m. The investigating officer, R.W.
Carwile, arrived at 11:29 p.m. and found residents of the motel
"milling around" outside. Approaching the crime scene,
the officer found the door to the office closed, but unlocked.
Inside, Officer Carwile found the drawer where the cash box was
kept broken into, the cash box had the key in it, and the motel’s
money was missing. Shah estimated the cash box held $1,200 that
evening. (The money was never recovered.)

Shah slipped in and out of consciousness
several times and spent the night at a local hospital. Initially
he could not remember what had happened, however his memory
returned the following day and he recalled the incident
"exactly." Shah was certain Watson was his assailant.
Only Watson had been in the room when Shah was beaten, and Watson
was the only person who had come to pay the rent that night. Shah
identified Watson from a photo array on July 31, 1998. Flythe
also identified Watson from the array. Watson was subsequently
arrested in the state of Georgia in 1999.

These details were presented at trial by the
Commonwealth. At the close of the Commonwealth’s case, Watson
moved to strike the evidence, arguing the Commonwealth had not
proven when the robbery occurred or that Watson had committed the
crime. Watson argued that while Shah was unconscious, someone
other than Watson could have entered the unlocked office and
committed the robbery. The trial court overruled the motion.
Watson presented no evidence in his behalf, and the court
rendered its decision of guilty. With regard to the robbery, the
judge said:

[W]hat we have in th[is] case is a man who
attacks Mr. Shah, leaves him unconscious. When Mr. Shah wakes up
the money’s gone and shortly thereafter, sometime during that
same period of time an employee takes this man to North Carolina
to flee with no property, not his blue calendar, no luggage, not
nothing. So it’s a circumstantial case. The question is whether
or not he robbed the man and the answer is obvious. Of course he
did. That’s the reason he beat him up. He beat him up, took the
money and escaped to North Carolina and stayed gone until they
found him in Georgia . . . .


When the sufficiency of the evidence is
challenged, we consider all the evidence, and any reasonable
inferences fairly deducible therefrom, in the light most
favorable to the party that prevailed at trial, which is the
Commonwealth in this case. Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Witness
credibility, the weight accorded the testimony and the inferences
to be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989). The trial court’s judgment
will not be disturbed on appeal unless it is plainly wrong or
without evidence to support it. See Code ? 8.01-680.
We will not substitute our judgment for that of the trier of
fact. See Cable v. Commonwealth, 243 Va. 236, 239,
415 S.E.2d 218, 220 (1992).

To convict Watson of robbery, the Commonwealth
was required to show beyond a reasonable doubt that Watson
committed "the taking, with intent to steal, of the personal
property of another, from his person or in his presence, against
his will, by violence or intimidation." Johnson v.
, 209 Va. 291, 293, 163 S.E.2d 570, 572-73

It is well established that circumstantial
evidence is just as competent and 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).
The Commonwealth’s evidence, however, need not affirmatively
disprove all theories which might negate the conclusion that the
defendant committed the crimes; the conviction will instead be
sustained if the evidence excludes every reasonable hypothesis of
innocence. Higginbotham, 216 Va. at 353, 218 S.E.2d at
537. The chain of necessary circumstances supporting guilt must
be unbroken. The circumstances of motive, time, place, means and
conduct must all concur to form an unbroken chain, which links
the defendant to the crime beyond a reasonable doubt. Stover
v. Commonwealth
, 222 Va. 618, 623, 283 S.E.2d 194, 196

In this case, the only reasonable hypothesis
flowing from the evidence is that Watson took the money from the
cash box in the motel office after he savagely beat the elderly
manager, who possessed the office keys, into unconsciousness.
This hypothesis is supported by a chain of circumstances, which
provides more than a strong suspicion of guilt.

Watson had been staying in a room with several
other men but obtained his own room for one night, using a false
name. Watson gained entry into the locked office by falsely
telling Shah he wanted to pay rent, something he had never before
handled. Once inside, Watson pushed Shah down, locked the door,
forced the elderly man into an adjacent room and then maliciously
beat him.

Upon investigating the attack against Shah it
was discovered that the motel’s money was missing, taken with the
use of the manager’s keys last known to be in the manager’s
possession when he was attacked by Watson. He is the last person
known to have been aware of where Shah was located and the last
person known to have been in the office before police arrived.
There is no evidence that anyone other than Watson entered the
office or adjacent living quarters while Shah was unconscious.
The only evidence that someone else might have been near the
crime scene is the investigating officer’s testimony that when he
arrived, approximately fifteen minutes after the first officers
responded to the 911 call, motel residents were "milling
around," but outside the motel office.

While there was no specific testimony or
evidence surrounding the theft, "[o]pportunity . . . when
reinforced by other incriminating circumstances, may be
sufficient to establish criminal agency beyond a reasonable
doubt." Christian v. Commonwealth, 221 Va. 1078,
1082, 227 S.E.2d 205, 208 (1981); see also Phan
v. Commonwealth
, 258 Va. 506, 514, 521 S.E.2d 282, 286 (1999)
(each single piece of evidence may be insufficient, but "the
combined force of many concurrent and related circumstances
. . . may lead a reasonable mind irresistibly to a
conclusion" (citations omitted)).

Further, Shah’s unconscious state, which
facilitated the theft, was a direct result of having been beaten
severely by Watson. The record contains no evidence of animosity
between Watson and Shah that might explain the beating. The
reasonable inference, then, is that Watson’s violent attack on
Shah was a precursor to the robbery. For what other purpose would
a twenty-one-year-old man savagely beat and choke a
seventy-year-old man without provocation after luring him into a
closed office where the cash box was kept? See Ingram
v. Commonwealth
, 192 Va. 794, 803, 66 S.E.2d 846, 851 (1951)
("for what purpose [except rape] would a man attack a
defenseless woman, at night, dressed in her nightclothes").
"Inferences and deductions from human conduct may be
properly drawn when they follow naturally from facts
proven." Id. Accord Green v. Commonwealth,
223 Va. 706, 711-12, 292 S.E.2d 605, 608-09 (1982) (affirming a
fifteen year old’s conviction for an attempted rape of a
sixty-five-year-old woman who threw the victim to the floor and
removed her clothes after entering her house on pretext, but fled
when her husband approached).

The dissent relies on Commonwealth v. Smith,
259 Va. 780, 529 S.E.2d 78 (2000), to find the evidence
insufficient to support Watson’s robbery conviction. We find the
case distinguishable.

In Smith, the victim had been drinking
heavily when Smith approached him and spoke a few instigating
words regarding Smith’s relationship with the victim’s spouse.
Smith then punched the victim as he began to walk away. The
victim kept walking away, but then fell unconscious on a public
street. When the victim awoke, hours later in a hospital, he was
being treated for knife wounds. No evidence was produced relating
to what happened in the interval time between the victim falling
unconscious and then awaking in the hospital to find that he had
been stabbed. The only evidence that Smith had committed the
crime, on a public street, was that some of the knife wounds were
in the same place Smith had punched the victim. The victim
testified he did not see Smith with any weapon nor did he see
blood when Smith punched him. Smith’s conviction was overturned
on appeal based on the holding that the evidence raised no more
than a suspicion of guilt.

In contrast to Smith, Watson had no
reason to maliciously beat Shah. There is no evidence of
animosity or conflict between the two men. Shah’s unconscious
state, allowing for the theft to occur, was caused by Watson’s
actions. Shah’s beating did not take place in public, but rather
just prior to the robbery in a private, locked office where the
motel’s money was kept. Watson is the last person known to have
access to that office which he gained by subterfuge and
subsequent use of violent force. There is also the evidence that
Watson remained on the motel’s premises shortly thereafter until
he could flee, without any of his belongings, including personal
property that provided police with his true identity, originally
thought to be "James Peters."

From the totality of these circumstances, the
trial judge could conclude beyond a reasonable doubt that Watson
committed the Courtland Inn Motel robbery. We find that the
Commonwealth met its burden of proving the guilt of Watson for
the crime of robbery to the exclusion of every reasonable
hypothesis consistent with his innocence. Finding there was
sufficient evidence for the trial court to convict the appellant
of robbery, we affirm the conviction.


Benton, J., dissenting.

The Commonwealth bears the burden of proving
every element of a criminal offense beyond a reasonable doubt. Adkins
v. Commonwealth
, 20 Va. App. 332, 342, 457 S.E.2d 382, 387
(1995). Thus, when a conviction is based on circumstantial
evidence, "all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence." Inge
v. Commonwealth
, 217 Va. 360, 366, 228 S.E.2d 563, 567
(1976). "[M]ere opportunity to commit an offense raises only
‘the suspicion that the defendant may have been the guilty
agent.’" Christian v. Commonwealth, 221 Va. 1078,
1082, 227 S.E.2d 205, 208 (1981) (citation omitted). The
principle is well established, however, that "a suspicion of
guilt, however strong, or even a probability of guilt, is
insufficient to support a criminal conviction." Bishop v.
, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).

Although the evidence proved beyond a
reasonable doubt that Marlon Germaine Watson severely beat
Jagmohan Shah, no evidence proved who took the money from the
office. During the beating, Shah lapsed into unconsciousness and
remained in the office for almost three hours before the police
arrived. No evidence proved what transpired in the interval of
time between the beating and the arrival of the police officers.
The officer who responded to Shah’s telephone call testified that
the door to the office was unlocked when he arrived and that
people were gathered around outside the office. No one saw when
or under what circumstances the money was taken.

Citing two robbery cases, People v. Adams,
81 Cal. Reptr. 378, 380 (Cal. App. 1969), and Sinks v. State,
133 N.E.2d 563, 565 (Ind. 1956), the Commonwealth argues that the
evidence was sufficient to convict Watson for robbery even though
no person saw the theft and Shah was unconscious. In Adams,
the evidence proved the following:

The [victim, the defendant and the defendant's
acquaintance] started walking down the street [at 3:00 a.m.].
Defendant suddenly put his arm around [the victim's] neck, forced
him to the ground and fell on top of him. [The victim] was
greatly frightened. He asked what defendant wanted and defendant
replied that he wanted all of [the victim's] money. [The victim] could feel defendant going through his pockets. [The victim] was
rendered unconscious. He awoke in a pool of blood and found his
wallet gone and the pocket in which it had been kept torn. Also
missing were the contents of his wallet: about $50.00 in cash,
four credit cards, his driver’s license and miscellaneous

81 Cal. Reptr. at 378-79.

In Sinks, the evidence proved that the
victim drank beer for hours with the two defendants. 133 N.E.2d
at 564. As the victim left to go to a hotel with the defendants,
they assured him that his money could be safely left with the
hotel clerk and that they would not take his money. Id.
The evidence further proved the following:

They had gone only a few steps when [one
defendant], without saying a word, turned around and struck [the
victim], knocking him down on the sidewalk and rendering him
unconscious. At the time [one defendant] struck him, [the other
defendant] had his hand on [the victim's] shoulder.

About three minutes after the three left the
tavern, the tavern owner looked out the window and saw [the
victim] lying on the sidewalk. Between the time the three left
the tavern and [the victim] was seen lying on the sidewalk, no
one came through the front door of the tavern, and no one was
seen going by the place where he was lying. . . . [The
defendants] were arrested about a half hour later at an all night
restaurant . . . . As a result of a search, $27.35 was found on
[one defendant] and $16 on [the other defendant]. Both men at the
time stated they had borrowed the money. In the presence of a
police officer the next morning at the County Jail, [the victim] accused both [defendants] of striking him and robbing him, and
each of them offered to repay [the victim] if he would not have
them prosecuted.


Both cases are inapposite to the circumstances
of this case. In Adams, the evidence proved that the
defendant demanded money from the victim and searched his pockets
before the victim lost consciousness. In Sinks, the
evidence proved that after beating the victim, the defendants
lied about borrowing money from the victim and sought to
reimburse the victim when accused of robbery. In addition, the
evidence in Sinks affirmatively proved no other person
approached the victim after the assault. No such similar
circumstances or evidence in this case tends to prove Watson took
the money from the drawer.

Neither the testimony of Shah nor any other
evidence tends to prove the circumstances surrounding the theft
of the money. As in Commonwealth v. Smith, 259 Va. 780,
529 S.E.2d 78 (2000), the record contains insufficient evidence
to prove who committed the offense. The Commonwealth argues that Smith
is not controlling because the victim in Smith "was
not aware he had been stabbed until he ‘came to’ later in a
hospital." Therefore, the Commonwealth contends it is left
to surmise who stabbed the victim after the accused beat him.
That lack of evidence is precisely the flaw in the Commonwealth’s
proof concerning the robbery of Shah. Although the evidence
proved beyond a reasonable doubt the assault, no evidence tends
to prove the identity of the person who took the money. Watson
made no demands for money from Shah. Moreover, Shah was
unconscious for hours after the beating. The Commonwealth’s own
evidence proved that the door to the office was not locked when
the officer responded to Shah’s telephone call and that people
were milling around outside the office.

As in Smith, the evidence proved that
the accused committed a criminal act against the victim. Here,
Watson maliciously wounded Shah and was convicted for that act.
Similarly, as in Smith, the evidence is not inconsistent
with the hypothesis that someone else committed the separately
charged offense. "The guilt of a party is not to be inferred
because the facts are consistent with his guilt, but they must be
inconsistent with his innocence." Cameron v. Commonwealth,
211 Va. 108, 110-11, 175 S.E.2d 275, 276 (1970).

The evidence proved that Watson left the motel
two and a half hours after beating Shah. This conduct is as
consistent with guilt of the felonious wounding as with any other
hypothesis. When, as here, the evidence raises only an inference
concerning the identity of the thief of the property and the
evidence does not exclude the hypothesis that Watson was not the
taker, the evidence amounts only to a suspicion of Watson’s
guilt. Evidence that proves the accused committed one offense
and, because of his mere presence, had the opportunity to commit
a second offense provides only the suspicion that the accused
committed the second offense. See Smith, 259 Va. at
784, 529 S.E.2d at 79. That suspicion "’no matter how strong
is insufficient to sustain a conviction.’" Id.

For these reasons, I would reverse the robbery
conviction and dismiss the indictment.


[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.


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