Opinion
Record No. 1423-92-3
Decided: May 17, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE, Clifford R. Weckstein, Judge
Affirmed.
Anthony F. Anderson (Melissa W. Friedman, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Koontz
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Frances Ann Truesdale (Truesdale) appeals her conviction by a jury for second degree murder. The conviction arises out of the 1988 shooting death of Truesdale's husband, Jerry Truesdale (Jerry). In this appeal, Truesdale contends that the trial court erred in admitting testimony of two witnesses concerning Truesdale's familiarity with handguns. She contends that the incidents related were too remote in time to have significant probative value and had considerable prejudicial effect. Truesdale further contends that the evidence at trial was insufficient to establish her guilt beyond a reasonable doubt while excluding every reasonable hypothesis of innocence. For the reasons that follow, we affirm Truesdale's conviction.
I. FACTUAL BACKGROUND
In the early morning hours of April 21, 1988, Truesdale and her husband were travelling from Pennsylvania to North Carolina on Interstate 81 near Roanoke. Truesdale's version of the events of that morning are that she and her husband stopped at a rest stop on the interstate. At the rest stop, Jerry encountered two male individuals who he described to her as "deadbeats." Jerry told Truesdale that the men asked him for twenty dollars. Jerry refused the request, and the men followed him back to the couple's van. When one of the men reached out and touched Jerry's arm, Jerry struck the man in the mouth.
Truesdale testified that she occupied the passenger seat, and Jerry drove away from the rest stop, cursing the men. The men got into a Ford Grenada automobile with New York state tags. Truesdale saw the letters "RUD" on the Ford's tag.
Travelling south on Interstate 81, Jerry exited onto the Interstate 581/US 220 spur. The two men pursued the van, pulled ahead of it, and forced Jerry to come to an abrupt stop. Jerry pulled around the Ford, and again the men pursued. Jerry stopped again and said, "I have had enough." Truesdale attempted to restrain Jerry but was unable to keep him from exiting the van. The man Jerry had struck at the rest stop shot Jerry.
Truesdale pulled Jerry back into the van and drove south on Interstate 581/US 220 looking for a hospital. When she realized she was leaving the City of Roanoke, she crossed over the median and returned north. She testified that she could not find the hospitals because there were no exit signs indicating where the hospitals were located. Eventually she received help by using the van's citizen's band radio.
Truesdale stopped the van on the highway near the Hershberger Road exit. Clarence Crouch, Jr. (Crouch), who had responded to Truesdale's call on the CB, arrived a short time later. Crouch testified that he smelled gunpowder inside the van. Crouch further testified that Truesdale told him she had not seen her husband hit the man at the rest stop. According to Crouch, Truesdale then said eight to ten times, "I didn't mean to do this."
According to Lt. C. D. Allen and Sgt. J. C. Martin of the Roanoke City Police Department, the first police officers responding to the shooting, Truesdale first said that the shooting had occurred on Interstate 81 and that she had driven the van to Interstate 581 in search of a hospital. Allen testified that Truesdale then changed her story many times. Martin testified that Truesdale said she could not give a description of the two men.
At the hospital where her husband was transported, Truesdale later told Ann Letrick, her sister-in-law, that the assailants were clean-cut white males driving a car with New Jersey tags. Truesdale told relatives that the men had cut the van off, opened the door, and shot her husband while he was inside the van.
When Truesdale was interviewed by the state police, she gave extensive descriptions of both men, their clothing, and a complete description of the car. Truesdale gave a more detailed description of the shooting during this interview which combined elements of her previous versions. The state police contacted the New York Department of Motor Vehicles, and were told that there were no Ford Grenada automobiles with the letters "RUD" in the license tag.
To show a motive for Truesdale's acts, the Commonwealth established that Truesdale had misrepresented the extent of her husband's life insurance policies to the police and others. Truesdale claimed that she did this because her husband had instructed her in the past not to reveal the true extent of their personal worth.
The Commonwealth also presented forensic evidence which suggested that Jerry could not have been shot at close range, unless the gun had been covered, because there was no powder residue on the body. This evidence contradicted Truesdale's claim that Jerry was shot at close range.
Truesdale told the police and also testified that she was unfamiliar with handguns other than one her husband had given her in 1987. Although a number of witnesses testified to Truesdale's familiarity with handguns, Truesdale objected to the testimony of only two witnesses. These objections were based on the ground that the evidence was too remote in time for its probative value to outweigh its prejudicial effect. Betty Ruth McGuiness testified that she knew Truesdale carried a handgun in 1967. Barbara Ann Martin testified that Truesdale owned a handgun in 1965.
II. ADMISSION OF REMOTE EVIDENCE OF HANDGUN FAMILIARITY
Truesdale contends that the trial court erred in admitting, over her objection, evidence of her use and familiarity with handguns through testimony from McGuiness and Martin. Truesdale maintained at trial and asserts on appeal that the incidents were too remote in time to have significant probative value. She also contends this evidence unfairly prejudiced the jury by suggesting that she had an ongoing familiarity with handguns similar to the weapon used to murder her husband. We disagree.
[A] trial court may consider remoteness as one of the factors in determining evidentiary relevance . . . but it should not withhold such evidence solely on the basis of remoteness unless the expanse of time has truly obliterated all probative value. This determination is committed to the sound discretion of the trial court.
Lafon v. Commonwealth, ___ Va. App. ___ ___, 438 S.E.2d 279, 284 (1993); see also Brown v. Commonwealth, 3 Va. App. 182, 186, 348 S.E.2d 849, 852 (1986), aff'd, 238 Va. 213, 381 S.E.2d 225 (1989).
It was necessary for the Commonwealth to prove that Truesdale had the opportunity, means, and access to the instrumentality necessary to accomplish the crime of which she was accused. Moreover, the Commonwealth was entitled to contradict Truesdale's statements to police that she was unfamiliar with and afraid of firearms. See Santmier v. Commonwealth, 217 Va. 318, 319-20, 228 S.E.2d 681, 682 (1976). Thus, evidence that Truesdale had possessed and used handguns was relevant and material to the Commonwealth's case. Moreover, the "prejudicial effect" of the evidence Truesdale complains of was not unfair. Rather, it was "prejudicial" precisely because it established the proposition of Truesdale's familiarity with handguns and her subsequent attempt to conceal that knowledge from the police.
"Once a nexus for relevancy of prior conduct or character has been established . . . the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury." Lafon, ___ Va. App. at ___, 438 S.E.2d at 284 (quoting Barnes v. Commonwealth, 214 Va. 24, 26, 197 S.E.2d 189, 190-91 (1973)) (emphasis deleted). The admission of the testimony concerning Trusdale's possession and familiarity with handguns was a matter for the discretion of the trial judge, and we cannot say that he abused that discretion.
III. SUFFICIENCY OF THE EVIDENCE
Truesdale also contends that the evidence adduced at trial was insufficient to prove her guilt beyond a reasonable doubt while excluding every reasonable hypothesis of innocence. We recognize that where the Commonwealth relies on circumstantial evidence to prove the essential elements of an accused's guilt, it is required not only to establish the guilt of the accused to the exclusion of a reasonable doubt, but also it must disprove every reasonable hypothesis of the accused's innocence. Lafon, ___ Va. App. at ___, 438 S.E.2d at 288. However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that the imagination of the defendant can construct to conform to discrete components of the Commonwealth's evidence. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
Where, as here, an accused elects to testify on his or her own behalf, putting before the jury a hypothesis of how the evidence supports conclusions contrary to the Commonwealth's theory of the case, he or she does so at the peril of an unfavorable determination of credibility by the jury. The jury was not required to believe Truesdale's testimony as to how the killing occurred simply because she said it happened that way and no eyewitnesses testified to the contrary. The jury could choose to disbelieve Truesdale's testimony because of its contradictions, or because the improbability of her story and her manner of relating it gave rise to reason to believe that she was not speaking the truth. See Randolph v. Commonwealth, 190 Va. 256, 263, 56 S.E.2d 226, 229 (1949); see also Crumble v. Commonwealth, 2 Va. App. 231, 236, 343 S.E.2d 359, 362 (1986).
The jury was required to consider Truesdale's testimony in light of all the evidence, resolving conflicts between her version of events and contradictory evidence presented by the Commonwealth. Additionally, the jury could consider Truesdale's inconsistent statements to the police, family, and representatives of her husband's various life insurance carriers as demonstrative of her guilty state of mind. See Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981); Iglesias v. Commonwealth, 7 Va. App. 93, 110, 372 S.E.2d 170, 179-80 (1988). In so doing, the jury was within its province to reject Truesdale's claims concerning the events of the night of the murder, and, having done so, the jury was left with the evidence presented by the Commonwealth to weigh and consider in reaching its verdict.
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). We cannot say that the jury's verdict in this case was without support in the evidence or plainly wrong. Accordingly, Truesdale's conviction is affirmed.
Affirmed.