Felicia Gregg O'Brien, a/k/a Felicia K. Gregg v. CW ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
FELICIA GREGG O'BRIEN, A/K/A
FELICIA K. GREGG
MEMORANDUM OPINION * BY
v. Record No. 2400-97-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Felicia Gregg O'Brien appeals her convictions of involuntary
manslaughter and unlawful wounding. She argues that the trial
court erred in denying her motion to strike and not ruling that
she acted in self-defense. Finding no error, we affirm the
convictions.
We construe the evidence in the light most favorable to the
Commonwealth with all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975). Evidence that conflicts with the
Commonwealth's case must be discarded. See Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The trial court's ruling will not be disturbed on appeal unless
plainly wrong or without evidence to support it. See Smith v.
Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).
The victim and the defendant were part of two separate
groups that had been squabbling with each other. The victim was
riding with Tomekia Newell when they spotted the defendant and
two friends at a gas station. Newell pulled into the station and
stopped her car near the defendant. Newell planned to ask the
defendant what the problem was between the two groups. As the
defendant approached, Newell and the victim got out of the car
and stood beside each other. The defendant had keys in her right
hand which she made into a fist with the keys protruding between
her fingers. She swung, Newell threw up her arm to block the
blow, and the keys punctured Newell's hand.
Newell got a tire iron from her car and hit the defendant in
the head with it. One of the defendant's friends grabbed Newell
and fought with her while the defendant fought with the victim.
When the fighting stopped, the victim walked back and got into
Newell's car, and the two left. The victim was bleeding from
wounds received in the fight. She passed out on the way to the
hospital and died in surgery.
The victim died of a stab wound to her neck that severed
the subclavian artery. The autopsy showed that she was stabbed
five times: on the left side of her neck, the base of her neck,
her chest, her left arm, and her chin. The edges of the wounds
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were sharp, not very wide, but deep. An instrument between one
and two centimeters wide caused them.
After the fight the defendant went to a hospital complaining
of an assault. She required ten stitches to close her head
wound. She explained her injury to the officer who came to the
hospital to investigate her assault. The defendant said that
while she was in a phone booth a female came up and hit her with
a bottle. The next morning after being charged with the murder,
she told a different story. She claimed that the victim had hit
her in the head, and in defense of herself, she picked up
something off the ground and started swinging. The defendant
admitted that she told a false story the night before.
O'Brien asserts the evidence is insufficient to convict
because the Commonwealth introduced her statement that supports a
self-defense theory. She argues that when it introduced her
statement the Commonwealth introduced evidence that conflicted
with its theory that the defendant was the aggressor. She
concludes that two theories arise from the Commonwealth's
evidence, and the conviction cannot stand because one theory is a
hypothesis of innocence. We find this argument unconvincing.
That part of a confession that offers a theory favorable to
the defendant does not bind the Commonwealth. "Confessions are
to be weighed like all other evidence and a jury may believe them
in whole or in part, as reason may decide. If from the
confession itself, or other evidence, it appears to a rational
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mind that a part is not true, a jury does not have to accept it."
Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606
(1973). The fact finder may infer that defendant intended to
conceal her guilt with self-serving testimony. See Price v.
Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 642, 647 (1994).
This case rests on the credibility of the witnesses.
Newell's testimony contradicts that of the defense and is not
inherently incredible. See Robertson v. Commonwealth, 12 Va.
App. 854, 858, 406 S.E.2d 417, 419 (1991). It is the exclusive
province of the fact finder to assess the credibility of the
witnesses and to weigh their testimony. See Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
The trier of fact was free to disregard the defendant's evidence
of self-defense, and the evidence is sufficient to support the
convictions. See Bell v. Commonwealth, 2 Va. App. 48, 56, 341
S.E.2d 654, 658 (1986).
Concluding that the trial court properly denied the motion
to strike, we affirm the judgment.
Affirmed.
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