Towler v. Commonwealth

• Decision Date: 20 December 2011
• Docket Number: Record No. 0990–10–3.
• Citation: 59 Va.App. 284,718 S.E.2d 463
• Parties: Jamie Lee TOWLER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 284

718 S.E.2d 463

Jamie Lee TOWLER

v.COMMONWEALTH of Virginia.

Record No. 0990–10–3.

Court of Appeals of Virginia, Salem.

Dec. 20, 2011.

Thomas L. Phillips, Jr. (Phillips, Morrison, Johnson & Ferrell, Rustburg, on brief), for appellant.

Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ROBERT P. FRANK, Judge.

Jamie Lee Towler, appellant, was convicted of robbery, in violation of Code § 18.2–58, attempted robbery, in violation of Code §§ 18.2–26 and 18.2–58, statutory burglary,¹ in violation of Code § 18.2–91, two counts of use of a firearm in the commission of robbery and burglary, in violation of Code § 18.2–53.1, and unlawfully wearing a mask, in violation of Code § 18.2–422.² On appeal, he challenges the sufficiency of the evidence. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

On December 1, 2008, shortly before 9:00 p.m., a Caucasian man, with his face partially concealed but with his eyes exposed, approached J.H., a technician at the pharmacy counter of a CVS in Altavista, Virginia. He passed J.H. a note demanding money and threatening to kill her. J.H. testified at trial that the man pushed up his shirt and showed her a gun. J.H. observed the handle and trigger of the weapon. J.H. testified she was terrified.³ She went to the cash register, opened the register, and put the money into a bag. J.H. gave appellant the money because he had a gun. Appellant never pointed the gun at J.H.

The man then screamed and demanded “all the money and the Oxycontin” from the pharmacist. The pharmacist also testified he was in fear of appellant. After the pharmacist told him that he could not access the safe where the Oxycontin was kept, the man demanded that the pharmacist give him prescriptions for Oxycontin that had already been filled for other customers. At no time did appellant make any effort to come across the counter, nor did he make any gestures toward the pharmacist. After the pharmacist explained that it would take a long time to examine all of the filled prescriptions, J.H. handed the man approximately $230 from the cash registers at the pharmacy counter. The man told J.H., “I see you looking at me, yeah, I got brown eyes.” ⁴ Appellant never received any drugs.

J.M., the sales manager at CVS, was exiting the stockroom when he saw a Caucasian man at the pharmacy counter wearing a hoodie, a mask, and “urban camouflage pants.” The man told J.M., in a threatening tone, to get on the floor. J.M. said he was in a “stress-panic mode,” sweating with his pulse racing. The man pointed something black at him, which he believed to be either a gun or a black glove. After a closer look, J.M. indicated the item looked more like a 9 millimeter gun. Afterwards, J.M. heard the man demand Oxycontin and money from the employees at the pharmacy counter. J.M. felt “pretty confident,” based on the man's mannerisms, gait, build, and voice, that the man was appellant. J.M. was familiar with appellant because appellant was a regular CVS customer.

On the night of the robbery, Captain Ken Walsh, of the Altavista Police Department, contacted several informants, inquiring if they had heard about the incident at the CVS. One of those informants, B.P., called Walsh that night. She said that appellant had told her he had over $200 ⁵ he received from a guy at CVS. Appellant told B.P. he was going to buy some Lortab or Oxycontin with the money and sell it to B.P.

On December 2, 2008, the police set up a controlled buy between B.P. and appellant. B.P. gave appellant money in exchange for several pills. Walsh testified that when B.P. returned from the exchange, she appeared very scared and was shaking. She told Walsh that appellant had approached her from behind and was carrying a dark-colored semi-automatic pistol in his hand.

The same day, police went to appellant's house and told him that they wanted to speak with him about an incident at CVS. Appellant stated he had no guns or pills at the house and “did not do no armed robbery,” even though the police never mentioned a gun was used in the robbery. Appellant, upon arrest, told Walsh he used to have a problem with Oxycontin and Lortab, but no longer did.

At trial, B.P. testified she contacted appellant about purchasing some Lortab or Oxycontin. Appellant told her that he had borrowed some money from a guy at CVS and would try to get some pills for her. B.P. testified that appellant later told her he had “fucked up” and robbed CVS. Appellant told B.P. he got money,⁶ but no drugs. He told B.P. he went into CVS to rob it for Oxycontin.

When B.P. met appellant for the drug purchase, appellant was carrying what appeared to B.P. to be a black 9 mm gun, “like the ones the police carry.”

In denying appellant's motion to reconsider the guilty verdict, the trial court found appellant's testimony not credible, but found B.P. to be credible.

This appeal follows.

ANALYSIS

Appellant raises five assignments of error, all dealing with sufficiency of the evidence. In examining a challenge to the sufficiency of the evidence, appellate courts will review the evidence in the light most favorable to the party prevailing at trial and consider any reasonable inferences from the proven facts. Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003). The judgment of the trial court is presumed to be correct and will be reversed only if it is “plainly wrong or without evidence to support it.” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).

Appellant first contends the evidence is insufficient to prove use of a firearm in the commission of burglary because the uncontroverted evidence proves he did not display a firearm until after the burglary was completed. We do not address this issue because it was not an assignment of error included in his petition for appeal. Appellant concedes he first raised this assignment of error in his demand for consideration by a three-judge panel of this Court. The order from the panel granting the appeal stated only: “A judge of this Court having determined that this petition should be granted, an appeal is hereby awarded to the petitioner from a judgment of the Circuit Court of Campbell County dated June 29, 2010.” “Only assignments of error assigned in the petition for appeal will be noticed by this Court.” Rule 5A:12(c)(1)(i).⁷ We therefore decline to consider this argument.

Next, appellant challenges the sufficiency of the evidence that identified him as the perpetrator of the CVS incident. Specifically, he argues B.P.'s testimony is inherently incredible. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995). When “credibility issues have been resolved by the jury in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong.” Corvin v. Commonwealth, 13 Va.App. 296, 299, 411 S.E.2d 235, 237 (1991).

When the law says that it is for triers of the facts to judge the credibility of a witness, the issue is not a matter of degree. So long as a witness deposes as to facts[,] which, if true, are sufficient to maintain their verdict, then the fact that the witness' credit is impeached by contradictory statements affects only the witness' credibility; contradictory statements by a witness go not to competency but to the weight and sufficiency of the testimony. If the trier of the facts sees fit to base the verdict upon that testimony there can be no relief in the appellate court.

Swanson v. Commonwealth, 8 Va.App. 376, 379, 382 S.E.2d 258, 259 (1989).

We should first note the trial court, as fact finder, found B.P.'s testimony credible and discounted appellant's testimony as not worthy of belief.

Appellant premises his argument as to B.P.'s credibility on the timing of the detective's telephone calls to her and her responding to the detective. Assuming there are inconsistencies in the sequence of these phone calls, there is other evidence that supports B.P.'s testimony and appellant's involvement in the robbery. Despite not being advised how much money was taken from CVS nor that appellant was a suspect, B.P. told the detective appellant had received over $200 from a man at CVS.

J.M. identified appellant as the perpetrator by his voice, mannerisms, gait, and build. Without the police telling appellant a gun was used in the robbery, appellant denied being involved in an “armed robbery.” The perpetrator specifically demanded Oxycontin. Appellant admitted he had formerly had a problem with Oxycontin. The gun described by J.M. was similar in description to the one appellant had when he sold the pills to B.P. B.P.'s testimony that appellant said he got money but no drugs was corroborated by the CVS employees.

B.P.'s testimony was corroborated by other evidence. Potential inconsistencies in testimony are resolved by the fact finder. We do not revisit such conflicts on appeal “unless ‘the evidence is such that reasonable [persons], after weighing the evidence and drawing all just inferences therefrom, could reach but one conclusion.’ ” Molina v. Commonwealth, 47 Va.App. 338, 369, 624 S.E.2d 83, 98 (quoting City of Bedford v. Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214 (2001)), aff'd, 272 Va. 666, 636 S.E.2d 470 (2006). We conclude the trial court did not err in finding appellant was the perpetrator.

Appellant next assigns error to his conviction for use of a firearm in the commission of burglary under Code § 18.2–91 (statutory burglary) because he contends the burglary described in Code § 18.2–53.1 is limited to common law burglary.

We have addressed this precise issue in Rashad v. Commonwealth, 50 Va.App. 528, 651 S.E.2d 407 (2007), and “conclude...