Cassandra Anne Gullion v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 23, 2001
• Docket: 2385003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bumgardner and Agee Argued at Salem, Virginia

CASSANDRA ANNE GULLION MEMORANDUM OPINION * BY v. Record No. 2385-00-3 JUDGE RUDOLPH BUMGARDNER, III OCTOBER 23, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial court convicted Cassandra Anne Gullion of eight

counts of forgery and five counts of uttering. She contends the

trial court abused its discretion in crediting the victim's

testimony because the victim's testimony "was delusional and

ought not to have been believed as a matter of law. It was an

abuse of discretion to credit such testimony." Finding no

error, we affirm.

The defendant stipulated that she signed and uttered the

checks in question, but claimed the owner of the account gave

her permission to do so. The owner, Michael B. Cockram,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. testified he did not give permission. Cockram suffered from

schizophrenia, post-traumatic stress disorder and depression,

and he smoked marijuana. He was hospitalized for his mental

illness and taking medication when the defendant wrote the

checks. At trial, he was still taking medication for his

illness.

The defendant maintains the mental illness and medication

made Cockram delusional at trial. She contends his testimony

shows he was obviously delusional thereby making his testimony

inherently incredible as a matter of law. She maintains the

trial court abused its discretion in believing the testimony.

Mental illness does not automatically render a witness

incompetent. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865,

875 (1874), overruled on other grounds, 246 Va. 174, 431 S.E.2d

648 (1993); Tate v. Chumbley, 190 Va. 480, 495, 57 S.E.2d 151,

158 (1950) (testamentary capacity). The trial court, in the

exercise of its discretion, determines the competency of a

witness on a case-by-case basis. "[T]he test is whether . . .

the witness can [accurately] observe, recollect, and communicate

the facts in question." Charles E. Friend, The Law of Evidence

in Virginia § 6.3, 214 (4th ed. 1993) (citing Helge v. Carr, 212

Va. 485, 487, 184 S.E.2d 794, 796 (1971)). A witness must

understand the questions posed, be able to formulate intelligent

responses, and understand the importance of speaking the truth.

Helge, 212 Va. at 488, 184 S.E.2d at 796. "If at the time of

- 2 - the examination he has this share of understanding, he is

competent." Coleman, 66 Va. (25 Gratt.) at 875. Once the trial

court determines a witness is competent, the trier of fact must

assess the credibility of the witness' testimony. "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) (citations omitted), cert. denied, 528

U.S. 1125 (2000).

In this case, the trial court found Cockram's testimony

about not giving consent to be credible and of sufficient weight

to convict. The trial court denied the defendant's motion to

strike and stated that while Cockram's testimony "was rambling

at times . . . he was very specific on the issue of whether or

not he granted consent to the Defendant to write these checks

. . . ." (Emphasis added.)

The record supports a finding that Cockram was both

competent and credible. Cockram comprehended the questions

posed and responded with reasonable intelligence. Cockram

testified clearly and consistently that he did not give the

defendant permission to write checks on his account. He denied

authorizing anyone to use his checks. Nothing suggests he

failed to comprehend, remember, and communicate his knowledge of

the events about which he testified. Indeed, other evidence

supports his testimony about related matters. While still in

- 3 - the hospital, Cockram put a hold on his checking account as soon

as he learned about the unauthorized checks. Upon discharge, he

closed the checking account and transferred the balance to a new

savings account.

The record does not reflect that the testimony was

inherently incredible or so contrary to human experience or to

human behavior as to be unworthy of belief as a matter of law.

Barker v. Commonwealth, 198 Va. 500, 503, 95 S.E.2d 135, 137

(1956). Reasonable men could believe the victim's testimony.

The trial court did not err in refusing to strike the evidence,

and accordingly, we affirm the convictions.

Affirmed.

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