Willard Smith v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
WILLARD SMITH
MEMORANDUM OPINION * BY
v. Record No. 2130-97-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Robert P. Geary for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction for maiming, in violation of
Code § 18.2-51, Willard Smith contends that the evidence is
insufficient to support his conviction. We agree and reverse the
judgment of the trial court.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On March 28, 1997, at an unspecified time, Andrew Taylor and
another man were standing on a street corner drinking beer, which
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
they had been doing since 6:00 a.m. Sometime later that day,
Smith approached Taylor and said, "I know you are mad . . .
because I got your wife." When Taylor walked away, Smith hit him
in the back and stomach. Taylor walked around the corner and
passed out. When he woke up, he was being treated in the
emergency room for stab wounds.
When questioned by the police, Taylor told them he had been
attacked by "Smoky," which is Smith's nickname. He testified
that he did not perceive that he was being stabbed, but that some
of the stab wounds were in the same places that he recalled being
hit by Smith. Taylor testified that Smith hit him with his fists
and that he saw no weapons in Smith's hands.
No evidence disclosed the time of Smith's attack on Taylor,
the length of time Taylor was unconscious on the sidewalk, the
time at which he was taken to the hospital, or what transpired
between Taylor's loss of consciousness on the sidewalk and his
arrival at the hospital. Although at least one witness saw the
altercation, only Taylor and an investigating detective
testified.
Smith told police he knew that Taylor had been stabbed, but
that he had not wounded Taylor. Smith acknowledged an
altercation between the two men but stated that he only hit
Taylor and did nothing to break his skin.
The Commonwealth's case is based wholly on circumstantial
evidence. "The circumstances of motive, time, place, means, and
conduct must all concur to form an unbroken chain which links the
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defendant to the crime beyond a reasonable doubt." Sam v.
Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)
(citation omitted). Here, no evidence disclosed what time the
altercation took place or what time Taylor arrived at the
hospital. There is no way to determine how long he was
unconscious on the sidewalk or what may have happened to him
after the altercation. Taylor had consumed a great deal of
alcohol and could easily have passed out from intoxication. He
was not aware that he had been stabbed until after he was at the
hospital.
The evidence raises no more than a suspicion of Smith's
guilt. Suspicion will not support a conviction. See Betancourt
v. Commonwealth, 26 Va. App. 363, 374-76, 494 S.E.2d 873, 878-79
(1998).
The judgment of the trial court is reversed, and the charge
is ordered dismissed.
Reversed and dismissed.
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