                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


MEDAD EL MUHAMMAD
                                          MEMORANDUM OPINION * BY
v.   Record No. 1300-01-2               JUDGE WALTER S. FELTON, JR.
                                             DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Craig S. Cooley for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Medad El Muhammad was convicted in a bench trial of robbery,

in violation of Code § 18.2-58, and unlawful wounding, in

violation of Code § 18.2-51.    On appeal, he contends (1) the

evidence was insufficient to support the convictions of robbery

and unlawful wounding, and (2) the trial court erred in finding

that the indictment for malicious wounding, filed after a

continuance was granted to Muhammad, did not constitute

prosecutorial vindictiveness.   We affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                            I.    BACKGROUND

                           A.    THE OFFENSES

     On March 11, 2000, Henry Taylor set out to cash his payroll

check.    He went to a bank on Jefferson Davis Highway, on the

southside of Richmond, but found it to be closed.       Returning

from the bank, he saw a friend, Jerry Barbour, who was sitting

as a passenger in Muhammad's vehicle.       Taylor asked Barbour if

he would take him to a bank in Mechanicsville to get his check

cashed.   Barbour asked Muhammad, who responded that he did not

know because he had to drop some people off.       Muhammad told

Taylor that he would be back in five minutes.       Taylor indicated

that he only knew Muhammad as "Mike," "Big Mike," or "Iron Mike"

and that they had been acquaintances since 1995 or 1996.

     Muhammad returned and told Taylor that he would take him

and Douglas Ellsworth to the bank for ten dollars each.       Taylor

agreed.   He and Ellsworth got into the vehicle with Muhammad,

Barbour, and an unidentified male.        Before arriving at the bank,

Barbour was dropped off.    Thereafter, Taylor and Ellsworth were

brought to the bank where they cashed their checks.       Each

provided Muhammad ten dollars for driving, but Muhammad

requested an additional ten dollars from each of them.       Taylor

paid Muhammad, but Ellsworth refused.

     Muhammad began driving back toward the southside at which

time Taylor asked if they could stop to pick up some beer.

Muhammad agreed, but instead drove to an area known as Century

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Garden.    When asked what was going on, Muhammad responded that

he was going to "check out some friends, somebody, a relative or

somebody."    They drove down a dirt road and stopped.    Muhammad,

Ellsworth, and the unidentified man got out of the vehicle and

urinated.    Upon returning to the vehicle, Muhammad began

fumbling around with his clothing, pulled out a knife, and

advanced on Taylor.

        Muhammad told Taylor, "You know what this is, man, now, I'm

going to kill you."    He then told Taylor to "give it up."

Taylor kicked Muhammad and leaned back as Muhammad tried to stab

him in the face.    Taylor yelled for Ellsworth to get out of the

car.    Taylor could not get out of the car and struggled with

Muhammad until Ellsworth opened the door from the outside.

Taylor fell to the ground and as he stood up, the unidentified

man grabbed him by the arm.    Muhammad then stabbed Taylor in the

back, telling him to "give it up."       Taylor surrendered $280 in

cash.

        Muhammad tried to get Taylor back into the vehicle, but he

resisted and ran away, falling in a ditch as he began to black

out.    Taylor managed to get out of the ditch and saw Edith

Seibert driving down the road.    He began "hollering and

screaming for somebody to stop [and] to help [him]."      Taylor ran

to the side of Seibert's car and begged for her to help him.       He

told her he had been robbed and stabbed.      Initially, Seibert

thought Taylor was drunk because she observed him fall into the

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ditch.    However, when he approached her car, Seibert saw blood

on Taylor's face.    Using her cell phone, she called the police

then exited her car to help.     She saw blood coming from the back

of Taylor's shirt.

                      B.   INVESTIGATION AND TRIAL

        Muhammad was initially charged with robbery, in violation

of Code § 18.2-58.    On December 7, 2000, trial was set to begin.

However, Muhammad requested a continuance on the grounds that a

material witness, Jerry Barbour, was not present.    The trial

court granted the continuance, with the Commonwealth's objection

noted, and set trial to begin on February 6, 2001.    On January

8, 2001, the Commonwealth obtained a direct indictment against

Muhammad on the charge of malicious wounding, in violation of

Code § 18.2-51.

        Prior to trial on February 6, 2001, Muhammad made a motion

to dismiss the indictment charging malicious wounding.    Muhammad

claimed that the charging was a retaliatory action taken by the

Commonwealth because he obtained a continuance on December 7,

2000.    The charging, he argues, violated his right to due

process.    After hearing arguments from both parties, the trial

court denied Muhammad's motion and continued to trial.

        At trial, Investigator Terry Mason testified as to the

robbery investigation.     On direct examination, he identified

photos taken of Taylor's back and facial wounds.     He stated that

the photos were taken at the scene prior to his arrival, but he

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observed the wounds at the hospital.    On cross-examination he

admitted that in obtaining an identification of Muhammad, he

used a single photo.   No photo array was used.   Investigator

Mason also admitted that he never took steps to determine if

Taylor cashed his check and never spoke to Ellsworth.

     Muhammad also testified in his own behalf.      He stated that

he did not know Taylor and he never had nicknames of "Mike,"

"Big Mike," or "Iron Mike."   Further, he denied any knowledge or

participation in the robbery and stabbing.   Muhammad was found

guilty of robbery, in violation of Code § 18.2-58, and unlawful

wounding, in violation of Code § 18.2-51, a lesser-included

charge of malicious wounding.

                 II.   SUFFICIENCY OF THE EVIDENCE

     We first consider whether the evidence was sufficient to

convict Muhammad of robbery and unlawful wounding.

           When the sufficiency of the evidence is
           challenged on appeal, it is well established
           that we must view the evidence in the light
           most favorable to the Commonwealth, granting
           to it all reasonable inferences fairly
           deducible therefrom. The conviction will be
           disturbed only if plainly wrong or without
           evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).   Muhammad claims that the evidence was insufficient to

convict him of robbery and unlawful wounding because of a




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tainted identification and uncorroborated allegations. 1       We

disagree.

        Mr. Taylor testified at trial that he had known Muhammad

for approximately six or seven years.      During that period he had

a few altercations with Muhammad.      Mr. Taylor stated that on

March 11, 2000, after cashing his check, Muhammad threatened him

and Mr. Ellsworth with a knife and demanded money.      Mr. Taylor

struggled with Muhammad and subsequently was stabbed in the

back.       Mr. Taylor identified Muhammad as his assailant.   At the

conclusion of the trial, the trial judge found the case to turn

on the issue of credibility, stating, "It's a credibility issue,

and I, I think Mr. Taylor's testimony is credible."

               The credibility of witnesses is a question
               exclusively for the [judge or] jury, and
               where a number of witnesses testify directly
               opposite to each other, the [judge or] jury
               is not bound to regard the weight of the
               evidence as equally balanced, they have the
               right to determine from the appearance of
               the witnesses on the stand, their manner of
               testifying, and their apparent candor and
               fairness, their apparent intelligence, or
               lack of intelligence, and from all the other
               surrounding circumstances appearing on the
               trial, which witnesses are more worthy of
               credit, and to give credit accordingly.

Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29

(1949).      Mr. Taylor's testimony, believed by the trial judge,



        1
       Because Muhammad failed to object to the admissibility of
his identification by Taylor, our consideration is limited to
the weight given by the trial court to Taylor's testimony
identifying Muhammad as his assailant.

                                   - 6 -
was sufficient to establish that Muhammad robbed and unlawfully

wounded him.

               III.    PROSECUTORIAL VINDICTIVENESS

     We next consider whether the Commonwealth engaged in

prosecutorial vindictiveness when it obtained an indictment for

malicious wounding after a continuance was granted to Muhammad.

Muhammad argues that the trial court erred in denying his motion

to dismiss the malicious wounding indictment.   He contends that

he was denied due process when the Commonwealth vindictively

sought an indictment against him for a serious charge, after he

successfully obtained a continuance.    We disagree.

     In United States v. Goodwin, 457 U.S. 368 (1982), the

Supreme Court declined to apply a presumption of prosecutorial

vindictiveness in a pretrial setting.   In Goodwin, the defendant

moved to set aside the verdict, arguing that his indictment and

conviction on a felony charge, after he refused to plead guilty

and requested a jury trial on the pending misdemeanor charges,

constituted prosecutorial vindictiveness.    Id. at 370.

     The Supreme Court held that "a mere opportunity for

vindictiveness is insufficient to justify the imposition of a

prophylactic rule. . . . '[T]he Due Process Clause is not

offended by all possibilities of increased punishment . . . but

only by those that pose a realistic likelihood of

vindictiveness.'"   Id. at 384 (quoting Blackledge v. Perry, 417

U.S. 21, 27 (1974)).   The Court recognized that:

                               - 7 -
          a defendant before trial is expected to
          invoke procedural rights that inevitably
          impose some "burden" on the prosecutor.
          Defense counsel routinely file pretrial
          motions to suppress evidence; to challenge
          the sufficiency and form of an indictment;
          to plead an affirmative defense; to request
          psychiatric services; to obtain access to
          government files; to be tried by a jury. It
          is unrealistic to assume that a prosecutor's
          probable response to such motions is to seek
          to penalize and to deter. The invocation of
          procedural rights is an integral part of the
          adversary process in which our criminal
          justice system operates.

               . . . A prosecutor should remain free
          before trial to exercise the broad
          discretion entrusted to him to determine the
          extent of the societal interest in
          prosecution. An initial decision should not
          freeze future conduct . . . . [T]he initial
          charges filed by a prosecutor may not
          reflect the extent to which an individual is
          legitimately subject to prosecution.

Id. at 381-82.   "To presume that every case is complete at the

time an initial charge is filed, however, is to presume that

every prosecutor is infallible--an assumption that would ignore

the practical restraints imposed by often limited prosecutorial

resources."   Id. at 382 n.14.

     In refusing to apply a presumption of vindictiveness in a

pretrial setting, the Supreme Court did not foreclose the

possibility that a defendant may, in appropriate circumstances,

"prove objectively that the prosecutor's charging decision was

motivated by a desire to punish him for doing something the law

plainly allowed him to do."      Id. at 384.   In the case before us,

Muhammad must objectively show that the Commonwealth's action of

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charging him with malicious wounding was motivated by a desire

to punish him for obtaining a continuance of his trial date.

There is no evidence in the record to support such a finding.

     To the contrary, the record reflects a reasonable and

non-vindictive explanation for the subsequent indictment.    The

Commonwealth noted that its failure to indict Muhammad for

malicious wounding in November 2000 was an oversight.   Once the

November grand jury date had passed, the January 2001 grand jury

was the next available opportunity.   The Commonwealth merely

took advantage of Muhammad's request for a continuance to obtain

the malicious wounding indictment.    The evidence in the record

is insufficient to prove actual vindictiveness.   Accordingly,

the trial court did not err in denying Muhammad's motion to

dismiss.

     The judgment of the trial court is affirmed.

                                                         Affirmed.




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