KENNETH F WINSTON V COMMONWEALTH OF VIRGINIA ( 2002 )

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.
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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
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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
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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
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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
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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.
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"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
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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
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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
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reasonable doubt that appellant committed the charged offenses.
We affirm the convictions.
Affirmed.
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