Jeffrey Kent Barrett v. City of Lynchburg

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia
JEFFREY KENT BARRETT
v. Record No. 0433-94-3 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
CITY OF LYNCHBURG MAY 16, 1995
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Margaret Angela Nelson (Office of the Public Defender,
on brief), for appellant.
Fran Cannon Slayton (Michael R. Doucette, Deputy
Commonwealth's Attorney; G. Beth Packert,
Assistant Commonwealth's Attorney, on brief), for
appellee.
Appellant, Jeffrey Kent Barrett, was convicted of driving
under the influence, fourth offense; driving on a suspended
license, subsequent offense; and failing to stop at the scene of
an accident resulting in property damage. On appeal, appellant
contends that the evidence was insufficient to prove that he was
the driver of the car that struck the victim's vehicle. We
affirm appellant's convictions.
I.
On July 24, 1993, Barbara Clay was driving a pickup truck on
Lakeside Drive, in the City of Lynchburg, when she was struck
from behind by another car. Clay's truck was damaged, but the
driver of the car did not stop at the scene of the accident.
Clay drove into the parking lot of a nearby business, obtained
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
information from several witnesses who saw the accident, and
called the police. Clay was unsure when the accident occurred,
but estimated the collision happened at about 12:30 a.m. or 1:00
a.m. Clay stated that she was "disoriented" as a result of the
accident.
Keith Woolridge testified that he was driving on Lakeside
Drive with two friends at the time of the accident. Woolridge
stated a "bluish-gray" car passed Woolridge's vehicle, drove
close to Clay's truck bumper, then swerved into the middle
traffic lane to avoid Clay's truck. Woolridge said the
"passenger side of the car caught the back wheel of the truck,
and . . . the car just spun around and the car just kept on
going, no hesitation or stopping . . . ."
Woolridge followed the car into a mobile home trailer park
and saw that the car was parked in front of a brown trailer.
Woolridge saw a man and a woman get out of the car. The man got
out of the car on the driver's side. Woolridge testified the man
"stumbled up into [a blue] trailer." However, on cross-
examination, Woolridge admitted that, from his observation point,
he could not see a door of the blue trailer. Therefore,
Woolridge did not see the man actually enter a door of the blue
trailer.
Woolridge then returned to the scene of the accident to talk
with the police. Woolridge estimated the police arrived within
five to ten minutes after the accident occurred. Woolridge
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directed the police to the trailer park and informed the police
that the driver of the bluish-gray car was in the blue trailer.
Officer Jackson testified he was dispatched to the accident
"a few minutes after 2:00 in the morning." He arrived at the
accident scene at 2:18 a.m. Jackson saw a blue and silver car
with damage on the right front end parked near the blue trailer
described by Woolridge. It was later determined that the car was
not registered to Barrett.
Barrett was found asleep on the couch inside the blue
trailer. A breathalyzer test administered later in the evening
indicated Barrett had a blood alcohol content of 0.17%.
Woolridge and his two companions accompanied Jackson to the
blue trailer in an effort to identify its occupant as the driver
of the car that struck Clay's truck. Woolridge's companions
"were not a hundred percent sure" Barrett was the driver of the
car. Jackson testified that Woolridge identified Barrett
"without any doubt" as the person he followed from the accident,
and as the person he saw exit the car and walk to the blue
trailer. In court, Woolridge also positively identified Barrett
as the driver of the car that struck Clay.
Jason Supry, who lived in the trailer park, testified that
at about 1:15 a.m. on the night of the accident, he saw a car
park in front of Barrett's trailer. Supry saw two men get out of
the car, get into another car, and drive away. Supry could not
identify the two men, nor did Supry describe the car.
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Steve Judkins, who also lived in the trailer park, testified
that, from 5:00 p.m. until about 11:00 p.m to 11:30 p.m., on July
24, 1993, he and Barrett drank more than one case of beer in
Judkins' trailer. Judkins estimated that Barrett went home that
night sometime between 11:00 p.m. and 11:30 p.m.
Barrett testified that he and Judkins drank more than one
and one-half cases of beer at Judkins' house on July 24, 1993.
Barrett said he left Judkins' trailer at about 11:00 p.m. or
11:15 p.m. Barrett admitted he was drunk on the night of the
accident, but said he did not drive a car on that night.
II.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Woolridge positively identified Barrett as the driver of the
car that struck Clay's truck. Woolridge also stated that the
police arrived at the accident about five or ten minutes after
the accident occurred. Officer Jackson testified that he was
dispatched to the accident at 2:00 a.m. and arrived at the
accident at 2:18 a.m. The trial judge explicitly found that
Jackson's testimony was "the believable evidence about the time"
of the accident. Moreover, Jackson's testimony corroborates
Woolridge's testimony concerning the arrival of the police.
Therefore, Supry's testimony concerning the car parked near
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Barrett's trailer at 1:15 a.m. did not provide Barrett with an
alibi because the accident had not yet occurred when Supry
observed the car.
Barrett also attacks Woolridge's credibility because
Woolridge did not see Barrett actually enter the door of the blue
trailer. Although Woolridge could not see the door of the blue
trailer, the fact finder could reasonably have inferred from
Woolridge's testimony, and from Woolridge's later identification
of Barrett in the trailer, that Barrett did enter the trailer
when Woolridge saw him walk toward it.
The trial judge considered and determined the credibility of
the witnesses and the weight to be given their testimony. "The
weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). Although the blue and silver
car was not registered to Barrett, and no keys to this car were
found in Barrett's possession, from Woolridge's testimony of the
incident, and from his positive identification of Barrett, the
trial judge could conclude beyond a reasonable doubt that Barrett
was the driver of the car that struck Clay's truck.
Barrett also asserts that it is "just as possible that
Woolridge was a party to a hit and run that evening and created
an alibi for himself or others during the time period between the
accident and his return to the scene . . . ." However, Barrett's
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suggested hypothesis of innocence does not flow from the
evidence. No evidence supports it. The evidence supports the
trial judge's finding that Barrett drove the car that struck
Clay's truck. "On appeal, we only need to find that the judgment
is supported by credible evidence and is not plainly wrong. We
need not force the Commonwealth 'to exclude every possible theory
or surmise presented by the defendant.'" Purdy v. Commonwealth,
16 Va. App. 209, 212, 429 S.E.2d 34, 36 (1993) (citation
omitted).
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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