Jonathan Kim v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
JONATHAN KIM
MEMORANDUM OPINION * BY
v. Record No. 0750-01-4 JUDGE RUDOLPH BUMGARDNER, III
JUNE 4, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Judge
Alexander J. Gordon, Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Jonathan Kim was convicted of driving after being declared
an habitual offender. He contends the officer did not have
reasonable suspicion to justify the initial stop for a traffic
offense. Concluding the trial court properly denied the
defendant's motion to suppress, we affirm.
The arresting officer testified that she observed the
defendant drive his gold BMW through the parking lot of a
7-Eleven store to avoid the traffic light at the corner of
Annadale Road and South Street. After stopping the vehicle for
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evading a traffic light, she determined the defendant was an
habitual offender.
The defendant contends the officer's testimony was not
credible. The defendant denied he was traveling at the place
and in the direction the officer described. He argues the
officer could not have seen what she described because it was
dark, traffic was heavy, and she made the observations through
her rearview mirror. The defendant maintains the officer's
testimony was inconsistent with her prior testimony at the
preliminary hearing. The officer had testified the stop
occurred during rush hour traffic and the street had two lanes.
In fact, the incident occurred at 8:00 p.m. on a Sunday, and
photographs showed the street had a third, turning lane.
Nothing suggests that the officer was incompetent to
testify because she lacked the ability to observe events, to
recollect, to communicate, and to understand the questions
posed. Cross v. Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447,
449 (1953). If a witness is competent, then the trier of fact
has sole responsibility for determining the credibility of
witnesses, the weight accorded their testimony, the inferences
to be drawn, and resolving conflicts in the evidence.
Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314
(1998).
The trial judge heard the officer's testimony and her
explanations for the apparent inconsistencies with her prior
- 2 -
testimony. The judge viewed photographs of the scene while
assessing the officer's ability to have seen what she described.
The trial court found the officer's testimony credible and that
"she saw him cutting across the 7-Eleven parking lot." It
concluded the officer had probable cause, "more than reasonable
suspicion," to stop the defendant.
A trial court's factual finding is binding on appeal and
will not be disturbed unless it is plainly wrong or without
evidence to support it. Code § 8.01-680. The record contains
evidence that the defendant cut through the parking lot to avoid
a traffic light. The trial court's finding that the officer's
observations were believable permits the conclusion that the
arresting officer acted properly when she initially stopped the
defendant. Accordingly, we affirm the conviction.
Affirmed.
- 3 -