Beer-Can DNA Connection to Stolen Vehicle
By Deborah Elkins
Published: July 21, 2011
Tags: Criminal, Judge Rosemarie Annunziata, Virginia Court of Appeals Published: July 21, 2011
Defendant is not entitled to reversal of his grand larceny conviction for insufficient evidence connecting him to the all-terrain vehicle (ATV) recovered by police, the Court of Appeals says; defendant’s nine prior felony convictions and the record evidence including witness testimony, photographs and DNA on a beer can, proved guilt beyond a reasonable doubt.
Defendant, previously convicted of nine felonies, has no driver’s license. He lives in a rural area, staying alternately at the homes of grandmother and girlfriend. On Nov. 30, 2008, a couple who lived about seven miles from the grandmother discovered their green ATV missing. The ATV, purchased four years earlier for $3,500, was in good condition. On Dec,10, 2008, a witness observed a person of defendant’s build standing beside an ATV in the vicinity of his Derby Road home. Another victim living in the same area discovered a can of marine fuel missing from his shed. On December 17, 2008, defendant’s girlfriend told a police investigator she had picked up defendant in the Derby Road area the week before.
She directed him to a wooded area where he found a green ATV about 100 yards from the road and 50 yards from the edge of the woods. The ATV was hot-wired but started with the couple’s key after removing improper marine fuel. This location was about 2.5 miles from the couple’s home and four to five miles from the grandmother’s. A “fanny pack” attached to the handlebars contained a beer can crushed to the shape of a crack pipe with DNA on the lip consistent with defendant’s. One ATV owner died; his widow testified to the model number (350) and photographs corroborated her testimony, contrary to the police investigator who remembered a different model number (349).
On appeal defendant argues the evidence was insufficient to establish that the recovered ATV belonged to victims or that defendant stole the ATV. Applying our deferential standard of review of sufficiency of evidence, we affirm. Circumstantial evidence must exclude every reasonable hypothesis of innocence; the reasonableness of a hypothesis is a finding of fact binding on appeal unless plainly wrong.
Here, the circumstantial evidence proved beyond a reasonable doubt that the recovered ATV was stolen by defendant. Photographs and the widow’s testimony identified the ATV which had been altered after the theft by removal of a gun rack and bucket. Defendant’s girlfriend testified to picking him up in the area the ATV was recovered a week earlier. This location was within a few miles of defendant’s grandmother and the victims. Evaluation of witness credibility is for the finder of fact and statute, Va. Code § 19.2-269 allows consideration of defendant’s nine prior felony convictions. Affirmed.
Dove v. Commonwealth (Annunziata) No. 0785-10-3, July 19, 2011, Pittsylvania Cir. Ct. (Melesco) J. Patterson Rogers, 3rd for appellant; Kathleen B. Martin Sr. AAG. VLW 011-7-245(UP), 6 pp.
As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.
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