Opinion
Record No. 1704-93-2
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, Robert W. Duling, Judge
Robert N. Johnson, Jr. (Robert N. Anne M. Johnson, Inc., on briefs), for appellant.
Robert B. Beasley, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General; Janet F. Rosser, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
After a bench trial, appellant was convicted of malicious wounding and use of a firearm in the commission of a felony. On appeal, appellant contends (1) that the trial court erred by admitting evidence of other crimes, and (2) that there was insufficient evidence to sustain the convictions. We disagree and affirm.
"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).
Angelo Nix testified that, on December 30, 1991, appellant came to Nix's residence to recover a debt, and after Nix explained that he could not pay appellant until the next day, appellant shot him in his eye. After his initial testimony, Nix was recalled and testified that he heard two shots fired; one shot was fired at him at close range, and the other shot was fired as appellant and his friends ran away.
Detective Sorenson testified that he recovered a "bullet slug . . . laying on the stoop" where Nix was shot. The bullet was turned over to the state forensics lab for analysis. Over appellant's objection, Tio Cio Seward testified that he was with appellant during the early hours of January 1, 1992, two days after Nix was shot, when he saw appellant shoot a man in the chest with a .32 caliber revolver. Clarice Brooks testified that she heard shots fired around midnight on January 1, 1992, and a few minutes later she walked past the body of a man near Stockton and Ninth Streets. After Brooks walked around the corner from where she saw the body, she saw Seward and appellant. Ann Jones, a firearms expert for the state, testified that she examined the bullet recovered from Nix's stoop and a bullet recovered from the body of Dennis Rock, the man shot on January 1, 1992. According to Jones, both bullets were .32 caliber and they "were both fired from the same firearm."
After hearing the evidence concerning the January 1, 1992 shooting, the trial judge stated:
The Court will accept and give the appropriate weight it deems . . . to the testimony of Mr. Seward, and that is on January 1, 1992, he saw this defendant fire a .32 caliber weapon into the chest [of] . . . Dennis Rock.
The trial judge expressly limited his acceptance of evidence of the January 1, 1992 shooting to the following purposes: to establish that appellant was seen shooting a firearm January 1, 1992, that he was observed in the vicinity of Dennis Rock's body on January 1, 1992, that Nix heard two shots fired on December 30, 1991, and that the bullet that was recovered from Rock's body came from the same weapon as the bullet found on the porch where Nix was shot. Regarding the trial court's acceptance of the contested evidence for any other purposes, the trial judge sustained appellant's "motion as to evidence of [another] crime."
The appellant took the stand and denied shooting Nix and Rock. At the close of the evidence, the trial judge found appellant guilty.
Generally proof tending to show an accused committed other crimes at other times is incompetent and inadmissible for the purpose of showing commission of the particular crime charged. But such evidence is admissible "if it tends to prove any relevant element of the offense charged" or if "the evidence is connected with or leads up to the offense for which the accused is on trial." Nevertheless, evidence of other crimes is permitted only when "the legitimate probative value outweighs the incidental prejudice to the accused."
Woodfin v. Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 380-81 (1988) (no abuse of discretion to admit "other crimes" evidence that bullets recovered from victims in unrelated shootings came from same weapon that fired bullets taken from victims for whose deaths defendant was on trial) (citations omitted), cert. denied, 490 U.S. 1009 (1989). See also Huffman v. Commonwealth, 168 Va. 668, 684, 190 S.E. 265, 272 (1937) (allowing evidence describing similar gun possessed and used by defendant a few hours before murder).
"The determination and weighing of the probative value of the proffered evidence rests largely with the trial court and will be reviewed only for an abuse of discretion." Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736, 740 (1989) (en banc) (upholding admission of other crimes evidence to establish "relevant" and "crucial" element, namely, identity of gunman where defendant, on cross-examination, challenged victim's ability to identify him).
"[I]n a bench trial, the trial judge is presumed to disregard prejudicial or inadmissible evidence, . . . and this presumption will control in the absence of clear evidence to the contrary." Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc).
The trial judge carefully explained the limited purpose for which he admitted and used the evidence pertaining to Rock's murder, namely, as evidence that, on January 1, 1992, appellant was seen possessing and using the same weapon used on December 30, 1991, to shoot Nix. Linking appellant to the firearm was relevant, as was Nix's identification of appellant as the perpetrator, which appellant challenged. See Woodfin, 236 Va. at 95, 372 S.E.2d at 380-81; Lewis, 8 Va. App. at 581, 383 S.E.2d at 740; Curtis v. Commonwealth, 3 Va. App. 636, 638, 352 S.E.2d 536, 537 (1987) (holding that unique or unusual similarities of other crimes with offense being tried was admissible to establish identity).
Accordingly, the trial judge did not abuse his discretion in admitting the evidence of the January 1, 1992, incident.
Nix unequivocally identified appellant as the person who shot him in his eye. The testimony of Seward, Brooks, and Nix, in conjunction with the forensic evidence, linked appellant with the weapon used to injure Nix and a weapon used in the January 1, 1992 shooting. The trial judge believed the Commonwealth's witnesses and rejected appellant's 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). The Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that appellant was guilty of the charged offenses.
Therefore, we affirm the trial court.
Affirmed.