THE CIRCUIT COURT OF THE CITY OF SUFFOLK L. Wayne Farmer,
Stephen B. Plott (Law Office of Stephen B. Plott, PLC, on
brief), for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Petty and AtLee Argued at Norfolk,
J. HUMPHREYS JUDGE.
Donnell Jennings ("Jennings") appeals the June 10,
2016 decision by the Circuit Court of the City of Suffolk
(the "circuit court") convicting him of robbery, in
violation of Code § 18.2-58. Jennings' single
assignment of error is that the circuit court erred in
finding the evidence sufficient to prove beyond a reasonable
doubt that he was guilty of robbery because the only evidence
against him was "items of clothing and a weapon used at
the time of the robbery, " which contained both his own
DNA and that of other unknown person(s).
October 13, 2013, between 5:30 a.m. and 5:45 a.m., SC was
working as a sales clerk at the Carolina BP, a gas station
and convenience store in Suffolk, Virginia. During her shift
and while she was alone in the store, a person entered
wearing a black stocking cap, a blue hooded sweatshirt, black
jeans with white embroidery on the rear pockets, a scarf
wrapped around his face, gloves, and sunglasses. After S.C.
informed the person of the store's policy prohibiting
customers from wearing hoods inside, the person leapt over
the counter to where S.C. stood and produced a knife. He then
demanded that S.C. open the cash register and threatened to
"cut" her. Once S.C. opened the cash register, the
perpetrator took the $38 that was on top and left the way
he came in.
the perpetrator's identity was so concealed by his
clothing, the only physical description S.C. could give was
that he was "tall" and "slim;" she could
not identify the race of the perpetrator. She also stated
that the pants the robber wore contained "script written
in white letters" on the rear pockets. Further, SC
described the knife as having a silver blade with ridges, and
a black handle. The store's video surveillance system
captured the entire event and was shown at trial.
Babor ("Babor"), a police canine officer with the
Suffolk Police Department ("SPD"), testified at
trial as an expert in canine searching and handling. Babor
processed the scene with his police dog. When they arrived at
the scene at 7:43 a.m. on the morning of the robbery, the
police dog led Babor back into the woods behind the Carolina
BP, where the dog first alerted on a "brown bag"
and several $5 bills. The bag was completely dry even though
it had rained the previous night, indicating that the bag had
been deposited there sometime that morning. The police dog
then alerted on a black stocking cap and a scarf, which were
close together on the wooded path. A hooded sweatshirt was
also discovered approximately ten feet off the path. Finally,
the police dog alerted on a pair of blue jeans and black
K. Hutt ("Hutt"), then a detective with the SPD,
was working with Babor that day and secured the items
identified by the police dog. Hutt additionally discovered a
black-handled, serrated knife approximately twenty to
twenty-five yards off the path. When shown pictures of the
recovered items about ten days after the robbery, SC
positively identified each of the items as having been worn
by her assailant during the robbery.
forensic scientist in the field of forensic biology, Gloria
Hill ("Hill"), testified as an expert regarding the
scientific analysis of the recovered stocking cap, the scarf,
a swab of the knife, and the hooded sweatshirt. The hooded
sweatshirt contained a combination of DNA from multiple
individuals, resulting in a profile "too complex for
[Hill] to make any conclusions." Although there was also
a mixture of DNA from multiple people on both the stocking
cap and the scarf, Hill determined that Jennings was the
"major contributor" of DNA on both of those items,
meaning his DNA was the most prominent on them. Finally, Hill
testified that Jennings' DNA mixture represented about
half of that present on the knife. Hill did not testify to
any DNA testing with respect to the jeans or sneakers.
Jennings became a suspect in the case after a DNA "cold
hit"-when the DNA profile on some of the items matched
Jennings' DNA profile in the state forensic databank. His
DNA was later confirmed by buccal swab. Aside from the DNA
profiles on each of the above-referenced items, there was no
other evidence presented by the Commonwealth as to the
identity of the robber.
conclusion of the Commonwealth's evidence, the defense
moved to strike the charge of robbery, arguing that the DNA
evidence was insufficient to prove Jennings was the person
using those items during the robbery, and was therefore
insufficient to prove he was the robber. The circuit court
denied the motion, and the jury convicted Jennings of
robbery, sentencing him to fifteen years ...