Lennis L. McNair, Jr. v. Commonwealth of Virginia

                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Huff and O’Brien
              Argued by videoconference
UNPUBLISHED




              LENNIS L. McNAIR, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1299-19-1                                      JUDGE GLEN A. HUFF
                                                                                 OCTOBER 20, 2020
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                            Christopher R. Papile, Judge

                               Andrew M. Sacks (Sacks & Sacks, P.C., on brief), for appellant.

                               A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a bench trial, Lennis McNair (“appellant”) was convicted for unlawful

              wounding in violation of Code § 18.2-51 and sentenced to five years’ incarceration with four

              years and nine months suspended. Appellant contends that, because the trial court found parts of

              the complaining witness’ version of events incredible, the trial court erred by not finding her

              entire testimony incredible. Appellant further contends that because the complaining witness’

              entire testimony was inherently incredible, the evidence is insufficient as a matter of law to

              sustain his conviction.

                     A trial court is not required to find the entirety of a witness’ testimony inherently

              incredible as a matter of law solely because it found a portion of that witness’ testimony

              incredible. The trial court’s factual finding that appellant continued to attack the complaining




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
witness in a fit of rage after seizing control of her knife is supported by the evidence. Therefore,

this Court affirms.

                                        I. BACKGROUND

       On appeal, this Court “consider[s] the evidence and all reasonable inferences flowing

from that evidence in the light most favorable to the Commonwealth, the prevailing party at

trial.” Williams v. Commonwealth, 

49 Va. App. 439

, 442 (2007) (en banc) (quoting Jackson v.

Commonwealth, 

267 Va. 666

, 672 (2004)). So viewed, the evidence is as follows:

       On November 6, 2018, a Newport News police officer responded to a call where he

found the victim, Kimberly Galloway, bleeding severely from her head. Further examination

revealed severe lacerations to Galloway’s head, left hand, and left wrist. After speaking with

individuals at the scene, the police developed appellant as a suspect.

       Galloway testified that she had a prior sexual relationship with appellant which included

mutual drug use. According to Galloway, on the night of November 5, 2018, she noticed

appellant at his old apartment. They began talking, and he agreed to pay her twenty dollars to

help him move to his fiancée’s home. Galloway admitted she had been using crack cocaine and

drinking alcohol at the time. Galloway claimed that during the move, appellant started punching

her and took the twenty dollars back. She testified that when she tried to leave, he chased her

around the car. Nonetheless, she said that she decided to finish helping him move in order to get

the twenty dollars.

       She claimed that when they got back to his old apartment, he pulled out a knife, put it

against her neck, got on top of her, and started stabbing her. She also testified that during this

altercation, appellant called his fiancée and said, “I’m going to kill this bitch, and you better get

me out of jail.” She was eventually able to get away and run to the home of her friend, Frederick




                                                 -2-
Benjamin, who called 911. Galloway admits that her recollection of the events is not necessarily

complete or in the correct order. She also has a prior perjury conviction.

       According to appellant, on the way back to his old apartment, Galloway asked to stop at a

house to speak with an individual to whom she owed money. When they arrived back at

appellant’s old apartment, two men in ski masks walked up to the car and tried to rob appellant.

At the same time, Galloway pulled out a knife and she and appellant started struggling for

control of the knife. Appellant contended that Galloway’s forehead was cut during the struggle

and while she still possessed the knife. He claimed that the injuries to her hand and wrist “most

likely” occurred after he gained control of the knife because she was trying to grab it back. After

gaining control over the knife, appellant blew his horn, causing the two men to run away. He

then told Galloway to get out of his car and threw the knife out towards her. While driving

away, appellant called Galloway’s mother and told her he had stabbed Galloway because she

tried to rob him. Appellant stated that Galloway received the “worse end of the deal,” and got

what she deserved for trying to rob and cut him.

       The trial court found that Galloway’s version of events was incredible and credited

appellant’s testimony that an attempted robbery occurred. However, the trial court stated that it

did “not believe that these injuries to . . . Ms. Galloway could have occurred while they were

struggling over a knife.” Rather, it found that appellant was “irate in a sense” and “in a fit of

rage, continued to assault and stab and cut Ms. Galloway” in retaliation after gaining control of

the knife. The trial court reasoned that because appellant continued to stab Galloway after she

was no longer a threat, self-defense did not apply.

       The trial court acquitted appellant of the kidnapping charge, struck the malicious

wounding charge, and convicted appellant of the lesser-included offense of unlawful wounding.




                                                -3-
It sentenced him to five years of incarceration with four years and nine months suspended. This

appeal followed.

                                  II. STANDARD OF REVIEW

        “When reviewing a challenge to the sufficiency of the evidence, this Court considers the

evidence in the light most favorable to the Commonwealth, the prevailing party below, and

reverses the judgment of the trial court only when its decision is plainly wrong or without

evidence to support it.” Marshall v. Commonwealth, 

69 Va. App. 648

, 652-53 (2019). “[I]f

there is evidence to support the conviction, the reviewing court is not permitted to substitute its

judgment, even if its view of the evidence might differ from the conclusions reached by the

finder of fact at the trial.” Linnon v. Commonwealth, 

287 Va. 92

, 98 (2014) (quoting Lawlor v.

Commonwealth, 

285 Va. 187

, 224 (2013)).

                                          III. ANALYSIS

       Appellant argues that because the trial court found Galloway’s version of events

incredible, it should have found the entirety of her testimony to be incredible. Therefore,

appellant argues, the trial court was obligated to accept his testimony in its entirety as the only

remaining credible evidence.1 Accordingly, appellant contends that any evidence supporting his

conviction is inherently incredible as a matter of law.

       Appellant is correct that the trial court found Galloway’s version of the events incredible.

However, that does not mean that the trial court was obligated to find each and every part of her



       1
         The Commonwealth contends that appellant’s argument is barred by Rule 5A:18
because appellant did not make the specific legal argument to the trial court that after finding a
portion of Galloway’s testimony incredible it was obligated to find the entirety of her testimony
incredible as a matter of law. While it is true that appellant did not articulate his theory in such a
pointed fashion, appellant did argue that the entirety of Galloway’s testimony was incredible as
well as arguing that the evidence was insufficient to convict him. This Court holds that those
arguments were sufficient to preserve this issue for appeal.

                                                 -4-
testimony incredible. Furthermore, it did not obligate the trial court as a matter of law to accept

the entirety of appellant’s testimony. “A fact finder’s evaluations of credibility are not limited to

choosing between competing accounts offered by different witnesses.” Commonwealth v.

McNeal, 

282 Va. 16

, 22 (2011). It involves the fact finder “resolving conflicts in a single

witness’s testimony, accepting part of the testimony that it deems credible and rejecting the

portion it deems incredible.”

Id. Furthermore, “[t]he fact

finder, who has the opportunity to see

and hear witnesses, has the sole responsibility to determine their credibility, the weight to be

given their testimony, and the inferences to be drawn from proven facts.” Commonwealth v.

Taylor, 

256 Va. 516

, 518 (1998). “When ‘credibility issues have been resolved by the [fact

finder] in favor of the Commonwealth, those findings will not be disturbed on appeal unless

plainly wrong.’” Towler v. Commonwealth, 

59 Va. App. 284

, 291 (2011) (quoting Corvin v.

Commonwealth, 

13 Va. App. 296

, 299 (1991)).

       To support a conviction of unlawful wounding, the evidence must establish that the

appellant stabbed or cut Galloway with the intent to “maim, disfigure, disable, or kill” her.

Code § 18.2-51. Appellant does not dispute that he wounded Galloway. Accordingly, appellant

contests only whether he possessed the necessary intent.

       Viewing the evidence in the light most favorable to the Commonwealth, there was

evidence to support the trial court’s finding that appellant became irate and continued stabbing

Galloway after he gained control of the knife. Galloway suffered severe cuts and stab wounds

on her head, hand, and wrist that were unlikely to have occurred solely in a struggle for

possession of the knife. Indeed, as the trial court noted, Galloway’s wounds were more likely

the result of intentional action. Furthermore, in his statements after the incident, appellant

continuously stated that Galloway got what she deserved and that he cut her because she tried to

rob him. Despite the attempted robbery and the severity of Galloway’s injuries, appellant

                                                -5-
neglected to call either the police or emergency medical services. These facts support the trial

court’s finding that appellant stabbed and cut Galloway out of anger after gaining possession of

the knife. Therefore, its finding is not plainly wrong or without evidence to support it.

                                       IV. CONCLUSION

       The evidence supports the trial court’s finding that appellant stabbed and cut Galloway

out of anger and after gaining full control of the knife. Accordingly, the evidence is sufficient to

sustain his conviction for unlawful wounding and this Court affirms.

                                                                                            Affirmed.




                                                -6-
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