Daniel Joseph Pair v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
DANIEL JOSEPH PAIR
MEMORANDUM OPINION * BY
v. Record No. 1221-99-2 JUDGE NELSON T. OVERTON
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
James A. Luke, Judge
Connie Louise Edwards for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant was convicted in a bench trial of malicious
wounding. On appeal, appellant contends that (1) the trial court
erred in restricting testimony concerning the victim's prior
inconsistent statements and (2) the evidence was insufficient to
support the verdict. We disagree and affirm.
BACKGROUND
Michael Mobley, the victim, drove appellant to the home of
appellant's father, and appellant went inside the home. Appellant
and Mobley were the only ones present at the home. After a period
of time, Mobley went inside the home to get appellant. While
Mobley was walking to his car, he was shot in the back of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
head. Mobley asked appellant to drive him to the hospital, but
appellant drove in another direction. After a struggle, Mobley
took control of his car and drove himself to the hospital.
Thereafter, appellant took Mobley's car and drove to North
Carolina.
MOBLEY'S PRIOR INCONSISTENT STATEMENTS
Mobley testified on direct examination that appellant shot
him. On cross-examination, Mobley testified that he did not
recall making any other statements to Officers Edwards or Wells
concerning the circumstances of the shooting. On
cross-examination, Edwards testified that on the night of the
shooting, Mobley gave him several different versions of the
events, including that Mobley did not know who shot him. Edwards'
testimony was admitted without objection.
During appellant's case-in-chief, Wells was called as a
witness and was asked about prior inconsistent statements made by
Mobley. The following exchange occurred:
[APPELLANT'S ATTORNEY]: Did [Mobley] ever
indicate to you that he was getting into the
car and someone shot him?
WELLS: Yes.
[APPELLANT'S ATTORNEY]: Did [Mobley] ever
indicate to you that he did not know who
that someone was?
WELLS: Yes.
[APPELLANT'S ATTORNEY]: Did [Mobley] at
other times indicate it was his cousin, [the
appellant]?
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The trial court sustained the Commonwealth's objection that
appellant failed to lay a proper foundation for the impeachment
testimony by Wells of Mobley's prior inconsistent statements.
On appeal, appellant argues that the trial court erred in
sustaining the Commonwealth's objection.
Assuming without deciding that the appellant laid a proper
foundation for Wells' impeachment testimony and that the trial
court erred in sustaining the Commonwealth's objection, such
error was harmless.
A nonconstitutional error is harmless if "if
plainly appears from the record and the
evidence given at trial that the error did
not affect the verdict." "An error does not
affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that had the error not
occurred, the verdict would have been the
same."
Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d 619, 620
(1994) (citation omitted).
Appellant established through the testimony of Edwards that
on the night of the shooting, Mobley gave several different
versions of the events, including that Mobley did not know who
shot him. Wells testified that Mobley told him that Mobley did
not know who shot him. Through Wells' testimony, appellant was
attempting to establish that Mobley had told the investigating
officers several different versions of the events, which
appellant had already established through Edwards' testimony.
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It plainly appears from the record that the verdict would have
been the same if the testimony of Wells had been admitted into
evidence.
SUFFICIENCY OF THE EVIDENCE
"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)
(citation omitted).
The evidence proved that Mobley and appellant were the only
ones present when Mobley was shot in the back of the head.
Mobley asked appellant what had happened and appellant said that
"a white guy" had shot Mobley. Appellant also said that he had
been shot in the shoulder. Mobley testified that he did not see
a wound on appellant's shoulder and that appellant was never
treated for a gunshot wound. After Mobley was shot, he asked
appellant to drive him to the hospital, but appellant drove in
another direction. Mobley struggled with appellant, took
control of the car and drove himself to the hospital. After
Mobley arrived at the hospital, appellant said that he would get
Mobley's mother. Mobley refused to give the keys to appellant,
but a nurse gave appellant the keys. Appellant drove to a
store, bought "handiwipes" and cleaned the blood that was on
him. Appellant threw the gun into a river and drove to North
Carolina.
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Appellant testified that Mobley had the gun and that the
gun jammed. Appellant also testified that Mobley gave him the
gun and, while appellant was checking the gun, it accidentally
fired, shooting Mobley in the head. Appellant stated that he
threw the gun in a river and drove to North Carolina because he
was scared.
"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). "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).
The trial court heard the testimony of the witnesses and
observed their demeanor and concluded that appellant's testimony
that he accidentally shot Mobley was not credible. Appellant's
behavior after the shooting was inconsistent with an accidental
shooting. The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that appellant was guilty of malicious
wounding.
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Based upon the foregoing, appellant's conviction for
malicious wounding is affirmed.
Affirmed.
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