Opinion
Record No. 1567-92-2
January 18, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES B. WILKINSON, JUDGE.
David A. Powers, III (Nikas Powers, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal, we hold that the evidence supporting the verdict of guilty was not incredible as a matter of law and that reversible error did not occur when the trial court addressed the admissibility of testimony of two defense witnesses.
SUFFICIENCY OF EVIDENCE
Only one eyewitness testified concerning the attempted robbery. He was one of two employees of the business that was the object of the attempt. He and another employee were at the rear of a building when the defendant approached carrying a shotgun and announced, "This is a robbery." The defendant then forced the two employees to the rear door of the building by prodding them in the back with the shotgun.
The witness testified that although his back was to the defendant, he continually "kept his eyes on" the defendant by looking over his back at him. As the group approached the door, the defendant pushed the other employee, who then fell into the witness. The witness reached behind himself and grasped the barrel of the gun with his left hand, forcing both himself and defendant back outside the building, where the gun discharged. The witness grabbed the defendant around the neck with his right arm. The two then rolled over a guardrail, knocking over two buckets of grease, and fell to the ground, still fighting.
The witness, while on top of the defendant, felt an object in the defendant's pocket and retrieved it with his right hand. Finding the object to be a hammer, the witness repeatedly struck defendant in the head until he fell unconscious.
This testimony was not incredible as a matter of law. To be so incredible, it would have to be "so contrary to human experience or to usual human behavior as to render it unworthy of belief."Willis Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812-13 (1977). Evidence is unworthy of belief because it is contrary to human experience if it is either "so manifestly false that reasonable men ought not to believe it," Simpson v. Commonwealth, 199 Va. 549, 558, 100 S.E.2d 701, 707 (1957), or shown to be false by facts which are undisputed by reasonable persons. See Brandau v. Commonwealth, ___ Va. App. ___, ___, 430 S.E.2d 563, 566 (1993); see also Simpson v. Commonwealth, 199 Va. App. at 558, 100 S.E.2d at 707. Mere inconsistencies in testimony are insufficient to establish incredibility, unless they are significantly material to the testimony or are extraordinarily unusual. See Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204 (1984) (noting that only the trial court has the opportunity to weigh witness' bias, demeanor and recall ability).
The witness' testimony was not "so contrary to human experience . . . as to render it unworthy of belief." Willis, 218 Va. at 563, 238 S.E.2d 812-13. It was not "so manifestly false that reasonable men ought not to believe it," Simpson, 199 Va. at 558, 100 S.E.2d at 707, nor was it shown to be false by indisputable facts. Finally, the witness' testimony reveals no inconsistencies justifying its rejection as a matter of law.
DEFENSE TESTIMONY
A. Possession of Shotgun
Even though the trial judge interjected his opinion that whether the defendant had a shotgun with him earlier on the day of the robbery was immaterial, the witness was later allowed to testify that the defendant did not have the gun with him at that time. Thus, the testimony was allowed into evidence, and the defendant cannot complain that this testimony was improperly excluded from the jury's consideration.
Furthermore, although the defense counsel noted his "objection" following a colloquy with the trial judge concerning the materiality of the evidence, counsel did not request a mistrial or cautionary instruction to the jury, or in any way explain to the judge that his objection was to the judge's comment that the testimony was immaterial. Consequently, we are unable to conclude that the trial court had an opportunity to correct any error at the time of trial and therefore, cannot reverse the defendant's convictions. Rule 5A:18.
B. Lack of Motive
During the testimony of the defendant's wife, the trial judge said that the defendant "doesn't have to have a motive." Defense counsel made no objection, requested no relief, and continued with his examination of the witness. Again, because of a lack of an objection, we are barred from reversing the defendant's convictions. Rule 5A:18.
For these reasons, the judgments of conviction are affirmed.
Affirmed.