                       COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia


MICHAEL ANDREA JONES
                                          MEMORANDUM OPINION * BY
v.   Record No. 0567-98-1              JUDGE JERE M. H. WILLIS, JR.
                                               JUNE 8, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                     S. Bernard Goodwyn, Judge

          Randolph D. Stowe (Randolph D. Stowe, P.C.,
          on brief), for appellant.

          Richard B. Smith, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his convictions of two counts of robbery, in

violation of Code § 18.2-58; two counts of use of a firearm in

the commission of the robbery, in violation of Code § 18.2-53.1;

and one count of burglary, in violation of Code § 18.2-90,

Michael Andrea Jones contends that the trial court erred (1) in

denying his motion for a mistrial because the Commonwealth

failed to provide material exculpatory evidence pursuant to a

court order, and (2) in refusing to dismiss the charges based on

the inherent incredibility of the victims.    We find no

reversible error and affirm the judgment of the trial court.



    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
        "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."       Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

        On June 7, 1997, at about 7:00 p.m., Shelly

Highter-Westbrooks and Sherry Foreman were at

Highter-Westbrooks' apartment with two friends and

Highter-Westbrooks' two children.     Highter-Westbrooks was in the

kitchen, having just brought in her groceries.      Jones suddenly

entered the apartment through the screen door, pulled a silver

revolver from his red, white, and blue jacket, and threatened

Highter-Westbrooks and her guests.       Upon Jones' demand,

Highter-Westbrooks pulled $216 from her pocket and threw it on

the table.    Jones grabbed that money and Foreman's purse and

left.

        The jury convicted Jones of two counts of robbery, in

violation of Code § 18.2-58; two counts of use of a firearm in

the commission of a robbery, in violation of Code § 18.2-53.1;

and one count of burglary, in violation of Code § 18.2-90.      He

was sentenced to thirty-three years imprisonment.

                       I.   EXCULPATORY EVIDENCE

        Jones moved for a mistrial on the ground that the

Commonwealth had failed to disclose material, exculpatory

evidence, in violation of a pretrial discovery order.       After the

trial, defense counsel discovered that Officer Thomas Foster,

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who investigated the incident, had noted that "[b]oth victims

advised that they knew the suspect because he hangs out in [the

apartment complex] frequently."   Jones argues that this evidence

was material and exculpatory because, at trial,

Highter-Westbrooks testified that she did not know Jones before

the incident.

     To warrant a new trial, Jones must establish that the

Commonwealth failed to disclose "evidence favorable to [him]

that [was] material to either guilt or punishment."     Hughes v.

Commonwealth, 18 Va. App. 510, 525, 446 S.E.2d 451, 460 (1994)

(citation omitted).   Such

          evidence is material . . . "only if there is
          a reasonable probability that, had the
          evidence been disclosed to the defense, the
          result of the proceeding would have been
          different." . . . "[T]he defendant has the
          burden of demonstrating that the
          [Commonwealth] withheld favorable evidence
          and . . . that defendant would have obtained
          a different result had he use of the
          evidence."

Id. at 525-26, 446 S.E.2d at 461 (citations omitted).

     At the hearing on the mistrial motion, Officer Foster

explained that he had not quoted either victim in his notes, but

rather had summarized what they told him.   He testified that

both women were "hysterical and crying."    He further testified

that, "[the victims] didn't say they know him.    They conveyed to

me in the description that they were giving to me and that they




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had seen him before and I used the word that they knew him in

the context that they have seen him before in the complex

. . . ."   Officer Foster explained that the basis for his notes

was Foreman's account, and it was unclear whether

Highter-Westbrooks had simply agreed with Foreman.     Considering

this testimony, we find no reversible error in the trial court's

decision that non-disclosure of the notation did not require a

new trial.

     Jones argues that had he possessed the noted information at

trial, he could have impeached Highter-Westbrooks' credibility

and that denial of this information denied him due process.     He

testified that he had a sexual relationship with

Highter-Westbrooks before the incident and that they had argued

about his involvement with another woman.     At trial, however,

both Highter-Westbrooks and Foreman were cross-examined

extensively about inconsistencies between their trial testimony

and their testimony at the pretrial hearing.     Even if Officer

Foster's notes had contradicted Highter-Westbrooks' testimony,

"[n]ondisclosure of cumulative evidence does not violate due

process of law."    Lemons v. Commonwealth, 13 Va. App. 668, 672,

414 S.E.2d 842, 845 (1992) (citation omitted).

                   II.   SUFFICIENCY OF THE EVIDENCE

     Jones contends that the evidence is insufficient to sustain

his convictions because Highter-Westbrooks' and Foreman's

testimony was inherently incredible as a matter of law.    We

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disagree.    Both women were cross-examined extensively about

inconsistencies in their pretrial statements and their trial

testimony.    Highter-Westbrooks was questioned about her alleged

prior relationship with Jones.    She maintained that she did not

know him and had had no relationship with him.

                  The fact a witness makes inconsistent
             statements in regards to the subject matter
             under investigation does not render [her]
             testimony nugatory or unworthy of belief.
             It is the province of the trier of facts
             - jury or judge – ”to pass upon such
             inconsistent statements and give or withhold
             their assent to the truthfulness of the
             particular statement."

Swanson v. Commonwealth, 8 Va. App. 376, 378, 382 S.E.2d 258,

259 (1989) (citation omitted).

             Determining the credibility of witnesses who
             give conflicting accounts is within the
             exclusive province of the jury, which has
             the unique opportunity to observe the
             demeanor of the witnesses as they testify.
             . . . The jury's finding that a particular
             witness was credible will not be reversed on
             appeal unless plainly wrong or without
             evidence to support it.

Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479

(1993) (citations omitted).    Any inconsistencies in

Highter-Westbrooks' or Foreman's testimony were addressed fully

through cross-examination.    We find no plain error in the jury's

determination of their credibility.

     The judgment of the trial court is affirmed.

                                                            Affirmed.




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