Curtis Jackson v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
CURTIS JACKSON
MEMORANDUM OPINION* BY
v. 	Record No. 2701-99-1 	JUDGE LARRY G. ELDER
NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Colleen K. Killilea for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Curtis Jackson (appellant) was convicted in a bench trial
for assault and battery in violation of Code § 18.2-57.2. 	On
appeal, he contends the testimony of the victim was inherently
incredible and that, without such testimony, the evidence was
insufficient to support his conviction. 	We hold that the
victim's testimony was not inherently incredible but that, even
if it was, the trial court relied largely on the eyewitness
testimony of a third party, the credibility of which appellant
does not challenge on appeal. 	We conclude that the evidence as
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.

a whole, including the third party's eyewitness testimony, was
sufficient to support appellant's conviction.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. 	See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 	The
conclusions of the fact finder on issues of witness credibility
"may only be disturbed on appeal if this Court finds that [the
witness'] testimony was 'inherently incredible, or so contrary
to human experience as to render it unworthy of belief.'"
Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,
419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296,
299-300, 321 S.E.2d 202, 204 (1984)). 	In all other cases, we
must defer to the conclusions of "the fact finder[,] who has the
opportunity of seeing and hearing the witnesses." 	Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
Here, the trial court indicated that it relied "largely
upon [Shirley Thomas'] testimony" in convicting appellant of
committing an assault and battery on Katherine Cherrill on
May 29, 1999. 	Thomas testified that she heard a "smack" and
then heard appellant say to Cherrill, "If you say one more
thing, I'll hit you." 	Thomas then turned around, saw Cherrill
holding her ear, and observed appellant strike Cherrill in the
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mouth. 	Thomas' testimony was not inherently incredible, and
appellant does not contend otherwise.
Although Cherrill, while under oath, gave several different
accounts of the events of May 29, 1999, she testified before the
trial court that appellant struck her in the mouth at least once
on that date, which was consistent with Thomas' testimony.
Cherrill explained that she had recanted her allegations in a
notarized statement dated June 10, 1999,1 and in her original
testimony in the district court because she was afraid of
appellant. 	The evidence indicated that she eventually testified
in the district court that appellant had struck her once on
May 29, 1999. 	The mere fact that appellant was incarcerated
during that time did not prevent the court from concluding that
Cherrill was, in fact, afraid of appellant and may have lied as
a result of that fear.
Therefore, we conclude that Cherrill's testimony that
appellant struck her at least once on May 29, 1999, was not
inherently incredible. 	Coupled with the unimpeached testimony
of Shirley Thomas, which the trial court found to be "entirely
1 The notarized statement was not, in fact, at odds with
Thomas' testimony that appellant threatened to strike Cherrill
and did strike Cherrill in the mouth. 	The notarized statement
indicates merely that appellant did not "harm" Cherrill or cause
her "any bodily injury." 	This notarized statement, if credited
by the trial court, would not be at odds with appellant's
conviction because a conviction for assault and battery does not
require proof of infliction of bodily injury or other harm. 	See
Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888
(1998).
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credible" and upon which the trial court relied heavily in
convicting appellant, the evidence was sufficient to support
appellant's assault and battery conviction.
For these reasons, we affirm appellant's conviction.
Affirmed.
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