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Burrous v. Commonwealth

Court of Appeals of Virginia

December 12, 2017

ANDREW VOJUAN BURROUS
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG Sarah L. Deneke, Judge

          Christopher M. Reyes (Spencer, Meyer, Koch & Cornick, PLC, on brief), for appellant.

          Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Beales and Alston Argued at Richmond, Virginia

          OPINION

          RANDOLPH A. BEALES, JUDGE

         At the conclusion of a bench trial, Andrew Vojuan Burrous ("appellant") was convicted of two counts of robbery, one count of attempted robbery, and one count of wearing a mask in public. On appeal, appellant argues that the evidence was insufficient "to find Appellant guilty when the only identification of Appellant was through the use of DNA evidence." We disagree with appellant's argument and characterization of the evidence, and we affirm appellant's convictions for the following reasons.

         Background

         Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), the evidence at trial established that Karen Moore was a store manager at a Dollar Tree store in Fredericksburg, Virginia. On September 5, 2015, at around 10:20 or 10:30 p.m., Moore was walking out of the Dollar Tree with a coworker and the coworker's boyfriend, when two men came running out of the woods toward her. She managed to get into her car and shut the door. One of the men wrestled the door open before she could lock it, but Moore was able to push him back and then close and lock the door, securing herself and her belongings inside her vehicle.

         At that point, the men walked toward Moore's coworker, April Brown, and her boyfriend, Jerome Barnes. One of the robbers wrestled with Brown as he ripped off her backpack. The robbers were also successful in taking Barnes's wallet and a Dollar Tree bag containing some food and sodas. One of the assailants came back to Moore's car, and attempted to break the window. He hit it forcefully enough to break the plastic rain guard. Ultimately, the two men ran away toward a pond and a wooded area, in the direction of a Sport and Health fitness center.

         Following the incident, the police were called out to the Dollar Tree. A police canine, who was "trained to track narcotics and scent apprehension, " was used in an attempt to locate evidence. Deputy Sheriff William Wright, the canine handler, testified that the dog was "looking for the freshest stream of odor." Wright testified that the dog led him around the retention pond and around a dumpster at the back side of the Sport and Health. Within fifteen feet of the dumpster, the dog located a black and white cloth bandana. The dog also located a white Dollar Tree plastic bag behind the Sport and Health, and a grey sweatshirt in the pond. The police also recovered a black face mask on the brick ledge encompassing the dumpster.

         The Commonwealth produced certificates of analysis from the Department of Forensic Science, the accuracy of which appellant did not dispute. On the certificate of analysis of the bandana, the results stated, "A DNA profile was developed from the bandana. This profile was searched against the Virginia DNA Data Bank and found to be consistent with the following individual: Name: Andrew V. Burrous." In contrast, the analysis of the mask resulted in the development of a major profile and a minor profile. It stated, "A DNA mixture profile was developed from the interior face area of the mask. The major profile developed from this mixture was searched against the Virginia DNA Data Bank and no DNA profile consistent with this profile was found." The certificate also noted that the minor profile was not suitable for comparison against the National or the Virginia DNA Data Bank. Another certificate of analysis analyzed buccal swabs from appellant and noted that appellant:

cannot be eliminated as a contributor of the DNA profile previously developed from the bandana . . . . The probability of selecting an unrelated individual with a DNA profile matching that developed from the bandana at the PowerPlex® 16 loci is 1 in greater than 7.2 billion (which is approximately the world population) in the Caucasian, Black and Hispanic populations.

         At trial, Barnes testified that one of the robbers was wearing a bandana while the other was wearing "a ski mask or something." The Commonwealth introduced a photograph of the bandana the police canine found at the scene and asked Barnes, "Is that the bandana you saw that night?" to which Barnes responded, "Yes." The same photograph was shown to Brown, and she also testified that the bandana in the photograph was the one worn by the individual who grabbed her backpack. Brown repeated her testimony on cross-examination. Defense counsel asked, "Are you sure this is the bandana that was worn?" to which Brown responded, "It was worn across his face." Sergeant Mary Mason, the primary detective assigned to the robbery, was also shown this photograph of the bandana, and she confirmed it was the bandana the police found on the night of the robbery.

         Also introduced were photographs of appellant printed from a Facebook page, ...


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