Felicia Gregg O'Brien, a/k/a Felicia K. Gregg v. CW

• Court: Court of Appeals of Virginia
• Decided: October 6, 1998
• Docket: 2400972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia

FELICIA GREGG O'BRIEN, A/K/A FELICIA K. GREGG MEMORANDUM OPINION * BY v. Record No. 2400-97-2 JUDGE RUDOLPH BUMGARDNER, III OCTOBER 6, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge Elwood Earl Sanders, Jr., Director Capital/Appellate Services (Public Defender Commission, on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Felicia Gregg O'Brien appeals her convictions of involuntary

manslaughter and unlawful wounding. She argues that the trial

court erred in denying her motion to strike and not ruling that

she acted in self-defense. Finding no error, we affirm the

convictions.

We construe the evidence in the light most favorable to the

Commonwealth with all reasonable inferences fairly deducible

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,

218 S.E.2d 534, 537 (1975). Evidence that conflicts with the

Commonwealth's case must be discarded. See Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988).

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. The trial court's ruling will not be disturbed on appeal unless

plainly wrong or without evidence to support it. See Smith v.

Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

The victim and the defendant were part of two separate

groups that had been squabbling with each other. The victim was

riding with Tomekia Newell when they spotted the defendant and

two friends at a gas station. Newell pulled into the station and

stopped her car near the defendant. Newell planned to ask the

defendant what the problem was between the two groups. As the

defendant approached, Newell and the victim got out of the car

and stood beside each other. The defendant had keys in her right

hand which she made into a fist with the keys protruding between

her fingers. She swung, Newell threw up her arm to block the

blow, and the keys punctured Newell's hand. Newell got a tire iron from her car and hit the defendant in

the head with it. One of the defendant's friends grabbed Newell

and fought with her while the defendant fought with the victim.

When the fighting stopped, the victim walked back and got into

Newell's car, and the two left. The victim was bleeding from

wounds received in the fight. She passed out on the way to the

hospital and died in surgery.

The victim died of a stab wound to her neck that severed

the subclavian artery. The autopsy showed that she was stabbed

five times: on the left side of her neck, the base of her neck,

her chest, her left arm, and her chin. The edges of the wounds

- 2 - were sharp, not very wide, but deep. An instrument between one

and two centimeters wide caused them.

After the fight the defendant went to a hospital complaining

of an assault. She required ten stitches to close her head

wound. She explained her injury to the officer who came to the

hospital to investigate her assault. The defendant said that

while she was in a phone booth a female came up and hit her with

a bottle. The next morning after being charged with the murder,

she told a different story. She claimed that the victim had hit

her in the head, and in defense of herself, she picked up

something off the ground and started swinging. The defendant

admitted that she told a false story the night before. O'Brien asserts the evidence is insufficient to convict

because the Commonwealth introduced her statement that supports a

self-defense theory. She argues that when it introduced her

statement the Commonwealth introduced evidence that conflicted

with its theory that the defendant was the aggressor. She

concludes that two theories arise from the Commonwealth's

evidence, and the conviction cannot stand because one theory is a

hypothesis of innocence. We find this argument unconvincing.

That part of a confession that offers a theory favorable to

the defendant does not bind the Commonwealth. "Confessions are

to be weighed like all other evidence and a jury may believe them

in whole or in part, as reason may decide. If from the

confession itself, or other evidence, it appears to a rational

- 3 - mind that a part is not true, a jury does not have to accept it."

Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606

(1973). The fact finder may infer that defendant intended to

conceal her guilt with self-serving testimony. See Price v.

Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 642, 647 (1994).

This case rests on the credibility of the witnesses.

Newell's testimony contradicts that of the defense and is not

inherently incredible. See Robertson v. Commonwealth, 12 Va.

App. 854, 858, 406 S.E.2d 417, 419 (1991). It is the exclusive

province of the fact finder to assess the credibility of the

witnesses and to weigh their testimony. See Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

The trier of fact was free to disregard the defendant's evidence

of self-defense, and the evidence is sufficient to support the

convictions. See Bell v. Commonwealth, 2 Va. App. 48, 56, 341

S.E.2d 654, 658 (1986).

Concluding that the trial court properly denied the motion

to strike, we affirm the judgment. Affirmed.

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