Michael D. Jarrell v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 18, 2002
• Docket: 0984012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Humphreys Argued at Richmond, Virginia

MICHAEL D. JARRELL MEMORANDUM OPINION * BY v. Record No. 0984-01-2 JUDGE JERE M. H. WILLIS, JR. JUNE 18, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS William R. Shelton, Judge

James M. Goff II (James M. Goff II, P.C., on brief), for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Michael Jarrell was convicted in a bench trial of four counts

of aggravated sexual battery, in violation of Code § 18.2-67.3.

On appeal, he contends that the trial court erred in admitting for

impeachment purposes evidence of his prior conviction for

contributing to the delinquency of a minor. He further contends

that the evidence was insufficient to support his convictions. We

affirm the judgment of the trial court.

I. BACKGROUND

It was charged that on five occasions between July 1999 and

December 1999, Jarrell touched the breasts, buttocks, or groin

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of a twelve-year-old girl. At trial, the girl testified that

some of the touchings occurred in the presence of Jarrell's

girlfriend and of his son. When asked why she delayed reporting

the incidents, she said she was afraid because Jarrell owned

guns and she feared he would hurt her or someone else if she

told what he had done. Jarrell's girlfriend and son both

testified that they did not recall seeing contact between him

and the girl.

Jarrell testified that none of the incidents described by

the girl took place. He stated that in December 1999, he had an

argument with the girl's mother and had sworn out a warrant

against her. Soon thereafter, he was arrested on warrants

setting forth the subject charges. During cross-examination,

Jarrell was asked whether he had ever been convicted of a felony

or a misdemeanor involving lying, cheating, or stealing. He

answered that he was "going to say no." Upon further

questioning, he acknowledged convictions for passing bad checks,

giving false information to a police officer, and failing to

return rental property.

The Commonwealth's attorney then asked Jarrell whether he

remembered being convicted in 1997 of contributing to the

delinquency of a minor. Jarrell stated he recalled no such

conviction. Over the objection of Jarrell's attorney, the trial

court permitted the Commonwealth to prove conviction of that

- 2 - charge. The trial court convicted Jarrell of four counts of

aggravated sexual battery.

II. PRIOR CONVICTION ERRONEOUSLY ADMITTED

Jarrell contends that the trial court erred in admitting,

for impeachment purposes, evidence of his prior conviction of

contributing to the delinquency of a minor. We agree.

Proof of a defendant's prior conviction of a felony or a

misdemeanor involving moral turpitude is admissible for

impeachment. The Supreme Court has held that contributing to the

delinquency of a minor is not per se a crime of moral turpitude.

Therefore, a mere conviction of that crime, absent proof of

circumstances of moral turpitude, cannot be used to impeach the

credibility of a defendant. Tasker v. Commonwealth, 202 Va. 1019,

1025, 121 S.E.2d 459, 463 (1961). No evidence that Jarrell's

conviction involved moral turpitude was presented in this case.

Therefore, the trial court erred in allowing the Commonwealth to

introduce evidence of Jarrell's prior conviction of contributing

to the delinquency of a minor. However, we find that error to be

harmless in this case.

The erroneously admitted evidence was received solely for

purposes of impeachment. Jarrell's credibility was abundantly

impeached by his acknowledged convictions of felonies and other

misdemeanors involving moral turpitude. His conviction of a

further misdemeanor had little significance, if any, in impeaching

his credibility.

- 3 - Jarrell argues that the nature of the erroneously admitted

conviction was prejudicial to him, suggesting a propensity on his

part to engage in improper conduct with children. Had this been a

jury trial, that argument might be persuasive. However, this was

a bench trial. The evidence was admissible and received only as

impeachment of Jarrell's credibility. In the absence of proof to

the contrary, we presume that the trial judge received and

considered the evidence only for the purpose for which it was

tendered and received. A trial judge is presumed to apply the law

correctly and to consider evidence within its proper context. See

Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291

(1977); Mason v. Commonwealth, 219 Va. 1091, 1098, 254 S.E.2d 116,

120 (1979).

III. SUFFICIENT EVIDENCE EXISTED

Jarrell next contends that the evidence was insufficient to

prove his guilt beyond a reasonable doubt. We disagree. When the

sufficiency of the evidence is challenged on appeal, we consider

the evidence in the light most favorable to the Commonwealth,

affording to it all reasonable inferences fairly deducible

therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

Arguing that reasonable doubt exists, Jarrell notes that the

girl gave conflicting statements during the investigation,

preliminary hearing, and trial; that she could not identify

specifically where and when the alleged incidents occurred; and

- 4 - that no independent witness corroborated her accusations. He

argues that his witnesses contradicted the uncorroborated

testimony of the girl.

The credibility of witnesses, the weight to be given their

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

matters solely for the fact finder's determination. Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1986).

The conclusions of the fact finder on issues of witness

credibility may be disturbed on appeal only if the witness'

testimony was "inherently incredible, or so contrary to human

experience as to render it unworthy of belief." McCary v.

Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d 239, 246 (2001).

The victim's testimony in this case was not inherently

incredible or unworthy of belief. She testified as to the times

when the acts committed upon her took place. She testified to the

locations where the acts were committed. She testified to the

exact nature of the acts. Although she may have given conflicting

statements, this did not render her testimony inherently

incredible. Her testimony is sufficient to support the

convictions.

The judgment of the trial court is affirmed.

Affirmed.

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