Lorri Denise Smith v. Commonwealth of Virginia and the City of Newport News ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Fulton, Ortiz and Raphael
Argued at Norfolk, Virginia
LORRI DENISE SMITH
MEMORANDUM OPINION* BY
v. Record No. 0710-21-1 JUDGE DANIEL E. ORTIZ
JULY 26, 2022
COMMONWEALTH OF VIRGINIA AND
THE CITY OF NEWPORT NEWS
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Bryant L. Sugg, Judge
Catherine A. Tatum, Assistant Public Defender, for appellant.
David A. Mick, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee Commonwealth of
Virginia.
No brief or argument for appellee The City of Newport News.
The trial court convicted Lorri Denise Smith of malicious wounding, use of a firearm during
the commission of a felony, shooting into an occupied vehicle, violating a protective order while
armed with a deadly weapon, possessing a firearm while a protective order was in effect, and
destruction of property. Smith argues that the evidence is insufficient to support her convictions.
We find no merit to Smith’s arguments and affirm her convictions.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
doing so, we discard any of Smith’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn from that evidence.
Gerald, 295 Va. at 473.
On October 14, 2018, Jada Ringer and Smith argued. Ringer and Smith had been in a
romantic relationship and after it ended, Ringer asked Smith to return the key to her apartment that
she had given Smith. Around 4:00 p.m., Ringer left her apartment, locked the door behind her, and
returned approximately two hours later. When Ringer returned, she noted that although the door
was shut, it was no longer locked. Upon entering her apartment, Ringer discovered that the cords to
her television, cable box, and internet router had all been cut. Also, a shower curtain and an air
mattress had been slashed. Smith was the only other person who had a key to Ringer’s apartment.
After the incident, Ringer obtained a protective order against Smith. Ringer testified that Smith
later admitted that she had cut the electrical cords at Ringer’s apartment and apologized when she
learned that the television belonged to Ringer’s sister.
In December 2018, Ringer and Smith rekindled their relationship although the protective
order was still in effect. Ringer lived in the same apartment, and Smith still retained a key to the
unit. Early in the morning on December 19, 2018, Smith and Ringer began arguing. Smith struck
Ringer in the face and after a brief physical altercation, Smith left the apartment. Ringer could not
find her phone and went outside to ask Smith if she had it. But Smith was brandishing a gun and
screaming that she wanted her belongings back. Ringer entered her car, intending to extricate
herself from the fray and go to work, but as she began exiting her parking space, Smith shot the
car’s headlight. Scared, Ringer accelerated and tried to flee. Smith fired more shots, striking
Ringer three times, twice in her arm and once in her back. As she drove away, Ringer saw Smith
with the gun in her hand. Ringer drove to a nearby gas station and called the police.
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Smith admitted that she was at Ringer’s apartment and fought with her, but Smith denied
that she shot Ringer and stated that her mother picked her up. Smith’s mother testified that she
picked up Smith and drove her home. Smith also denied that she entered the apartment in October
or damaged Ringer’s property. The trial court rejected Smith’s testimony and convicted her of the
charged offenses. This appeal followed.
ANALYSIS
Smith argues that the evidence is insufficient to support her convictions. “On review of the
sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not be
disturbed unless it is plainly wrong or without evidence to support it.’” Ingram v.
Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460
(2018)). “The question on appeal, is whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Yoder v.
Commonwealth, 298 Va. 180, 182 (2019)). “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.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
Smith contends that the evidence failed to “establish that she was the perpetrator of the
destruction of property offense on October 14, 2018.” She also argues that “the evidence was
insufficient to establish that she was the perpetrator of the five felony offenses in connection
with the shooting on December 19, 2018.”
“At trial, the Commonwealth bears the burden of proving the identity of the accused as
the perpetrator beyond a reasonable doubt.” Cuffee v. Commonwealth, 61 Va. App. 353, 364
(2013) (quoting Blevins v. Commonwealth, 40 Va. App. 412, 423 (2003)). On appeal, we review
the trier of fact’s determination regarding the identity of the criminal actor in the context of “the
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totality of the circumstances.” Brown v. Commonwealth, 37 Va. App. 507, 523 (2002) (quoting
Satcher v. Commonwealth, 244 Va. 220, 249 (1992)).
Smith asserts that “Ringer alleged that Smith was responsible for damaging property
within her apartment, but provided no evidence other than her own testimony to support her
allegation.” She also states that the “Commonwealth relied heavily on Ringer’s claim that Smith
later apologized for damaging the property after learning that the television belonged to her
sister; however, no one else corroborated that apology.” She concludes that “[w]ithout
additional evidence, . . . Ringer’s testimony was insufficient to establish Smith as the perpetrator
of the October offense beyond a reasonable doubt.”
Similarly, Smith argues that Ringer’s identification alone of Smith as the perpetrator
“was insufficient to find her guilty beyond a reasonable doubt for all five of the December
offenses.” “Smith’s contention is not that Ringer was unable to properly identify her, but rather
that she intentionally and falsely identified her as the perpetrator of the December offenses.”
“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) (quoting Lea v.
Commonwealth, 16 Va. App. 300, 304 (1993)). “[T]he conclusions of the fact finder on issues of
witness credibility may be disturbed on appeal only when we find that the witness’ testimony
was ‘inherently incredible, or so contrary to human experience as to render it unworthy of
belief.’” Ragsdale v. Commonwealth, 38 Va. App. 421, 429 (2002) (quoting Ashby v.
Commonwealth, 33 Va. App. 540, 548 (2000)). “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.’” Gerald, 295
Va. at 487 (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).
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Moreover, “[m]erely because [a] defendant’s theory of the case differs from that taken by
the Commonwealth does not mean that every reasonable hypothesis consistent with his
innocence has not been excluded. What weight should be given evidence is a matter for the
[factfinder] to decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (alterations in
original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)). “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.” Flanagan v.
Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth, 27 Va. App.
505, 509-10 (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)).
[W]hen “faced with a record of historical facts that supports
conflicting inferences,” a court reviewing the sufficiency of the
evidence “must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.”
Harper v. Commonwealth, 49 Va. App. 517, 523 (2007) (quoting Jackson v. Virginia, 443 U.S.
307, 326 (1979)). Finally, it is well established that “the testimony of a single witness, if found
credible by the trial court and not found inherently incredible by this Court, is sufficient to
support a conviction.” McCary v. Commonwealth, 36 Va. App. 27, 41 (2001).
Here, the trial court accepted Ringer’s testimony and rejected Smith’s version of the
events. Ringer testified without contradiction that when she left her apartment on October 14,
2018, she locked the door. When she returned a few hours later, however, the door to the
apartment was closed but unlocked. Someone had entered the apartment and slashed or cut
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numerous items of personal property. Smith was the only person other than Ringer who
possessed a key to the apartment. That circumstance was consistent with the closed but unlocked
door which confronted Ringer upon her return. Furthermore, Ringer testified that Smith later
called her and apologized for damaging the property, thus admitting that she was the perpetrator.
Likewise, Ringer positively identified Smith as the person who struck her and then shot
her and her car. Smith admitted that she and Ringer fought at Ringer’s apartment, thus
establishing that Smith was present at the scene. Although Smith denied striking or shooting
Ringer, Ringer’s testimony alone sufficiently established that Smith committed the offenses.
“When the law says that it is for the trier of fact to judge the credibility of a witness, the issue is
not a matter of degree.” Dalton, 64 Va. App. at 526 (quoting Simpson v. Commonwealth, 199
Va. 549, 557 (1957)). “So long as a witness deposes as to facts, which, if true, are sufficient to
maintain their verdict, . . . [and] the trier of the facts sees fit to base the verdict upon that
testimony, there can be no relief in the appellate court.” Id. (quoting Simpson, 199 Va. at
557-58). “[T]he testimony of a single witness, if found credible by the trial court and not found
inherently incredible by this Court, is sufficient to support a conviction.” McCary, 36 Va. App.
at 41. Here, Ringer’s testimony established that Smith committed the charged offenses.
CONCLUSION
For the foregoing reasons, we find that the evidence was sufficient to prove Smith’s guilt
beyond a reasonable doubt, and we affirm her convictions.
Affirmed.
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