Clabon Terrell Steward v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
CLABON TERRELL STEWARD
MEMORANDUM OPINION * BY
v. Record No. 2829-98-1 JUDGE DONALD W. LEMONS
DECEMBER 21, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
(Theophlise L. Twitty; Jones and Twitty, on
brief), for appellant. Appellant submitting
on brief.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Clabon Terrell Steward appeals from his bench trial
convictions for marital sexual battery and two misdemeanor
charges of assault and battery. On appeal, he contends that the
evidence is insufficient to sustain the convictions. Finding no
error, we affirm appellant's convictions.
The parties are familiar with the facts of the case and
because this opinion has no precedental value it is not
necessary to recite them.
The only sufficiency argument Steward maintains on appeal
is that in order to convict him under Code § 18.2-67.2:1, the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth must prove that the parties were living "separate
and apart." However, the only sufficiency argument Steward made
to the trial court was that the Commonwealth had not presented
corroborative medical testimony and that the police officer did
not describe any vaginal injury to the victim. Accordingly,
Steward is barred from raising this new issue for the first time
on appeal. See Rule 5A:18. A challenge to the sufficiency of
the Commonwealth's evidence is waived if not raised with some
specificity in the trial court. See Mounce v. Commonwealth, 4
Va. App. 433, 435, 357 S.E.2d 742, 744 (1987). A reason not
asserted at trial as to why the evidence is insufficient is not
considered on appeal. See Floyd v. Commonwealth, 219 Va. 575,
584, 249 S.E.2d 171, 176 (1978). Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
On the issues that are preserved for appeal, upon familiar
principles, we state the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987). "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).
The judgment of the trial court sitting without a jury is
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entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it. See Martin,
4 Va. App. at 443, 358 S.E.2d at 418.
With respect to the charge of assault and battery on April
18, 1998, Steward maintains that the incident was "mutual
combat." The evidence reveals that Steward "slammed" his wife
into a wall, pushed her onto a bed, pinned her down and twice
struck her in the face. Her response of grabbing Steward's
groin and striking him in response did not make the combat
mutual. For combat to be mutual, "it must have been voluntarily
and mutually entered into by both or all parties to the affray."
Lynn v. Commonwealth, 27 Va. App. 336, 356, 499 S.E.2d 1, 10-11
(1998).
With respect to the charge of assault and battery on May
19, 1998, Steward claims that his wife used a knife to attack
him and that he responded in self-defense.
The trial judge resolved these factual disputes against
Steward. Upon review of the record, we cannot say that the
trial court was plainly wrong or without evidence to support the
decision.
The convictions are affirmed.
Affirmed.
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