Jeffrey Kent Barrett v. City of Lynchburg

• Court: Court of Appeals of Virginia
• Decided: May 16, 1995
• Docket: 0433943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Salem, Virginia

JEFFREY KENT BARRETT

v. Record No. 0433-94-3 MEMORANDUM OPINION * BY JUDGE WILLIAM H. HODGES CITY OF LYNCHBURG MAY 16, 1995

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge

Margaret Angela Nelson (Office of the Public Defender, on brief), for appellant. Fran Cannon Slayton (Michael R. Doucette, Deputy Commonwealth's Attorney; G. Beth Packert, Assistant Commonwealth's Attorney, on brief), for appellee.

Appellant, Jeffrey Kent Barrett, was convicted of driving

under the influence, fourth offense; driving on a suspended

license, subsequent offense; and failing to stop at the scene of

an accident resulting in property damage. On appeal, appellant

contends that the evidence was insufficient to prove that he was

the driver of the car that struck the victim's vehicle. We

affirm appellant's convictions.

I.

On July 24, 1993, Barbara Clay was driving a pickup truck on

Lakeside Drive, in the City of Lynchburg, when she was struck

from behind by another car. Clay's truck was damaged, but the

driver of the car did not stop at the scene of the accident.

Clay drove into the parking lot of a nearby business, obtained

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. information from several witnesses who saw the accident, and

called the police. Clay was unsure when the accident occurred,

but estimated the collision happened at about 12:30 a.m. or 1:00

a.m. Clay stated that she was "disoriented" as a result of the

accident.

Keith Woolridge testified that he was driving on Lakeside

Drive with two friends at the time of the accident. Woolridge

stated a "bluish-gray" car passed Woolridge's vehicle, drove

close to Clay's truck bumper, then swerved into the middle

traffic lane to avoid Clay's truck. Woolridge said the

"passenger side of the car caught the back wheel of the truck,

and . . . the car just spun around and the car just kept on

going, no hesitation or stopping . . . ." Woolridge followed the car into a mobile home trailer park

and saw that the car was parked in front of a brown trailer.

Woolridge saw a man and a woman get out of the car. The man got

out of the car on the driver's side. Woolridge testified the man

"stumbled up into [a blue] trailer." However, on cross-

examination, Woolridge admitted that, from his observation point,

he could not see a door of the blue trailer. Therefore,

Woolridge did not see the man actually enter a door of the blue

trailer.

Woolridge then returned to the scene of the accident to talk

with the police. Woolridge estimated the police arrived within

five to ten minutes after the accident occurred. Woolridge

2 directed the police to the trailer park and informed the police

that the driver of the bluish-gray car was in the blue trailer.

Officer Jackson testified he was dispatched to the accident

"a few minutes after 2:00 in the morning." He arrived at the

accident scene at 2:18 a.m. Jackson saw a blue and silver car

with damage on the right front end parked near the blue trailer

described by Woolridge. It was later determined that the car was

not registered to Barrett. Barrett was found asleep on the couch inside the blue

trailer. A breathalyzer test administered later in the evening

indicated Barrett had a blood alcohol content of 0.17%.

Woolridge and his two companions accompanied Jackson to the

blue trailer in an effort to identify its occupant as the driver

of the car that struck Clay's truck. Woolridge's companions

"were not a hundred percent sure" Barrett was the driver of the

car. Jackson testified that Woolridge identified Barrett

"without any doubt" as the person he followed from the accident,

and as the person he saw exit the car and walk to the blue

trailer. In court, Woolridge also positively identified Barrett

as the driver of the car that struck Clay.

Jason Supry, who lived in the trailer park, testified that

at about 1:15 a.m. on the night of the accident, he saw a car

park in front of Barrett's trailer. Supry saw two men get out of

the car, get into another car, and drive away. Supry could not

identify the two men, nor did Supry describe the car.

3 Steve Judkins, who also lived in the trailer park, testified

that, from 5:00 p.m. until about 11:00 p.m to 11:30 p.m., on July

24, 1993, he and Barrett drank more than one case of beer in

Judkins' trailer. Judkins estimated that Barrett went home that

night sometime between 11:00 p.m. and 11:30 p.m.

Barrett testified that he and Judkins drank more than one

and one-half cases of beer at Judkins' house on July 24, 1993.

Barrett said he left Judkins' trailer at about 11:00 p.m. or

11:15 p.m. Barrett admitted he was drunk on the night of the

accident, but said he did not drive a car on that night. II.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

Woolridge positively identified Barrett as the driver of the

car that struck Clay's truck. Woolridge also stated that the

police arrived at the accident about five or ten minutes after

the accident occurred. Officer Jackson testified that he was

dispatched to the accident at 2:00 a.m. and arrived at the

accident at 2:18 a.m. The trial judge explicitly found that

Jackson's testimony was "the believable evidence about the time"

of the accident. Moreover, Jackson's testimony corroborates

Woolridge's testimony concerning the arrival of the police.

Therefore, Supry's testimony concerning the car parked near

4 Barrett's trailer at 1:15 a.m. did not provide Barrett with an

alibi because the accident had not yet occurred when Supry

observed the car.

Barrett also attacks Woolridge's credibility because

Woolridge did not see Barrett actually enter the door of the blue

trailer. Although Woolridge could not see the door of the blue

trailer, the fact finder could reasonably have inferred from

Woolridge's testimony, and from Woolridge's later identification

of Barrett in the trailer, that Barrett did enter the trailer

when Woolridge saw him walk toward it. The trial judge considered and determined the credibility of

the witnesses and the weight to be given their testimony. "The

weight which should be given to evidence and whether the

testimony of a witness is credible are questions which the fact

finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,

528, 351 S.E.2d 598, 601 (1986). Although the blue and silver

car was not registered to Barrett, and no keys to this car were

found in Barrett's possession, from Woolridge's testimony of the

incident, and from his positive identification of Barrett, the

trial judge could conclude beyond a reasonable doubt that Barrett

was the driver of the car that struck Clay's truck.

Barrett also asserts that it is "just as possible that

Woolridge was a party to a hit and run that evening and created

an alibi for himself or others during the time period between the

accident and his return to the scene . . . ." However, Barrett's

5 suggested hypothesis of innocence does not flow from the

evidence. No evidence supports it. The evidence supports the

trial judge's finding that Barrett drove the car that struck

Clay's truck. "On appeal, we only need to find that the judgment

is supported by credible evidence and is not plainly wrong. We

need not force the Commonwealth 'to exclude every possible theory

or surmise presented by the defendant.'" Purdy v. Commonwealth,

16 Va. App. 209, 212, 429 S.E.2d 34, 36 (1993) (citation

omitted). For the reasons stated, the judgment of the trial court is

affirmed.