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Circumstantial evidence identifies perpetrator

There was sufficient circumstantial evidence that appellant, and not someone else, committed the crimes that form the basis of his convictions.

Sufficient evidence

“Frink was convicted of seven offenses: wearing a mask in public, two counts of use of a firearm in a threating manner while committing a felony, abduction, robbery, possession of a firearm by a convicted felon, and underage possession of firearm.

“On appeal, Frink does not allege that the Commonwealth failed to prove any of the elements of the charged offenses; instead, Frink challenges the sufficiency of the evidence to prove that he was the individual who committed the crimes.

“In proving the identity of a criminal actor, the Commonwealth may rely on circumstantial evidence. …

“The evidence presented contained several concurrent circumstances supporting the circuit court’s conclusion that Frink was one of the individuals seen in the CCTV footage of the robbery and described by the witnesses.

“Officers saw Frink near the scene of the robbery. Although the witnesses did not see Frink’s full face during the commission of the robbery, Frink’s attire, specifically the dark hoodie and green pants, matched the witnesses’ description and the CCTV footage.

“Officers also located a bandana, that appeared similar to that worn by the robbers, in the residence Frink had exited following the robbery.

“Further, upon police request, Frink refused to remove his hands from his pockets and fled from investigating officers, providing further evidence supporting his convictions. ‘Flight following the commission of a crime is evidence of guilt.’ …

“In addition, the firearm used in the robbery and $143 in small bills were found in the area where officers had seen Frink. Witnesses testified that the perpetrators used a purple firearm in the robbery, matching the purple firearm that officers found within the bush that Frink exited.

“As the circuit court stated, ‘a purple handgun is not impossible to get, but it is somewhat unique and meets the description.

“Furthermore, the DNA evidence supports Frink’s convictions. Forensic scientists analyzed the swab from the trigger, grip, and the rear of the firearm’s slide and determined that Frink was 1.2 septillion times more probable than a coincidental match to an unrelated African American person, 130 septillion times more probable than a coincidental match to an unrelated Caucasian person, and 220 septillion times more probable than a coincidental match to an unrelated Hispanic person.

“Expert testimony established that these results were ‘very strong support for [Frink] being a contributor to this DNA mixture.’

“Taken in its totality, the evidence was more than sufficient for the circuit court to conclude that Frink was one of the individuals who robbed the Family Dollar. The circuit court’s judgment was not plainly wrong or without evidence to support it.”


Frink v. Commonwealth, Record No. 0735-21-1, May 17, 2022. CAV (Humphreys) From the Circuit Court of the City of Hampton (Gaten). Stephen K. Smith for appellant. Leah A. Darron for appellee. VLW 022-7-143, 7 pp. Unpublished opinion.

VLW 022-7-143

Virginia Lawyers Weekly