Daniel Joseph Pair v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 1, 2000
• Docket: 1221992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Humphreys and Senior Judge Overton Argued at Chesapeake, Virginia

DANIEL JOSEPH PAIR MEMORANDUM OPINION * BY v. Record No. 1221-99-2 JUDGE NELSON T. OVERTON AUGUST 1, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY James A. Luke, Judge

Connie Louise Edwards for appellant.

Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant was convicted in a bench trial of malicious

wounding. On appeal, appellant contends that (1) the trial court

erred in restricting testimony concerning the victim's prior

inconsistent statements and (2) the evidence was insufficient to

support the verdict. We disagree and affirm.

BACKGROUND

Michael Mobley, the victim, drove appellant to the home of

appellant's father, and appellant went inside the home. Appellant

and Mobley were the only ones present at the home. After a period

of time, Mobley went inside the home to get appellant. While

Mobley was walking to his car, he was shot in the back of the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. head. Mobley asked appellant to drive him to the hospital, but

appellant drove in another direction. After a struggle, Mobley

took control of his car and drove himself to the hospital.

Thereafter, appellant took Mobley's car and drove to North

Carolina.

MOBLEY'S PRIOR INCONSISTENT STATEMENTS

Mobley testified on direct examination that appellant shot

him. On cross-examination, Mobley testified that he did not

recall making any other statements to Officers Edwards or Wells

concerning the circumstances of the shooting. On

cross-examination, Edwards testified that on the night of the

shooting, Mobley gave him several different versions of the

events, including that Mobley did not know who shot him. Edwards'

testimony was admitted without objection.

During appellant's case-in-chief, Wells was called as a

witness and was asked about prior inconsistent statements made by

Mobley. The following exchange occurred:

[APPELLANT'S ATTORNEY]: Did [Mobley] ever indicate to you that he was getting into the car and someone shot him?

WELLS: Yes.

[APPELLANT'S ATTORNEY]: Did [Mobley] ever indicate to you that he did not know who that someone was?

[APPELLANT'S ATTORNEY]: Did [Mobley] at other times indicate it was his cousin, [the appellant]?

- 2 - The trial court sustained the Commonwealth's objection that

appellant failed to lay a proper foundation for the impeachment

testimony by Wells of Mobley's prior inconsistent statements.

On appeal, appellant argues that the trial court erred in

sustaining the Commonwealth's objection.

Assuming without deciding that the appellant laid a proper

foundation for Wells' impeachment testimony and that the trial

court erred in sustaining the Commonwealth's objection, such

error was harmless.

A nonconstitutional error is harmless if "if plainly appears from the record and the evidence given at trial that the error did not affect the verdict." "An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that had the error not occurred, the verdict would have been the same."

Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620

(1994) (citation omitted).

Appellant established through the testimony of Edwards that

on the night of the shooting, Mobley gave several different

versions of the events, including that Mobley did not know who

shot him. Wells testified that Mobley told him that Mobley did

not know who shot him. Through Wells' testimony, appellant was

attempting to establish that Mobley had told the investigating

officers several different versions of the events, which

appellant had already established through Edwards' testimony.

- 3 - It plainly appears from the record that the verdict would have

been the same if the testimony of Wells had been admitted into

evidence.

SUFFICIENCY OF THE EVIDENCE

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

The evidence proved that Mobley and appellant were the only

ones present when Mobley was shot in the back of the head.

Mobley asked appellant what had happened and appellant said that

"a white guy" had shot Mobley. Appellant also said that he had

been shot in the shoulder. Mobley testified that he did not see

a wound on appellant's shoulder and that appellant was never

treated for a gunshot wound. After Mobley was shot, he asked

appellant to drive him to the hospital, but appellant drove in

another direction. Mobley struggled with appellant, took

control of the car and drove himself to the hospital. After

Mobley arrived at the hospital, appellant said that he would get

Mobley's mother. Mobley refused to give the keys to appellant,

but a nurse gave appellant the keys. Appellant drove to a

store, bought "handiwipes" and cleaned the blood that was on

him. Appellant threw the gun into a river and drove to North

- 4 - Appellant testified that Mobley had the gun and that the

gun jammed. Appellant also testified that Mobley gave him the

gun and, while appellant was checking the gun, it accidentally

fired, shooting Mobley in the head. Appellant stated that he

threw the gun in a river and drove to North Carolina because he

was scared.

"The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995). "In its role of judging witness credibility, the

fact finder is entitled to disbelieve the self-serving testimony

of the accused and to conclude that the accused is lying to

conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998).

The trial court heard the testimony of the witnesses and

observed their demeanor and concluded that appellant's testimony

that he accidentally shot Mobley was not credible. Appellant's

behavior after the shooting was inconsistent with an accidental

shooting. The Commonwealth's evidence was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant was guilty of malicious

wounding.

- 5 - Based upon the foregoing, appellant's conviction for

malicious wounding is affirmed.

Affirmed.

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