Hughes v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia

DANIEL COVINGTON HUGHES
OPINION BY
v. Record No. 0890-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Carleton Penn, Judge Designate

Richard F. MacDowell, Jr. (MacDowell &
Associates, on briefs), for appellant.

Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

A jury convicted Daniel Covington Hughes ("appellant"), a

juvenile certified to the circuit court pursuant to Code

§ 16.1-269.1(C) on the charge of malicious wounding in violation

of Code § 18.2-51, of unlawful wounding, a lesser-included

offense. 1 The trial court sentenced appellant to commitment to

the Department of Juvenile Justice for an indefinite period of

time not to exceed his twenty-first birthday. On appeal,

appellant contends that: (1) the trial court had no

jurisdiction to sentence him because he was convicted of a

1
Appellant was also certified and indicted on the charge of
felonious assault by mob in violation of Code § 18.2-42 and
found not guilty at his jury trial.
lesser-included offense and not one of the enumerated violent

felonies listed in Code § 16.1-269.1; (2) the Commonwealth

failed to disprove the defense of accidental stabbing; and (3)

he proved self-defense as a matter of law. For the reasons that

follow, we affirm the trial court.

I. BACKGROUND

A. Confrontation

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth, the

prevailing party, granting to it all reasonable inferences fairly

deducible therefrom. See Juares v. Commonwealth, 26 Va. App.

154, 156, 493 S.E.2d 677, 678 (1997). At approximately 5:00 on

the afternoon of August 15, 2000, appellant and two friends had

a chance encounter with the victim, Samuel Giles ("Giles"), at

the Dulles Towne Center Mall ("the mall"). This meeting was

merely the latest in an apparently ongoing dispute between

appellant and Giles. Appellant and his friends left the mall

and went to a house where they discussed the incident and

decided to return to the mall to confront Giles. At

approximately 8:00 p.m., appellant and four friends returned to

the mall and found Giles, who was working at the Old Navy store.

They arranged to meet at 10:00 p.m. when Giles got off from work

in one of the mall parking lots. Appellant and his friends

armed themselves with knives and spent the next two hours

attempting to recruit others to join them and confront Giles.

- 2 -
They decided that they "should not use [the knives] unless

[they] really had to." Appellant carried a Gerber knife that

had "a little hole that you stick your finger in for better

control." The group parked their cars several hundred yards

away from the meeting site so "in case there was a fight, [the

cars] would not be damaged."

Giles was already at the mall parking lot, and he too had a

group of friends with him. Appellant approached Giles holding

the knife. The two groups, which each consisted of five to six

persons, confronted each other, and a brawl ensued. Giles and

appellant "squared off" against one another, and appellant

stabbed Giles in the chest with his knife. Gains, one of Giles'

friends, jumped in his car and put Giles, who was holding his

chest with both hands, in the car. He was later transported to

the hospital in "critical . . . near death" condition with a

stab wound that penetrated his chest below the ribcage, cutting

through the skin, muscle and lining of the heart. Giles had no

vital signs when he arrived at the hospital and underwent

emergency surgery to repair the puncture to his heart. No one

saw Giles with a knife, and the only knife recovered at the

scene with blood on it belonged to appellant.

After Giles was taken to the hospital, appellant and his

group waited with a security guard until police arrived. At

that time, appellant gave them a statement. Police recovered a

- 3 -
total of seven knives at the scene, all of which belonged to

appellant and his friends. Appellant was arrested that evening.

B. Juvenile Procedure

On August 16, 2000, an intake officer of the Juvenile and

Domestic Relations District Court of Loudoun County (the

juvenile court) issued a petition charging appellant with

malicious wounding. On August 23, 2000 the Commonwealth filed a

notice of motion to certify appellant to stand trial as an

adult, pursuant to Code § 16.1-269.1(C). On September 13, 2000,

the juvenile court issued a second petition, for assault by mob,

for the same incident. On September 19, 2000 the juvenile court

found probable cause to believe appellant committed the

stabbing, and certified the case to the circuit court for

indictment by the grand jury. The grand jury indicted appellant

for malicious wounding and assault by mob on October 10, 2000.

At a jury trial held December 27-29, 2000, appellant was found

not guilty of assault by mob and convicted of unlawful wounding,

a lesser-included offense of malicious wounding.

Prior to sentencing by the trial court, appellant filed a

motion to set aside the jury verdict and a motion to transfer

the case back to the juvenile court for sentencing. The trial

court denied both motions. On March 26, 2001 the trial court

sentenced appellant to commitment to the Department of Juvenile

Justice for an indefinite period of time, not to exceed his

twenty-first birthday.
- 4 -
 II. THE TRIAL COURT'S JURISDICTION

Appellant first contends that the trial court was without

jurisdiction to sentence him or to retain jurisdiction for

future offenses. The crux of appellant's argument is that when

a juvenile is transferred pursuant to Code § 16.1-269.1(C), the

violent juvenile felony category of offenses, the jurisdiction

of the juvenile court is not divested if the violent juvenile

felony is later dismissed or reduced to a lesser-included

offense which is not one of the enumerated violent juvenile

felonies. Appellant relies on Code § 16.1-241(A)(6) to support

this analysis. Appellant contends it is both unfair and

inappropriate to treat juveniles who have been acquitted of

violent juvenile felonies or convicted of lesser-included

offenses as adults for subsequent offenses. Appellant urges us

to hold that when this situation arises, the circuit court

should remand the case to the juvenile court for the offender to

be sentenced and that his status remain as a juvenile for any

later charges.

To resolve the question before us, we must determine the

correct interpretation and application of the juvenile

certification and jurisdiction statutes. "When analyzing a

statute, we must assume that the legislature chose, with care,

the words it used when it enacted the relevant statute, and we

are bound by those words as we interpret the statute." Toliver

v. Commonwealth, 38 Va. App. 27, 32, 561 S.E.2d 743, 746 (2002)
- 5 -
(internal quotations omitted); see also Halifax Corp. v. First

Union National Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702

(2001).

Under basic rules of statutory construction,
we examine a statute in its entirety, rather
than by isolating particular words or
phrases. When the language in a statute is
clear and unambiguous, we are bound by the
plain meaning of that language. We must
determine the General Assembly's intent from
the words appearing in the statute, unless a
literal construction of the statute would
yield an absurd result.

Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001)

(internal citations omitted). In addition, when determining the

juvenile court's jurisdiction, "[t]he overriding principle

governing this inquiry is that the provisions should be

construed to protect the unique substantive rights of the

juvenile." Jamborsky v. Baskins, 247 Va. 506, 509, 442 S.E.2d

636, 637 (1994). Applying this standard to the statutory

provisions at issue, we hold the trial court properly exercised

its jurisdiction in sentencing appellant after the jury's

finding of guilt.

Code § 16.1-269.1(C) defines the class of "violent

felonies" that mandates certification to the circuit court upon

a finding of probable cause and limits the role of the juvenile

court in those cases.

The juvenile court shall conduct a
preliminary hearing whenever a juvenile
fourteen years of age or older is charged
with murder in violation of § 18.2-33,
- 6 -
 felonious injury by mob in violation of
§ 18.2-41, abduction in violation of
§ 18.2-48, malicious wounding in violation
of § 18.2-51, malicious wounding of a
law-enforcement officer in violation of
§ 18.2-51.1, felonious poisoning in
violation of § 18.2-54.1, adulteration of
products in violation of § 18.2-54.1,
robbery in violation of § 18.2-58 or
carjacking in violation of § 18.2-58.1, rape
in violation of § 18.2-61, forcible sodomy
in violation of § 18.2-67.1 or object sexual
penetration in violation of § 18.2-67.2,
provided the attorney for the Commonwealth
gives written notice of his intent to
proceed pursuant to this subsection. The
notice shall be filed with the court and
mailed or delivered to counsel for the
juvenile or, if the juvenile is not then
represented by counsel, to the juvenile and
a parent, guardian or other person standing
in loco parentis with respect to the
juvenile at least seven days prior to the
preliminary hearing. If the attorney for
the Commonwealth elects not to give such
notice, or if he elects to withdraw the
notice prior to certification of the charge
to the grand jury, he may proceed as
provided in subsection A.

Code § 16.1-269.1(C). Appellant concedes that all the

requirements of Code § 16.1-269.1(C) were met with respect to

his initial transfer. His jurisdiction argument addresses only

his sentencing after the jury found him guilty of a

lesser-included offense rather than a violent juvenile felony.

Appellant relies on the second clause of Code

§ 16.1-241(A)(6) in urging his desired result. This reliance,

however, ignores the first clause of the provision. Those

provisions read as follows:

- 7 -
In any case in which the juvenile is alleged
to have committed a violent juvenile felony
enumerated in subsection B of § 16.1-269.1,
and for any charges ancillary thereto, the
jurisdiction of the juvenile court shall be
limited to conducting a preliminary hearing
to determine if there is probable cause to
believe that the juvenile committed the act
alleged and that the juvenile was fourteen
years of age or older at the time of the
commission of the alleged offense, and any
matters related thereto. In any case in
which the juvenile is alleged to have
committed a violent juvenile felony
enumerated in subsection C of § 16.1-269.1,
and for all charges ancillary thereto, if
the attorney for the Commonwealth has given
notice as provided in subsection C of
§ 16.1-269.1, the jurisdiction of the
juvenile court shall be limited to
conducting a preliminary hearing to
determine if there is probable cause to
believe that the juvenile committed the act
alleged and that the juvenile was fourteen
years of age or older at the time of the
commission of the alleged offense, and any
matters related thereto. A determination by
the juvenile court following a preliminary
hearing pursuant to subsection B or C of
§ 16.1-269.1 to certify a charge to the
grand jury shall divest the juvenile court
of jurisdiction over the charge and any
ancillary charge. In any case in which a
transfer hearing is held pursuant to
subsection A of § 16.1-269.1, if the
juvenile court determines to transfer the
case, jurisdiction of the juvenile court
over the case shall be divested as provided
in § 16.1-269.6.

In all other cases involving delinquent
acts, and in cases in which an ancillary
charge remains after a violent juvenile
felony charge has been dismissed or a
violent juvenile felony has been reduced to
a lesser offense not constituting a violent
juvenile felony, the jurisdiction of the
juvenile court shall not be divested unless

- 8 -
 there is a transfer pursuant to subsection A
of § 16.1-269.1.

Code § 16.1-241(A)(6). Appellant maintains that cases

transferred pursuant to Code § 16.1-269.1(B) or (C) should

properly fall in the "all other cases" category in the second

clause of Code § 16.1-241(A)(6). Thus, when he was convicted

only of the lesser-included offense, appellant contends that the

circuit court was divested of the power to sentence him and the

case should have been remanded to the juvenile court for

sentencing. We disagree.

The first clause of Code § 16.1-241(A)(6) makes express

provision for cases transferred pursuant to Code § 16.1-269.1(B)

or (C). The statute provides that in those cases "the

jurisdiction of the juvenile court shall be limited to

conducting a preliminary hearing to determine if there is

probable cause to believe that the juvenile committed the act

alleged . . . ." Code § 16.1-241(A)(6). By its plain language,

the statute makes clear that once the juvenile court holds the

preliminary hearing and finds that probable cause exists, it is

statutorily divested of any further jurisdiction over the

violent juvenile felony and "any ancillary charge." Code

§ 16.1-241(A)(6). The statutory language dictates that, when

read in context, "all other cases" references those instances

where the juvenile court failed to find probable cause to

- 9 -
trigger the automatic transfer provision of Code

§ 16.1-269.1(C).

"[T]he juvenile and domestic relations district court must

conduct a transfer hearing before the circuit court may obtain

jurisdiction over a juvenile alleged to have committed a

criminal offense." Burfoot v. Commonwealth, 23 Va. App. 38, 46,

473 S.E.2d 724, 728 (1996) (citing Peyton v. French, 207 Va. 73,

79-80, 147 S.E.2d 739, 743 (1966)). "'The legislative purpose

of Code § 16.1-241 is to afford juvenile defendants . . . the

protection and expertise of the juvenile court during the

preliminary, or certification, hearing stage of a criminal

prosecution.'" Id. (quoting Payne v. Warden, 223 Va. 180, 184,

285 S.E.2d 886, 888 (1982)). The record before us makes clear

that the juvenile court held the statutorily mandated

preliminary hearing. At the close of the hearing, the juvenile

court found probable cause on both the malicious wounding and

assault by mob violent felonies and properly certified appellant

for trial in the circuit court. Contrary to appellant's

contentions, the statutory scheme defines the process due

appellant and the requirements of the statute were met in this

case.

Once the juvenile court made this determination, it was

statutorily divested of jurisdiction over the malicious wounding

and assault by mob charges, as well as any ancillary charges

arising out of the brawl on August 15, 2000. The statutory
- 10 -
scheme makes no provision for any dormant jurisdiction in the

juvenile court that could later be revived and which would

require a remand for sentencing in the juvenile court where the

trial did not occur. Rather, the statutory scheme vests

jurisdiction over all matters arising out of the violent

juvenile felony in the circuit court once there has been a

probable cause determination pursuant to Code § 16.1-269.1(C).

See Code § 16.1-241(A)(6).

Other provisions of the Code support this conclusion. The

transfer statute makes clear that the circuit court will take

cognizance of all charges related to the violent juvenile

felony.

Upon a finding of probable cause pursuant to
a preliminary hearing under subsection B or
C, the juvenile court shall certify the
charge, and all ancillary charges, to the
grand jury. Such certification shall divest
the juvenile court of jurisdiction as to the
charge and any ancillary charges. Nothing
in this subsection shall divest the juvenile
court of jurisdiction over any matters
unrelated to such charge and ancillary
charges which may otherwise be properly
within the jurisdiction of the juvenile
court.

Code § 16.1-269.1(D). Likewise, the sentencing statute

addresses cases such as the one before us. Specifically, the

trial court has express authority to impose sentence on the

juvenile in cases where there is a felony conviction but the

felony is not a violent juvenile felony.

- 11 -
In any case in which a juvenile is indicted,
the offense for which he is indicted and all
ancillary charges shall be tried in the same
manner as provided for in the trial of
adults, except as otherwise provided with
regard to sentencing. Upon a finding of
guilty of any charge other than capital
murder, the court shall fix the sentence
without the intervention of a jury.

1. If a juvenile is convicted of a violent
juvenile felony, for that offense and for
all ancillary crimes the court may order
that (i) the juvenile serve a portion of the
sentence as a serious juvenile offender
under § 16.1-285.1 and the remainder of such
sentence in the same manner as provided for
adults; (ii) the juvenile serve the entire
sentence in the same manner as provided for
adults; or (iii) the portion of the sentence
to be served in the same manner as provided
for adults be suspended conditioned upon
successful completion of such terms and
conditions as may be imposed in a juvenile
court upon disposition of a delinquency case
including, but not limited to, commitment
under subdivision 14 of § 16.1-278.8 or
§ 16.1-285.1.

2. If the juvenile is convicted of any
other felony, the court may sentence or
commit the juvenile offender in accordance
with the criminal laws of this Commonwealth
or may in its discretion deal with the
juvenile in the manner prescribed in this
chapter for the hearing and disposition of
cases in the juvenile court, including, but
not limited to, commitment under
§ 16.1-285.1 or may in its discretion impose
an adult sentence and suspend the sentence
conditioned upon successful completion of
such terms and conditions as may be imposed
in a juvenile court upon disposition of a
delinquency case.

3. If the juvenile is not convicted of a
felony but is convicted of a misdemeanor,
the court shall deal with the juvenile in
the manner prescribed by law for the
- 12 -
 disposition of a delinquency case in the
juvenile court.

Code § 16.1-272(A) (emphasis added). This was precisely the

procedure the trial court followed. After the jury convicted

appellant of a felony other than the violent juvenile felony for

which he was indicted, the trial court exercised its discretion,

pursuant to Code § 16.1-272(A)(2), and sentenced him to

commitment to the Department of Juvenile Justice for an

indefinite period. We conclude that the trial court correctly

interpreted and applied Code § 16.1-241(A)(6).

We are cognizant of the future implications for a juvenile

certified to the circuit court pursuant to Code § 16.1-269.1(C).

He or she will lose the ability to have any future case dealt

with in the juvenile system without a finding of

"non-amenability to treatment" as required by Code

§ 16.1-269(A).

The trial or treatment of a juvenile as an
adult pursuant to the provisions of this
chapter shall preclude the juvenile court
from taking jurisdiction of such juvenile
for subsequent offenses committed by that
juvenile.

Any juvenile who is tried and convicted in a
circuit court as an adult under the
provisions of this article shall be
considered and treated as an adult in any
criminal proceeding resulting from any
alleged future criminal acts and any pending
allegations of delinquency which have not
been disposed of by the juvenile court at
the time of the criminal conviction.

Code § 16.1-271.
- 13 -
 However, the statutes clearly reveal the legislature's

intent that the event that requires all future actions involving

the certified juvenile to commence as an adult is triggered by

the probable cause finding and certification on the violent

felonies, not the ultimate finding at trial. Any juvenile

"tried or treated" in the circuit court is removed from the

juvenile justice system and must be considered and treated as an

adult in any future criminal proceedings, irrespective of that

trial's outcome. See Code § 16.1-271. This particular

provision represents a departure from the general statutory

scheme that affords juveniles "unique substantive rights." See

Jamborsky, 247 Va. at 509, 442 S.E.2d at 637. However, until

the legislature says otherwise, there is no provision for remand

to the juvenile court either for sentencing on the

lesser-included offense conviction or on future charges. If the

legislature had intended to exclude the factual scenario

presented in the instant case from the complete jurisdictional

divestiture provisions it could have done so. See, e.g., Forst

v. Rockingham, 222 Va. 270, 278, 279 S.E.2d 400, 404 (1981) ("If

the General Assembly had intended to use the term 'agricultural

products,' it would have done so."); Barnes v. Commonwealth, 33

Va. App. 619, 628, 535 S.E.2d 706, 710 (2000) ("If the

legislature had intended to restrict the predicate abduction

offense to a specific statute, it would have done so."); Reynolds

v. Commonwealth, 30 Va. App. 153, 160, 515 S.E.2d 808, 811-12

- 14 -
(1999) ("If the legislature had intended that operators undergo a

forty-hour training program for each individual type of breath

test equipment, then it would have said so in the statute.").

There is no statutory language dictating a "transfer up and

transfer back" down for the sentencing procedure advocated by

appellant. We hold, therefore, that the circuit court acted

within its jurisdiction.

III. ACCIDENTAL STABBING

Next, appellant contends that the Commonwealth failed to

prove that the stabbing was an intentional act rather than an

accident.

"When reviewing the sufficiency of the evidence after a

conviction, we consider that evidence in the light most

favorable to the Commonwealth, and we affirm the conviction

unless it is plainly wrong or without evidence to support it."

Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

906 (2001). "It is well settled in Virginia that whenever a

witness testifies, his or her credibility becomes an issue."
Tatum v. Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 137

(1994). "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). Furthermore

the jury were [sic] not required to accept
the defendant's statement as to how the
[stabbing] occurred simply because the
- 15 -
 defendant said it happened that way . . . .
"If from the improbability of his story and
his manner of relating it, or from its
contradictions within itself, or by the
attending facts and circumstances, the jury
are convinced that he is not speaking the
truth, they may reject his testimony."

Adams v. Commonwealth, 201 Va. 321, 324-25, 111 S.E.2d 396, 398-

99 (1959) (quoting Randolph v. Commonwealth, 190 Va. 256, 263, 56

S.E.2d 226, 229 (1949)).

So viewed, the evidence established that appellant arranged

to meet Giles in the mall parking lot. Appellant and several

friends armed themselves with knives before the meeting. They

returned to the mall at the appointed time and as they

approached Giles and his friends, who were unarmed, one of

appellant's supporters stated, "let's do it." Appellant had his

knife in hand. At no time did appellant retreat. Neither did

he seek the assistance of the police or a mall security officer,

although he saw both prior to the stabbing. Giles did not have

a knife, and appellant testified that he never saw Giles wield

one.

[T]he jury were [sic] not required to shut
their eyes to all these facts and
circumstances and accept the explanation of
the [stabbing] as offered by the defendant's
words. The facts and circumstances spoke
much louder and more convincingly. His
claim that it was accidental was to be
examined in the light of his conduct. When
so examined, the jury did not believe him
and refused to accept his version.

Johnson v. Commonwealth, 188 Va. 848, 853, 51 S.E.2d 152, 154

(1949). See also Yarborough v. Commonwealth, 217 Va. 971, 234

- 16 -
S.E.2d 286 (1977) (fact finder had "perfect right" not to

believe all the defendant says). "The facts and circumstances

shown in this case justified the jury's rejection of the

explanation offered by the defendant, and their verdict is

supported by the evidence." Johnson, 188 Va. at 854, 51 S.E.2d

at 154.

The jury, as fact finder, was entitled to disbelieve

appellant's version that he held the knife up to scare Giles,

who was unarmed, and that Giles somehow ran into the blade. The

evidence supports the jury's determination that appellant armed

himself prior to the fight and was prepared to use deadly force

if necessary. Thus, the evidence was sufficient to disprove

appellant's defense of accidental stabbing.

IV. SELF-DEFENSE AS A MATTER OF LAW

Lastly, appellant argues that the trial court erred in

failing to find that he proved self-defense as a matter of law.

Specifically, appellant argues that the evidence failed to prove

that he was at fault in "bringing on the fight" and that his use

of a knife was reasonable because he was afraid of Giles.

"Self-defense is an affirmative defense which the accused

must prove by introducing sufficient evidence to raise a

reasonable doubt about his guilt. Whether an accused proves

circumstances sufficient to create a reasonable doubt that he

acted in self-defense is a question of fact." Smith v.

Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993)

- 17 -
(citing McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808,

810 (1978); Yarborough, 217 Va. at 979, 234 S.E.2d at 292). "The

trier of fact determines the weight of evidence in support of a

claim of self-defense." Gardner v. Commonwealth, 3 Va. App.

418, 426, 350 S.E.2d 229, 233 (1986) (citing Yarborough, 217 Va.

at 979, 234 S.E.2d at 291-92). "The law of self-defense is the

law of necessity, and the necessity relied upon must not arise

out of defendant's own misconduct." McGhee, 219 Va. at 562, 248

S.E.2d at 810.

The evidence established that appellant created the

situation which resulted in his stabbing Giles with his knife.

Indeed, appellant

argue[s] with earnestness that [Giles] was
the aggressor, as he struck the first blow,
but [appellant] overlook[s] the fact that
the invitation to engage in combat came from
[him]. When one extends an invitation to
another to engage him in combat, it may be
assumed that if the invitation is accepted
it will be accompanied with a blow.

Adams v. Commonwealth, 163 Va. 1053, 1058, 178 S.E. 29, 31

(1935).

Appellant also relies on Gilbert v. Commonwealth, 28

Va. App. 466, 506 S.E.2d 543 (1998). This reliance is

misplaced. In Gilbert, "[t]he trial judge found and the

evidence proved . . . that Gilbert was not at fault in . . .

bringing on the fray." Id. at 473, 506 S.E.2d at 546. Here the

jury concluded that appellant was at fault in bringing about the

brawl. "[W]hether [Giles] had threatened [appellant] with death
- 18 -
or serious bodily harm, and whether [appellant] had reasonable

grounds to believe such threats would be carried into execution,

were questions to be determined by the jury." Callahan v.

Commonwealth, 192 Va. 26, 30-31, 63 S.E.2d 617, 619 (1951)

(citing Bevley v. Commonwealth, 185 Va. 210, 215, 38 S.E.2d 331,

333 (1946)). There is ample evidence in the record to support

the jury's finding, and we will not disturb it on appeal. The

judgment of the trial court is, therefore, affirmed.

Affirmed.

- 19 -