Opinion
Record No. 0214-93-3
Decided: November 8, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE, Clifford R. Weckstein, Judge
Affirmed.
Richard L. Derrico (Copenhaver, Ellett Cornelison, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General; Jerry P. Slonaker, Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Troy Lamont Alexander (Alexander) appeals his conviction by bench trial for robbery in violation of Code Sec. 18.2-58. Alexander asserts that the evidence was insufficient to sustain his conviction and that the trial court erred in refusing to admit evidence of the victim's prior criminal history of assaults. Finding no error, we affirm.
At trial, the Commonwealth adduced evidence which showed that Raleigh Evans (Evans), the victim, and a friend purchased alcoholic beverages and drove to the home of Debra Mason (Mason). Mason invited Evans and his friend to come inside.
Evans testified that once inside he was confronted by Alexander and Thesion Ford (Ford), Alexander's brother. Evans and Alexander argued about Evans's prior theft of Alexander's automobile. A struggle ensued with Ford and Alexander attacking Evans, knocking him down, and taking his wedding ring and watch.
As the struggle continued, Alexander armed himself with a steak knife. Evans testified that when he refused to give Alexander his wallet as demanded, Alexander pushed Evans against the wall, took the wallet from his pants pocket, and cut him twice across the chest. Evans then fled by jumping through a second story window screen.
During direct examination, Evans admitted that he had been convicted of three petit larceny crimes and one felony. On cross-examination, Evans denied having threatened to get even with Alexander for testifying against Evans in the auto theft case. When asked if he had also been convicted of "numerous assaults," Evans replied, "I don't know, have I? . . . You have my record right there." Defense counsel then asked if in fact there were six assault convictions in Evans's record. Evans replied, "I don't know." Defense counsel then began to list the convictions. The Commonwealth objected that those convictions were not material. The trial court sustained the objection, saying, "I sustain the objection. You may not use the assault convictions. . . . Lest there be [any] question, I think you already have the witness admitting that there are numerous assault convictions without objection." (Emphasis added.)
The defense evidence consisted of testimony from Ford and Mason. Ford testified that he neither saw a knife nor saw his brother take any property from Evans. He asserted that Evans had started the fight. Ford further testified that there was glass in the window through which Evans claimed to have escaped. Mason testified that there was glass in the window. She also testified that when Evans was convicted of stealing Alexander's car, she heard Evans say that he would "get" Alexander.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code Sec. 8.01-680). " '[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed.' " Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945)).
The trial court was in the best position to observe the witnesses and assess their demeanor during testimony. Evans's testimony was not inherently incredible. The trial court was within its discretion to accept the testimony adduced by the Commonwealth and reject that of the defense. Accordingly, we cannot say the verdict was plainly wrong or without support in the evidence.
With respect to Alexander's assertion that the trial court erred in refusing to allow admission of Evans's criminal record of assaults, we will assume, without deciding, that under the facts of the case, Alexander was permitted to assert a theory of self-defense. But see Snead v. Indiana, 490 N.E.2d 761, 762 (Ind. 1986) (self-defense is not a defense to a charge of robbery). We agree that an accused, in adducing evidence to support a claim of self-defense, may establish the character of the victim for turbulence and violence for the purpose of corroborating his claim, even though such trait is unknown to the accused. Barnes v. Commonwealth, 214 Va. 24, 25-26, 197 S.E.2d 189, 190 (1973). However, a plain reading of the record shows that evidence of Evans's criminal record of assaults was received by the trial court. In limiting further examination on the specifics of those convictions, the court was within its discretion to conduct the trial as it saw fit. See Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344 S.E.2d 389, 393 (1986).
In a bench trial especially, the trial court must weigh the requirements of a full and fair hearing of the evidence with the need for judicial economy. A fair reading of the record in this case shows that the trial court accepted that Evans had a propensity for violence as established by the fact of his prior criminal history of assaults. The court did not require additional testimony on the matter. Accordingly, it was not error to prohibit the defense from reciting the litany of Evans's convictions once the fact of those convictions had been admitted.
For the first time on appeal, Alexander also asserts that the Commonwealth "opened the door" to the introduction of Evans's complete criminal record. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).
For these reasons, we affirm Alexander's conviction.
Affirmed.