Timothy Job Smith v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 25, 2023
• Docket: 0975223
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges O’Brien and Lorish Argued by videoconference

TIMOTHY JOB SMITH MEMORANDUM OPINION* BY v. Record No. 0975-22-3 JUDGE LISA M. LORISH JULY 25, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds, Judge

Jason S. Eisner for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Timothy J. Smith appeals his conviction, following a bench trial, for assault and battery

against a family member, third offense, in violation of Code § 18.2-57.2. Smith asserts that the

evidence was insufficient to support his conviction. For the reasons below, we disagree, and affirm

the conviction.

BACKGROUND1

Tracie Smith and her mother, Nancy Smith, were home when Tracie observed her brother,

the appellant Smith, arrive and proceed towards the home screaming and carrying a baseball bat.

Tracie immediately retreated to Nancy’s room. Although the front door was locked, Smith burst

through. Moments later, Smith entered Nancy’s bedroom, swinging the baseball bat.

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). Tracie sat next to Nancy on the bed while Smith stood wielding the bat. Smith accused

Tracie of stealing from his girlfriend, Heather Phillips, and from Nancy. Smith threatened to hit

Tracie if she failed to admit to the thefts. Tracie protested, but Smith swung the bat and struck

Tracie in the right side of her face. Smith then walked around the bed and struck Tracie with his

closed fist on the left side of her shoulder behind her neck before leaving.

Tracie was uncertain whether Smith hit her face with his hand or the bat because she

covered her face as he swung at her. Nancy testified that when Smith hit Tracie, she heard a thump

but did not see Smith strike Tracie. Tracie admitted on cross-examination that she was a felon.

When Danville Police Officer Thornton arrived at the scene, he saw that the front storm

door window had been smashed. Tracie told him that Smith had struck her with a bat. Officer

Thornton took pictures of Tracie’s injuries, which were later shown to the trial court. Tracie and

Nancy both testified that Tracie had no injuries before this incident. The Commonwealth then

entered Smith’s prior convictions into evidence.

Smith moved to strike the Commonwealth’s evidence, which the trial court denied. Heather

Phillips, Smith’s girlfriend, and Tiffany Hawker, Smith’s cousin, testified that they drove with

Smith to Nancy’s home on the day of the incident. Phillips parked in front of the home so Smith

could work on her vehicle. Smith performed repairs for ten to fifteen minutes before he entered the

home, while Phillips and Hawker remained in the vehicle.

Phillips and Hawker heard Smith argue with Tracie and saw them through the large

windows in the rear of the home. Neither Phillips nor Hawker observed any physical contact

between Smith and Tracie, nor did they see Smith with a baseball bat. Hawker, however, admitted

that she was unable to see the altercation the entire time and never saw Nancy through the window.

Smith testified that he went to his mother’s home that day to perform repairs on Phillips’s

car. He claimed that when he entered the home Tracie screamed at him and encouraged her

-2- boyfriend to “jump on” him. In response, he armed himself with the baseball bat that was beside

Nancy’s bedroom door. Smith admitted that he, Nancy, and Tracie convened in Nancy’s bedroom

and that he wielded the bat, but said he did not swing it at anyone. Smith denied that he made any

physical contact with Tracie and testified that he broke the glass door when he slammed the door as

he left.

Smith incorporated his renewed motion to strike into his argument in summation. After

hearing argument from counsel, the trial court found Phillips and Hawker could not see the entire

incident from the vehicle. The court further found Tracie’s and Nancy’s testimony credible. The

court noted that Tracie was struck by something, and Officer Thornton observed and photographed

her injuries later that day. The court found her injuries were not inconsistent with being struck by a

bat. The court convicted Smith as charged and sentenced him to five years of incarceration with

three years and six months suspended. Smith appeals.

ANALYSIS

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does

not ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,

228 (2018)). “Instead, we ask only ‘whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its

-3- opinion might differ from the conclusions reached by the finder of fact at the trial.’” Id. (quoting

Chavez, 69 Va. App. at 161).

Smith asserts that the evidence failed to establish he “inflicted corporeal hurt on” Tracie. He

notes that three witnesses—himself, Phillips, and Hawker—testified that he never struck Tracie.

Tracie, a felon, admitted that she covered her face during the incident and was unsure whether

Smith hit her with a bat or his arm. And, Smith asserts, Tracie changed her story about how many

times she was struck. He argues that he did not strike Tracie or cause the injuries depicted in the

photographs the trial court viewed.

As is true in many cases, the parties presented two different stories below, and the trial court

decided which one was more believable. “The sole responsibility to determine the credibility of

witnesses, the weight to be given to their testimony, and the inferences to be drawn from proven

facts lies with the fact finder.” Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020)

(quoting Ragland v. Commonwealth, 67 Va. App. 519, 529-30 (2017)). Moreover, “[t]he

conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only

when we find that the witness’[s] testimony was ‘inherently incredible, or so contrary to human

experience as to render it unworthy of belief.’” Ashby v. Commonwealth, 33 Va. App. 540, 548

(2000) (quoting Fisher v. Commonwealth, 228 Va. 296, 299-300 (1984)). “In all other cases, we

must defer to the conclusions of ‘the fact finder[,] who has the opportunity of seeing and hearing

the witnesses.’” Id. (alteration in original) (quoting Schneider v. Commonwealth, 230 Va. 379,

382 (1985)).

“A legal determination that a witness is inherently incredible is very different from the

mere identification of inconsistencies in a witness’[s] testimony or statements.” Kelley v.

Commonwealth, 69 Va. App. 617, 626 (2019). “Testimony may be contradictory or contain

inconsistencies without rising to the level of being inherently incredible as a matter of law.” Id.;

-4- see, e.g., Nobrega v. Commonwealth, 271 Va. 508, 518 (2006) (holding that a witness was not

inherently incredible despite minor inconsistencies because “her testimony did not waver with

regard to the acts of sexual intercourse”).

Smith argues that three things, taken together, require us to reverse. First, he argues that

Tracie’s testimony was conflicting on how many times she was hit during the assault, and what

Smith used to strike her (a bat or his fist). At trial Tracie testified that Smith was yelling as he

entered the home. She retreated to Nancy’s bedroom, and Smith entered soon after with a

baseball bat. Smith admits that he wielded a baseball bat while in Nancy’s bedroom. Tracie

testified that she was struck twice but that she covered her face and was unable to see with what

implement she was struck. On cross-examination, Smith attempted to impeach Tracie by noting

that at the preliminary hearing she testified to being struck only once.

The inconsistencies within Tracie’s testimony do not render her testimony “so manifestly

false that reasonable men ought not to believe it.” See Juniper v. Commonwealth, 271 Va. 362,

415 (2006) (quoting Cardwell v. Commonwealth, 209 Va. 412, 414 (1968)). Any inconsistencies

in Tracie’s statements elicited during her cross-examination or during other witnesses’ testimony

were put before the trial court for its consideration. See Kelley, 69 Va. App. at 626 (“As Virginia

law dictates, ‘potential inconsistencies in testimony are resolved by the fact finder,’ not the

appellate court.” (cleaned up) (quoting Towler v. Commonwealth, 59 Va. App. 284, 292 (2011))).

In exercising its role as the factfinder, the trial court weighed the evidence and resolved any

inconsistencies in favor of the Commonwealth. In fact, the trial court specifically found that

Tracie was credible and noted that “testimony at a preliminary hearing is in many instances, just

that. It’s preliminary.” As the Commonwealth pointed out on redirect, the preliminary hearing

testimony was about the number of times Smith hit Tracie with a bat, and did not include

testimony about whether there were additional blows by fist.

-5- Next, Smith argues that Tracie’s testimony was uncorroborated because no other witness

observed Smith hit Tracie. But there was strong circumstantial evidence corroborating her

account. “[C]ircumstantial evidence is competent and is entitled to as much weight as direct

evidence provided that the circumstantial evidence is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt.” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)

(alteration in original) (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)).

“Circumstantial evidence is not ‘viewed in isolation’ because the ‘combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable [fact

finder]’ to conclude beyond a reasonable doubt that a defendant is guilty.” Rams v.

Commonwealth, 70 Va. App. 12, 27 (2019) (alteration in original) (quoting Muhammad v.

Commonwealth, 269 Va. 451, 479 (2005)).

Smith admitted that he went to Nancy’s bedroom and that Nancy and Tracie were seated

on the bed. He also admitted that he was wielding a baseball bat while arguing with Tracie.

Nancy testified that she heard a thump to her left after Smith swung his arm. When Officer

Thornton arrived later that day, he documented injuries to Tracie’s face. The trial court found

that those injuries were not inconsistent with being struck with a baseball bat.

Finally, Smith argues that Tracie’s testimony should be disregarded because she is a

felon. A party may—as Smith did here—impeach a witness by asking about a prior felony

conviction during cross-examination. See Va. Rul. Evid. 2:609(b). If so, the “felony conviction

is probative of [the] witness’s veracity,” so the court may consider it when weighing the

witness’s credibility. Shifflett v. Commonwealth, 289 Va. 10, 12 (2015). But just because a

felony conviction is probative does not mean it is dispositive. Instead, a factfinder must consider

many factors when assessing a witness’s credibility, including: the witness’s “demeanor,”

“opportunity for knowing the things about which he [or she] has testified,” “bias,” “prior

-6- inconsistent statements relating to the subject of [the] present testimony,” and any other

“circumstances of a particular case” that may “raise other factors that the circuit court deems

relevant in assessing a witness’[s] credibility.” Turner v. Commonwealth, 56 Va. App. 391, 414

(2010). Here, the record lacks any reason to doubt that the trial court considered Tracie’s felon

status as one of many factors when it nevertheless found her a credible witness.

CONCLUSION

In sum, the record supports the trial court’s credibility determination. The

Commonwealth’s evidence was competent, was not inherently incredible, and was sufficient to

prove beyond a reasonable doubt that Smith was guilty of assault and battery against a family

member.

Affirmed.

-7-