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April 21, 2000

Record No. 991244





Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, Kinser, JJ., and Poff, Senior Justice


The sole issue framed by the parties to this
appeal is whether the evidence adduced at trial was sufficient to
identify the accused as the criminal agent in the commission of a

In a bench trial conducted in the Circuit Court
of the City of Richmond, Willard Smith was convicted of malicious
wounding as defined in Code ? 18.2-51.
[1] A panel
of the Court of Appeals of Virginia reversed the judgment entered
by the trial judge and dismissed the indictment. Smith v.
, Record No. 2130-97-2 (March 2, 1999). See
Burks v. United States, 437 U.S. 1, 18 (1978). We awarded
the Commonwealth an appeal.

The evidence of record shows that Andrew
Taylor, the victim of the felony, testified that he and a friend
named Joseph had "started drinking about 6:00 that
morning" and had consumed "about four or five quarts of
beer." Looking across the city street where they were
standing, he saw Smith approaching. Speaking to Taylor, Smith
said, "I know you are mad . . . because I got your
wife." Taylor testified that as he "turned to walk
away," Smith hit him "[r]ight here in the
stomach." He said that he "hit me again, and I grabbed
him, and after that I don’t remember much more than that."
He did "remember walking away from him" and that
"all of a sudden the lights went out."

Taylor remained unconscious until he "came
to" in a hospital emergency room. He said that medical
personnel were "sewing me in the back." He explained
that he "had knife stabs," that he was
"bleeding," that he "had to be stitched," and
that some of his wounds were located at the "[s]ame
spot" where Smith had been "hitting" him. Taylor
testified on direct examination that he did not see
"anything in the defendant’s hand" when Smith was
hitting him and, again on cross-examination, that "[i]f it
was a weapon used, I didn’t see it." Asked if he had seen
any blood, Taylor replied that he had not. In response to
counsel’s statement that "[y]ou don’t know that Willard
Smith did anything to you other than hit or punch you,"
Taylor said, "That’s correct."

Smith moved to strike the Commonwealth’s
evidence "on a reasonable doubt basis." The trial judge
overruled the motion, and Smith elected to rest. The court found
Smith guilty of malicious wounding and imposed a sentence of 20
years imprisonment with execution of 16 years of that sentence
suspended during good behavior.

The Court of Appeals held that the evidence was
insufficient to support the conviction. We agree.

We have said that "where a fact is equally
susceptible of two interpretations one of which is consistent
with the innocence of the accused, [the trier of fact] cannot
arbitrarily adopt that interpretation which incriminates [the
accused]." Burton and Conquest v. Commonwealth, 108
Va. 892, 899, 62 S.E. 376, 379 (1908). Additionally, "the
burden is upon the Commonwealth to prove the guilt of the accused
to the exclusion of every reasonable hypothesis consistent with
his innocence . . . ." Spicer v.
, 156 Va. 971, 973, 157 S.E. 566, 566 (1931). In LaPrade
v. Commonwealth
, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950),
we stated the following principles that are pertinent here:

[I]f the proof relied upon by the Commonwealth
is wholly circumstantial, as it here is, then to establish guilt
beyond a reasonable doubt all necessary circumstances proved must
be consistent with guilt and inconsistent with innocence. They
must overcome the presumption of innocence and exclude all
reasonable conclusions inconsistent with that of guilt. To
accomplish that, the chain of necessary circumstances must be
unbroken and the evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and the criminal agency of
the accused have been proved to the exclusion of any other
rational hypothesis and to a moral certainty.

Concerning the identity of the criminal agent,
the Commonwealth’s hypothesis relies principally upon the fact
that "[t]he victim described at least some of the stab
wounds as being in the ‘same spot[s]’ where the defendant had
struck him." But the evidence, or lack of evidence, supports
a different hypothesis.

Taylor testified that Smith attacked him with
his fists and that, with respect to that attack, he had seen no
weapons or blood indicative of a stabbing attack. Joseph was
never called as a witness to contradict that testimony. The
record at trial contains no evidence of the time or duration of
the fist attack, the length of time Taylor lay unconscious on the
sidewalk, or what transpired in the interval of time preceding
his arrival at the hospital.

The evidence of record supports two hypotheses.
First, that the period of unconsciousness resulted from a fist
attack that developed into a knife attack by Smith when Taylor
started "walking away from him." Second, that Taylor’s
unconsciousness resulted from his state of intoxication which
inspired an unidentified pedestrian present at the scene (or one
arriving later) to use a knife to terrorize the victim in order
to achieve some ulterior motive. Consequently, the Commonwealth
failed "to prove the guilt of the accused to the exclusion
of every reasonable hypothesis consistent with his innocence
. . . ." Spicer v. Commonwealth, 156
Va. at 973, 157 S.E. at 566.

We agree with the conclusion reached by the
Court of Appeals that "[t]he evidence raises no more than a
suspicion of Smith’s guilt." "Suspicion, however, no
matter how strong is insufficient to sustain a criminal
conviction." Stover v. Commonwealth, 222 Va. 618,
624, 283 S.E.2d 194, 197 (1981). Accordingly, we will affirm the
judgment of the Court of Appeals.




[1] Code ? 18.2-51 provides:

If any person maliciously shoot, stab, cut, or
wound any person or by any means cause him bodily injury, with
the intent to maim, disfigure, disable, or kill, he shall, except
where it is otherwise provided, be guilty of a Class 3 felony. If
such act be done unlawfully but not maliciously, with the intent
aforesaid, the offender shall be guilty of a Class 6 felony.