                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia


WILLIAM ANDREAS PYLIARIS
                                           MEMORANDUM OPINION * BY
v.        Record No. 2193-97-2            JUDGE SAM W. COLEMAN III
                                             SEPTEMBER 15, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge
          Christopher J. Collins for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     William Andreas Pyliaris was convicted in a bench trial for

assault in violation of Code § 18.2-51.    The sole issue on appeal

is whether the evidence is sufficient to sustain the conviction.

 Finding the evidence sufficient to prove that Pyliaris committed

an assault, we affirm the conviction.

     To sustain a conviction for assault, the evidence need only

prove "an attempt or offer [by the accused], with force and

violence, to do some bodily hurt to another."     Harper v.

Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955).

     When the sufficiency of the evidence is challenged on

appeal, we view the evidence in the light most favorable to the

Commonwealth.   See Derr v. Commonwealth, 242 Va. 413, 424, 410

S.E.2d 662, 668 (1991).    So viewed, the evidence proved that
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Terrance Christopher Holmes attended an after-hours bar which

appellant owned.   Appellant was working at the club, and Holmes

was intoxicated.   Holmes testified that he and appellant had a

brief, amicable verbal exchange.    According to Holmes, appellant

attacked him later that evening without warning or provocation.

Holmes testified that appellant repeatedly struck him in the

face, knocking him to the ground.   He denied touching or striking

appellant.   Holmes suffered a broken jaw and received several

stitches to close one wound.
     Richmond Police Officer Lyle B. Harding testified that he

found Holmes bleeding profusely outside the bar.   Officer Harding

interviewed appellant about the altercation.   Appellant told the

officer that Holmes had been disturbing some female customers,

one of whom was appellant's girlfriend, and a female bartender.

He also told the officer that he did not request the assistance

of the club's bouncers in removing Holmes because "they were

pussies and he had to handle [the situation] himself."    Appellant

stated that he started punching Holmes only after Holmes grabbed

him by the neck and in order to extricate himself from Holmes.

The officer testified that he observed marks on appellant's neck

that appeared to be thumbprints.

     Valerie Wilnott testified that Holmes was bothering her and

another female patron.   She noted that after appellant repeatedly

told Holmes to leave the women alone, appellant pulled Holmes

toward the exit.   Wilnott did not see the fight begin.   An




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employee of the club testified that Holmes was the initial

aggressor, choking appellant and hitting him with his fists.

     Appellant testified that as he was escorting Holmes out of

the bar area, Holmes attacked him and grabbed him by the throat.

Appellant admitted that he struck Holmes, but only to defend

himself from Holmes' attack.   After appellant escaped Holmes'

grip, the two of them "exchanged a few more blows."

     Appellant's sole contention on appeal is that the evidence

is insufficient to sustain the conviction because his account of

the incident and the account of his witnesses are more believable

than Holmes' version.   He further contends that on appeal we do

not disregard the evidence that conflicted with the evidence that

would support the guilty verdict but rather we must consider the

evidence as a whole in determining that the defendant's guilt has

been proven beyond a reasonable doubt and to the exclusion of all

reasonable hypotheses of innocence.    We find no merit in these

contentions.   The appellant's argument would have us disregard

the role of the fact finder in resolving the conflicts in the

evidence.   Holmes' version that appellant attacked him without

provocation and of how the altercation developed, although in

conflict with other evidence, is not inherently incredible.      See

Payne v. Commonwealth, 233 Va. 460, 469, 357 S.E.2d 500, 505

(1987).   "The weight which should be given to evidence and

whether the testimony of a witness is credible are questions

which the fact finder must decide."    Bridgeman v. Commonwealth,




                               - 3 -
3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).   If there is

evidence in the record to support the conviction, the reviewing

court is not permitted to substitute its own judgment for that of

the fact finder, even if its opinions might differ from the

conclusions reached by the fact finder.   See Tyler v.

Commonwealth, 254 Va. 162, 165-66, 487 S.E.2d 221, 223 (1997).

The fact that evidence is in conflict does not of itself create a

reasonable doubt or an hypothesis of innocence.
     Here, appellant's claim is that the evidence is insufficient

because it establishes as a matter of law that he assaulted

Holmes in self-defense.   However, the trial court accepted

Holmes' testimony that appellant was the aggressor in the

altercation and repeatedly struck Holmes in the face other than

in self-defense.   Holmes' testimony was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that appellant assaulted Holmes and did not do

so in self-defense.   See Jones v. Commonwealth, 184 Va. 679, 681,

36 S.E.2d 571, 572 (1946).   Furthermore, the fact finder could

have found from the evidence that appellant used excessive force

in ejecting Holmes from the premises and more force than was

necessary to defend himself.   See Cook v. Commonwealth, 219 Va.

769, 773-74, 250 S.E.2d 361, 364-65 (1979).

     Accordingly, we affirm the conviction.

                                                         Affirmed.




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