Tereence Mack Booth, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
TERRENCE MACK BOOTH, S/K/A
TERRANCE BOOTH MEMORANDUM OPINION* BY
v. 	Record No. 0862-95-1 	JUDGE JERE M. H. WILLIS, JR.
JUNE 11, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Timothy P. Sceviour (Abrons, Fasanaro &
Sceviour, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of second degree murder and
use of a firearm in the commission of murder, Terrence Mack Booth
contends the evidence is insufficient to support his convictions.
We disagree and affirm the judgment of the trial court.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. 	Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). 	The judgment of a
trial court sitting without a jury will not be set aside unless
plainly wrong or without evidence to support it. 	Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On August 28, 1994, at approximately 9:30 p.m., Officer
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Andreano of the Norfolk Police Department responded to a radio
dispatch that a man had been shot close to the intersection of
28th Street and Debree Avenue. 	Upon his arrival at the scene,
Officer Andreano found the victim lying dead on the ground with
blood on his face and surrounding his head. 	No other shooting
occurred in that area on August 28, 1994.
Sharmeka Spratley testified that on the evening of August
28, 1994, Booth telephoned her and arranged to spend the night at
her home. 	He told her that "he shot somebody or he might have."
The next morning, Ms. Spratley and two friends drove Booth home.
At the intersection of 28th Street and Debree Avenue, the
driver, Ms. Jerry Morris, asked Booth, "where the gentlemen he
had killed at." 	Booth pointed to the crime scene, which was
cordoned off with yellow tape, and replied, "right over there."
Booth contends that the evidence against him is wholly
circumstantial. 	Acknowledging that the evidence is suggestive of
his guilt, he argues that it nonetheless fails to exclude every
reasonable hypothesis of innocence and, thus, is insufficient to
support his conviction. 	We disagree.
Direct evidence is evidence which tends to establish a
fact in issue without the aid of an inference.
It is
[E]vidence that directly proves a fact,
without an inference or presumption, and
which in itself, if true, conclusively
establishes that fact.
* 	* 	* 	* 	* 	* 	*
Circumstantial evidence, sometimes called indirect

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evidence, is evidence of facts and circumstances not in
issue from which facts or circumstances in issue may be
inferred.
Friend, The Law of Evidence in Virginia (Fourth Edition, 1993),
§ 12-1.
Officer Andreano's description of his findings at the crime
scene is direct evidence. 	Likewise, Sharmeka Spratley's report
of Booth's statements is direct evidence. 	However, the inference
required to link those two elements of proof, renders each of
those elements circumstantial proof as to the issue of whether
Booth killed the victim.
Although this case is based on circumstantial evidence,
circumstantial evidence is sufficient to support a conviction.
Hughes v. Commonwealth, 18 Va. App. 510, 518, 446 S.E.2d 451, 456
(1994) (en banc) (citation omitted).
All necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence; they must exclude every reasonable
hypothesis of innocence; the chain of these
circumstances must be unbroken; and the
"circumstances of motive, time, place, means,
and conduct must all concur to form an
unbroken chain" linking the appellant to the
crime beyond a reasonable doubt.
Id. at 518-19, 446 S.E.2d at 457 (citation omitted). 	The proof
must exclude only those reasonable hypotheses of innocence that
flow from the evidence, and not those that derive from the
ruminations of defense counsel. 	See Cantrell v. Commonwealth, 7
Va. App. 269, 289, 373 S.E.2d 328, 338 (1988), cert. denied, 496
U.S. 911 (1990).

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The evidence supports Booth's convictions. 	He confessed to
Ms. Spratley that "I shot someone." 	When passing the crime scene
the following day, he said "that's where it happened." 	No other
shootings occurred in that area on August 28, 1994. 	Booth
admitted his presence at the crime scene, but stated that he
thought the victim was drunk. 	The trial court found this
explanation incredible. 	When the trial court asked defense
counsel to offer a reasonable hypothesis of innocence, counsel
could proffer none. 	The evidence unerringly compels the
conclusion of Booth's guilt.
The judgment of the trial court is affirmed.
Affirmed.