Kelly Huff, s/k/a Kelly Lynn Huff v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Senior Judges Annunziata, Clements and Petty
KELLY HUFF, S/K/A
KELLY LYNN HUFF
MEMORANDUM OPINION⁎
v. Record No. 0596-22-3 PER CURIAM
DECEMBER 29, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
F. Patrick Yeatts, Judge
(W. Cameron Warren; Pack Law Group, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Tanner M. Russo, Assistant
Attorney General, on brief), for appellee.
Counsel for Kelly Lynn Huff filed a brief on her behalf accompanied by a motion for leave
to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of that
brief has been furnished to Huff with sufficient time for her to raise any matter that she chooses.
Huff has not filed any pro se supplemental pleadings. After examining the briefs and record in this
case, the panel has determined that this appeal is wholly frivolous and unanimously holds that oral
argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);
Rule 5A:27(a).
The trial court convicted Huff of unlawfully removing property without the intent to
steal, in violation of Code § 18.2-137, and sentenced her to five years’ incarceration, all
suspended. On appeal, Huff challenges the sufficiency of the evidence to sustain her conviction.
For the following reasons, this Court affirms the trial court’s judgment.
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we “discard the evidence
of the accused in conflict with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300
Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
In January 2020, Kelsey Hammitt and her husband, Gregory Brochon, rented a
single-family home to Huff. The kitchen was furnished with a refrigerator, dishwasher, sink, stove,
washer, and dryer. The upstairs and downstairs bathrooms were furnished with toilets, vanities, and
tubs. At trial, Hammitt identified photographs taken “several months” before Huff moved in
depicting the appliances within the house. On July 15, 2020, at Hammitt and Brochon’s direction,
the “Sheriff’s Office” served Huff with a thirty-day notice of eviction.
On August 20, 2020, Brochon visited the house because he had seen a moving truck “in the
backyard” and assumed Huff had left. When he arrived, the back door was open, and the washer
and dryer were missing. Brochon and Hammitt visited the house again three days later and
discovered that the “remaining appliances” were also missing.
On September 26, 2020, a friend informed Hammitt that the front door to the house was
“wide open.” Hammitt and Brochon drove to the house and saw that the front door had been
“splintered and broken in”; there were “mounds of trash” “everywhere.” “[A]ll of the kitchen
cabinets had been taken off the walls,” and “the kitchen sink was gone.” Mirrors, faucets, shower
heads, light fixtures, and light switch panels had been removed from the bathrooms. The upstairs
sink and tub “had been spray painted,” and the downstairs bathroom toilet was cracked. Hammitt
and Brochon reported the incident to Lynchburg Police Officer Takacs, who spoke with Huff about
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the missing appliances later that afternoon. Huff told Officer Takacs that the appliances were hers
because of “some agreement” with Brochon. She also claimed that she had purchased new
appliances that would be delivered to the house to “replace” those she had removed. Hammitt
testified that the cost of the stove, dishwasher, washer, and dryer was “likely over three thousand
dollars.” Neither Hammitt nor Brochon had agreed that Huff could remove “appliances or . . . other
fixtures” from the house.
Huff testified that she had purchased the refrigerator, dishwasher, and stove before moving
into the house. She also claimed that Hammitt and Brochon’s personal washer and dryer at their
“primary residence” broke while she was a tenant, so she purchased new units for them “to be
kind,” believing that she could then remove the old units from the house she was renting. She
denied telling Officer Takacs that she had any agreement with Brochon regarding the appliances.
She also denied that she had caused any of the “property damage.”
After the close of the evidence and argument by counsel, the trial court convicted Huff of
removing property without the intent to steal, in violation of Code § 18.2-137. The court found that
there was no “dispute” that Huff had removed the appliances because she testified that she “owned”
them. Nevertheless, the court credited Hammitt’s testimony, corroborated by the photographs, that
the appliances were in the house before Huff rented it. The court also credited Officer Takacs’s
testimony that Huff claimed to have removed the appliances under “some sort of agreement with”
Brochon. Huff 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
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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)). “Rather, the relevant question is whether ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to
substitute its own judgment, even if its opinion might differ from the conclusions reached by the
finder of fact at the trial.’” Lucas v. Commonwealth, 75 Va. App. 334, 342 (2022) (quoting
McGowan, 72 Va. App. at 521).
Huff argues that the evidence was insufficient to support her conviction because she “did not
take any items from the residence that were not hers.” She relies upon her testimony that she
purchased the refrigerator, stove, and dishwasher before moving into the house. She also claims
that she “purchased a new washer and dryer” for Hammitt and Brochon “with the understanding
that” she could “keep the washer and dryer” in the rental house. In sum, she asks this Court to
reweigh the evidence and substitute our judgment for that of the trial court by accepting her version
of events.
“The living record contains many guideposts to the truth which are not in the printed
record; not having seen them ourselves, we should give great weight to the conclusions of those
who have seen and heard them.” Stith v. Commonwealth, 65 Va. App. 27, 35 (2015) (quoting
Williams v. Commonwealth, 56 Va. App. 638, 642 (2010)). Thus, it is well established that
weighing and balancing witness testimony “is within the exclusive province of the [trier of fact],
which has the unique opportunity to observe the demeanor of the witnesses as they testify.”
Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16
Va. App. 300, 304 (1993)). “[T]he trier of fact is free to believe or disbelieve, in whole or in
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part, the testimony of any witness.” Rams v. Commonwealth, 70 Va. App. 12, 38 (2019) (citing
Carosi v. Commonwealth, 280 Va. 545, 554-55 (2010)).
This Court “will not disturb” the trier of fact’s “determination of the credibility of witness
testimony unless, ‘as a matter of law, the testimony is inherently incredible.’” Dalton, 64
Va. App. at 526 (quoting Walker v. Commonwealth, 258 Va. 54, 71 (1999)). “Evidence is not
‘incredible’ unless it is ‘so manifestly false that reasonable men ought not to believe it’ or shown
to be false by objects or things as to the existence and meaning of which reasonable men should
not differ.” Gerald v. Commonwealth, 295 Va. 469, 487 (2018) (quoting Juniper v.
Commonwealth, 271 Va. 362, 415 (2006)). The trier of fact’s “evaluation[] of credibility” often
involves “choosing between competing accounts offered by different witnesses.”
Commonwealth v. McNeal, 282 Va. 16, 22 (2011).
The trial court was not obligated to credit Huff’s claim that she had purchased the
refrigerator, stove, and dishwasher before moving in, and acquired ownership of the washer and
dryer while a tenant. Rather, considering the evidence as a whole, the trial court “was at liberty to
discount” Huff’s “self-serving [testimony] as little more than lying to conceal [her] guilt . . . ,
and could treat such prevarications as affirmative evidence of guilt.” Coleman v.
Commonwealth, 52 Va. App. 19, 25 (2008). After weighing Huff’s account against Hammitt and
Brochon’s testimony—corroborated by photographs—that the appliances belonged to them and
were in the house before Huff moved in, the trial court credited the Commonwealth’s witnesses.
See Lambert v. Commonwealth, 70 Va. App. 740, 760 (2019) (holding that although
corroboration is not necessary, a witness’ testimony was not inherently incredible when it was
corroborated by other evidence).
“[W]hen the law says that it is for the trier of fact to judge the credibility of a witness, the
issue is not a matter of degree.” Dalton, 64 Va. App. at 526 (quoting Simpson v.
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Commonwealth, 199 Va. 549, 557 (1957)). The Commonwealth’s witnesses testified regarding
facts sufficient to sustain Huff’s conviction. Thus, the evidence was competent, not inherently
incredible, and sufficient to sustain Huff’s conviction for unlawfully removing property without
the intent to steal, in violation of Code § 18.2-137.
CONCLUSION
Accordingly, we affirm the trial court’s judgment and grant the motion for leave to
withdraw. See Anders, 386 U.S. at 744. This Court’s records shall reflect that Kelly Huff, s/k/a,
etc., is now proceeding without the assistance of counsel in this matter and is representing herself
on any further proceedings or appeal.
Affirmed.
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