Opinion
Record No. 1485-91-2
January 5, 1993
FROM THE CIRCUIT COURT OF HANOVER COUNTY RICHARD H. C. TAYLOR, JUDGE
Michael HuYoung (Jane Chittom, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Elder and Willis
Argued at Richmond, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Stephen Jennings was convicted after a jury trial of failing to stop at the scene of an automobile accident in which he was involved in violation of Code § 46.2-894. Appellant asserts that the evidence introduced at trial was insufficient to support his conviction. We affirm the decision of the trial court.
On November 30, 1990, between 8:30 and 9:00 p.m., Walter Powell's automobile was hit from behind while it was stopped at a traffic light on Route 301 and knocked into an oncoming lane of traffic. Two people witnessed the accident. Witness Clark observed a small-to-medium reddish-orange truck, which appeared to contain a single male occupant, hit the victim's car. Witness Large saw a red pickup truck, which was probably American-made and contained only the driver, run into the victim's car. It then pulled into a nearby gas station before leaving the scene a few minutes later. Neither witness could identify the make, model or license plate number of the truck.
Davidson, the deputy sheriff who investigated the accident, noticed a smear of orange paint on the cover of the trunk keyhole of the victim's car, which had a reddish-orange rear emblem. He also retrieved eleven fragments from the point of impact, one of which was a piece of headlight trim. He later discarded all of those items except the headlight trim because he was unable to link them to the appellant's truck. He did testify, however, that the pieces could have come from the grill of appellant's car, but that he could not be certain because an entire section of the grill was missing and there were no perimeter points of reference.
The day after the accident, Davidson spoke with appellant, who was standing with his car, a 1985 General Motors pickup truck, in the median strip of Interstate 95 South. Part of the grill of appellant's truck was missing. When questioned about his activities on the previous evening, appellant stated that he had had about six beers at the home of a friend. He then left the friend's house around 9:00 p.m. and hit a deer at some point thereafter, although he could not remember exactly where the collision had occurred. He also testified that he drove down Route 301 to Interstate 295 to his place of business, passing by the scene of the accident in the process. When questioned by Davidson, appellant could not account for his whereabouts between that time and 4:30 a.m. the following morning.
Davidson testified that he could not confirm appellant's statement that he had hit a deer. He had no personal knowledge of a deer being hit anywhere near the scene of the accident, nor had he received any reports that such an accident had taken place. He also examined appellant's car and found no traces of animal hair, blood or fluid. He did find, however, that a piece of the windshield glass was broken and that appellant had blood on his collar. Davidson also attempted to match the piece of headlight trim he had recovered at the scene of the accident with a piece missing from appellant's truck, and it appeared to fit. A state forensic scientist, Robin McLaughlin, also examined the fragment and determined that the headlight trim found at the scene and the portion of headlight trim still on appellant's truck "fit together perfectly" and had "upwards of hundreds . . . of points of reference where this piece fit to this piece," that the fit was "entirely unique," and that the trim "could not have come from any other source." She also determined that the foreign paint smears on the victim's car contained sulfur, while the paint on appellant's truck did not contain sulfur. McLaughlin also testified that paint used on some plastic auto emblems, including those on cars of the same make and model as appellant's, do contain sulfur. McLaughlin did not actually examine the emblem from appellant's car.
When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). It is also within the province of the jury to assess the credibility of those who testify.Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987). The evidence shows that appellant was at the scene of the accident in his red-orange GMC pickup truck either at or near the time of the accident and lost a portion of headlight trim at the precise location of the point of impact. Two witnesses testified that the vehicle that collided with the victim's car was a red-orange American-made pickup truck containing only a driver. Appellant admitted that he had passed through the intersection at which the accident occurred at about the same time, but denied that he was involved in the collision. He claimed to have damaged his car when he ran into a deer a few minutes earlier. The jury was entitled, however, to disbelieve appellant's testimony and to "infer that he is [lying] to conceal his guilt." Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). Obviously, the jury drew such a conclusion in this case.
Appellant argues that, in a case based on circumstantial evidence, the Commonwealth must exclude every reasonable hypothesis except guilt and that it failed to do so here. He asserts that the physical evidence did not exclude every reasonable hypothesis of innocence because appellant could have loosened the piece of headlight trim when he collided with a deer, as he testified, and then actually lost the piece while driving past the scene of the accident. He also argues that the other ten fragments found at the point of impact could not be linked affirmatively to his truck and could have come from another vehicle.
We conclude that the headlight fragment found at the precise point of impact, the testimony of the two witnesses, the fact that there had been no reports of anyone hitting a deer that night, and the lack of physical evidence to support appellant's claim of hitting a deer provided sufficient evidence for the jury to conclude beyond a reasonable doubt that appellant was guilty of violating Code § 46.2-894. The two cases cited by appellant in support of his assignment of error do not require a different conclusion. Although the Supreme Court held that the circumstantial evidence in Whitlow v. Commonwealth, 198 Va. 165, 168-70, 93 S.E.2d 127, 129-30 (1956), was insufficient to convict the defendant of violating the hit and run statute, the damage to the defendant's vehicle was found to be inconsistent with the collision at issue, and there was no direct physical evidence linking the defendant to the accident other than her admission that she was in the area at the time. Id. at 169, 93 S.E.2d at 129. In Allen v. Commonwealth, 211 Va. 805, 807, 180 S.E.2d 513, 514 (1971), the defendant's car was found to have blue and green paint on the bumper, which was consistent with a collision with the victim's blue and green bicycle. The paint disintegrated, however, when the investigating officer tried to obtain a sample from the car bumper, and he was unable to make a comparison. Id. at 807, 180 S.E.2d at 514-15. On that basis, the appellate court again held that the circumstantial evidence was insufficient to sustain the verdict. Id. at 808, 180 S.E.2d at 515.
In this case, by contrast, the investigating officer recovered physical evidence — a piece of headlight trim — which placed appellant's vehicle at the precise point of impact at or near the time of the collision. Although the evidence did not affirmatively link the paint smear and remaining plastic fragments to appellant's car, it also did not rule out the possibility of a connection. Based on the above, we hold that the jury could properly have determined not only that these facts were consistent with guilt, but also that they were inconsistent with innocence, as required for a determination of guilt in cases based on circumstantial evidence. See id. at 808, 180 S.E.2d at 516. Accordingly, we affirm the judgment of the trial court.
Affirmed.
The evidence proved that between 8:30 p.m. and 9:00 p.m., the victim's automobile was hit in the rear by a small to medium size truck when the automobile was stopped at a traffic light on Route 301. None of the witnesses could identify the truck or its driver. The evidence also proved that Robert Stephen Jennings was arrested the next day and gave the following statement to Deputy Sheriff Allen Davidson:
He stated that on November 30th of 1990, that he went to a friend's house, which is on Fire Lane, in the area of . . . . Pearson's Corner, by the name of Ed Prince. He stated he got to Mr. Prince's residence approximately 4:00 p.m. on November 30th. He stated while he was there that he had drank six beers and had eaten dinner. He then stated that he left approximately 9:00 p.m. on November 30th and struck a deer. In addition, he stated to me that he has no idea where the deer was or where he hit the deer.
Next, he stated to me that he traveled Route 301 southbound to Route 95 — 295 northbound, then took Route 95 northbound to the Town of Ashland where his place of business, JL Cabinet Shop was. In addition, he stated to me that he could not account for his actions between approximately 9:00 p.m. on November 30th, 1990, and approximately 4:30 in the morning on December 1, 1990.
The evidence further proved that the rear of the victim's silver colored automobile suffered heavy damage and contained a smear of paint. The evidence conflicts, however, concerning the color of the truck that hit the victim's automobile and the color of that paint smear. On direct examination by the Commonwealth's attorney, one witness testified that he saw a "red" truck hit the automobile. The Commonwealth's attorney referred to the truck as "orange." On cross-examination, the witness said the truck was "reddish-orange." In describing the color of the paint smear, Deputy Davidson said the victim's automobile had "orange paint on the rear."
Despite this conflict, the evidence unequivocally proved that the paint on Jennings' truck was not the same as the paint smear on the rear of the victim's automobile. Samples of paint were taken from two different places on the front of Jennings' truck. The Commonwealth's laboratory report of the analysis of the paint smear found on the automobile and the samples of paint taken from Jennings' truck states:
Due to differences in inorganic composition, no association could be made between the red smears [taken from the victim's automobile] and the red paint [from Jennings' truck].
The undisputed evidence is that the paints were not the same. However, the majority concludes that because the evidence allowed the inference that Jennings passed through the same intersection near the time of the accident, the Commonwealth proved that Jennings' truck was the truck that hit the victim's automobile. That conclusion is purely speculative. Moreover, in relying on that inference, the majority ignores other evidence.
When Davidson investigated the accident, he found debris in the roadway. He collected eleven pieces of plastic and metal that came from some vehicle or vehicles. Davidson apparently believed that the debris was significant because he photographed all eleven parts. He then attempted to match them to Jennings' truck. He discarded ten of the items, including part of a "GMC" emblem, because they did not match Jennings' truck. The evidence does not exclude the hypothesis that the red or orange paint smeared on the victim's automobile and the debris found on the roadway came from a truck other than Jennings' truck.
The discarded vehicle parts that did not match Jennings' truck and the laboratory analysis indicating that the paint from Jennings' truck was not the same as the paint smeared on the victim's automobile all combine to establish the reasonable hypothesis that the automobile was hit by another truck. "[T]hese circumstances do not warrant a finding beyond a reasonable doubt that the truck of the defendant was involved in the accident [because] [t]oo many essentials in the chain of circumstances are lacking." Whitlow v. Commonwealth, 198 Va. 165, 168, 93 S.E.2d 127, 129 (1956). The deputy was so certain that the other ten pieces of debris, including a piece of a "GMC" emblem, did not fit Jennings' truck that he consciously discarded them and did not send any of them to the laboratory for analysis. After stating that, "[a]lthough the evidence did not affirmatively link the paint smear [on the victim's automobile] and remaining plastic fragments [found on the road]" to Jennings' truck, the majority upholds the conviction because the evidence "also did not rule out the possibility of a connection." The trier of fact clearly could not have reasonably inferred from this evidence "the possibility of a connection" between that discarded debris and Jennings' truck. Proof cannot be founded on guessing and speculation. Fundamental principles dictate that a conviction must be reversed when it is founded even on a probability of guilt.
It is not sufficient to create a suspicion or probability of guilt, but the evidence must establish guilt of the accused beyond a reasonable doubt. It must exclude every reasonable hypothesis except that of guilt. The guilt of the party is not to be inferred because the facts are consistent with his guilt, but they must be inconsistent with his innocence.
Allen v. Commonwealth, 211 Va. 805, 808, 180 S.E.2d 513, 515 (1971).
That Jennings' truck passed the place where the accident occurred does not prove that another pick-up truck did not pass through that same intersection on Route 301. Moreover, nothing in the evidence excludes the hypothesis that a piece of plastic from Jennings' truck's grill fortuitously dropped in the vicinity of the crash after collision with a deer. "'[W]here the evidence leaves it indefinite which of several hypotheses is true, or establishes only some finite probability in favor of one hypothesis, such evidence cannot amount to proof [beyond a reasonable doubt], however great the probability may be.'"Vaughan v. Commonwealth, 7 Va. App. 665, 675, 376 S.E.2d 801, 807 (1989) (quoting Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 (1924)).
The majority asserts that Jennings' statement that he hit a deer was not confirmed because the officer found no traces of blood, hair, or animal fluid on Jennings' truck. Again the reasoning is speculative. The evidence is equally clear that no traces of silver paint from the victim's automobile were found on Jennings' truck. The evidence proved that the victim's Buick, "a mid to large car," had extensive rear end damage and was propelled across the highway several hundred yards into the opposite travel lane. Although the photographs in evidence show damage to the plastic grill and the driver's side front lamp on Jennings' truck, those same photographs showed no damage to the metal body of the pick-up truck. Indeed, the deputy who investigated the accident did not testify that there was damage to the metal body of Jennings' truck. "These discrepancies and unexplained matters cast doubt upon the correctness of the verdict." Whitlow, 198 Va. at 170, 93 S.E.2d at 130.
Because the evidence did not prove beyond a reasonable doubt that Jennings' truck hit the automobile, I would reverse the conviction.