Jonathan Kim v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 4, 2002
• Docket: 0750014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Agee Argued at Alexandria, Virginia

JONATHAN KIM MEMORANDUM OPINION * BY v. Record No. 0750-01-4 JUDGE RUDOLPH BUMGARDNER, III JUNE 4, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Arthur B. Vieregg, Judge

Alexander J. Gordon, Assistant Public Defender, for appellant.

Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Jonathan Kim was convicted of driving after being declared

an habitual offender. He contends the officer did not have

reasonable suspicion to justify the initial stop for a traffic

offense. Concluding the trial court properly denied the

defendant's motion to suppress, we affirm.

The arresting officer testified that she observed the

defendant drive his gold BMW through the parking lot of a

7-Eleven store to avoid the traffic light at the corner of

Annadale Road and South Street. After stopping the vehicle for

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. evading a traffic light, she determined the defendant was an

habitual offender.

The defendant contends the officer's testimony was not

credible. The defendant denied he was traveling at the place

and in the direction the officer described. He argues the

officer could not have seen what she described because it was

dark, traffic was heavy, and she made the observations through

her rearview mirror. The defendant maintains the officer's

testimony was inconsistent with her prior testimony at the

preliminary hearing. The officer had testified the stop

occurred during rush hour traffic and the street had two lanes.

In fact, the incident occurred at 8:00 p.m. on a Sunday, and

photographs showed the street had a third, turning lane.

Nothing suggests that the officer was incompetent to

testify because she lacked the ability to observe events, to

recollect, to communicate, and to understand the questions

posed. Cross v. Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447,

449 (1953). If a witness is competent, then the trier of fact

has sole responsibility for determining the credibility of

witnesses, the weight accorded their testimony, the inferences

to be drawn, and resolving conflicts in the evidence.

Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314

(1998).

The trial judge heard the officer's testimony and her

explanations for the apparent inconsistencies with her prior

- 2 - testimony. The judge viewed photographs of the scene while

assessing the officer's ability to have seen what she described.

The trial court found the officer's testimony credible and that

"she saw him cutting across the 7-Eleven parking lot." It

concluded the officer had probable cause, "more than reasonable

suspicion," to stop the defendant.

A trial court's factual finding is binding on appeal and

will not be disturbed unless it is plainly wrong or without

evidence to support it. Code § 8.01-680. The record contains

evidence that the defendant cut through the parking lot to avoid

a traffic light. The trial court's finding that the officer's

observations were believable permits the conclusion that the

arresting officer acted properly when she initially stopped the

defendant. Accordingly, we affirm the conviction.

Affirmed.

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