Home / Fulltext Opinions / Virginia Court of Appeals / GIBBS v. COMMONWEALTH OF VIRGINIA




SEPTEMBER 23, 1997
Record No. 2459-96-1






Robert W. Curran, Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Thomas W. Carpenter (Overman, Cowardin & Martin, P.L.C., on
brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.

Narrio R. Gibbs, Jr. (appellant) was convicted in a bench
trial for escaping from jail in violation of Code ? 18.2?479(B).[2] On
appeal, he contends that (1) the evidence was insufficient to
prove that he left the confines of the correctional facility and
(2) evidence merely that he left his assigned trailer was
insufficient to prove an escape in violation of Code ? 18.2?479(B). Because
we hold that the evidence was sufficient to prove that he left
the confines of the city prison farm, we affirm the conviction
without reaching the latter assignment of error.

The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.

Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial
court, sitting without a jury, is entitled to the same weight as
a jury verdict and will be disturbed only if plainly wrong or
without evidence to support it. See id. 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. See Long v.
, 8 Va. App. 194, 199, 379 S.E.2d 473, 476

Circumstantial evidence is sufficient to support a conviction
provided it excludes every reasonable hypothesis of innocence. See,
e.g., Tucker v. Commonwealth, 18 Va. App. 141, 143,
442 S.E.2d 419, 420 (1994). However, "[t]he Commonwealth
need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of
the defendant." Hamilton v. Commonwealth, 16 Va. App.
751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative
hypothesis of innocence is reasonable is a question of fact, see
Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d
328, 339 (1988), and a determination by the fact finder,
therefore, is binding on appeal unless plainly wrong. See Martin,
4 Va. App. at 443, 358 S.E.2d at 418.

In this case, the only reasonable hypothesis flowing from the
evidence, viewed in the light most favorable to the Commonwealth,
is that appellant left the confines of the prison farm. At 11:00
p.m. on February 29, 1996, a head count in the prison farm
trailers indicated that all inmates were present and accounted
for. At about 11:15 p.m., correctional officers saw two
individuals emerge from a utility vent, located atop a trailer
within the city prison farm compound and jump to the ground.
Officers responded to the trailer area immediately, but the two
were no longer in sight, and despite a thorough search of the
fenced "security" area surrounding the farm, the
officers were unable to locate the pair. A head count and search
of the inmate trailers revealed that appellant was one of two
inmates missing and that he and his companion probably had
escaped through a crawlspace in the ceiling of trailer annex 1.

Officers waited beneath the hatch to the crawlspace, and at
about 4:00 a.m., they heard noises on the roof of the trailer,
after which appellant crawled through the hatch and back into the
trailer. He smelled of alcohol, a substance not permitted on the
prison farm, and the evidence showed that beer was available at a
convenience store within walking distance of the correctional
facility. A short time later, the other missing inmate was found
hiding beneath an adjacent trailer in an area previously
searched. That inmate appeared intoxicated and had alcohol in his

Although no one actually saw appellant outside the security
fence and although the ceiling crawlspace that appellant came
through had not been searched prior to his 4:00 a.m. reentry, the
space beneath the trailer where his companion was found had
previously been searched, as had all other areas within the
security fence, including "inside the barracks" and
"the complete trustee trailer areas." The searchers had
found neither the escapees nor any contraband during that search.
In addition, the officers posted in the trailer bathroom below
the crawlspace that was the route of escape heard nothing out of
the ordinary until appellant made noises on the roof just prior
to his 4:00 a.m. reentry.

The only reasonable hypothesis flowing from the evidence is
that both appellant and his companion fled the security area
immediately after they were seen jumping from the roof of the
trailer and that they obtained the alcoholic beverages they
consumed while outside the secured area.

Accordingly, the judgment of the trial court is affirmed.






[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

Code ? 18.2-479(B)
provides that:

If any person lawfully confined in jail or lawfully in the
custody of any court or officer thereof or of any
law?enforcement officer on a charge or conviction of a
felony escapes, otherwise than by force or violence or by
setting fire to the jail, he shall be guilty of a Class 6