                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Judges Humphreys, Beales and Alston
              Argued at Richmond, Virginia


              TABIAS DAYON McCLAIN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1838-16-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                                OCTOBER 17, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                              Bradley B. Cavedo, Judge

                               William J. Viverette for appellant.

                               Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Appellant Tabias Dayon McClain (“McClain”) appeals his August 12, 2016 conviction

              from the Circuit Court of the City of Richmond (the “circuit court”). McClain argues that (1) the

              circuit court erred in finding the in-court identification by James Phillip Gibrall (“Gibrall”) of

              McClain as being sufficiently reliable and that (2) the circuit court erred in finding sufficient

              evidence to convict McClain of one count of maliciously shooting Gibrall, in violation of Code

              § 18.2-51, and one count of using a firearm to commit malicious wounding, in violation of Code

              § 18.2-53.1.

                     On the night of January 18, 2016, Gibrall was shot in the City of Richmond behind the

              City Motel on Jefferson Davis Highway. Specifically, Gibrall was shot in the back while

              walking away from a failed drug transaction. On January 29, 2016, eleven days after the




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
shooting, Gibrall identified McClain as the shooter in a “double-blind” photo array.1 The

Commonwealth subsequently charged McClain with malicious wounding, a felony, and the use

of a firearm in the commission of that felony. On August 12, 2016, following a bench trial, the

circuit court found McClain guilty of both charges.

       In reviewing a conviction for the sufficiency of the evidence, this Court asks only if

“after reviewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Johnson

v. Commonwealth, 58 Va. App. 303, 313, 709 S.E.2d 175, 181 (2011) (quoting Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008)). Consequently, this Court “will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).

       Furthermore, “[t]he credibility of the witnesses and the weight accorded the evidence are

matters solely for the fact finder who has the opportunity to see and hear that evidence as it is

presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

The conclusions of the fact finder on issues of witness credibility “may only be disturbed on

appeal if this Court finds that [the witness’] testimony was ‘inherently incredible, or so contrary

to human experience as to render it unworthy of belief.’” Robertson v. Commonwealth, 12

Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296,

299-300, 321 S.E.2d 202, 204 (1984)). When the circuit court itself serves as the fact finder, its

judgment is “entitled to the same weight as a jury verdict.” Burrell v. Commonwealth, 58



       1
         At trial, Detective Jeffrey Crewell characterized the photo array procedure shown to
Gibrall as “double-blind.” In such a procedure, eight photos are shown sequentially, one at a
time. The person or detective showing the photo lineup is unaware of any potential suspects in
the lineup. This removes any potential unknown influences or known influences by the detective
in showing the lineup. The photo array procedure, according to Detective Michael Gouldman,
was done in accordance with the Richmond Police Department’s policies and procedures.
                                                -2-
Va. App. 417, 433, 710 S.E.2d 509, 517 (2011) (quoting Hickson v. Commonwealth, 258 Va.

383, 387, 520 S.E.2d 643, 645 (1999)).

       Taken in that light, the evidence is that Gibrall used crack cocaine and consumed alcohol

the day of the shooting. That night, around 10:30 p.m. to 11:00 p.m., Gibrall drove to the City

Motel to attempt to purchase more crack cocaine. After negotiating the drug transaction, Gibrall

stood face-to-face with McClain with a streetlight illuminating the area. Gibrall testified that

McClain pointed a gun at him, which appeared to be a .380 semiautomatic pistol, not a revolver.

When Gibrall noticed the pistol, he and McClain “looked at each other right in the eye.”

Thereafter, Gibrall refused to hand over any money, turned, “took four or five steps,” and was

shot in the back.

       Gibrall drove his vehicle to a convenience store where his physical condition

deteriorated. When the police arrived, Gibrall misrepresented that he did not know where the

shooting took place or the identity of the shooter. Gibrall testified that he initially lied regarding

the circumstances of the shooting because he did not want to answer questions at that time.

Gibrall testified that he wanted to seek immediate treatment for his injuries, which he believed

could be fatal.

       On January 25, 2016, one week after the shooting, Gibrall spoke with Richmond Police

Detective Michael Gouldman. Based on Gibrall’s description of his assailant and information

from other sources, police developed McClain as a suspect in the shooting.2 From there

Detective Gouldman obtained a photograph of McClain and prepared a photo array. On January

29, 2016, Gibrall selected McClain’s photo from a double-blind photo array with ninety-five

percent confidence. At trial, Gibrall once again positively identified McClain as the shooter.



       2
       From informant sources, police suspected a man nicknamed “Lump” as the shooter.
Lump’s given name is Tabias Dayon McClain.
                                           -3-
Concluding that Gibrall’s testimony was credible and believable, the circuit court found McClain

guilty as charged.

       McClain first argues that the circuit court erred in finding that Gibrall’s in-court

identification was sufficiently reliable. Specifically, McClain argues that Gibrall’s identification

testimony lacked credibility “in light of his uncertainty, inaccuracy, inconsistencies and

impeachment.” McClain also expresses “strong reservations” regarding the accuracy of

eyewitness identification and implies that Gibrall’s photo array identification was unreliable

because it occurred eleven days after the shooting.

       In support of his first assignment of error, McClain asserts that the factors outlined in

Neil v. Biggers, 409 U.S. 188 (1972), “lead to the conclusion that Gibrall’s identification

testimony was unreliable.” McClain, however, misconstrues the application of Biggers. In three

cases decided the same day, the Supreme Court of the United States in United States v. Wade,

388 U.S. 218 (1967), Gilbert v. California, 388 U.S. 263 (1967), and Stovall v. Denno, 388 U.S.

293 (1967), collectively held that suggestive out-of-court identification procedures utilized by

police can violate due process principles by tainting an in-court identification.

       The Supreme Court decision in Biggers is not a general appellate test for the credibility

of witnesses. Rather, it outlines factors that a trial court should consider in evaluating the

admissibility of an in-court eyewitness identification when there has been a previous, possibly

tainted out-of-court identification that violated the due process principles set forth in Wade,

Gilbert, and Stovall. See Biggers, 409 U.S. at 199-200. These factors include “the opportunity

of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the

accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by

the witness at the confrontation, and the length of time between the crime and the confrontation.”

Id.

                                                -4-
       McClain has defaulted this assignment of error for several reasons. First, McClain never

raised a constitutional objection or sought to suppress the out-of-court identification procedure

used by the police. Second, McClain failed to timely object to his in-court identification by the

victim of the shooting. Finally, McClain misinterprets the law with respect to the determination

of witness credibility. In the absence of a due process violation or inherent incredulity, legal

positions that McClain never asserted at trial or on appeal, the credibility of witnesses is a matter

within the exclusive province of the fact finder—in this case, the circuit court sitting without a

jury. Because McClain frames this assignment of error as a request that we conduct what

amounts to a de novo determination of the Gibrall’s credibility, his reliance on Biggers is inapt.

Appellate courts in the Commonwealth are bound by the fact finder’s determination of witness

credibility unless, as a matter of law, the testimony is “inherently incredible, or so contrary to

human experience as to render it unworthy of belief.” Robertson, 12 Va. App. at 858, 406

S.E.2d at 419 (quoting Fisher, 228 Va. at 299-300, 321 S.E.2d at 204).

       McClain’s second assignment of error alleges that the circuit court erred in finding

sufficient evidence to convict McClain of both charges. McClain alleges that the evidence

created reasonable doubt as to McClain’s guilt. According to McClain, “if the [circuit] court had

not improperly relied on Gibrall’s identification . . . the other evidence from the trial would not

have been sufficient” to convict McClain of either charge.

       At trial, McClain did not make a timely and specific objection to the admissibility of

Gibrall’s in-court identification. Accordingly, as required by Code § 19.2-324.1, this Court must

consider all evidence admitted at trial, whether properly admitted or not, to determine whether

there is sufficient evidence to sustain a conviction.3 See Code § 19.2-324.1.


       3
        This statutory requirement is consistent with double jeopardy principles as annunciated
in Lockhart v Nelson, 488 U.S. 33 (1988). On appellate review for sufficiency of the evidence,

                                                -5-
       McClain’s second assignment of error has no merit. The circuit court explicitly weighed

a number of factors in making its credibility determination. The circuit court acknowledged that

Gibrall was a two-time convicted felon and addict “looking to score in one of the worst parts of

town . . . .” The circuit court, however, focused on Gibrall’s opportunity to identify “the person

who is going to make the deal who then draws a gun on him.” At that point, the circuit court

found that Gibrall stood face-to-face with McClain, with a streetlight illuminating the area, and

“looked [McClain] right in the eye.” Further, addressing Gibrall’s initial misrepresentations to

the police, the circuit court concluded that “Gibrall probably thought he might die . . . and was

focused on his medical condition and getting help.” The circuit court found that Gibrall “seemed

to be pretty certain that he remembered everything.” The fact that Gibrall used crack cocaine

and consumed alcohol sometime before the shooting did not render his testimony inadmissible

but are relevant factors for the circuit court to weigh in assigning credibility. It clearly did so

and the weight that a fact finder gives to evidence is not reviewable by an appellate court as any

part of a sufficiency analysis for the reasons already stated.

       In addition to questioning the circumstances of Gibrall’s eyewitness identification,

McClain contends that no physical evidence directly links McClain to the crime scene. On this

point, McClain is entirely correct. In fact, the circuit court acknowledged McClain’s claim

stating that, “eyewitness identification is all we have here, and he’s right.” The circuit court

correctly added, however, that “a witness identification is all that is necessary if the testimony is

credible and believable.”

       Reviewing the evidence admitted at trial, we conclude that the evidence was sufficient to

support the circuit court’s finding that McClain maliciously wounded Gibrall and used a firearm




“a reviewing court must consider all of the evidence admitted by the trial court” whether
properly admitted or not. Id. at 42 (emphasis added).
                                               -6-
to commit that malicious wounding, beyond a reasonable doubt. Therefore, we affirm the

judgment of the circuit court convicting McClain of one count of maliciously shooting Gibrall, in

violation of Code § 18.2-51, and one count of using a firearm to commit malicious wounding, in

violation of Code § 18.2-53.1.

                                                                                       Affirmed.




                                              -7-
