Mohamed Soleiman Mustamandi v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
MOHAMED SOLEIMAN MUSTAMANDI
MEMORANDUM OPINION * BY
v. Record No. 0715-99-4 JUDGE ROSEMARIE ANNUNZIATA
JUNE 27, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Stephen D. Halfhill (Allred, Bacon,
Halfhill, Landau & Young, P.C., on brief),
for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Appellant, Mohamed Soleiman Mustamandi, appeals his
conviction for robbery on the sole ground that the evidence was
insufficient to sustain the finding of guilt beyond a reasonable
doubt. For the reasons stated in this opinion, we reverse the
conviction.
FACTS
On appeal, the Court views the evidence in the light most
favorable to the Commonwealth, the party prevailing below. See
Taylor v. Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298
(1999) (en banc). On June 15, 1997, Emebet Lizzanu was robbed
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
at gun-point by two men. Mustamandi was subsequently indicted
for one count of robbery, one count of the use of a firearm in
the commission of robbery, and one count of conspiracy to commit
robbery.
Lizzanu testified that at approximately 8:30 p.m. on the
date in question, she observed a car follow her into the parking
lot of her apartment complex. After she parked, the other car
passed her, turned around and came back towards her. Lizzanu
exited her car and began walking towards her apartment while the
other car backed into a parking space between her and the
apartment building. She saw two men talking to someone in a
white van, and as she approached her apartment she saw the same
two men standing next to the parked car with both car doors
open.
As she walked past the car, she heard someone behind her
say, "excuse me, ma'am." She turned around and saw the two men
who had been standing near the parked car, one of whom pointed a
gun at her and demanded her purse. The other man stood a few
feet behind her as she handed her purse to the gunman.
Lizzanu's purse contained several items, including the faceplate
to her car stereo. After the robbery, both men told Lizzanu not
to shout, but to "just go home," and she ran to her apartment.
Mustamandi admitted he was at Lizzanu's apartment complex
at the time of the robbery. He claimed he was there trying to
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reach a friend who lived in the apartment complex. He also
stated that two of the men accompanying him, named Mauricio and
Mario, left his car and disappeared for some period of time, and
that upon their return they told Mustamandi to hurry out of the
lot. He stated that he learned of the robbery at that time.
Later that evening, Mustamandi and three or four other men
came into the Domino's pizza restaurant in Arlington, where
Mustamandi was then employed, to get pizza. By his own
admission, Mustamandi went to the restaurant with these men
after being at Lizzanu's apartment complex at the time of the
robbery. He and the others discussed the robbery and sorted
through Lizzanu's purse.
The faceplate to Lizzanu's car stereo was found in
Mustamandi's car, and Lizzanu's purse was found in the dumpster
behind the Domino's pizza restaurant. Prior to trial, Lizzanu
failed to identify Mustamandi at an identification session held
in the front lobby of the Alexandria police department. Lizzanu
had a difficult time recalling the details of the robbery
because of her frightened state of mind; however, she identified
Mustamandi at trial as one of the perpetrators of the robbery,
stating he was the individual with the gun. She also stated she
recognized Mustamandi's voice. She described the two robbers as
"probably Spanish" because they were neither white nor black,
and she noted that the gunman had an accent that was "possibly"
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Spanish, but that the second man spoke "pretty good English."
While she could not remember the type of hair or haircut the
gunman had, and denied he had the beard that Mustamandi
presented at trial, Lizzanu testified that she remembered
Mustamandi's face as that of the robber she saw.
Following a bench trial held on February 17, 1999,
Mustamandi was found guilty of robbery as a principal in the
second degree, but the court dismissed the charges of conspiracy
to commit the robbery and use of a firearm in the commission of
robbery. The court noted specifically that it believed
Mustamandi was the individual who stood behind Lizzanu during
the robbery.
Mustamandi contends that because Lizzanu testified that
Mustamandi was the man standing in front of her, pointing the
gun at her and robbing her of her purse, and never described the
individual who stood behind her, the evidence was insufficient
to sustain the conviction.
ANALYSIS
When a defendant challenges the sufficiency of the evidence
on appeal, the reviewing court must accord the judgment of the
trial court sitting without a jury the same weight as a jury
verdict. See Commonwealth v. Taylor, 256 Va. 514, 518, 506
S.E.2d 312, 314 (1998); Beck v. Commonwealth, 2 Va. App. 170,
172, 342 S.E.2d 642, 643 (1986). It is the appellate court's
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duty to examine the evidence that tends to support the
conviction and to permit it to stand unless it is plainly wrong
or without evidentiary support. See Commonwealth v. Presley,
256 Va. 465, 466, 507 S.E.2d 72, 72 (1998); Commonwealth v.
Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998).
"While a conviction of guilt may properly be based upon
circumstantial evidence, suspicion or even probability of guilt
is not sufficient. There must be an unbroken chain of
circumstances establishing the guilt of [the defendant] to the
exclusion of any other rational hypothesis and to a moral
certainty." Craig v. Commonwealth, 215 Va. 260, 261, 208 S.E.2d
744, 745 (1974). "Suspicious circumstances . . . are not proof
of guilt sufficient to support a verdict of guilty." Burchette
v. Commonwealth, 15 Va. App. 432, 438-39, 425 S.E.2d 81, 86
(1992) (citation omitted); see Nelson v. Commonwealth, 12
Va. App. 268, 271, 403 S.E.2d 384, 386 (1991) ("[A] suspicion of
guilt, however strong, or even a probability of guilt, is
insufficient to support a criminal conviction."). "Proof by
circumstantial evidence is not sufficient if it engenders only a
suspicion or even a probability of guilt. Conviction cannot
rest upon conjecture. All necessary circumstances proved must
be consistent with guilt and inconsistent with innocence
. . . ." Haskins v. Commonwealth, 31 Va. App. 145, 151, 521
S.E.2d 777, 779 (1999) (citations omitted).
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Applying these principles of law to the evidence before us,
we hold the trier of fact had no evidence before it upon which
it could conclude that Mustamandi was the man who stood behind
Lizzanu during the robbery. Mustamandi admitted being present
in the parking lot of Lizzanu's apartment complex at the time of
the robbery, and to going through her purse at the Domino's
pizza restaurant afterward with his companions, whom he alleges
committed the crime. Lizzanu identified Mustamandi as one of
the two robbers. Although direct evidence consisting of
in-court identification of the perpetrator is sufficient to
establish identity, see Floyd v. Commonwealth, 31 Va. App. 193,
198-99, 522 S.E.2d 382, 384-85 (1999), the trial court, as
finder of fact, disbelieved Lizzanu's identification of
Mustamandi as the gunman. The court found instead that
Mustamandi was the man standing behind Lizzanu during the
robbery, despite Lizzanu's inability to identify that individual
and the absence of any other evidence identifying that person.
Although the facts admitted by Mustamandi provide
circumstantial evidence that he might have participated in the
robbery, neither they, the presence of Lizzanu's stereo face
plate in Mustamandi's car, nor the evidence provided by Lizzanu
establish beyond a reasonable doubt that Mustamandi committed
the crime. Other than Lizzanu's identification of Mustamandi as
the gunman, which the court disbelieved, the only direct
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evidence offered in her testimony possibly establishing
Mustamandi's involvement in the robbery was her assertion that
she recognized his voice. However, she described the gunman's
accent as "possibly Spanish," and noted that the second robber
spoke "pretty good English." Neither of these statements
affirmatively identifies Mustamandi, who is of Afghani heritage.
Because "[s]uspicious circumstances . . . are not proof of guilt
sufficient to support a verdict of guilty," Burchette, 15
Va. App. at 438-39, 425 S.E.2d at 86, and because "[t]here must
be an unbroken chain of circumstances establishing the guilt of
[the defendant] to the exclusion of any other rational
hypothesis," Craig, 215 Va. at 261, 208 S.E.2d at 745, we
conclude that the Commonwealth failed to adduce evidence that
proved beyond a reasonable doubt that Mustamandi was present
when Lizzanu was robbed and committed the crime as a principal
in the second degree.
Thus, for the reasons stated, we reverse the decision of
the trial court.
Reversed.
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