Michael William Koulouris v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MICHAEL WILLIAM KOULOURIS
MEMORANDUM OPINION* BY
v. 	Record No. 1953-99-1 	JUDGE NELSON T. OVERTON
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Lydia Calvert Taylor, Judge
Allan D. Zaleski (Weisberg & Zaleski, P.C.,
on brief), for appellant.
Linwood T. Wells, Jr. (Mark L. Earley,
Attorney General; Jeffrey S. Shapiro,
Assistant Attorney General, on brief), for
appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal from his conviction of statutory burglary, in
violation of Code § 18.2-91, Michael William Koulouris contends
that the trial court erred in denying his motion to suppress an
eyewitness identification and that the evidence was insufficient
to support his conviction. 	Finding no reversible error, we
affirm.
On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. 	The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside

unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
At approximately 3:00 a.m. on June 11, 1998, Richard Strom
was awakened by a noise in his bedroom. 	Strom saw a man
crouching at the foot of his bed. 	Strom began shouting at the
man and reached for his handgun, which he kept in the bedside
table. 	The burglar then pointed a weapon at Strom. 	Strom
chased the man out of his bedroom and into the yard. 	The man
grabbed a bicycle, belonging to Strom's wife, and rode away.
Later, Strom realized that five fishing rods had been taken from
his shed.
On June 20, 1998, Koulouris sold one of Strom's fishing
rods to an employee of Harrison's Fishing Pier. 	Koulouris
returned a few days later to sell additional rods. 	The pier
employee notified police of possible stolen property, and the
police arrived at the pier to arrest Koulouris.
The pier employee called Strom to notify him of the arrest.
Strom arrived at the pier, where he asked police if he could see
Koulouris. 	Detective Guy Evans, the investigating officer at
the pier, refused, stating that showing Koulouris to Strom while
in the back of the police car would be too suggestive. 	Strom
noted that the man sitting in the back of the car, whom he
- 2 -

glimpsed, appeared to be the burglar, but that he could not be
sure.
Strom testified that Detective Evans then showed him a
photo array of suspects, with six pictures. 	Detective Evans
testified that he did not recall showing Strom the array, which
he had brought to the pier to show the pier employee. 	The array
did not contain a photograph of Koulouris, although Strom did
pick out one of the pictures as the man who had been in his
home. 	Before leaving the pier, Strom did have the opportunity
to see Koulouris after he exited the police cruiser; Strom told
police that Koulouris was the man he had seen in his house.
Koulouris, after being indicted for grand larceny and
statutory burglary, filed a motion to suppress all evidence
regarding Strom's identification of him, as being unduly
suggestive. 	Koulouris sought to suppress evidence of Strom's
identification of Koulouris at the fishing pier, Strom's
identification of Koulouris at the preliminary hearing, at which
Koulouris was restrained and wearing prison clothing, as well as
any further in-court identification that Strom would be asked to
provide.
The trial court found that the basis for Strom's
identification of Koulouris, "be that mistaken or correct
identification, [was] a source of what he saw at the scene of
the crime and not a suggestive view at the scene or at the
preliminary hearing." 	The motion to suppress was denied.
- 3 -

Koulouris pled guilty to the grand larceny charge, which was
later amended to a conviction of grand larceny by receiving
stolen property, in violation of Code § 18.2-95. 	The trial
court, after hearing evidence, convicted Koulouris of statutory
burglary, in violation of Code § 18.2-91, and sentenced him to a
total of twenty-three years imprisonment, with eighteen years
suspended.
Koulouris contends that the trial court erred in denying
his motion to suppress any evidence regarding Strom's
identification of Koulouris. 	He argues Strom's identification
had been unduly influenced by seeing Koulouris at the pier, in
the police cruiser, and then again at the preliminary hearing
while restrained and wearing prison clothing.
In determining the reliability of a
witness' identification, we look to the
factors enunciated in Neil v. Biggers, 409
U.S. 188 (1972), as significant
circumstances that may be considered along
with other evidence. 	See Charity v.
Commonwealth, 24 Va. App. 258, 262-63, 482
S.E.2d 59, 61 (1997). 	These factors include
the following: 	"the opportunity of the
witness to view the criminal at the time of
the crime, the witness' degree of attention,
the accuracy of the witness' prior
description of the criminal, the level of
certainty demonstrated by the witness at the
confrontation, and the length of time
between the crime and the confrontation."
Biggers, 409 U.S. at 199-200. 	"The fact
finder, who has the opportunity to see and
hear the witnesses, has the sole
responsibility to determine the weight of
the evidence, the credibility of witnesses,
and the inferences to be drawn from proven
- 4 -

facts." 	Commonwealth v. Taylor, 256 Va.
514, 518, 506 S.E.2d 312, 314 (1998).
Currie v. Commonwealth, 30 Va. App. 58, 73-74, 515 S.E.2d 335,
343 (1999).
Strom had ample opportunity to view Koulouris at the scene
of the crime. 	Koulouris was standing at the foot of Strom's bed
when Strom saw him. 	Although it was night, the room was
illuminated by light from the television screen, a security
light outside the window, and light from the living room, which
was fifteen feet down the hall. 	Strom testified that he was
"eyeball to eyeball" with the burglar, who stood at the bed long
enough for Strom to shout at him and reach for a weapon. 	Strom
then was able to view Koulouris three more times as he left the
house. 	As Koulouris was picking up the bicycle, and twice as he
was riding away, he looked over his shoulder at Strom, who was
standing in the yard.
Strom's testimony at the suppression hearing was full of
detail, both about the crime itself and about Koulouris'
description. 	As the trial court described Strom's testimony
relating to the night of the crime, "[i]t is clear from his
testimony that [Strom] was in a state of heightened awareness
out of fear for the safety of himself and his family and
exhibited a high level of attention to detail." 	On the night of
the burglary, Strom described Koulouris as a young white male,
approximately sixteen years old, five feet, seven inches tall,
- 5 -

one hundred and forty to one hundred and fifty pounds, wearing a
gray sweatshirt, blue jeans, and a dark baseball cap. 	When
arrested, Koulouris, a young white male, described himself as
seventeen years old, five feet, seven inches tall, and weighing
one hundred and fifty pounds.
Strom testified that he was very certain as to his
identification of Koulouris. 	At the motion hearing, he
explained fully any inconsistencies or gaps in his previous
descriptions of the burglar. 	The trial court was satisfied with
Strom's credibility, and we cannot say as a matter of law that
his testimony was inherently incredible. 	Further, a lapse of
twelve days between the crime and Strom's viewing of Koulouris
at the pier is not, of itself, a long enough period of time to
sufficiently taint Strom's memory of events, especially
considering the detailed account of the crime and subsequent
events. 	Thus, based upon those factors enunciated in Biggers,
we find that the identification of Koulouris was not so
influenced by unduly suggestive procedures as to violate
Koulouris' right to due process. 	Accordingly, the motion to
suppress was rightly denied.
Koulouris next contends that the evidence was insufficient
to support the conviction for statutory burglary, in violation
of Code § 18.2-91. 	He argues that the only evidence supporting
the conviction is Strom's identification and the fact that he
was in possession of the fishing rods after the burglary.
- 6 -

For the reasons stated above, Strom's testimony identifying
Koulouris as the burglar was not admitted in error.
Koulouris admitted to possessing the stolen rods, but
testified that he had bought the rods from a friend, so that he
could resell them for profit. 	The only evidence offered as to
this transaction was the testimony of Koulouris. 	"The
credibility of the witnesses and the weight accorded their
testimony are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is being
presented." 	Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1985).
While it is true that Koulouris offered an explanation
regarding his possession of the stolen rods, the truth of such
explanation is a question of fact, and the trial court is under
no duty to accept that explanation. 	See Roberts v.
Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985). 	The
trial court's rejection of Koulouris' explanation, his
possession of the rods nine days later, and Strom's
identification of Koulouris as the man who was in the house the
night of the crime, all support Koulouris' conviction.
The judgment of the trial court is affirmed.
Affirmed.
- 7 -