Cressell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia

EMMETT WARD CRESSELL, JR.
OPINION BY
v. Record No. 0270-99-3 JUDGE SAM W. COLEMAN III
JULY 11, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GRAYSON COUNTY
J. Colin Campbell, Judge

Mark W. Claytor (Jeffrey L. Dorsey, on
brief), for appellant.

Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Emmett Ward Cressell was convicted in a jury trial of first

degree murder. He was sentenced to life imprisonment and fined

$100,000. On appeal, Cressell argues that the trial court erred

by denying his motion for a change of venue and by failing to

strike three jurors for cause. He also argues that the evidence

is insufficient to support his conviction. Finding no error, we

affirm.

I. BACKGROUND

On July 24, 1997, Cressell, Louis Ceparano, Hazel Anderson,

Christy Harden, and G.P. Johnson spent the evening and early

morning hours of July 25, celebrating Harden's twenty-first

birthday. At some point in the evening, the birthday celebration
moved to Ceparano's trailer. Everyone was drinking heavily except

Anderson. Before the evening ended, Johnson, who was of

African-American descent, became the victim of a gruesome murder.

Johnson, who was intoxicated, was doused with gasoline, set afire,

burned alive, and decapitated.

Hazel Anderson testified that at least twice during the

evening Cressell grabbed Johnson by the shirt collar, called him a

"nigger," and accused Johnson of trying to start a fight between

Cressell and Ceparano. Later that evening, Cressell and Ceparano

were "horseplaying" with Johnson on a mattress on the floor. Both

Cressell and Ceparano stated several times that they were going to

take Johnson outside and "burn him on a white cross." Anderson

testified that Cressell took off Johnson's watch and, in response

to Johnson's request to return the watch, Cressell stated that

"where you're going, they had their own time." Cressell then

grabbed Johnson's shoulders while Ceparano grabbed Johnson's legs,

and together, the two carried Johnson outside. Johnson,

apparently not comprehending the situation, told Cressell and

Ceparano to be careful not to hurt his ankle, which he had injured

in a car accident a few weeks earlier. Johnson stated, as he was

being carried out of the trailer, "why don't you just shoot me."

Harden, who remained in the trailer with Anderson, testified

that she looked out the window and noticed a large fire. Harden

stepped onto the front porch and realized that Johnson was being

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burned alive. She testified that Ceparano was standing near

Johnson and Cressell was walking back in the direction of the

trailer. Cressell and Ceparano returned to the trailer without

Johnson. Both Anderson and Harden stated that they smelled

gasoline fumes, and Anderson testified that she smelled the fumes

emanating from Cressell when he returned to the trailer. Ceparano

went back outside, and when Anderson began to follow Ceparano,

Cressell stated sarcastically, "it'd be best if you don't go

outside." Later, Ceparano cornered Anderson in the kitchen and

told her in a threatening manner that he had walked Johnson home.

He threatened to kill her if she told anyone anything different.

Ceparano again went outside, and when he returned, he had blood on

the front of his pants. Ceparano changed clothes and washed his

pants.

Harden testified that Cressell told her that Ceparano poured

gasoline on Johnson and set him on fire. She testified that she

and Cressell left the trailer, flagged down a passing car, and

proceeded to the Sheriff's office where Cressell informed the

deputies that Ceparano had murdered Johnson.

In Cressell's initial statements to the authorities, he

denied any involvement in Johnson's murder. He later admitted,

however, that he helped Ceparano carry Johnson outside and across

the driveway. Cressell consistently denied pouring gasoline on

Johnson or setting him on fire. Rather, Cressell stated that he

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saw Ceparano pour gasoline on Johnson and set him on fire.

Ceparano denied murdering Johnson.

Johnson's burned, decapitated body was found near Ceparano's

trailer. When investigators arrived at the scene, they discovered

Johnson's body lying in a prone position still on fire. The

investigator observed two burn sites on Ceparano's property. At

the second burn site, the investigator found "what appeared to be

a piece of a skull," a gas can, beer cans, a blood stain, and

debris piled on top of Johnson's body. There appeared to be a

trail of blood from the first burn site to the second. At the

first burn site, investigators found a belt buckle and loose

change. Johnson's wallet was lying on the ground a few feet from

the back door of Ceparano's trailer, and Johnson's checkbook and

watch were on the loveseat in the trailer. Johnson's body had

been decapitated and his head was buried beneath his body in a

hole more than a foot deep. Near the trailer, the investigator

found a shovel and a splitting maul. Ceparano had blood on his

hands and on his clothing.

An autopsy of Johnson's body revealed that the cause of death

was "inhalation of flame with edema of the lungs and burning of

the respiratory passages." The evidence indicated that the fire

had been started using an accelerant. Johnson was decapitated

postmortem. Johnson's skull suffered a number of blunt trauma and

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chop injuries. His skull was fractured, and his brain was out of

the cranial cavity due to the nature of the injuries.

II. ANALYSIS

A. Motion for a Change of Venue

Prior to trial, Cressell moved for a change of venue, arguing

that widespread media attention created "community prejudice"

against him. He argued that the news reports were inflammatory,

hostile, and prejudicial. Cressell stated that a newspaper

photograph of him in a prison uniform, wearing handcuffs and leg

irons, created an aura and impression in the minds of prospective

jurors in the community that he was guilty. The media also

impermissibly reported his criminal record and prejudicial

evidence concerning particulars of the crime that would be

inadmissible at trial. Although Cressell conceded at oral

argument that the media reports were factually accurate, he argued

that the coverage was inflammatory, pointed, and selective,

because the photographs in the newspaper articles of the victim

showed him as a "young, good-looking black man in a dress marine

corps uniform with a background of the American flag," while the

newspaper articles pictured him, the defendant, in "slovenly jail

garb, a mug shot." In addition, Cressell argues that the media

portrayed the murder as a "hate crime" and Grayson County as a

"hot bed of racism." He asserts that by doing so, the media put

the citizens of Grayson County "on trial" to defend their

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reputation as jurors and that is the "reason that [he] was

convicted of anything at all."

At counsel's request, the court took the motion for change of

venue under advisement pending a determination of whether a

qualified and unbiased jury panel could be seated. After voir

dire of eighty-one potential jurors, a panel of twenty-four jurors

was seated. Of the eighty-one prospective jurors, the court

excused twenty because each expressed the view that he or she had

formed an opinion about the defendant's guilt or innocence from

news accounts that he or she would be unable to set aside. The

court excused nine prospective jurors because each was opposed to

the death penalty. Twenty-eight others were excused for "various

sundry reasons." The court denied the motion for a change of

venue, noting that, although the case had received widespread

publicity, a qualified jury had been selected.

"'It is presumed that a defendant can receive a fair trial in

the locality where the offense occurred, and the burden is on the

accused to overcome that presumption by clearly demonstrating

widespread prejudice against him.'" Brown v. Commonwealth, 28 Va.

App. 315, 336, 504 S.E.2d 399, 409 (1998) (quoting LaVasseur v.

Commonwealth, 225 Va. 564, 577, 304 S.E.2d 644, 651 (1983)). "'A

change of venue based on pre-trial publicity is required when the

defendant demonstrates that there is "widespread" prejudice

against him and that such prejudice would, with reasonable

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certainty, prevent a fair trial.'" Brown, 28 Va. App. at 336, 504

S.E.2d at 409 (quoting Chandler v. Commonwealth, 249 Va. 270, 275,

455 S.E.2d 219, 222 (1995)). The trial court's decision whether

to grant a motion for change of venue is reviewed for an abuse of

discretion. See Kasi v. Commonwealth, 256 Va. 407, 420, 508

S.E.2d 57, 64 (1998), cert. denied, 119 S. Ct. 2399 (1999).

"'[E]xtensive knowledge in the community of either the crimes

or the putative criminal is not sufficient by itself to render a

trial constitutionally unfair.'" George v. Commonwealth, 242 Va.

264, 274, 411 S.E.2d 12, 18 (1991) (quoting Dobbert v. Florida,

432 U.S. 282, 303 (1977) (abrogation on other grounds recognized

by Grimes v. State, 807 S.W.2d 582 (Tex. Crim. App. 1991)). "The

fact that there have been media reports about the accused and the

crime does not necessarily require a change of venue." Roach v.

Commonwealth, 251 Va. 324, 342, 468 S.E.2d 98, 109 (1996)

(citation omitted). "A significant factor in determining whether

a change of venue is warranted is whether the media reports are

factual and accurate." Mueller v. Commonwealth, 244 Va. 386, 398,

422 S.E.2d 380, 388 (1992) (citation omitted). "Another

significant factor the trial court must consider is 'the

difficulty encountered in selecting a jury.'" Roach, 251 Va. at

342, 468 S.E.2d at 109 (quoting Mueller, 244 Va. at 398, 422

S.E.2d at 388).

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 Cressell has not overcome the presumption that he received a

fair trial in Grayson County. Here, virtually every prospective

juror admitted hearing about the case through the media or by

speaking with others. After extensive voir dire, twenty-four

jurors were selected who "unequivocally answered that they could

enter the jury box with an open mind and wait until the entire

case was presented before reaching a fixed opinion."

Prospective jurors are not required or
expected to be completely ignorant of the
facts and the issues surrounding a highly
publicized case; all that is required is
that a prospective juror can lay aside his
or her impression or opinion and render a
verdict based upon the law and evidence.

Ascher v. Commonwealth, 12 Va. App. 1105, 1114, 408 S.E.2d 906,

912 (1991) (citation omitted).

Moreover, the jury was selected with relative ease, and more

prospective jurors were excused for reasons unrelated to publicity

than were excused for holding fixed, preconceived notions about

Cressell's guilt. See Brown, 28 Va. App. at 337-38, 504 S.E.2d at

409-10 (finding no error in denying motion where twenty-four of

sixty prospective jurors acknowledged awareness of publicity);

Thomas v. Commonwealth, 244 Va. 1, 10-12, 419 S.E.2d 606, 611-12

(1992) (affirming trial court's ruling denying change of venue

where thirty-one percent of prospective jurors questioned were

excused because of pretrial publicity). Finally, Cressell

conceded at oral argument that the media reports were factually

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accurate. See Mueller, 244 Va. at 398, 422 S.E.2d at 388; see

also Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757,

767 (1989) (noting that media coverage disclosing the accused's

criminal record is insufficient to justify a change of venue).

Accordingly, the trial court did not abuse its discretion in

denying the motion for a change of venue.

B. Jury Challenge

Cressell argues that the trial court erred in failing to

strike three prospective jurors for cause. Cressell contends that

prospective jurors Organ and Hancock should have been struck

because they were members of a "poisoned panel" that he sought to

have struck in its entirety and that juror Thompson should have

been struck because during voir dire she expressed sentiments that

she could not be indifferent to the cause.

"The right to a trial by an impartial jury is guaranteed

under both the United States and Virginia Constitutions." Gosling

v. Commonwealth, 7 Va. App. 642, 645, 376 S.E.2d 541, 543 (1989)

(citing U.S. Const. amend VI; Va. Const. art I, § 8). "[S]o long

as the jury that sits is impartial," the compelled use of a

peremptory challenge by a defendant to remove a biased juror does

not violate the Sixth Amendment because peremptory challenges are

"auxiliary" and "are not of federal constitutional dimension."

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United States v. Martinez-Salazar, 120 S. Ct. 774, 779-80 (2000).1

However, the Virginia Supreme Court has held in Breeden v.

Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 737 (1976), that

as a matter of state law, relying on Code §§ 8.01-357 and -358, an

accused is entitled to a panel of jurors free from exception

before exercising peremptory challenges. Thus, we review a trial

court's decision whether to strike a prospective juror for cause

for an abuse of discretion and that ruling will not be disturbed

on appeal unless it appears from the record that the trial court's

action constitutes manifest error. See Stockton v. Commonwealth,

241 Va. 192, 200, 402 S.E.2d 196, 200 (1991).

The constitutional guarantee of an impartial
jury does not contemplate excluding those
who have read or heard news accounts
concerning the case or even exclusion of
those who may have formed an opinion based
on such accounts. . . . The test, instead,
is whether a juror is capable of laying
aside a preconceived opinion and rendering
"a verdict solely on the evidence."

Wilmoth v. Commonwealth, 10 Va. App. 169, 173, 390 S.E.2d 514, 516

(1990) (citations omitted).

1. Jurors Organ and Hancock

Jurors Organ and Hancock were members of a thirteen member

panel that was initially subjected to voir dire as a group.

1
Because the dispositive holding in Martinez-Salazar
involved a due process challenge under Fed. R. Crim. P. 23, it
is inapposite to our case.

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During voir dire, eleven of the prospective jurors stated they had

formed opinions about the accused's guilt or expressed other

sentiments which required that the judge excuse those eleven

jurors for cause. Organ and Hancock were the two remaining jurors

from the panel of thirteen who were not removed for cause.

Cressell timely objected to the seating of jurors Organ and

Hancock on the ground that they were present and unduly influenced

when the other prospective jurors stated in Organ's and Hancock's

presence that each had formed an opinion about the case, or

explained how they knew the parties, or that they were prejudiced

toward the testimony of law enforcement.

Although none of the eleven jurors excused expressly stated

his or her opinion about Cressell's guilt or innocence, one

readily concludes from the responses that most, if not all,

believed Cressell was guilty. However, both Organ and Hancock

unequivocally stated that they did not hold fixed, preconceived

opinions regarding Cressell's guilt or innocence and affirmatively

stated that they could be fair and impartial. Both answered

affirmatively when asked whether they understood that Cressell was

presumed innocent until proven guilty and that he had no burden to

present any evidence. Both Organ and Hancock also answered

affirmatively when asked if they could set aside any preconceived

views and render a verdict based solely on the law and evidence

presented at trial. Moreover, Organ and Hancock stated that they

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were not influenced by the fixed opinions of the eleven

prospective jurors who were excused. Accordingly, the trial court

did not err in refusing to strike Organ and Hancock for cause.

2. Juror Thompson

Cressell argues that the court erred by refusing to strike

Thompson for cause and that the court's refusal to strike Thompson

was not cured by the defense's use of a peremptory challenge.

Cressell correctly asserts that his use of a peremptory

strike to remove Thompson does not cure prejudice caused to him by

seating a biased juror. See Brooks v. Commonwealth, 24 Va. App.

523, 530-31, 484 S.E.2d 127, 130 (1997) (finding that a

prosecutor's use of a peremptory challenge to remove a prospective

juror who should have been stricken for cause will not cure

possible prejudice); see also DeHart v. Commonwealth, 20 Va. App.

213, 216, 456 S.E.2d 133, 134 (1995). "A defendant has a right to

an impartial jury drawn from 'a panel [of twenty] free from

exceptions.'" Breeden, 217 Va. at 300, 227 S.E.2d at 737

(citation omitted); see also Code §§ 8.01-357, 8.01-358,

19.2-262(2). "If a venireman who should have been removed for

cause is allowed to remain on the jury panel, the accused is

'denied the opportunity of having another impartial person on his

jury.'" Brown v. Commonwealth, 29 Va. App. 199, 212, 510 S.E.2d

751, 757 (1999) (citation omitted). The trial court, however, did

not err in refusing to strike Thompson for cause.

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 During voir dire of Thompson, the following colloquy

occurred:

COURT: Can you put what you've read or
heard about it totally aside and have an
open mind when you enter the jury box?

THOMPSON: Yes sir.

* * * * * * *

[DEFENSE COUNSEL] CLAYTOR: Have you formed
any opinion about his [Cressell's] character
or anything like that based upon what you've
read in the paper?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] CLAYTOR: Do you think
[the defendant is] guilty of something as he
sits here? I see you nodding your head Ms.
Thompson. What do you mean by that?

THOMPSON: I feel like he's probably guilty
of something because why would he be here at
this far.

* * * * * * *

[DEFENSE COUNSEL] CLAYTOR: Do you believe
that someone who is present during the
commission of a crime and possibly could
have stopped it shares responsibility for
that crime and is therefore guilty of at
least something? I see you shaking your
head yes Ms. Thompson.

THOMPSON: Yes.

[DEFENSE COUNSEL] CLAYTOR: Now in the event
that the Court gave you instructions to the
contrary, can you put that feeling aside and
do exactly as the Court instructs you do to?
I see you shaking your head yes Ms.
Thompson.

THOMPSON: (Inaudible.)

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* * * * * * *

[DEFENSE COUNSEL] DORSEY: Now based on what
you've seen in the media, and I won't [sic]
you to be honest about this, okay. I want
you to think about your answers about this
and be honest about this. But based on what
you've seen in the media, read in the media,
read in the newspaper, seen on T.V., do you
have a feeling about what happened in this
case? Ms. Thompson, you're saying you
didn't. Is that right?

THOMPSON: Yes sir.

* * * * * * *

[DEFENSE COUNSEL] DORSEY: Now here's the,
here's the, here's a tough question. If the
Court told you to set that opinion aside to
forget about that opinion and have it not
enter into your mind or into your heart, to
use that word, if the Court told you to set
that opinion aside, would that be a hard
thing for you to let . . . ? You could set
it aside?

THOMPSON: Yes.

* * * * * * *

[DEFENSE COUNSEL] DORSEY: We talked about
media coverage. Have you talked about this
case with anybody? Have you-all had
conversations about this case with folks in
your neighborhood or community over the
course of the months that this has been
going on?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: During those
conversations, did those conversations lead
you to come to conclusions about what you
think happened?

THOMPSON: (No audible response.)

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[DEFENSE COUNSEL] DORSEY: Ms. Thompson,
you're saying yes. You're saying yes.

THOMPSON: Yes.

[DEFENSE COUNSEL] DORSEY: Here again, I'm
going to ask you the same question that I
asked you before about media coverage, I
mean, now you already answered this
question. I understand your answer. But
would those conversations that you've had
combined with media and combined with
everything that you know about this case,
would that influence your decision?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: Could you set
that aside?

THOMPSON: (No audible response.)

[DEFENSE COUNSEL] DORSEY: You could set it
aside? Ms. Thompson?

THOMPSON: (No audible response.)

* * * * * * *

[DEFENSE COUNSEL] DORSEY: From the witness
stand. From exhibits that are produced
before you. I want to ask you a question
about your exposure to the media and
exposure to the newspaper and T.V. accounts.
Let's say that you've heard all the evidence
from the witness stand. Got all the
exhibits and the case is over. Mr. Bolt's
presented his case and we've presented our
case and the case is over. But there was
some fact that you read about in the
newspaper that was never presented to you in
Court. Never showed in Court. Would you
have a hard time setting that fact aside?
You read something in the paper that you
know, well I know that this happened because
I read it in the paper a million times but
that never showed upon [sic] in Court.
Would you still think about that fact? Ms.
Thompson?

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 THOMPSON: I don't think I would.

[DEFENSE COUNSEL] DORSEY: You don't think
you would? You'd be able to set that aside?

THOMPSON: Yeah.

* * * * * * *

[COMMONWEALTH'S ATTORNEY] BOLT: Ladies and
Gentlemen . . . if the Court instructs you
that the defendant is presumed innocent, do
you, does anybody have a problem with that
concept? That, the Court will instruct you
that the defendant is presumed innocent.
I'm going to ask you to respond also. Does
everyone agree with that? Everyone nods
affirmative. Defendant's presumed
innocence. The Court, and we will assume
if, if the Court instructs you that the
defendant, whether he's arrested, indicted,
or anything for this offense that you should
not consider that. Does anyone have any
problem with putting that out of your mind
and not considering it? If the Court tells
you to.

THOMPSON: No.

* * * * * * *

THE COURT: Mr. Bolt had asked you can you
give a fair and impartial trial and let me
just ask you. Can you and I'll ask this to
all three (3) of you, can all of you set
aside any impressions that you may have
received through the news media or any
opinion you may have formed? And if you
become the jury and you're sworn to try the
case, can you enter the jury box with an
open mind and can you render a verdict based
solely and only on the evidence and the law
that you receive? Can you do that? Ms.
Thompson nods yes.

"A prospective juror who is biased, prejudiced, or who

'persists in a misapprehension of law that will render him [or

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her] incapable of abiding the court's instructions and applying

the law, must be excluded for cause' because such a juror cannot

be impartial." Griffin v. Commonwealth, 19 Va. App. 619, 621, 454

S.E.2d 363, 364 (1995) (quoting Sizemore v. Commonwealth, 11 Va.

App. 208, 211, 397 S.E.2d 408, 410 (1990)).

It is not uncommon to discover during voir
dire that prospective jurors have
preconceived notions, opinions, or
misconceptions about the criminal justice
system, criminal trials and procedure, or
about the particular case. Even though a
prospective juror may hold preconceived
views, opinions, or misconceptions, the test
of impartiality is whether the venireperson
can lay aside the preconceived views and
render a verdict based solely on the law and
evidence presented at trial.

Griffin, 19 Va. App. at 621, 454 S.E.2d at 364 (citation omitted).

Cressell argues that this case is controlled by our decision

in Brown, 29 Va. App. 199, 510 S.E.2d 751, and the Supreme Court's

decision in Breeden, 217 Va. 297, 227 S.E.2d 734. We disagree.

In Brown, the defendant sought to strike three prospective jurors

for cause. The holding concerning the seating of prospective

jurors one and two is relevant to our discussion. During voir

dire, prospective juror one stated that she had been the victim of

a violent crime. In response to questions regarding whether that

experience would influence her ability to "keep an open mind" and

render a decision based on the facts of the case, she expressed

equivocation. She stated that she was not certain that her

experience would influence her decision. We held that the juror

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expressed "numerous reservations about her ability to serve

impartially on the jury in light of her personal experiences." We

noted that nearly all of the juror's responses contained the

phrases, "I think," "I don't know," and "I would try." A trial

judge has an opportunity to hear, observe, and assess the

connotations of a juror's response; therefore, equivocal

statements alone will not suffice to disqualify a juror. However,

"all doubts about the fitness of a juror to serve must be resolved

in favor of the accused." Brown, 29 Va. App. at 208, 510 S.E.2d

at 755.

Prospective juror two in Brown, was Chief Counsel to the

United States Secret Service and, stated during voir dire that

"[his] whole career has been law enforcement. So [he] tend[ed] to

view things from a law enforcement perspective." He stated that

he might give more weight to an officer's testimony. The

prospective juror also expressed his belief that it was unlikely

that a case would go to trial if the accused was not guilty. We

held that the juror's firmly held belief and his view toward law

enforcement created "a reasonable doubt about his ability to sit

impartially on a jury." The circumstances presented in Brown are

readily distinguishable from the circumstance presented by juror

Thompson. No evidence proved that Thompson was a victim of a

violent crime, and she was unequivocal about being able to fairly

render a decision in the case. Further, she did not harbor a

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firmly held personal belief about law enforcement and those who

are standing trial that would interfere with her being an

impartial juror.

In Breeden, the defendant sought to strike a prospective

juror for cause, who, during voir dire, stated that she had read

about the crime in the newspaper and "was glad that person was

caught." She also stated that she held the view that the

defendant would have to prove his innocence. After stating those

views, the Commonwealth's Attorney attempted to rehabilitate the

juror, asking if she could follow the court's instructions in

applying the facts to the law and follow the court's instructions

regarding the presumption of innocence. She stated, "Yes sir."

In holding that the trial court erred in seating the prospective

juror, the Virginia Supreme Court noted that it was not "concerned

with a possible misapprehension of law," stating that "[j]urors

are not expected to be learned in legal maxims." Rather, the

Court, considering the voir dire of the prospective juror in its

entirety, found that "her response to that crucial question was

not so much a symptom of her ignorance of the law as a candid

reflection of the state of mind concerning [the defendant's]

guilt."

Here, although Thompson initially expressed her belief that

Cressell was "probably guilty of something because why would he be

here at this far" and her belief that if one is present during the

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commission of a crime and does nothing to intervene that person is

also culpable, she subsequently stated she could set those beliefs

aside if instructed to do so by the court. She expressed no

equivocation in her ability to follow the court's instructions and

in her ability to apply the facts to the law. Thompson also

advised the court that she had not formed any preconceived

opinions about Cressell's guilt or innocence based on the pretrial

publicity, and she expressed no reservations regarding the

defendant's presumption of innocence. Here, the attempts to

rehabilitate Thompson were made largely by defense counsel, not

the trial judge. But see McGill v. Commonwealth, 10 Va. App. 237,

242, 391 S.E.2d 597, 600 (1990) (holding that where a prospective

juror has been shown not to be impartial, a trial judge may not

rehabilitate the juror by merely asking persuasive, leading

questions to which the juror acquiesces). Thompson's initial

statements about an accused's innocence reflects "a symptom of her

ignorance of the law," not a "reflection" of her state of mind

about Cressell's guilt. The trial judge had the opportunity to

observe Thompson's demeanor, to hear her responses and the

connotations which she placed upon her answers, and to better form

an opinion than we can on a cold record as to whether she had a

fair, impartial, and open state of mind. The trial judge did not

abuse his discretion in seating juror Thompson. Accordingly, we

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find that the trial court did not err in refusing to strike

Thompson for cause.

C. Sufficiency

Cressell argues that the evidence is insufficient to support

his conviction. He asserts that the Commonwealth failed to prove

he was directly involved in Johnson's death. He argues that

Anderson's testimony, which was the only testimony remotely

linking him to the crime, was inherently incredible and unworthy

of belief. Cressell asserts that Anderson gave contradictory

testimony at trial and lied to the defense investigator.

On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all reasonable

inferences fairly deducible therefrom. See Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). "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)

(citations omitted). In order for a witness' testimony to be

disregarded as a matter of law, the evidence must be inherently

incredible or the witness' account of the events must be so

contrary to human experience as to be unworthy of belief. See

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Owens v. Commonwealth, 186 Va. 689, 696-97, 43 S.E.2d 895, 898

(1947).

At trial, Anderson admitted she lied to the defense

investigator about whether she was in love with Ceparano, pregnant

with his child, which she aborted after the murder, and whether

she was afraid of him. She stated that she lied because she

"[knew] whose lawyers you were and what you was trying to pull."

Anderson also admitted she said in her statement to the defense

investigator that she was unsure from whom the gas smell emanated.

However, at trial, she unequivocally stated that the gasoline

smell came from Cressell. She also gave conflicting statements

and evidence concerning whether she had one drink or two during

the course of the evening.

Although Anderson made several contradictory statements

during trial and admitted having made statements to the defense

investigator, Anderson's account of the events was not inherently

incredible, and the fact finder was entitled to weigh this

evidence in determining Anderson's credibility and Cressell's

guilt. See Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. Her

account of the events provides a cogent explanation for Johnson's

gruesome murder and is not incredible as an explanation for what

occurred. Moreover, defense witness Harden corroborated

Anderson's account of the events that transpired that evening.

Both testified that the group gathered to celebrate Harden's

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birthday, all but Anderson became heavily intoxicated, either

Cressell or Ceparano removed Johnson's watch, Cressell and

Ceparano carried Johnson outside, and both Cressell and Ceparano

were outside when Johnson was doused with gasoline and set on

fire. Both witnesses testified that they smelled gasoline after

the burning when Cressell and Ceparano returned to the trailer,

although Harden was unable to positively attribute the odor to

Cressell. Anderson's testimony that she heard Cressell threaten

to burn Johnson on a white cross and call him a "nigger," although

not corroborated by Harden, was not so incredible as to be

unworthy of belief.

The evidence proved that Cressell, at the very least, aided

and abetted in carrying Johnson outside knowing that Ceparano

intended to kill Johnson and that he assisted in dousing Johnson

with gasoline and in burning Johnson alive. Even if Cressell did

not actually set Johnson on fire, he assisted Ceparano in the

murder. See Pugliese v. Commonwealth, 16 Va. App. 82, 93-94, 428

S.E.2d 16, 25 (1993) (stating that "'proof that a person is

present at the commission of a crime without disapproving or

opposing it, is evidence from which, in connection with other

circumstances, it is competent for the jury to infer that he

assented thereto'"). Cressell made hostile remarks to Johnson,

stating he was going to take him outside and burn him on a cross.

Cressell helped Ceparano carry Johnson outside and across the

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driveway, and he smelled of gasoline when he returned to the

trailer. Finally, in statements to the authorities, Cressell lied

about his involvement in the crime. See Rollston v. Commonwealth,

11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991) ("A defendant's

false statements are probative to show he is trying to conceal his

guilt, and thus are evidence of his guilt.").

For the foregoing reasons, we find that the evidence was

sufficient to prove beyond a reasonable doubt that Cressell was

guilty of first degree murder. Accordingly, we affirm.

Affirmed.

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