COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
WILBUR LEE WALLACE
MEMORANDUM OPINION * BY
v. Record No. 2331-98-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, III, Judge
John D. Konstantinou (McKenna & Konstantinou,
P.L.L.C.), for appellant.
Jeffrey S. Shapiro, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Wilbur Lee Wallace (appellant) was convicted in a bench
trial of three counts of robbery, in violation of Code
§ 18.2-58, and three counts of the use of a firearm in the
commission of robbery, in violation of Code § 18.2-53.1. 1 On
appeal, he contends the evidence was insufficient to support his
convictions. Finding no error, we affirm.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1
Appellant was also indicted for three counts of abduction,
in violation of Code § 18.2-47. However, at the conclusion of the
Commonwealth's evidence the trial court granted appellant's motion
to dismiss the abduction charges.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, 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).
So viewed, the evidence established that on December 15, 1997,
appellant, James Wells, Anthony "Bird" Redcross, Kardell "Rico"
Jones, Carlos "Pork" Mason, Vicent "VJ" Robinson and Charles
Harris spent the afternoon at appellant's apartment. Wells,
Redcross and Harris played video games in the front room while
appellant, Jones, Mason and Robinson talked in the kitchen. At
one point during the afternoon, Mason displayed a gun, a Tech 9,
which was described as about "twelve inches long" with "holes in
the barrel" and "a strap around it." As Redcross and Wells
started to leave the apartment, Mason asked the two, in
appellant's presence, whether they "knew anybody to rob."
Redcross said that he did not, and he left the apartment with
Wells.
Wells and Redcross then went to the Stonegate Apartments
where Redcross lived. While at the apartment complex, they
helped Billy Nipper work on his sister's car and went to the
sister's apartment for drinks. As Wells, Redcross and Nipper
were leaving the apartment, "four or five guys" approached them
from "behind the building and told [them] to get on the ground."
- 2 -
One of the assailants had a gun, which, according to both Wells
and Redcross, looked similar to the Tech 9 they had seen earlier
that day at appellant's apartment.
According to Nipper, the assailants "went in my front
pockets and stole eighty dollars from me. And kicked me in the
ribs." They also took Wells' shoes and jacket, kicked Redcross
three times and stripped Redcross of all his clothes. Although
the victims were unable to identify their assailants, each
testified that the men wore "black clothes" and "ski masks."
At trial, Robinson stated that during the afternoon on
December 15, 1997, appellant and Jones were talking about
robbing someone that night. Robinson testified to the
following:
Q. Did there come a point in time when
there was some discussion about what was
going to happen that night?
A. Yea. They were talking about robbing
people.
Q. Who was talking about robbing people?
A. Mostly [appellant] and [Jones] were
going in the back room talking.
* * * * * * *
Q. What were they saying about robbing
people?
A. They were sticking them up.
Q. Did you see a gun there that day at
[appellant's] house?
A. Yea.
- 3 -
Q. What kind of gun was it?
A. It was a Tech .9 (sic).
Robinson testified that about an hour after Wells and Redcross
left appellant's apartment, the rest of them got into a car and
drove off. Mason drove the car, Jones was in the front
passenger seat, and Robinson and appellant were in the back
seat.
According to Robinson, the four drove to the Stonegate
Apartments where Mason, Jones and appellant "started robbing
people." Mason "hit" the victims, while Jones and appellant
"ran the pockets, patted them down and stuff." Robinson was
unable to recall whether the gun was in the car at the time of
the robbery. Although Robinson stated that no one wore ski
masks over their faces during the robbery, he admitted that
appellant, Mason and Jones "usually wear" ski masks on their
heads. "[N]ine out of ten times they wear it just to wear it.
They wear it everyday." After the incident, Robinson testified,
they got back into the car and left the Stonegate Apartments.
At the conclusion of the Commonwealth's evidence, appellant
moved to dismiss the charges based on sufficiency grounds. The
trial court denied the motion, stating the following:
I think Mr. Robinson clearly put
[appellant] at the scene. And the question
is whether or not, there was a gun involved.
And Mr. Robinson said apparently there was a
gun but it was in the car.
- 4 -
I don't know if [Robinson] wasn't on
the scene as all the actual participants
involved in it. It was dark. He doesn't
know whether they had the masks on or off or
then pulled them down. But he can put the
[appellant] there. The victims can
certainly tell you there was a gun involved
and [the assailants] had masks on.
I overrule your motion at this point in
time. It seems to be more a question of
credibility of the witnesses. And the trier
of fact has an opportunity to weigh the
credibility of the witnesses. He is not
required to accept the statement in total of
any witnesses. He can take or reject any
portion of their testimony, as the trier of
fact deems appropriate.
In his defense, appellant called numerous alibi witnesses,
including many family members, who testified he was babysitting
for Cynthia Cowles on December 15, 1997. Appellant's
step-sister, Sherri Brown, stated that she was with appellant
"the whole day" and "all evening." Additionally, appellant
testified that he was with Brown all evening and that he babysat
Cowles' children at his apartment. According to appellant,
Wells and Redcross returned to his apartment at about 10:30 p.m.
and told appellant that they had been robbed by a person named
"L.J."
The trial judge accepted the Commonwealth's evidence, and
rejected appellant's testimony. The trial court ruled as
follows:
This is really a question of credibility of
the witnesses and the things about which
they testified. The Court has had an
opportunity to observe the witnesses and the
- 5 -
things about which they testified, their
demeanor on the witness stand, and their
truthfulness. And it's certainly one of the
cases where the Court has to sift through
what was said here.
I will recall Anthony Redcross, . . .
[who testified that] he saw a gun at the
[appellant's] apartment. He said that he
saw the [appellant] there. Saw the gun at
the house. And he said the [appellant]
said, "Do you know anybody we can rob?"
Vincent Robinson, he was in there at
the apartment with [appellant] and [Mason],
and they were talking about robbing people.
They left, and then shortly later he said
they left together. All of them left
together to go rob them. He said they
didn't wear ski masks. I don't know what
that means because clearly they wore ski
masks or some type of mask when they got
there.
When they got out of the car, they
didn't have masks on, and [Robinson] didn't
see the gun. But clearly, when they got
there, [Robinson] places these individuals
there at the scene. They're the ones who
had been talking about robbing people.
They're the ones who had the Tech 9 weapon.
It was the same weapon that was used. I
think one of the victims identified it as
the same type of weapon they had seen at the
apartment earlier.
Taking all these factors into
consideration, the Court is satisfied beyond
a reasonable doubt that the [appellant]
participated in the robbery.
(Emphasis added.) Accordingly, appellant was convicted of three
counts of robbery and three counts of use of a firearm in the
commission of robbery.
- 6 -
II.
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, and the reasonable
inferences fairly deducible from that evidence, support each and
every element of the charged offense. See Moore v.
Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr
v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).
"In so doing, we must discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth and all fair
inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
"We will not reverse the judgment of the trial court, sitting as
the finder of fact in a bench trial, unless it is plainly wrong
or without evidence to support it." Reynolds v. Commonwealth,
30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citing Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987)).
In the instant case, appellant concedes that the victims
were robbed at the Stonegate Apartments on December 15, 1997.
However, he contends that the Commonwealth's evidence was
insufficient to establish that he was a participant in the crime
because the victims were unable to identify him. Appellant
argues that the only evidence that places him at the scene of
- 7 -
the crime was the testimony of Robinson, which "flies in the
face of . . . the three victims."
Appellant's argument is based entirely on the issue of
witness credibility. "The trier of fact is the sole judge of
the credibility of the witnesses, unless, as a matter of law,
the testimony is inherently incredible." Walker v.
Commonwealth, 258 Va. 54, 70-71, 515 S.E.2d 565, 575 (1999)
(citing Davis v. Commonwealth, 230 Va. 201, 206, 335 S.E.2d 375,
379 (1985); Rogers v. Commonwealth, 183 Va. 190, 201-02, 31
S.E.2d 576, 580 (1944)). In order for testimony to be found
incredible as a matter of law, "it must be either so manifestly
false that reasonable men ought not to believe it, or it must be
shown to be false by objects or things as to the existence and
meaning of which reasonable men should not differ." Cardwell v.
Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968). "In
its role of judging witness credibility, the fact finder is
entitled to disbelieve the self-serving testimony of the accused
and to conclude that the accused is lying to conceal his guilt."
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
In the instant case, the trial court resolved the
credibility issues regarding the testimony of Robinson and the
three victims against the alibi defense advanced by appellant.
Here, Robinson testified unequivocally that on December 15,
1997, he was a passenger in the car with appellant, Jones and
- 8 -
Mason when they went to Stonegate Apartments to rob someone.
Robinson stated that Mason "hit" the victims, while Jones and
appellant "ran" their pockets. Appellant testified to the
contrary; however, the trial court was in a position to evaluate
the credibility of witnesses, and its decision to accept the
testimony of the victims and Robinson and reject appellant's
testimony is amply supported by the record. See Cherrix v.
Commonwealth, 257 Va. 292, 301-02, 513 S.E.2d 642, 649 (1999),
cert. denied, ___ S. Ct. ___ (1999); see also Montgomery v.
Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per
curiam) ("[E]ven if the defendant's story was not inherently
incredible, the trier of fact need not have believed the
explanation.").
Appellant next argues that the evidence was insufficient to
establish that he used or possessed a firearm during the
commission of the robberies. He contends that because Robinson
was unable to recall the location of the gun at the time of the
robbery there was no evidence to "place a firearm in
[appellant's] possession." However, the trial judge, as the
trier of fact, was entitled to reject that part of the evidence
believed to be untrue and to accept that found to be true. See
Martin v. Commonwealth, 13 Va. App. 524, 528, 414 S.E.2d 401,
403 (1992) (en banc). Accordingly, the trial court did not have
to believe the entire testimony of Robinson and instead was
- 9 -
entitled to rely upon the testimony of all three victims that a
gun was used and displayed during the robbery. 2
The Commonwealth's evidence was competent, was not
inherently incredible and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of the offenses
charged. Accordingly, we affirm appellant's convictions.
Affirmed.
2
Appellant's argument that the Commonwealth was required to
prove that he was in actual possession of a firearm is without
merit. For example, in Cortner v. Commonwealth, 222 Va. 557, 281
S.E.2d 908 (1981), the Supreme Court affirmed a defendant's
conviction for use of a firearm in the commission of a felony,
even though he did not physically possess the gun, because it was
displayed by his codefendant. See id. at 563, 281 S.E.2d at 911;
see also McGill v. Commonwealth, 24 Va. App. 728, 732, 485 S.E.2d
173, 175 (1997).
- 10 -