Potts v. Commonwealth

RYAN TAYLOR POTTS v. COMMONWEALTH OF VIRGINIA

No. 1244-21-2

Court of Appeals of Virginia

December 13, 2022

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY S. Anderson Nelson Judge

(Craig P. Tiller; Craig P. Tiller, Esq., PLLC, on briefs), for appellant. Appellant submitting on briefs.

Victoria Johnson, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges AtLee and Malveaux

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE.

The trial court convicted appellant of assault and battery, in violation of Code § 18.2-57, and failure to appear, in violation of Code § 19.2-128. He challenges the sufficiency of the evidence supporting his convictions. For the following reasons, we affirm the trial court's judgment.

BACKGROUND^[1]

On appeal, we recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

In January 2021, Nancy Tichenor's granddaughter, Calysta Tichenor, and Calysta's fiancé, appellant, lived in Nancy's home. Initially, appellant and Calysta lived in the basement but had been staying in a "makeshift area in the living room" "due to conditions in the basement." Nancy's relationship with Calysta was strained because Nancy did not like appellant.^[2] In late January 2021, Nancy spoke with appellant in the living room and ordered him to move out. Immediately after, Nancy entered her bedroom, locked the door, and sat on her bed. Appellant followed her into the bedroom and "object[ed] to the eviction." Appellant then "stepped toward" Nancy, she stood, and appellant struck her left cheek and jaw. Nancy fell onto the bed and screamed for her son. Appellant returned to the living room, lay on a mattress in a fetal position, and cried. The Commonwealth introduced photographs of Nancy's face taken two days after the incident, as well as photographs taken during the week following the incident.

At trial, appellant denied that he had entered Nancy's bedroom, engaged in an altercation with her, or assaulted her. He stated that he heard Nancy enter her bedroom, but he never heard the "locking mechanism" engage. He testified that he overheard "Stacy Tichenor"^[3] enter Nancy's bedroom and threaten to make false accusations against appellant. Appellant maintained that he was frightened and fled to a neighbor's home. He stated that he had attempted to call 911 but could not because "his phone was not operating sufficiently to allow that." The neighbor called 911 for him. On cross-examination, appellant stated that he had sent a police officer a video from his phone that proved his innocence.

Regarding appellant's conviction for failure to appear, the record reflects that trial was set on August 19, 2021, following appellant's motion for a continuance. On August 20, 2021, the trial court issued a show cause and a capias when appellant did not appear for trial. Appellant testified that he had been unaware of the trial date and maintained that his change of address was never entered into the court system. On cross-examination, he acknowledged that he "had not kept good contact with his attorney regarding his trial date." At the conclusion of the evidence, the trial court convicted appellant of both charges. This appeal followed.

ANALYSIS

"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).

A. Assault and Battery

Appellant asserts that the evidence was insufficient to support his assault and battery conviction because Nancy's testimony was inherently incredible. He asserts that her testimony was not credible because she testified that he entered her bedroom, but also testified that she had locked her bedroom door. Further, appellant maintains that Nancy was biased against him because she opposed his relationship with her granddaughter. Relying on his testimony, he contends that the evidence failed to exclude the reasonable hypothesis that Stacy assaulted Nancy.^[4] We disagree.

"Determining the credibility of witnesses . . . is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va.App. 512, 525 (2015) (first alteration in original) (quoting Lea v. Commonwealth, 16 Va.App. 300, 304 (1993)). When the trier of fact has resolved credibility issues in favor of the Commonwealth, we will not disturb those findings on appeal "unless plainly wrong." Towler v. Commonwealth, 59 Va.App. 284, 291 (2011) (quoting Corvin v. Commonwealth, 13 Va.App. 296, 299 (1991)). "[T]his [C]ourt will not seek to pass upon the credibility of the witnesses where their evidence is not inherently incredible." Gerald v. Commonwealth, 295 Va. 469, 486 (2018) (alterations in original) (quoting Rogers v. Commonwealth, 183 Va. 190, 201-02 (1944)). "Evidence is not 'incredible' unless it is 'so manifestly false that reasonable men ought not to believe it' or 'shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ.'" Id. at 487 (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).

"[T]he Commonwealth is 'not required to exclude every possibility' of the defendant's innocence but, rather, 'only . . . hypotheses of innocence that flow from the evidence.'" Rams v. Commonwealth, 70 Va.App. 12, 28 (2019) (second alteration in original) (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)). This "reasonable-hypothesis principle," however, "is not a discrete rule unto itself" and "does not add to the burden of proof placed upon the Commonwealth in a criminal case." Vasquez, 291 Va. at 249-50 (quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). The Commonwealth need not "negate what 'could have been' or what was a 'possibility.'" Nelson v. Commonwealth, 281 Va. 212, 217-18 (2011). Thus, while "a factfinder cannot 'arbitrarily' choose, as between two equally plausible interpretations of a fact, one that incriminates the defendant," an arbitrary choice occurs "only when no rational factfinder could believe the incriminating interpretation of the evidence and disbelieve the exculpatory one." Vasquez, 291 Va. at 250. "When examining an alternate hypothesis of innocence, the question is not whether 'some evidence' supports the hypothesis, but whether a rational factfinder could have found that the incriminating evidence renders the hypothesis of innocence unreasonable." Id. (quoting Hudson, 265 Va. at 513).

Here, Nancy testified that appellant followed her into her room, "object[ed] to the eviction," "stepped toward" her, and struck her left cheek and jaw. Neither Nancy's bias against appellant nor her claim that she locked her bedroom door behind her negates an essential element of the offense or renders her testimony inherently incredible as a matter of law. "[T]he mere fact that a witness' testimony may have been impeached does not necessarily render the testimony inherently incredible." Ray v. Commonwealth, 74 Va.App. 291, 306 (2022). Indeed, "evidence with some element of untrustworthiness is customary grist for the [fact finder's] mill." Manson v. Brathwaite, 432 U.S. 98, 116 (1977). Any impeachment of Nancy's testimony was "appropriately weighed as part of the entire issue of witness credibility, which is left to the [fact finder] to determine." Juniper, 271 Va. at 415. In addition, the trial court was permitted to reject appellant's self-serving testimony that Stacy Tichenor assaulted Nancy and to conclude that he was lying to conceal his guilt. See Flanagan v. Commonwealth, 58 Va.App. 681, 702 (2011) ("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." (quoting Marable v. Commonwealth, 27 Va.App. 505, 509-10 (1998))). Accordingly, from the above circumstances, a rational fact finder could conclude that appellant was angered by Nancy's announcement and struck her in the face during an altercation. Thus, the evidence was competent, credible, and sufficient to prove beyond a reasonable doubt that appellant was guilty of assault and battery.

B. Failure to Appear

Appellant contends that the evidence was insufficient to prove that he willfully...