Daniel Bizzoco v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
DANIEL BIZZOCO OPINION BY
v. 	Record No. 0604-97-4 	JUDGE CHARLES H. DUFF
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
William G. Plummer, Judge Designate
John M. Tran (David S. Bracken; Greenberg,
Bracken & Tran, P.C., on briefs), for
appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Daniel Bizzoco appeals his conviction for burglary and grand
larceny. 	He contends the evidence was insufficient to prove he
entered the burglarized townhouse.1 We disagree and affirm.
1In his brief, appellant also contends the evidence was
insufficient to prove he entered in the nighttime. 	Appellant was
indicted for violating Code § 18.2-89, common law burglary, an
element of which is that the entry occur in the nighttime.
In the final order of conviction, the trial court pronounced
that appellant was "convicted of two felonies, to-wit: 	Count
One: 	Statutory Burglary and Count Two: 	Grand Larceny." 	The
Sentencing Guidelines prepared by the probation officer listed
the "Primary Offense" as "Stat. Burglary" and referenced Code
§ 18.2-91, the statutory burglary code section.
Common law burglary is a Class 3 felony punishable by a term
of imprisonment for a minimum of five years and a maximum of
twenty years. 	See Code §§ 18.2-10, 18.2-89. 	Statutory burglary
is punishable by a term of imprisonment "for not less than one or
more than twenty years or, in the discretion of the jury or
[judge sitting] without a jury, be confined in jail for a period
not exceeding twelve months." 	Code § 18.2-91. 	The trial judge
imposed a three-year sentence for the burglary conviction,
suspending imposition of all three years.
At oral argument, appellant's counsel conceded that

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I.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." 	Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that Claudia Zarikow and
Maria Gillespie shared a townhouse apartment at 1426 Woodbine
Street in the City of Alexandria. 	Zarikow and Gillespie went
upstairs to bed around 11:00 p.m. on June 10, 1996. 	At that
time, the doors were locked; however, they left a downstairs
window ajar about six to eight inches. 	Zarikow testified that,
when she arrived downstairs the next morning, June 11, she
noticed the window open all the way and that the screen had been
removed and was leaning against the inside wall. 	Zarikow's
laptop computer and school bag were missing.
While identifying a photograph of the exterior of her
townhouse apartment, Zarikow was asked, "[W]hat, if anything,
unusual did you notice about the area around the window?"
Zarikow replied, "Well, I had planted plants here. 	In the
morning, these were trampled because somebody had been trying to
enter. 	In this [photograph], you can see [the plants] are
crooked there."
Maria Gillespie corroborated much of Zarikow's testimony.
appellant was convicted and punished for statutory burglary and
that the nighttime element was no longer an issue on appeal.
Therefore, we do not address that issue.

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Gillespie's "bag" containing personal property was also missing.
Darrell Linville, a fingerprint expert, examined latent
fingerprints found outside of the window. 	Linville testified
that the prints were those of appellant. 	The police examined the
interior of the residence and recovered no fingerprints belonging
to appellant.
Detective Robert Hickman interviewed appellant as part of
his investigation of the burglary. 	Hickman telephoned appellant,
and appellant agreed to meet with Hickman. 	Hickman met with
appellant outside appellant's apartment building. 	Hickman
identified himself and "asked [appellant] to speak with [him]
concerning the burglary [he] was investigating on Woodbine
Street." 	Hickman provided the following testimony:
[Appellant] said he didn't know where that
was. 	And I explained to him where it was by
pointing out the area. 	North Quaker Lane
[appellant's apartment building location] was
fairly, you know, where we were at, the 1200
block, was very close to Woodbine. 	I told
him it was behind Lindsay Cadillac and where
the 7-Eleven is there, the 1600 block of
North Quaker Lane.
And [appellant] acknowledged that he
understood where I meant. 	And I asked him
had he been back there, and he said, no, he
doesn't go back there. 	I asked him if there
was any reason why anyone would say they saw
him or that his finger prints would be on
Woodbine Street, and he said, no.
Hickman then "handed" appellant a supplementary police
report containing Linville's confirmation that appellant's
"latents [fingerprints] were lifted from exterior P.O.E. window."
After reading the report, appellant stated, "there is a mistake,

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that's not me." 	Appellant also stated that "he had been home
that night." 	Hickman denied telling appellant that the burglary
occurred at night, and he testified as follows:
I asked [appellant], what night was that?
Knowing that I hadn't asked him or advised
him of the date of the offense. 	I do that
purposely, so later if the interrogation is
claimed to have been, you know, fed by me, I
can say, he gave me the date or a close date
to the offense, and I hadn't given it to him.
So I knew at that point when he said,
that night, that I hadn't given him the date.
And he said, the night that you are talking
about.
Although dated, the supplementary report contained no
offense date for the burglary. 	None of the stolen goods were
recovered.
II.
"[W]hile defendant's fingerprint found at the
scene of the crime may be sufficient under
the circumstances to show defendant was there
at some time, nevertheless in order to show
defendant was the criminal agent, such
evidence must be coupled with evidence of
other circumstances tending to reasonably
exclude the hypothesis that the print was
impressed at a time other than that of the
crime. 	Such 'other circumstances,' . . .
'need not be circumstances completely
independent of the fingerprint, and may

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properly include circumstances such as the
location of the print, the character of the
place or premises where it was found and the
accessibility of the general public to the
object on which the print was impressed.'
Those attendant circumstances may demonstrate
the accused was at the scene of the crime
when it was committed. 	And if such
circumstances do so demonstrate, a rational
inference arises that the accused was the
criminal agent."
Tyler v. Commonwealth, 254 Va. 162, 166, 487 S.E.2d 221, 223
(1997) (quoting Turner v. Commonwealth, 218 Va. 141, 146-47, 235
S.E.2d 357, 360 (1977) (citations omitted)).
The Commonwealth always bears the burden of
proving guilt beyond a reasonable doubt.
When the Commonwealth relies solely upon
fingerprint evidence to identify a criminal
agent, it bears the burden of excluding every
reasonable hypothesis of innocence, that is,
those "which flow from the evidence itself,
and not from the imagination of defendant's
counsel."
Id. (quoting Turner, 218 Va. at 148, 235 S.E.2d at 361).
Here, the fingerprint evidence confirming appellant's
presence at the scene of the crime was "coupled with evidence of
other circumstances tending to reasonably exclude" appellant's
hypothesis that his presence at the crime scene was unrelated to
the commission of that crime. 	As the record showed, appellant

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denied knowledge of the townhouse location. 	After Detective
Hickman described in detail the location, appellant "acknowledged
that he understood where [Hickman] meant." 	Appellant denied he
had ever been to the townhouse and was unable to explain why his
fingerprints would be found there. 	As in Tyler, "that
circumstance reinforces the inference raised by the fingerprint
evidence." 	See id. at 167, 487 S.E.2d at 224. 	Moreover, when
confronted with the police report unequivocally indicating the
presence of appellant's fingerprints, appellant said it was a
mistake, and he again failed to provide any explanation for their
presence. 	Finally, in denying any involvement with the crime,
appellant disclosed his knowledge that the crime had been
committed at night, a fact which, to that point in the police
interview of appellant, had not been revealed.
Another such circumstance is detailed in the testimony of
Zarikow, who testified that she had planted flowers below the
window, but when she awoke on the morning of June 11, 1996, the
plants "were trampled."
We hold that the fingerprint evidence and the other evidence
of the attendant circumstances were sufficient to support the
trial judge's finding that appellant was the criminal agent.
Accordingly, we will affirm the judgment of the trial court.
Affirmed.