KENNETH F WINSTON V COMMONWEALTH OF VIRGINIA

• Court: Court of Appeals of Virginia
• Decided: July 30, 2002
• Docket: 2886011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Agee Argued at Chesapeake, Virginia

KENNETH F. WINSTON MEMORANDUM OPINION * BY v. Record No. 2886-01-1 JUDGE ROBERT P. FRANK JULY 30, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Walter J. Ford, Judge

Charles E. Haden for appellant.

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Kenneth F. Winston (appellant) was convicted in a bench trial

of two counts of robbery, in violation of Code § 18.2-58, and two

counts of use of a firearm in the commission of a robbery, in

violation of Code § 18.2-53.1. On appeal, he contends the trial

court erred in denying his motion to strike because the evidence

was not sufficient to convict. Finding no error, we affirm the

convictions.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. ANALYSIS

Appellant contends the victims' identifications of him as the

robber were unreliable, citing the criteria in Neil v. Biggers,

409 U.S. 188 (1972), and, therefore, were insufficient as a matter

of law to convict him. Although appellant does not challenge the

admissibility of the identifications,1 the factors enunciated in

Biggers may be considered, along with other evidence, in

determining the sufficiency of identification evidence. See

Smallwood v. Commonwealth, 14 Va. App. 527, 530, 418 S.E.2d 567,

568 (1992). These factors include:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200.

"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)

(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987)). When the sufficiency of the evidence is

challenged on appeal, we "look to that evidence which tends to

1 Appellant does not contend the identification procedures were unduly suggestive or that the process was improper.

- 2 - support the verdict and . . . permit the verdict to stand unless

plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121

S.E.2d 452, 457 (1961). "The judgment of a trial court sitting

without a jury is entitled to the same weight as a jury verdict

and will not be set aside unless . . . plainly wrong or without

evidence to support it." Martin, 4 Va. App. at 443, 358 S.E.2d

at 418. The "credibility of a witness, the weight accorded the

testimony, and the inferences to be drawn from proven facts are

matters solely for the factfinder's determination." Keyes v.

City of Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766,

767 (1993).

"[W]hether an identification is reliable 'depends on the

totality of the circumstances.'" Satcher v. Commonwealth, 244

Va. 220, 250, 421 S.E.2d 821, 839 (1992) (quoting Stovall v.

Denno, 388 U.S. 293, 302 (1967)). A witness' degree of

attention and ability to observe weigh heavily in determining

the reliability of the identification. Here, each victim had

the opportunity to view the robber. Both victims were robbed

during daylight hours. The victims stood close enough to the

perpetrator to hand him their wallets.

The robbery of Edwin Kilgore took "less than half a

minute." The robber wore a stocking cap, and his face was

exposed. Shortly after the robbery, Kilgore described his

assailant as an African-American, between 180 and 190 pounds,

"probably six foot [sic]" tall, wearing dark clothes. When

- 3 - asked at trial, "How can you be certain that the person who

robbed you is [appellant]," Kilgore responded, "[W]ell, I will

never forget that face, I don't think. It is a lasting

impression."

Ashton Brown, the second victim, saw appellant before the

commission of the crime, noticing a "tall, large person" on a

small bicycle riding past his house twice. At that time,

appellant was wearing a cap. Brown testified that, although the

perpetrator wore a ski mask when he committed the robbery, his

eyes and nose were exposed. The robber was on the same bicycle

that appellant rode just minutes earlier. This robbery lasted

"less than five minutes."

Brown described his assailant shortly after the incident,

saying he was dressed in a "heavy, bulky jacket" and weighed 220

to 230 pounds. When confronted with appellant's assertion that

he weighed much less, Brown explained the robber wore a "bulky

outfit. I thought he was filling that out, but evidently, he

wasn't." At trial, appellant testified he weighed 170 pounds.

We cannot say, as a matter of law, that the victims'

testimony was inherently incredible merely because they were

mistaken about appellant's precise height and weight. The

differences between the victims' descriptions and the actual

appearance of appellant go to the weight of the evidence. See

Satcher, 244 Va. at 249, 421 S.E.2d at 838-39. The trial judge

was capable of "measur[ing] intelligently the weight of

- 4 - identification testimony that ha[d] some questionable feature."

Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

Each victim demonstrated a high level of certainty in

identifying appellant from the photo spread and in court.

Kilgore, approximately a week after the robbery, was shown a

photo spread. He identified appellant within two or three

minutes. Brown, who viewed the photo spread two or three days

after the robbery, "cut a piece of paper that would only show

his -- not the man's whole head but just [his eyes and nose].

And from that, I picked this individual out."

Appellant argues, since Brown testified he was not "a

hundred percent certain that [appellant] was [the assailant],"

the evidence was insufficient. Nevertheless, Brown confidently

and positively identified appellant in the photo spread and in

court. Appellant presents no law, nor can we find any, that

requires one hundred percent certainty in the identification of

a perpetrator. The standard for guilt is beyond a reasonable

doubt, not absolute certainty. See Victor v. Nebraska, 511 U.S.

1, 12 (1994).

Appellant also argues the length of time between the

robberies and the identifications from the photo spread makes

the identifications unreliable. However, in McCary v.

Commonwealth, 228 Va. 219, 234, 321 S.E.2d 637, 645 (1984), the

Supreme Court found that, although fifteen months had elapsed

from the crime to the identification, "the mere passage of time

- 5 - is insufficient to invalidate the identification." We do not

believe the passage of a week makes these identifications

inherently unreliable.

Finally, appellant argues Brown's identification is

unreliable because "Brown's belief that God led him to identify

the right person is simply an unacceptable basis for making an

eyewitness identification." This argument mischaracterizes

Brown's testimony.

When asked on cross-examination what made him "a hundred

percent" certain of his identification when he was not so

certain at the preliminary hearing, Brown explained:

[F]ollowing the incident, I prayed and I asked the Lord to apprehend the man that had done this to me for his own safety as well as the safety of someone else, because I felt that if this continues, he is going to meet someone who is going to either be hurt or him [sic] be hurt. When the officer came and told me that they had apprehended a gunman, I believed that was an answer to my prayer.

When asked again, "You still can't say with a hundred percent

certainty that [appellant] was the person that robbed you; isn't

that true," Brown answered:

Because I only saw this, but I believe that the God I serve answers prayer. And I didn't ask for it for a selfish reason, but I didn't ask him to do it to get my money back. I didn't do it for – but for his own safety and the safety of someone else. And that is the way I believe it happened. And that's why I'm confident. . . . I can tell you today that I, as an individual cannot

- 6 - say that as a hundred percent because I did not see the person without the mask.

This testimony does not suggest Brown identified appellant

"because God had told him this was the robber," as appellant

suggests. Brown clearly identified appellant from a photo

spread based on his observations prior to and during the

robbery, not because of his religious beliefs. Instead, Brown's

testimony made clear, while personally he was certain appellant

was the man who robbed him, his identification was not "a

hundred percent" certain because the assailant was wearing a

mask.

All of the Biggers factors support the reliability of the

identifications. Based on the totality of the circumstances, we

hold the identification testimony was reliable and sufficient to

support the trial court's findings.

Further, non-identification evidence in the record supports

the finding of guilt. Detective Barger interviewed appellant

and asked him if he knew anything about "the guy on a bike" who

had committed the robberies. Appellant replied, "With a gun?"

Appellant then stated that a friend told him about someone

committing robberies while riding a bike. Appellant also told

Barger that his friend said "to be careful because the guy on

the bike looked exactly like [appellant]." The trial court

could view this evidence as indicative of appellant's

involvement in the robberies because he knew a gun was used.

- 7 - "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).

Additionally, the witnesses' identifications serve as

evidence for each robbery. While other crimes evidence

generally is not admissible, appellant did not object to its use

here. Other crimes evidence is admissible, as an exception to

the general prohibition, to prove identity "where the prior

criminal acts are so distinctive as to indicate a modus

operandi." Sutphin v. Commonwealth, 1 Va. App. 241, 245-46, 337

S.E.2d 897, 899 (1985). The distinction must be unusual, such

that the manner in which the crime is committed creates a

"signature" of the accused. Henderson v. Commonwealth, 5

Va. App. 125, 128, 360 S.E.2d 876, 878 (1987).

Here, the similarities are numerous and unusual. First,

both crimes occurred in the morning, in the driveway of a home

in the Wythe area of Hampton. Both male victims were bent over,

working on their cars, when the robber approached. The robber

used a gun in both crimes. The robber asked for the victims'

wallets and money, nothing else. He took nothing else.

Finally, and most unusually, the robber rode up to the scene on

a bicycle, left it on the ground as he approached the victims,

and then rode it away. This evidence is sufficiently

- 8 - distinctive to establish a modus operandi. See, e.g., Yellardy

v. Commonwealth, 38 Va. App. 19, 24-25, 561 S.E.2d 739, 742

(2002) (finding evidence of two robberies relevant to the issue

of identity where the robber used "identical methods," including

using a rock as a weapon).

Appellant argues his alibi evidence was credible, but the

trial court was free to reject that testimony. "When weighing

the evidence, the fact finder is not required to accept entirely

either the Commonwealth's or the defendant's account[, but

instead] . . . may reject that which it finds implausible, [and]

accept other parts which it finds to be believable." Pugliese

v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993)

(citations omitted). In resolving an identification/alibi

conflict, the trial court is the fact finder and, as such,

assesses the credibility of the witnesses, which we will not

disturb unless plainly wrong or without evidence to support it.

See Yates v. Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14,

16 (1987).

Appellant invites us to rule that eyewitnesses'

identifications are "notoriously unreliable" and insufficient to

support a conviction, citing United States v. Wade, 388 U.S. 218

(1967). We decline that invitation. We first note appellant

has taken the quotation out of context. Wade addressed the need

for counsel at a post-indictment lineup that used an unduly

suggestive procedure. While initially the Supreme Court

- 9 - suggested eyewitness identification is unreliable, the Court

then explained this concern applies in the specific context of

suggestive lineups. They said, "A major factor contributing to

the high incidence of miscarriage of justice from mistaken

identification has been the degree of suggestion inherent in the

manner in which the prosecution presents the suspect to

witnesses for pretrial identification." Id. at 228-29.

Further, appellant can point to no court that, as a matter of

law, refuses to allow any eyewitness testimony on identification

of a perpetrator.

The trial judge accepted the identification testimony of

Kilgore and Brown. "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). Although in some circumstances

identification testimony can be unreliable and insufficient to

support a conviction, see Smallwood, 14 Va. App. at 530-33, 418

S.E.2d at 568-70, the testimony of the victims here was

competent and was not inherently incredible.

Conclusion

From the identification testimony, appellant's statements,

and other evidence, the trial judge could conclude beyond a

- 10 - reasonable doubt that appellant committed the charged offenses.

We affirm the convictions.

Affirmed.

- 11 -