PHAN v. COMMONWEALTH



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PHAN

v.

COMMONWEALTH


November 5, 1999

Record No. 990093

THIET VAN PHAN

v.

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices

OPINION BY JUSTICE LEROY R. HASSELL, SR.


Thiet Van Phan was tried before a jury in the
Circuit Court of Arlington County and convicted of the
first-degree murder of Long Hung Nguyen, the malicious wounding
of Nghia H. Bui, and two counts of the use of a firearm during
the commission of a felony. He was sentenced in accordance with
the jury’s verdicts to 75 years imprisonment for the murder
conviction, 15 years imprisonment for the malicious wounding
conviction, and a total of eight years imprisonment for two
convictions for use of a firearm. The Court of Appeals denied
Phan’s petition for appeal and, here, Phan challenges the
sufficiency of the evidence to sustain the convictions.

I.

Applying well-established principles of
appellate review, we must consider the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth, the prevailing party below. Derr
v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668
(1991).

Between 3:00 and 4:00 p.m. on January 26, 1997,
the defendant was in the Haiau Billiard and Coffee Shop in the
City of Falls Church. Nhan Van Nguyen, another patron in the pool
hall, went to a bathroom where he was attacked and beaten by the
defendant and another man. Nhan Van Nguyen ran out of the
bathroom and tried to get help.

Subsequently, the defendant left the bathroom
and returned to a larger room in the pool hall where he
encountered Long Hung Nguyen, a manager of the pool hall. Long
Nguyen confronted the defendant and told him "not to make
trouble in the pool hall." The defendant "talk[ed] back, [and] said . . . what if I do? What [are] you
going to do about it?" The defendant, Long Nguyen, and Van
Nguyen (Long Nguyen’s brother) began to fight. Long Nguyen and
Van Nguyen struck the defendant, and the defendant’s nose began
to bleed. After the fight, the defendant, who was four feet,
eleven inches tall, and weighed 130 pounds, took off his shirt
and said to Van Nguyen and Long Nguyen: "If any one of you
guys about this size just come forward, I will challenge any one
of you guys." Long Nguyen challenged the defendant stating
"okay, how about you and I — you and me then." The
defendant did not respond to Long Nguyen’s challenge to fight.

Long Nguyen told the defendant, whose nose was
still bleeding, to "just cool out. Go wash your face and
just sit down, relax." The defendant washed his face and
said "I’ll be back" as he left the premises. According
to Long Hoang Nguyen, a pool hall employee, the defendant made
this statement in English using the same tone as that used in a
line from "[s]ome action movie."

Later that evening, shortly after 8:00 p.m., as
Long Nguyen was in the pool hall tallying the day’s receipts,
three masked gunmen entered the pool hall through a back door and
proceeded quickly and directly toward Long Nguyen. One of the
assailants jumped on top of a counter as the three masked gunmen
fired between 15 to 20 gunshots. Long Nguyen sustained multiple
gunshot wounds which caused his death. One of the assailants also
shot Nghia Bui, a patron of the pool hall, in the foot. The
masked assailants departed through the back door without taking
any of the cash that was visible on the counter behind which Long
Nguyen had been standing.

Five eyewitnesses testified that one of the
three masked gunmen was noticeably shorter than the other two
assailants. Sang Van Ha described the short gunman as
"[k]ind of fat" with hair a "little bit"
below his shoulders. Ha testified that when the gunmen first
entered the pool hall, the shortest gunman was in the process of
pulling down his mask, and Ha could see the lower portion of the
gunman’s face and his dark skin.

Ha, who had seen Phan at the pool hall earlier
on the day of the murder, testified that Phan and the shortest
gunman had the "[s]ame hair, same . . .
figure." Ha also described one of the assailants as
"kind of short," with "dark skin and long
hair." Ha stated that the person who looked like the
defendant was wearing a black-colored mask and was "[k]ind
of fat."

Bui testified that all three gunmen fired their
weapons in the area of the counter, and that the shortest gunman
shot at him at least three times, striking him once in the foot.
He stated that the shortest gunman was "no more than five
feet [tall]." Thuylinh Ho, the victim’s girlfriend,
testified that one of the gunmen was "really short and a
little chubby."

Tuong Vinh Nguyen, a pool hall patron who was
present when the murder occurred, described the shortest gunman
as being about five feet tall and "kind of chubby" with
"long [black] hair that was protruding out to
. . . his shoulder." He testified that he could
not see the gunmen’s faces because of their masks, but he thought
that all the gunmen were Vietnamese. The defendant is Vietnamese.
Nguyen Tran, another patron, testified that the masked assailants
fired a total of 15 to 20 gunshots at Long Nguyen during a period
of about one to two minutes. Tran, who is five feet, eight inches
in height, stated that the shortest gunman was "[a] lot
shorter than me."

The defendant testified at trial that he was
not present in the pool hall when the murder occurred, but was
asleep at home. He stated that he was "a little" upset
when he left the pool hall after the altercation with the victim
and his brother.

The defendant’s aunt, Thi Bi Nguyen, testified
that the defendant slept on a sofa in a living room on the first
floor of her townhouse. She stated that on the evening of the
murder, she ate dinner sometime after 7:00 p.m., and the
defendant was lying on the couch watching television. When asked
the last time she saw the defendant on the night of the murder,
she responded: "I came home about seven o’clock. About seven
something, I saw him."

Steven Phan, the defendant’s uncle, testified
that he arrived home from work on the night of the murder about
11:00 p.m. When asked whether he saw the defendant in his house
that evening, Steven Phan stated: "I did not see him. But I
saw that there was a blanket on the couch." Steven Phan also
testified that he saw the defendant in his house that evening,
but not "face to face." Special Agent Anh Pham, an
employee of the Federal Bureau of Investigation, testified that
he had interviewed Steven Phan who told him that he (Steven Phan)
did not see the defendant anywhere in the house when Steven Phan
arrived home on the night of the murder.

II.

The defendant asserts that the evidence is
insufficient to support his convictions. The defendant contends
that the Commonwealth failed to prove that he had a motive to
murder Long Nguyen and that no one identified the defendant as an
assailant. None of the witnesses observed any tattoos or markings
of any kind on the short assailant even though the defendant had
large tattoos on his arms and hands and fingers. Continuing, the
defendant, relying upon our decisions in Hyde v. Commonwealth,
217 Va. 950, 234 S.E.2d 74 (1977), and Burrows v. Commonwealth,
224 Va. 317, 295 S.E.2d 893 (1982), argues that his convictions
should be invalidated because the evidence is insufficient to
identify him as a perpetrator of the crimes. Responding, the
Commonwealth asserts that the evidence is sufficient to support
the convictions. We agree with the Commonwealth.

We will apply the following principles of
appellate review to our resolution of this appeal:

"Where the sufficiency of the
evidence is challenged after conviction, it is our duty
to consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom. We should affirm the judgment unless
it appears from the evidence that the judgment is plainly
wrong or without evidence to support it [Code
? 8.01-680]."

Black v. Commonwealth, 222 Va.
838, 841, 284 S.E.2d 608, 610 (1981) (quoting Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537
(1975)). Additionally, when a defendant challenges the
sufficiency of the evidence, "’[i]f there is evidence to
sustain the verdict, this Court should not overrule it and
substitute its own judgment, even if its opinion might differ
from that of the jury.’" George v. Commonwealth,
242 Va. 264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder
v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457
(1961)), cert. denied, 503 U.S. 973 (1992). The
factfinder need not believe an accused’s explanation and, if that
explanation is not believed, may infer that the accused is lying
to conceal his guilt. Black, 222 Va. at 842, 284 S.E.2d at
610; Toler v. Commonwealth, 188 Va. 774, 782, 51
S.E.2d 210, 214 (1949); Speight v. Commonwealth, 4
Va. App. 83, 88, 354 S.E.2d 95, 98 (1987).

Applying the aforementioned principles, we hold
that the evidence, though circumstantial, sufficiently
establishes the defendant’s guilt beyond a reasonable doubt. The
jury could have inferred from the evidence that the defendant,
who was angry and humiliated because he had been beaten earlier
on the day of the murder, had a motive to kill Long Nguyen. When
the masked assailants entered the pool hall, they walked quickly
and directly toward Long Nguyen and after they shot him multiple
times, they did not take money that was visible on the counter.
Indeed, the defendant had threatened Long Nguyen when the
defendant stated, after the fight, that "I’ll be back."

Based on the numerous witnesses’ testimony that
both the defendant and one of the masked assailants were
unusually short and had the same "chubby" figure,
weight, hair length and color, nationality, and skin tone, the
jury could have concluded that the defendant was one of the
masked assailants. In view of the identification testimony of the
numerous witnesses, the defendant’s alibi testimony that the jury
apparently rejected, the inconsistent testimony of the
defendant’s aunt and uncle which further impaired the credibility
of the defendant’s alibi, the evidence when considered as a whole
is sufficient to support the convictions.

We find no merit in the defendant’s contention
that our prior decisions in Hyde and Burrows
require that we invalidate the challenged convictions. In Hyde,
we considered whether the evidence was sufficient to support
convictions for rape and murder. There, an adult female with a
mental age of 10 years, who was a patient at a hospital, told
hospital personnel that "a tall, white man" who had
offered her a cigarette had taken her into the woods and raped
her. Hyde, 217 Va. at 951, 234 S.E.2d at 76. She did not
know the identity of the rapist. The record in that case
established that the defendant was a tall, white man. Id.

Several witnesses had seen the defendant, James
Taylor Hyde, and the victim together on the date of the rape and
assault, which eventually caused her death. Upon our review of
the record in Hyde, we held that the only direct evidence
which tended to identify Hyde as a principal in the first degree
was the victim’s description of her assailant as a tall, white
man who had given her a cigarette. The record did not contain a
description of two other men who were present when the victim was
raped and assaulted. We stated that "to assume that [the
defendant] was the only tall, white man who had given [the
victim] a cigarette that day would be to assume too much."
217 at 954, 234 S.E.2d at 77. Even though the defendant in Hyde
had made numerous inconsistent statements about his conduct on
the day that the victim was raped and assaulted, we concluded
that the inconsistencies and contradictions in those statements
merely raised a suspicion of guilt which was not sufficient to
support a conviction. Id. at 954-55, 234 S.E.2d at 77-78.

Hyde is clearly distinguishable from the
present case. The defendant here, unlike the defendant in Hyde,
threatened the victim by stating "I’ll be back." Also,
unlike the defendant in Hyde, the defendant here
specifically testified at trial and tried to offer an alibi
defense to the jury, which the jury rejected, and the jury was
entitled to infer that this defendant was trying to conceal his
guilt. Moreover, unlike the defendant in Hyde, numerous
witnesses testified that the masked assailant who killed Long
Nguyen and the defendant both had an unusually short height,
"chubby" figure, dark skin tone, and long
shoulder-length black hair.

In Burrows, we considered whether the
evidence was sufficient to support a defendant’s convictions for
robbery and malicious wounding. The victim in Burrows
testified that while he was attending a party, someone approached
him from the rear and began hitting him. 224 Va. at 318, 295
S.E.2d at 894. The victim was struck four or five times, his nose
was broken, and he "couldn’t see anything." Id.
The assailant took the victim’s wallet and fled. When asked to
identify the assailant at trial, the victim responded,
"[w]ell, it looks like that gentlemen there [referring to
[the defendant]], but . . . I can’t say absolutely
sure, because it happened so fast. Like I said, he came from
behind me." Id. The victim testified that sometime
after the robbery, he saw the defendant with four or five other
people near a river. The victim observed a wallet floating in the
river and requested that the defendant retrieve it, and the
defendant complied. The victim and another man
"grabbed" the defendant in an attempt to hold him until
the police arrived. They later released the defendant, who
immediately left the scene. Id.

In Burrows, we held that the evidence
was insufficient to prove that the defendant was the criminal
agent because the victim was not sure that the defendant was his
attacker and the defendant’s conduct was not inconsistent with
his innocence. Id. at 319, 295 S.E.2d at 894-95. We held
that the evidence of record in Burrows at best created a
suspicion of guilt which, no matter how strong, was insufficient
to sustain a criminal conviction. Id. at 320, 295 S.E.2d
at 895. For the reasons that we have already mentioned, the
Commonwealth presented evidence from which the jury could have
concluded, beyond a reasonable doubt, that the defendant was the
perpetrator of the crimes which are the subject of this appeal.

The defendant asserts that Long Hoang Nguyen’s
testimony that the defendant stated "I’ll be back" as
he left the pool hall earlier on the day of the murder was not
credible because no other witnesses heard that statement.
Additionally, the defendant states that the jury should not have
concluded that he was the short masked gunman because that gunman
wore a short-sleeved shirt, and none of the witnesses testified
that they saw any tattoos or markings of any kind on that
assailant’s arms, even though the defendant has large tattoos on
both of his arms and hands. We find no merit in the defendant’s
arguments. The jury, as the finder of fact, was entitled to
assess each witness’s credibility and determine the weight to be
accorded the testimony.

III.

We hold that the evidence of record considered
as a whole is sufficient to support the jury’s finding that the
defendant perpetrated the criminal acts. "While no single
piece of evidence may be sufficient, the ‘combined force of many
concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a
conclusion.’" Stamper v. Commonwealth, 220 Va.
260, 273, 257 S.E.2d 808, 818 (1979) (quoting Karnes v. Commonwealth,
125 Va. 758, 764, 99 S.E. 562, 564 (1919)), cert. denied,
445 U.S. 970 (1980); accord Derr, 242 at 425, 40
S.E.2d at 669.

Accordingly, we will affirm the judgment of the
Court of Appeals.

Affirmed.


JUSTICE KEENAN, with whom JUSTICE KOONTZ joins,
dissenting.

In its analysis, the majority has failed to
consider the unique evidentiary burden placed on the Commonwealth
in proving a case based on circumstantial evidence. When a
conviction is based on circumstantial evidence, the circumstances
proved "must each be consistent with guilt and inconsistent
with innocence, and . . . they must concur in pointing
to the defendant as the perpetrator beyond a reasonable
doubt." Cantrell v. Commonwealth, 229 Va. 387, 398,
329 S.E.2d 22, 29 (1985); see also Rogers v.
Commonwealth
, 242 Va. 307, 317-18, 410 S.E.2d 621, 627
(1991); Bishop v. Commonwealth, 227 Va. 164, 169, 313
S.E.2d 390, 393 (1984); Christian v. Commonwealth, 221 Va.
1078, 1082, 277 S.E.2d 205, 208 (1981). Further, as in any
criminal case, the evidence must exclude all reasonable theories
of innocence, and a suspicion of guilt, however strong, or even a
probability of guilt, will not support a criminal conviction. Sheppard
v. Commonwealth
, 250 Va. 379, 387, 464 S.E.2d 131, 136
(1995), cert. denied, 517 U.S. 1110 (1996); Rogers,
242 Va. at 317, 410 S.E.2d at 627; Cook v. Commonwealth,
226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Bishop, 227
Va. at 169-70, 313 S.E.2d at 393.

In the present case, I would hold that the
trial court’s judgment was plainly wrong because, as a matter of
law, the Commonwealth’s evidence established only a suspicion or
a probability of guilt. The circumstantial evidence did not
concur in pointing, beyond a reasonable doubt, to the defendant
as a perpetrator of these crimes. The evidence merely showed that
a person of the same skin color, nationality, body type, and hair
length as the defendant committed these crimes. The only other
evidence linking the crimes to the defendant was his conduct in
the pool hall earlier that day and his uncle’s testimony, which
was inconsistent with the defendant’s alibi.

While these circumstances are consistent with
guilt, they are not inconsistent with innocence and do not
exclude a reasonable hypothesis that someone other than the
defendant was the shortest of the three gunmen who committed
these crimes. Under the majority’s view of the evidence, a person
who had an altercation with a victim’s brother and stated that he
intended to return may be convicted of murder if his alibi is
inconsistent with other testimony and if he and the perpetrator
share certain general physical characteristics. Such evidence is
insufficient because it fails to present an unbroken chain of the
necessary circumstances of motive, time, place, means, and
conduct that link the defendant to the crime beyond a reasonable
doubt. See Cantrell, 229 Va. at 397, 329 S.E.2d at
28; Bishop, 227 Va. at 169, 313 S.E.2d at 393; Stover
v. Commonwealth
, 222 Va. 618, 623, 283 S.E.2d 194, 196
(1981). Therefore, I would reverse the defendant’s convictions
and dismiss the indictments on which they are based.

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