Anthony Leroy Perry v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
ANTHONY LEROY PERRY
MEMORANDUM OPINION * BY
v. Record No. 2667-99-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge
Thomas E. Dempsey (Vergara & Associates, on
briefs), for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Anthony Leroy Perry (appellant) was convicted in a bench
trial of breaking and entering with the intent to commit assault
and battery or larceny in violation of Code § 18.2-91. On
appeal, he contends that the trial court erred: (1) in refusing
to strike the Commonwealth's evidence, and (2) in overruling his
objection to the Commonwealth's attorney's referral to his
height during closing argument. We affirm the judgment of the
trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
On December 12, 1998, Perry, Antonio Goode, and Jermaine
Sample, knocked on Tracy Taylor's door and asked whether
"Ernest" was there. She told them that he was not there. The
three men walked away, but returned shortly thereafter in a
Lincoln Continental. Ms. Taylor saw Goode exit the car and run
around to the back of her house. Thereafter, she heard a
gunshot and the sound of her back door being kicked down. She
ran across the street to Faye Parson's house and screamed for
someone to call the police. Ms. Taylor testified that from Ms.
Parson's doorstep she saw Goode come out of her house and get
into the Lincoln driven by Sample.
Ms. Parson, Ms. Taylor's neighbor, testified that she saw
two black individuals exit Ms. Taylor's home and get into the
car. She stated that one was about 5'1" or 5'2" tall and the
other "looked like a little boy" and was about her height --
4'11" tall.
Shortly after receiving a police dispatch, Sergeant Joseph
Sumner saw the Lincoln. He testified that he looked "very
carefully" at the faces of the occupants. He identified Sample
as the driver and Goode and Perry as front and rear seat
passengers, respectively. Sergeant Sumner's attention was
particularly drawn to Perry, who "tried to hide himself in the
back." When Sergeant Sumner attempted to stop the car, it sped
off and a high speed chase ensued. When the car eventually came
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to a halt, Goode and Perry attempted to flee on foot, but were
apprehended.
At the conclusion of the Commonwealth's case, Perry moved
to strike the evidence. The trial court denied the motion.
Perry offered no evidence and renewed his motion to strike,
arguing that nothing linked him to the scene of the crime. The
Commonwealth argued that Perry's physical appearance was
consistent with the description given by Ms. Parson who saw two
men exit Ms. Taylor's house. The Commonwealth's attorney
stated, "[t]he Court can see today that Mr. Perry is somewhat
shorter [than Goode]." Perry objected to this comment, arguing
that nothing had been entered into evidence concerning his
height. The court overruled Perry's objection and found him
guilty of breaking and entering.
II. SUFFICIENCY OF THE EVIDENCE
Perry first contends that the evidence was insufficient to
sustain his conviction. He argues that all reasonable
hypotheses of his innocence were not eliminated, specifically
the possibility that he entered the car after the offense
occurred or, if he was in the car during the offense, that he
remained in the car as a mere passenger.
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
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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). When the sufficiency of the evidence is challenged on
appeal, "it is our duty to look to that evidence which tends to
support the verdict and to permit the verdict to stand unless
plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121
S.E.2d 452, 457 (1961). Furthermore, "[c]ircumstantial evidence
alone is sufficient to sustain a conviction." Johnson v.
Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167
(1986).
Perry appeared on Ms. Taylor's porch with Goode and Sample
immediately before the break-in, supposedly looking for someone
they believed lived in her home. He was present in the car with
Goode and Sample immediately following the break-in. He
attempted to conceal himself as the get-away car passed by
Sergeant Sumner. He fled on foot when the car was eventually
stopped. Moreover, Ms. Parson, who witnessed the incident,
testified that she observed two black men leave Ms. Taylor's
home. She testified that one was about 5'1" or 5'2" tall and
the other "looked like a little boy" and was about her size --
4'11" tall. Perry and Goode fit Ms. Parson's general
description of the race and height of the men she saw leaving
Ms. Taylor's home.
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"Whether the Commonwealth relies upon either direct or
circumstantial evidence, it is not required to disprove every
remote possibility of innocence, but is, instead, required only
to establish guilt of the accused to the exclusion of a
reasonable doubt." Bridgeman v. Commonwealth, 3 Va. App. 523,
526-27, 351 S.E.2d 598, 600 (1986) (citation omitted). Indeed,
"[t]he Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)
(citations omitted).
A theory of innocence based upon speculation that Perry
entered the car after the offense occurred or, if in the car
during the offense, remained in the car as a mere passenger,
does not flow from the evidence. The credibility of the
witnesses, the weight accorded the testimony and the inferences
to be drawn from proven facts lie solely within the province of
the trier of fact, provided such inferences are justified and
reasonable. See Spivey v. Commonwealth, 23 Va. App. 715, 724,
479 S.E.2d 543, 548 (1997). It was not error for the trial
court, having heard all the evidence, to infer that Perry
participated in the breaking and entering of Ms. Taylor's house.
III. THE COMMONWEALTH'S ATTORNEY'S COMMENT
Perry next contends that the comment by the Commonwealth's
attorney in closing argument referring to his height was
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improper and the court erred in overruling his objection. We
disagree.
In this case, the identity of the person seen leaving Ms.
Taylor's house was a fact at issue. Thus, the Commonwealth
called Ms. Parson, Ms. Taylor's neighbor who witnessed the
event, to testify. She gave a description of two black men who
exited Ms. Taylor's house. Although she could not specifically
identify Perry as one of those individuals, her description was
consistent with Perry's physical characteristics. This evidence
was sufficient to support the comment of the Commonwealth's
attorney during his closing argument. As the trier of fact, the
trial judge was entitled to weigh Ms. Parson's testimony in
light of his own observations of Perry's physical
characteristics and to draw reasonable inferences regarding the
identity of the man Ms. Parson saw leaving Ms. Taylor's house.
See Spivey, 23 Va. App. at 724, 479 S.E.2d at 548 (stating that
the credibility of witnesses, the weight accorded the testimony
of witnesses, and the inferences to be drawn from proven facts
are questions within the province of the trier of fact).
Therefore, the court did not err in overruling Perry's objection
to the Commonwealth's attorney's comment referring to Perry's
height.
The judgment of the trial court is affirmed.
Affirmed.
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