David S. Butchee v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
DAVID S. BUTCHEE
MEMORANDUM OPINION * BY
v. Record No. 3050-99-1 JUDGE JAMES W. BENTON, JR.
FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
Michael J. Lutke (Office of the Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted David S. Butchee of robbery and the use of a
firearm during the commission of a robbery in violation of Code
§§ 18.2-58 and 18.2-53.1, respectively. Butchee contends the
evidence was insufficient to support the convictions. We disagree
and affirm the convictions.
I.
The evidence proved that during the morning of November 24,
1997, someone stole a white Jeep Cherokee vehicle from a residence
in the City of Virginia Beach. At 8:00 p.m. that night, Sergeant
Gerald Wayne Lloyd of the Stafford County Sheriff's Office
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
received a report concerning the stolen vehicle. Shortly after
receiving the report, Lloyd saw Butchee putting gas into the
vehicle in Stafford County. When Lloyd attempted to speak with
Butchee, Butchee ran. After Lloyd apprehended Butchee, Lloyd
searched the vehicle and found a stainless steel handgun.
Lloyd testified that Butchee said he had stolen the vehicle
from the residence in Virginia Beach. Butchee also said "he
didn't know about the gun." During his testimony, Lloyd
identified two photographs of Butchee that were taken after his
arrest. The photographs show Butchee wearing a hooded sweatshirt
with lettering. Although the letters are not distinct in the
photograph, Lloyd testified that Butchee was wearing a gray
sweatshirt with the words "Penn State."
The evidence also proved that at approximately 3:00 p.m. on
November 24, a man entered a post office in the City of Franklin,
demanded money from Joseph E. Edwards, Jr., a postal clerk, and
placed a gun on the counter pointing at Edwards. After Edwards
gave the man "a handful of twenty-dollar-bills," the man left the
bank. Edwards alerted co-workers to the robbery and then exited
the post office with a co-worker to see where the man went.
Edwards saw the man "open the front door and get in and back up" a
white Jeep Cherokee. Edwards and his co-worker testified that the
vehicle the man drove was similar to a photograph of the vehicle
which Butchee stole earlier that day in Virginia Beach.
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Edwards testified that he focused on the gun and could not
identify the man who robbed him. He testified that the "silver
colored gun" the robber used was similar to the gun recovered from
the vehicle after Butchee was arrested. He also testified that
the robber wore "a hooded sweatshirt with the hood pulled up" and
also wore "dark gloves with the fingers cut out of them." Edwards
saw a part of the robber's face, could not see his hair, and knew
the robber was a black male. He did not notice lettering on the
sweatshirt.
Jessica Tillett, an employee at a bank in Franklin, testified
that a man in a "white hooded Penn State sweatshirt . . . [and]
cutoff black gloves" came into the bank after 1:00 p.m. that
afternoon. Tillett identified a photograph of that man taken from
the bank surveillance camera. The photograph, which is in
evidence, depicts a man wearing a hooded sweatshirt, which has the
lettering "Penn State," and wearing a glove with the finger
material cut off. Tillett testified that the bank is located one
block from the post office.
Robert J. Ferguson saw a man in Franklin that same afternoon
wearing a gray, hooded sweatshirt with a college logo that
included the word "State." Between 12:00 and 1:00 p.m., the man
was standing in the vicinity of the post office near a white Jeep
Cherokee, which Ferguson testified was identical to the one
Butchee stole in Virginia Beach. Vernon Babb also saw this man
near the Jeep Cherokee. Both Ferguson and Babb identified the man
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in the bank surveillance camera photograph as the man they saw
standing by the Jeep Cherokee. Ferguson and Babb also testified
that at approximately 3:00 p.m. the Jeep Cherokee departed the
area "mighty fast" and "squalling tires." They did not see the
driver.
A detective testified that he questioned Butchee several
months after the robbery. Butchee denied both that he had robbed
the post office and that he knew where Franklin was located.
Later, after the detective showed Butchee the photograph from the
bank surveillance tape, Butchee asked where the detective had
gotten the photograph of him. Butchee then admitted that he had
been in Franklin on the day of the robbery and explained that he
had gone into the bank to ask for directions to the highway.
The jury convicted Butchee of robbery and of using a firearm
in the commission of that robbery. The trial judge sentenced
Butchee according to the jury's verdict to 30 years in prison for
the robbery and 3 years in prison for the use of the firearm.
II.
Butchee challenges the sufficiency of the evidence
identifying him as the perpetrator of the robbery. He contends
that the Commonwealth did not meet its burden of proving identity
beyond a reasonable doubt because no one could identify him as the
robber. He argues that although he may have had clothing, a gun,
and a vehicle similar to those of the robber, the jury speculated
to conclude that he was that robber.
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"'Circumstantial evidence . . . is evidence of facts or
circumstances not in issue from which facts or circumstances in
issue may be inferred.'" Byers v. Commonwealth, 23 Va. App. 146,
151, 474 S.E.2d 852, 854 (1996) (citation omitted).
Circumstantial evidence is as competent and is entitled to as much
weight as direct evidence, provided it is sufficiently convincing
to exclude every reasonable hypothesis except that of guilt. Id.Where the Commonwealth relies upon
circumstantial evidence to establish guilt,
the chain of circumstances must be unbroken
and the evidence, as a whole, must be
sufficient to 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
reasonable hypothesis and to a moral
certainty.
Comer v. Commonwealth, 211 Va. 246, 249, 176 S.E.2d 432, 434
(1970).
The evidence proved that Butchee was in Franklin shortly
before the robbery. After initially denying that he knew where
Franklin was located, Butchee told the detective he was in
Franklin and identified his photograph from the bank's camera.
His statement and the other evidence, thus, proved that Butchee
was in the bank less than two hours before the robbery. He was
wearing a hooded sweatshirt with the lettering "Penn State" and
gloves with the finger material cut off. He matched the
physical description of the robber; he wore clothing similar to
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the robber; and he drove a vehicle identical to that of the
robber.
Moreover, two witnesses identified the man who was beside
and in a white Jeep Cherokee in the vicinity of the post office
as the same man photographed in the bank on the day of the
robbery. Thus, the evidence proved Butchee was by the vehicle
and in the vicinity of the post office in downtown Franklin at
the approximate time of the robbery. No evidence proved that
any other person was at or in the Jeep Cherokee with Butchee.
The postal clerk testified that the robber was wearing a
gray hooded sweatshirt and black gloves with the finger material
cut off. He saw the robber enter the driver's seat of the Jeep
Cherokee and drive away. Butchee was the only person seen in or
near the vehicle in Franklin, and he was the only person in it
when he was arrested.
The jury was entitled to infer from the postal clerk's
description of the robber and of the robber's escape in the
white Jeep Cherokee that the robber was the same individual seen
by the other witnesses who testified. The jury also was
entitled to infer from Ferguson and Babb's testimony that
Butchee was the person standing around the Jeep Cherokee on the
day of the robbery and that Butchee left "mighty fast" at
3:00 p.m. in that vehicle. The jury viewed a photograph of
Butchee in the bank and the photographs of Butchee taken after
his arrest. Those photographs are clear and depict the same man
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with a hooded sweatshirt. In addition, the jury was entitled to
infer from the evidence that the gun in Butchee's possession
when he was arrested was the same gun used in the robbery. The
jury was also entitled to infer from Butchee's initial denials
of being in Franklin and possessing the gun that he was trying
to avoid prosecution for the robbery. See Rollston v.
Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)
(holding that a defendant's false statements permit an inference
he is trying to conceal his guilt).
As in Harward v. Commonwealth, 5 Va. App. 468, 364 S.E.2d
511 (1988), and Comer, the jury convicted the accused without a
clear identification by the victim. As in those cases, Butchee
wore clothing similar to the perpetrator of the crime and
possessed items, in this case the Jeep Cherokee and a gun, which
the robber would have had. This evidence, in combination with
Butchee's presence in Franklin, provides an adequate basis for
the jury to find beyond a reasonable doubt that Butchee was the
robber.
For these reasons, we affirm the convictions below.
Affirmed.
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