COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and O’Brien Argued by videoconference UNPUBLISHED
LENNIS L. McNAIR, JR. MEMORANDUM OPINION* BY v. Record No. 1299-19-1 JUDGE GLEN A. HUFF OCTOBER 20, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Christopher R. Papile, Judge
Andrew M. Sacks (Sacks & Sacks, P.C., on brief), for appellant.
A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, Lennis McNair (“appellant”) was convicted for unlawful
wounding in violation of Code § 18.2-51 and sentenced to five years’ incarceration with four
years and nine months suspended. Appellant contends that, because the trial court found parts of
the complaining witness’ version of events incredible, the trial court erred by not finding her
entire testimony incredible. Appellant further contends that because the complaining witness’
entire testimony was inherently incredible, the evidence is insufficient as a matter of law to
sustain his conviction.
A trial court is not required to find the entirety of a witness’ testimony inherently
incredible as a matter of law solely because it found a portion of that witness’ testimony
incredible. The trial court’s factual finding that appellant continued to attack the complaining
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. witness in a fit of rage after seizing control of her knife is supported by the evidence. Therefore,
this Court affirms.
I. BACKGROUND
On appeal, this Court “consider[s] the evidence and all reasonable inferences flowing
from that evidence in the light most favorable to the Commonwealth, the prevailing party at
trial.” Williams v. Commonwealth, 49 Va. App. 439, 442 (2007) (en banc) (quoting Jackson v.
Commonwealth, 267 Va. 666, 672 (2004)). So viewed, the evidence is as follows:
On November 6, 2018, a Newport News police officer responded to a call where he
found the victim, Kimberly Galloway, bleeding severely from her head. Further examination
revealed severe lacerations to Galloway’s head, left hand, and left wrist. After speaking with
individuals at the scene, the police developed appellant as a suspect.
Galloway testified that she had a prior sexual relationship with appellant which included
mutual drug use. According to Galloway, on the night of November 5, 2018, she noticed
appellant at his old apartment. They began talking, and he agreed to pay her twenty dollars to
help him move to his fiancée’s home. Galloway admitted she had been using crack cocaine and
drinking alcohol at the time. Galloway claimed that during the move, appellant started punching
her and took the twenty dollars back. She testified that when she tried to leave, he chased her
around the car. Nonetheless, she said that she decided to finish helping him move in order to get
the twenty dollars.
She claimed that when they got back to his old apartment, he pulled out a knife, put it
against her neck, got on top of her, and started stabbing her. She also testified that during this
altercation, appellant called his fiancée and said, “I’m going to kill this bitch, and you better get
me out of jail.” She was eventually able to get away and run to the home of her friend, Frederick
-2- Benjamin, who called 911. Galloway admits that her recollection of the events is not necessarily
complete or in the correct order. She also has a prior perjury conviction.
According to appellant, on the way back to his old apartment, Galloway asked to stop at a
house to speak with an individual to whom she owed money. When they arrived back at
appellant’s old apartment, two men in ski masks walked up to the car and tried to rob appellant.
At the same time, Galloway pulled out a knife and she and appellant started struggling for
control of the knife. Appellant contended that Galloway’s forehead was cut during the struggle
and while she still possessed the knife. He claimed that the injuries to her hand and wrist “most
likely” occurred after he gained control of the knife because she was trying to grab it back. After
gaining control over the knife, appellant blew his horn, causing the two men to run away. He
then told Galloway to get out of his car and threw the knife out towards her. While driving
away, appellant called Galloway’s mother and told her he had stabbed Galloway because she
tried to rob him. Appellant stated that Galloway received the “worse end of the deal,” and got
what she deserved for trying to rob and cut him.
The trial court found that Galloway’s version of events was incredible and credited
appellant’s testimony that an attempted robbery occurred. However, the trial court stated that it
did “not believe that these injuries to . . . Ms. Galloway could have occurred while they were
struggling over a knife.” Rather, it found that appellant was “irate in a sense” and “in a fit of
rage, continued to assault and stab and cut Ms. Galloway” in retaliation after gaining control of
the knife. The trial court reasoned that because appellant continued to stab Galloway after she
was no longer a threat, self-defense did not apply.
The trial court acquitted appellant of the kidnapping charge, struck the malicious
wounding charge, and convicted appellant of the lesser-included offense of unlawful wounding.
-3- It sentenced him to five years of incarceration with four years and nine months suspended. This
appeal followed.
II. STANDARD OF REVIEW
“When reviewing a challenge to the sufficiency of the evidence, this Court considers the
evidence in the light most favorable to the Commonwealth, the prevailing party below, and
reverses the judgment of the trial court only when its decision is plainly wrong or without
evidence to support it.” Marshall v. Commonwealth, 69 Va. App. 648, 652-53 (2019). “[I]f
there is evidence to support the conviction, the reviewing court is not permitted to substitute its
judgment, even if its view of the evidence might differ from the conclusions reached by the
finder of fact at the trial.” Linnon v. Commonwealth, 287 Va. 92, 98 (2014) (quoting Lawlor v.
Commonwealth, 285 Va. 187, 224 (2013)).
III. ANALYSIS
Appellant argues that because the trial court found Galloway’s version of events
incredible, it should have found the entirety of her testimony to be incredible. Therefore,
appellant argues, the trial court was obligated to accept his testimony in its entirety as the only
remaining credible evidence.1 Accordingly, appellant contends that any evidence supporting his
conviction is inherently incredible as a matter of law.
Appellant is correct that the trial court found Galloway’s version of the events incredible.
However, that does not mean that the trial court was obligated to find each and every part of her
1 The Commonwealth contends that appellant’s argument is barred by Rule 5A:18 because appellant did not make the specific legal argument to the trial court that after finding a portion of Galloway’s testimony incredible it was obligated to find the entirety of her testimony incredible as a matter of law. While it is true that appellant did not articulate his theory in such a pointed fashion, appellant did argue that the entirety of Galloway’s testimony was incredible as well as arguing that the evidence was insufficient to convict him.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and O’Brien Argued by videoconference UNPUBLISHED
LENNIS L. McNAIR, JR. MEMORANDUM OPINION* BY v. Record No. 1299-19-1 JUDGE GLEN A. HUFF OCTOBER 20, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Christopher R. Papile, Judge
Andrew M. Sacks (Sacks & Sacks, P.C., on brief), for appellant.
A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, Lennis McNair (“appellant”) was convicted for unlawful
wounding in violation of Code § 18.2-51 and sentenced to five years’ incarceration with four
years and nine months suspended. Appellant contends that, because the trial court found parts of
the complaining witness’ version of events incredible, the trial court erred by not finding her
entire testimony incredible. Appellant further contends that because the complaining witness’
entire testimony was inherently incredible, the evidence is insufficient as a matter of law to
sustain his conviction.
A trial court is not required to find the entirety of a witness’ testimony inherently
incredible as a matter of law solely because it found a portion of that witness’ testimony
incredible. The trial court’s factual finding that appellant continued to attack the complaining
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. witness in a fit of rage after seizing control of her knife is supported by the evidence. Therefore,
this Court affirms.
I. BACKGROUND
On appeal, this Court “consider[s] the evidence and all reasonable inferences flowing
from that evidence in the light most favorable to the Commonwealth, the prevailing party at
trial.” Williams v. Commonwealth, 49 Va. App. 439, 442 (2007) (en banc) (quoting Jackson v.
Commonwealth, 267 Va. 666, 672 (2004)). So viewed, the evidence is as follows:
On November 6, 2018, a Newport News police officer responded to a call where he
found the victim, Kimberly Galloway, bleeding severely from her head. Further examination
revealed severe lacerations to Galloway’s head, left hand, and left wrist. After speaking with
individuals at the scene, the police developed appellant as a suspect.
Galloway testified that she had a prior sexual relationship with appellant which included
mutual drug use. According to Galloway, on the night of November 5, 2018, she noticed
appellant at his old apartment. They began talking, and he agreed to pay her twenty dollars to
help him move to his fiancée’s home. Galloway admitted she had been using crack cocaine and
drinking alcohol at the time. Galloway claimed that during the move, appellant started punching
her and took the twenty dollars back. She testified that when she tried to leave, he chased her
around the car. Nonetheless, she said that she decided to finish helping him move in order to get
the twenty dollars.
She claimed that when they got back to his old apartment, he pulled out a knife, put it
against her neck, got on top of her, and started stabbing her. She also testified that during this
altercation, appellant called his fiancée and said, “I’m going to kill this bitch, and you better get
me out of jail.” She was eventually able to get away and run to the home of her friend, Frederick
-2- Benjamin, who called 911. Galloway admits that her recollection of the events is not necessarily
complete or in the correct order. She also has a prior perjury conviction.
According to appellant, on the way back to his old apartment, Galloway asked to stop at a
house to speak with an individual to whom she owed money. When they arrived back at
appellant’s old apartment, two men in ski masks walked up to the car and tried to rob appellant.
At the same time, Galloway pulled out a knife and she and appellant started struggling for
control of the knife. Appellant contended that Galloway’s forehead was cut during the struggle
and while she still possessed the knife. He claimed that the injuries to her hand and wrist “most
likely” occurred after he gained control of the knife because she was trying to grab it back. After
gaining control over the knife, appellant blew his horn, causing the two men to run away. He
then told Galloway to get out of his car and threw the knife out towards her. While driving
away, appellant called Galloway’s mother and told her he had stabbed Galloway because she
tried to rob him. Appellant stated that Galloway received the “worse end of the deal,” and got
what she deserved for trying to rob and cut him.
The trial court found that Galloway’s version of events was incredible and credited
appellant’s testimony that an attempted robbery occurred. However, the trial court stated that it
did “not believe that these injuries to . . . Ms. Galloway could have occurred while they were
struggling over a knife.” Rather, it found that appellant was “irate in a sense” and “in a fit of
rage, continued to assault and stab and cut Ms. Galloway” in retaliation after gaining control of
the knife. The trial court reasoned that because appellant continued to stab Galloway after she
was no longer a threat, self-defense did not apply.
The trial court acquitted appellant of the kidnapping charge, struck the malicious
wounding charge, and convicted appellant of the lesser-included offense of unlawful wounding.
-3- It sentenced him to five years of incarceration with four years and nine months suspended. This
appeal followed.
II. STANDARD OF REVIEW
“When reviewing a challenge to the sufficiency of the evidence, this Court considers the
evidence in the light most favorable to the Commonwealth, the prevailing party below, and
reverses the judgment of the trial court only when its decision is plainly wrong or without
evidence to support it.” Marshall v. Commonwealth, 69 Va. App. 648, 652-53 (2019). “[I]f
there is evidence to support the conviction, the reviewing court is not permitted to substitute its
judgment, even if its view of the evidence might differ from the conclusions reached by the
finder of fact at the trial.” Linnon v. Commonwealth, 287 Va. 92, 98 (2014) (quoting Lawlor v.
Commonwealth, 285 Va. 187, 224 (2013)).
III. ANALYSIS
Appellant argues that because the trial court found Galloway’s version of events
incredible, it should have found the entirety of her testimony to be incredible. Therefore,
appellant argues, the trial court was obligated to accept his testimony in its entirety as the only
remaining credible evidence.1 Accordingly, appellant contends that any evidence supporting his
conviction is inherently incredible as a matter of law.
Appellant is correct that the trial court found Galloway’s version of the events incredible.
However, that does not mean that the trial court was obligated to find each and every part of her
1 The Commonwealth contends that appellant’s argument is barred by Rule 5A:18 because appellant did not make the specific legal argument to the trial court that after finding a portion of Galloway’s testimony incredible it was obligated to find the entirety of her testimony incredible as a matter of law. While it is true that appellant did not articulate his theory in such a pointed fashion, appellant did argue that the entirety of Galloway’s testimony was incredible as well as arguing that the evidence was insufficient to convict him. This Court holds that those arguments were sufficient to preserve this issue for appeal.
-4- testimony incredible. Furthermore, it did not obligate the trial court as a matter of law to accept
the entirety of appellant’s testimony. “A fact finder’s evaluations of credibility are not limited to
choosing between competing accounts offered by different witnesses.” Commonwealth v.
McNeal, 282 Va. 16, 22 (2011). It involves the fact finder “resolving conflicts in a single
witness’s testimony, accepting part of the testimony that it deems credible and rejecting the
portion it deems incredible.” Id. Furthermore, “[t]he fact finder, who has the opportunity to see
and hear witnesses, has the sole responsibility to determine their credibility, the weight to be
given their testimony, and the inferences to be drawn from proven facts.” Commonwealth v.
Taylor, 256 Va. 516, 518 (1998). “When ‘credibility issues have been resolved by the [fact
finder] in favor of the Commonwealth, those findings will not be disturbed on appeal unless
plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v.
Commonwealth, 13 Va. App. 296, 299 (1991)).
To support a conviction of unlawful wounding, the evidence must establish that the
appellant stabbed or cut Galloway with the intent to “maim, disfigure, disable, or kill” her.
Code § 18.2-51. Appellant does not dispute that he wounded Galloway. Accordingly, appellant
contests only whether he possessed the necessary intent.
Viewing the evidence in the light most favorable to the Commonwealth, there was
evidence to support the trial court’s finding that appellant became irate and continued stabbing
Galloway after he gained control of the knife. Galloway suffered severe cuts and stab wounds
on her head, hand, and wrist that were unlikely to have occurred solely in a struggle for
possession of the knife. Indeed, as the trial court noted, Galloway’s wounds were more likely
the result of intentional action. Furthermore, in his statements after the incident, appellant
continuously stated that Galloway got what she deserved and that he cut her because she tried to
rob him. Despite the attempted robbery and the severity of Galloway’s injuries, appellant
-5- neglected to call either the police or emergency medical services. These facts support the trial
court’s finding that appellant stabbed and cut Galloway out of anger after gaining possession of
the knife. Therefore, its finding is not plainly wrong or without evidence to support it.
IV. CONCLUSION
The evidence supports the trial court’s finding that appellant stabbed and cut Galloway
out of anger and after gaining full control of the knife. Accordingly, the evidence is sufficient to
sustain his conviction for unlawful wounding and this Court affirms.
Affirmed.
-6-