Terry Lamont Whitby v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
TERRY LAMONT WHITBY
MEMORANDUM OPINION * BY
v. Record No. 1343-99-1 JUDGE SAM W. COLEMAN III
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge
Colleen K. Killilea for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Terry Lamont Whitby was convicted in a bench trial of
trespassing in violation of Code § 18.2-119, assault and battery
in violation of Code § 18.2-57.2, and robbery in violation of
Code § 18.2-58. On appeal he argues that the evidence is
insufficient to support his convictions because the victim's
testimony is inherently incredible. He further argues that his
convictions for assault and battery and robbery violate his
Fifth Amendment right against double jeopardy. We disagree and
affirm the convictions.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Christian Cushman, the victim, and Terry Lamont Whitby, the
defendant, previously had a romantic relationship and had a
child together. Shortly after midnight, Cushman was awakened by
Whitby knocking on her back window. Whitby then knocked on the
back door and, when Cushman did not respond, he went to the
front door and tried to open it. Moments later Cushman
confronted Whitby coming down the hallway toward her bedroom.
Cushman yelled at Whitby and ordered him to leave, stating that
he was not welcome in her home. Whitby asked for a cigarette,
and Cushman "threw one at him." Cushman then left the trailer
from the back door and "walked as fast as [she] could to the
nearest pay phone" to call the police. Whitby ran up behind
her, picked her up, and carried her toward a gazebo in the park,
where the two had often gone together. Cushman "pounded" on
Whitby, yelling and screaming for him to let go of her. Whitby
put her down and she sat on the ground, clutching her purse.
Cushman testified that when she would not go with Whitby to the
gazebo, he snatched her purse and fled. Cushman suffered two
sprained fingers and several broken fingernails. Approximately
forty-five minutes later when police officers accompanied
Cushman, who was distraught and crying, to the area where the
incident had occurred, Cushman found her purse "exactly where
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[she] was sitting so it looked liked nothing ever happened."
Cushman reported that five dollars was missing from her purse.
Cushman had been involved in an automobile accident prior
to this incident and sustained brain injuries, including memory
loss. She has been diagnosed with bi-polar disorder and suffers
from paranoia. The day before the incident, Cushman discussed
with her therapist her feelings of paranoia that Whitby might
hurt her.
Whitby testified that, while they were dating, he took care
of Cushman's finances due to her brain injuries. Whitby
testified that he went to Cushman's trailer that evening, just
like he did every Monday, Wednesday, and Friday. On his visits,
the two would talk or take walks. Whitby testified that he
knocked on the front door, and after not receiving a response,
he knocked on the back door. Whitby identified himself, but
Cushman did not let him in the house. Whitby then tapped on the
back window, and Cushman motioned for him to come around to the
front. Cushman let him in the front door. Whitby testified
that Cushman was fearful that the landlord would hear Whitby in
the trailer, so Cushman suggested that they go outside. Before
they went to the gazebo in the park, where the two always
rendezvoused, Cushman wanted to walk to a pay phone and call her
boyfriend. On the way to the phone, Cushman's leg "gave out"
and she started to have an asthma attack. Whitby testified
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that, after asking her permission, he picked Cushman up and
placed her on the curb. Whitby said that he walked her back to
the entrance of the trailer park and left. He testified that he
did not take anything from Cushman.
II. ANALYSIS
A. Sufficiency of the Evidence
Whitby argues that the evidence is insufficient to support
his convictions. He asserts that because Cushman suffered from
memory loss, paranoia, and bi-polar disorder, her testimony was
inherently incredible and not worthy of belief. He also argues
that Cushman's trial testimony was inconsistent with her
statements to the police and her testimony at the preliminary
hearing. Specifically, Whitby points to one statement Cushman
made at trial, that she did not make in her statement to the
police or at the preliminary hearing, in which she stated that
Whitby threatened to tell her landlord that she allowed Whitby
into the trailer. Whitby also points to Cushman's statement to
the police in which she stated that Whitby "braced" her when she
began to fall and that he picked her up and carried her to the
curb when she was having the asthma attack. At trial, Cushman
stated that since she made that statement, she had time to reflect
on the reason why Whitby picked her up and carried her. Cushman
testified that she now believes that Whitby picked her up and
tried to carry her to the gazebo.
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On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all reasonable
inferences fairly deducible therefrom. See Commonwealth v.
Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998) (citations
omitted). "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) (citations omitted).
The evidence viewed in the light most favorable to the
Commonwealth proves that Whitby entered Cushman's trailer without
her permission. See Jones v. Commonwealth, 18 Va. App. 229, 232,
443 S.E.2d 189, 190-91 (1994) (construing Code § 18.2-119).
Whitby followed Cushman out of the trailer and pursued her until
he caught her. Whitby picked Cushman up and carried her away from
where she was standing, while she pounded on him and yelled at him
to let her down. See Perkins v. Commonwealth, 31 Va. App. 326,
330, 523 S.E.2d 512, 513 (2000) (construing Code § 18.2-57).
Finally, Whitby grabbed Cushman's purse, while she was clutching
it. See Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28,
31 (1964). Cushman suffered two sprained fingers and broken
fingernails.
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In order for a witness' testimony to be disregarded as a
matter of law, the evidence must be inherently incredible or the
witness' account of the events must be so contrary to human
experience as to be unworthy of belief. See Robertson v.
Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991);
see also Owens v. Commonwealth, 186 Va. 689, 696-97, 43 S.E.2d
895, 898 (1947) (stating that inconsistencies and inaccuracies in
a witness' statement do not necessarily render the statement
inherently incredible). Although Cushman acknowledged that she
has difficulty remembering details and that she had suffered brain
trauma in an automobile accident, Cushman's account of the events
was not inherently incredible, and the trial court was entitled to
weigh this evidence in determining her credibility and Whitby's
guilt. See Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. The
trial court found that Cushman "appeared very truthful to the
Court, very knowledgeable." The trial court further found that
"her credibility is superior, and beyond a reasonable doubt the
Court would find the defendant guilty of [the charges]." The
trial court stated that, "[i]t seems to me and incredible to
believe that [Cushman] would come up with this story and call the
police and have the problems she's having when Mr. Whitby says
there's no problem." Moreover, any inconsistencies between
Cushman's trial testimony and her previous statements goes to her
credibility, which the trial court found to be "superior."
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Further, the sequence of events and the details were largely
corroborated by Whitby's own testimony. Accordingly, we find
Cushman's testimony was not inherently incredible. Therefore, the
evidence is sufficient to support the convictions.
B. Double Jeopardy
Whitby, citing Blockburger v. United States, 284 U.S. 299(1932), argues that his convictions for assault and battery and
robbery violate his Fifth Amendment right against double jeopardy.
He argues that assault and battery is a lesser offense of robbery
and does not require proof of a separate fact that is not also an
element of robbery.
Whitby did not raise this argument at trial. We will not
consider for the first time on appeal an issue not preserved in
the trial court. See Ohree v. Commonwealth, 26 Va. App. 299,
307-08, 494 S.E.2d 484, 488 (1998). "No ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." Rule 5A:18.
"The primary purpose of requiring timely and specific objections
is to afford the trial judge a fair opportunity to rule
intelligently on the issues presented, thus avoiding unnecessary
appeals and reversals." Rodriguez v. Commonwealth, 18 Va. App.
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277, 284, 443 S.E.2d 419, 424 (1994) (en banc) (citation omitted),
aff'd, 249 Va. 203, 454 S.E.2d 725 (1995).
We find that Whitby's argument on appeal is barred by Rule
5A:18 because he failed to raise the issue in the trial court.
Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, we affirm the convictions.
Affirmed.
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