Tony Benjamin Council v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia
TONY BENJAMIN COUNCIL
MEMORANDUM OPINION * BY
v. Record No. 2691-97-1 JUDGE RICHARD S. BRAY
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
(Kevin M. Diamonstein, on brief), for
appellant. Appellant submitting on brief.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Tony B. Council (defendant) was convicted in a bench trial
for robbery and related firearms charges. Defendant complains on
appeal that the court "abused [its] discretion" in rejecting his
defense of duress and, instead, "believing the testimonies" of
several Commonwealth witnesses. Finding no error, we affirm the
convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Under familiar principles of appellate review, we construe
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
The evidence disclosed that defendant entered a Be-Lo
grocery store on January 28, 1997, proceeded to a cashier line,
and demanded money from the clerk, Shoshoni Douglas. When
Douglas did not immediately comply, defendant displayed a
"sawed-off shotgun." Douglas then surrendered the contents of
her cash drawer to defendant, and he fled the store. Douglas'
testimony was corroborated by Angela Grimes and Tammy Marsh,
other employees of the grocer present during the offenses.
Grimes and Marsh further testified that defendant exited the
store and ran from the scene alone.
Store security guard Raleigh Perry first observed defendant
when he approached the market, accompanied by two men. Defendant
initially remained outside while the other two entered the store.
However, shortly thereafter, Perry saw defendant in the cashier
line, followed by one of the remaining two men, later identified
as Joseph Breedlove. Perry testified that defendant "whispered
something" to Douglas and "ran out of the . . . door and . . .
across the parking lot by himself."
Relying upon the defense of duress, defendant testified that
he owed Breedlove money for drugs and committed the robbery at
his direction, after Breedlove threatened him with a pistol.
Defendant claimed that Breedlove provided the shotgun to
defendant, escorted him inside, and, still armed with the pistol,
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watched nearby as defendant robbed Douglas. Afterwards, the
three fled together, leaving defendant no opportunity to escape
or seek assistance without risk of life.
The credibility of a witness and the weight accorded the
testimony are matters solely within the province of the trial
court, and its findings will not be reversed on appeal unless
plainly wrong or without evidence to support them. See Yates v.
Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 15-16 (1987)
(citation omitted); Speight v. Commonwealth, 4 Va. App. 83, 88,
354 S.E.2d 95, 98 (1987) (en banc) (citation omitted). "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 [he] is lying to conceal his guilt." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998)
(citing Speight, 4 Va. App. at 88, 354 S.E.2d at 98).
Here, the trial court concluded that "the defense of duress
[was] not available to . . . defendant because there was
certainly opportunity to escape and reasonable opportunity to
1
avoid committing a crime without being harmed." However, the
court declined to reach that issue because it did not "think that
it's been established that all this business about drugs and guns
1
"To support a defense of duress, a defendant must
demonstrate that his criminal conduct was the product of an
unlawful threat that caused him reasonably to believe that
performing the criminal conduct was his only reasonable
opportunity to avoid imminent death or serious bodily harm,
either to himself or to another." Sam v. Commonwealth, 13 Va.
App. 312, 324, 411 S.E.2d 832, 839 (1991) (citations omitted).
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happened in the first instance." The court, therefore, simply
disbelieved defendant. Discounting defendant's testimony, the
Commonwealth's evidence was clearly sufficient to prove beyond a
reasonable doubt that defendant was guilty of robbery and the
related firearms charges.
Accordingly, we affirm the convictions.
Affirmed.
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