Howard Charles Robenolt, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
HOWARD CHARLES ROBENOLT, S/K/A
HOWARD C. ROBENHOLT
MEMORANDUM OPINION * BY
v. Record No. 2413-95-2 JUDGE SAM W. COLEMAN III
JUNE 4, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
Alexander M. Clarke, Jr. (Oxenham, Rohde &
Clarke, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In this criminal appeal, Howard Charles Robenolt contends
that the evidence is insufficient to prove that he was the person
who committed the burglary of a restaurant. We hold that the
evidence is sufficient and affirm the defendant's conviction.
The Commonwealth first argues that the defendant is barred
by Rule 5A:18 from challenging the sufficiency of the evidence on
appeal because he did not state specific grounds in the trial
court for his motion to strike the evidence. However, the record
reveals that the defendant moved to strike the evidence at the
close of the Commonwealth's case and renewed the motion in lieu
of presenting evidence. The defendant's contention that the
evidence failed to prove that he was the criminal agent was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
clearly presented to and considered by the trial judge.
Accordingly, the issue of the sufficiency of the evidence was
properly preserved for appeal. See Previtire v. Commonwealth, 16
Va. App. 869, 870-71, 433 S.E.2d 515, 516 (1993).
When the sufficiency of the evidence is challenged on
appeal, "we review the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "The judgment of the trial
court shall not be set aside unless it appears from the evidence
that said judgment is plainly wrong or without evidence to
support it." Id. at 250-51, 356 S.E.2d at 444.
The evidence proved that the defendant was a patron sitting
at the bar of the Southern Knights Restaurant at approximately
10:00 p.m. on September 13, 1994, when Tracy Richardson, a
bartender at the restaurant, informed him that it was "last
call." Richardson testified that the defendant "had a flash
light in his hand" when he came into the bar. She testified that
this aroused her suspicion because she had seen the defendant in
the bar on prior occasions and he had never brought a flashlight
with him. Richardson did not see the defendant leave the
restaurant, but she testified that he was not sitting at the bar
when she began to lock up. She "looked around inside the
restaurant" and then went outside to the parking lot, but did not
see the defendant. Richardson then locked all of the doors and
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placed a fitted bar across the back door.
Patricia Butner, the owner of the restaurant, arrived at the
restaurant around 4:30 a.m. the following morning and found that
money had been taken from the juke box and the pool tables.
Butner discovered that there were more lights on than usual and
that the bar used to secure the back door "was off of the back
door sill." 1 Officer Shawn Diasparra arrived at the restaurant
soon thereafter. Butner informed him that an undetermined amount
of money had been stolen from the pool tables and the juke box.
Butner also directed Officer Diasparra to talk to the defendant
because he had been in the bar prior to closing.
Officer Diasparra went to the defendant's home around 6:00
a.m. and found the defendant asleep. Diasparra informed the
defendant that he was investigating a burglary at the Southern
Knights Restaurant. The defendant responded that he had been at
home sleeping since 12:30 a.m. The defendant then stated that he
had purchased a six-pack of Miller Lite beer from a convenience
store the previous evening "because . . . he drinks . . . Miller
Lite Beer and not Miller Beer." He showed Officer Diasparra a
cooler that contained cans of Miller Lite and restated that he
did not drink Miller beer.
Officer Diasparra testified that he found the defendant's
statements concerning the beer odd because he did not ask the
1
The police later determined that the burglar entered the
attic of the building through the roof and removed some ceiling
tiles in order to get into the restaurant.
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defendant about beer. Diasparra also testified that the
defendant did not provide him any information about the burglary
at the restaurant. On cross-examination, Officer Diasparra
stated that "a Mr. Kennard Dameron was staying with [the
defendant]" at his home.
The night following the burglary, Butner discovered that two
cases of Miller beer were missing from the restaurant. Butner
did not report the missing beer to the police, however, because
she "figured that [Officer Diasparra] would be back in touch with
[her]" and that she could report the missing beer later.
Approximately two weeks after the burglary, the defendant
went to the restaurant, ordered a Miller Lite, and asked Butner
if she knew who had broken into the restaurant. She responded
that she did not. The defendant then volunteered to her "that
some guy named Kennard and Marshall Ferguson" were involved in
the burglary. The defendant also stated that the police had
questioned him at 4:30 a.m. on the morning of the burglary.
Butner told him that was impossible because she did not report
the burglary until 5:00 a.m. Then, the defendant told Butner
"that the policeman asked him what kind of beer he drank and he
said, 'I drink Miller Lite.'" According to the defendant, the
police officer responded, "[t]hat lets you off the hook. They
took two cases of Miller Beer." At that time, Butner had not
informed the police about the missing cases of beer, and she told
the defendant that the officer could not have mentioned the beer
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because he did not know about it. Butner testified that at the
time the defendant mentioned the missing beer to her, only
Richardson and a close friend named Pat Rickman knew about the
missing cases of beer.
The evidence, viewed in the light most favorable to the
Commonwealth, proves that the defendant, who acted suspiciously
on the night of the burglary by bringing a flashlight into the
bar, had the opportunity to commit the burglary. He was seen in
the restaurant immediately before closing on the evening of the
burglary. Although opportunity to commit a crime is not of great
moment in proving one's guilt, the defendant's statements to
Officer Diasparra, the morning following the burglary, that he
did not drink Miller beer, and his conversation with Butner two
weeks after the burglary, where he claimed that Officer Diasparra
told him that two cases of Miller beer had been stolen and that
he was "off of the hook" because he drank Miller Lite, were
highly incriminating. They revealed a knowledge about specific
facts pertaining to the burglary that were not common knowledge
and only the burglar or someone he told would know. Officer
Diasparra testified that he knew nothing about the missing beer
when he talked to the defendant, and Butner still had not
reported the missing beer to the police when the defendant talked
to her. The trial court was entitled to infer guilty knowledge
from these statements. See Speight v. Commonwealth, 4 Va. App.
83, 89, 354 S.E.2d 95, 99 (1987) (en banc). The court was also
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free to reject the defendant's self-serving statement to Butner
"that some guy named Kennard and Marshall Ferguson" were involved
in the burglary. See Black v. Commonwealth, 222 Va. 838, 842,
284 S.E.2d 608, 610 (1981) (holding that "[t]he fact finder need
not believe the accused's explanation and may infer that he is
trying to conceal his guilt"); Rollston v. Commonwealth, 11 Va.
App. 535, 547-48, 399 S.E.2d 823, 830 (1991) (holding that the
trier of fact "is not required to accept in toto an accused's
statement, but may rely on it in whole, in part, or reject it
completely").
The defendant contends that the evidence does not exclude
the hypothesis that he learned about the stolen cases of beer
from Kennard Dameron, who Officer Diasparra confirmed was living
with the defendant. However, because the defendant first
indicated that he had knowledge of the crime on the morning of
September 14 when he spoke with Officer Diasparra, and because he
told Diasparra that he had been asleep from 12:30 a.m. until the
time Diasparra arrived, the defendant could only have learned
about the burglary from Dameron, if that was his source as he
argues, sometime between 10:00 p.m. and 12:30 a.m. No evidence
suggests that Dameron was present at the house when Officer
Diasparra questioned the defendant; nothing in the record
indicates that the defendant and Dameron had been together
between 10:00 p.m. and 12:30 a.m. Moreover, the defendant did
not mention Dameron to Officer Diasparra, nor did he tell
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Diasparra that he had information about the burglary when
Diasparra questioned him. Accordingly, the hypothesis of
innocence raised by the defendant is not suggested or supported
by evidence. It is not reasonable because it is purely
speculative and does not flow from the evidence. Black, 222 Va.
at 841, 284 S.E.2d at 609 (holding that "[t]he hypotheses which
the prosecution must reasonably exclude are those 'which flow
from the evidence itself, and not from the imagination of
defendant's counsel'") (quoting Turner v. Commonwealth, 218 Va.
141, 148, 235 S.E.2d 357, 361 (1977)).
The circumstantial evidence is sufficient to prove beyond a
reasonable doubt that the defendant was the criminal agent and,
therefore, we affirm the defendant's conviction.
Affirmed.
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BENTON, J., dissenting.
A conviction may not be based upon speculation, surmise, or
conjecture. Thomas v. Commonwealth, 187 Va. 265, 272, 46 S.E.2d
388, 391 (1948). "The Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged." In re Winship, 397 U.S. 358, 364 (1970).
It is, of course, a truism of the criminal
law that evidence is not sufficient to
support a conviction if it engenders only a
suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture. The
evidence must be such that it excludes every
reasonable hypothesis of innocence. The
giving by the accused of an unclear or
unreasonable or false explanation of his
conduct or account of his doings are matters
for the jury to consider, but they do not
shift from the Commonwealth the ultimate
burden of proving by the facts or the
circumstances, or both, that beyond all
reasonable doubt the defendant committed the
crime charged against him.
Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533
(1951). See also Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977).
The evidence proved that the intruder entered the
restaurant's building from the outside and through the attic. No
evidence tended to prove that Howard Robenholt, who regularly
patronized the restaurant, was that intruder. His presence with
another patron in the restaurant until it closed established
nothing probative regarding proof of the burglary.
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The only items known to be missing following the burglary
were coins taken from the pool table and the "juke box." The
money in the cash register had not been removed. The owner
looked in the stock room and noted that no beer was missing.
The majority makes much of Robenholt's statement to the
police officer concerning beer. The record proved, however, that
when the officer woke Robenholt at his home the morning following
the burglary, he explained to Robenholt that he was investigating
the burglary and asked Robenholt to explain his activities.
During Robenholt's explanation of his activities after he left
the restaurant, he told the officer that he purchased Miller Lite
beer on his way home. He showed the officer the container of
beer and said he knew nothing of the burglary. The evidence
permits only "suspicious inferences" to be drawn from Robenholt's
statements and conduct. Id.
After the officer questioned him, Robenholt believed that he
had been accused of the burglary. Two days later he protested to
the owner's daughter, who had served Robenholt in the restaurant
the night before the burglary. She told him to talk to her
mother, the owner.
A week later, Robenholt went to the restaurant, ordered a
Miller Lite beer, and asked the owner if she had discovered who
broke into the restaurant. During the conversation he informed
her that he believed the intruders had been two men whom he
identified by name. One of the men lived in the same residence
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where Robenholt lived.
The owner testified that the night following the burglary,
after the restaurant had been open for business the entire day
and evening, she discovered that two cases of Miller beer were
not in her stock. The owner did not then inform the police that
the beer was missing or that she suspected it was taken during
the burglary. Indeed, no evidence proved that two cases of
Miller beer were taken during the burglary. The record proved
only that the cases were discovered missing after the restaurant
had been open a day and a night after the burglary. Furthermore,
two weeks after the burglary, when Robenholt talked to the owner
about his suspicions that a person who lived in his residence had
committed the burglary, the owner had not yet reported the
missing beer.
At best, the evidence only proved that Robenholt made
statements that the majority deems suspicious. However, the
context in which those statements were made was not so
unambiguous that the statements can be deemed proof beyond a
reasonable doubt of Robenholt's participation in the burglary.
No evidence proved that Robenholt, who had patronized the
restaurant for over a year, was the person who committed the
burglary. "While it may be possible to draw suspicious
inferences from . . . [Robenholt's] contradictory statements,
. . . in the face of the presumption of innocence, such
inferences are insufficient to prove beyond a reasonable doubt
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that [Robenholt] committed the crimes." Id.
For these reasons, I would reverse the conviction.
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