                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Alston, Chafin and Decker
              Argued at Norfolk, Virginia

              GARY L. WILLIAMS
                                                                             MEMORANDUM OPINION BY
              v.      Record No. 0445-16-1                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                     JULY 11, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                             Junius P. Fulton, III, Judge

                              Allen D. Zaleski (Protogyrou & Rigney, P.L.C., on brief), for
                              appellant.

                              Robert H. Anderson, III, Senior Assistant Attorney General
                              (Mark R. Herring, Attorney General, on brief), for appellee.


                      Gary L. Williams (appellant) appeals his convictions for robbery in violation of Code

              § 18.2-58 and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1.

              Appellant argues that the trial court erred in denying appellant’s motion to strike, and abused its

              discretion when it allowed two audio recorded jail calls into evidence. We disagree, and affirm

              the decision of the trial court.

                                                          BACKGROUND

                   On December 8, 2011, Shannon Crumpler got off of a bus after working her shift at an IHOP

              restaurant around 6:40 a.m. An assailant came up behind her wearing a hat, hood, and

              windbreaker, put a gun to her head, and told her to give him her bag. The bag contained an MP3

              music player, a change of clothes, Crumpler’s identification, and a cell phone. Crumpler

              testified at trial that she complied with the assailant’s demand because he had a gun and she was



                      Pursuant   to Code § 17.1-413, this opinion is not designated for publication.
afraid. She also stated that she could only see her attacker’s face from the eyes down. The

assailant then told Crumpler to run as fast as she could, and to count to one hundred before

turning around. Crumpler took several steps toward home and then turned around, but she did

not see anyone. On December 14, 2011, investigators showed Crumpler a photo array of

potential suspects. According to Nathan Ford, a member of the Norfolk Police Department who

showed Crumpler the photo array, Crumpler “immediately” picked out appellant’s picture.

   A jury trial took place from November 18 to November 20, 2014. Jason Dooley, a robbery

investigator with the Norfolk Police Department, testified that when he searched appellant’s

residence he found a jacket with a gun in the pocket that matched the description of the weapon

used by Crumpler’s attacker. He also found Crumpler’s cell phone. Jacqueline Lawrence, the

woman appellant lived with, testified that she did not know where the cell phone came from.

After the Commonwealth rested its case, appellant made a motion to strike the evidence. The

trial court found that the Commonwealth established a prima facie case as to the two charges

against appellant, and denied his motion to strike.

   Appellant’s wife, Karyz Williams, testified that she “did not remember where [she and

appellant] stayed on the night of [December] 7th into [December] 8th.” She further testified that

appellant was with her twenty-four hours a day after they got married on December 1, 2011, until

December 14, 2011, “besides when he had to leave in the morning to go to get his son and put

him on the bus.” During Karyz Williams’ cross-examination, the Commonwealth played the

audio of two jail calls between appellant and his wife. Appellant objected, arguing that the

Commonwealth’s rationale for playing the tape was “to show the evil mind of [appellant] as he

was attempting to tell [his wife] what to say.” The trial court allowed the tape to be played over

appellant’s objection.




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   On November 20, 2014, at the conclusion of the evidence, the jury found appellant guilty of

robbery and use of a firearm in the commission of a felony. On February 23, 2015, the trial court

imposed the jury’s recommended sentence and entered an order sentencing appellant to five

years of incarceration for the robbery and three years of incarceration for the use of a firearm in

the commission of a felony. This appeal followed.

                                             ANALYSIS

            I. The Trial Court Did Not Err in Denying Appellant’s Motion to Strike.

       Appellant argues that the trial court erred when it denied his motion to strike because the

evidence presented at trial was insufficient to support a conviction beyond a reasonable doubt.

Specifically, he argues that the trial court erred because the testimony of the sole eyewitness to

the event was inherently incredible, making it impossible for the Commonwealth to prove its

case. We disagree.

       The conclusions of the trial court 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)). To be “incredible,” testimony “must be either so

manifestly false that reasonable men ought not to believe it, or it must be shown to be false by

objects or things as to the existence and meaning of which reasonable men should not differ.”

Cardwell v. Commonwealth, 209 Va. 412, 414, 164 S.E. 2d 699, 701 (1968) (quoting Burke v.

Scott, 192 Va. 16, 23, 63 S.E.2d 740, 744 (1951)).

       In this case, appellant contends that Crumpler’s testimony was unbelievable because it

included several inconsistencies. However, Crumpler stated that she had been robbed, and

unequivocally identified appellant as the man who robbed her. The gun used during the robbery

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was found in appellant’s jacket at his residence. Crumpler’s cell phone was also found at

appellant’s house, which he shared with Lawrence, and Lawrence testified that she did not know

where the cell phone came from. It is a “well-settled principle that the unexplained possession of

recently stolen goods raises an inference that the possessor is the thief.” Montgomery v.

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980). Crumpler’s cell phone was

stolen on the night of December 8, 2011.

       Further, Crumpler’s testimony matches what she reported to the police officers on the

morning of the incident: that she was robbed by a man in a jacket with a hat on and the hood up,

who was carrying a gun. The trier of fact is not required to accept a witness’ testimony, but

instead is free to “rely on it in whole, in part, or reject it completely.” Montague v.

Commonwealth, 40 Va. App. 430, 436, 579 S.E.2d 667, 669 (2003) (quoting Rollston v.

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991)). The trial court in this case

was within its discretion when it relied upon Crumpler’s testimony at trial to provide the

necessary facts to convict appellant. Considering the totality of the evidence presented at trial,

Crumpler’s testimony is not “so manifestly false that reasonable men ought not believe it, or []

shown to be false by objects or things as the existence and meaning of which reasonable men

should not differ.” Cardwell, 209 Va. at 414, 164 S.E.2d at 701 (quoting Burke, 192 Va. at 23,

63 S.E. 2d at 744).

       Thus, the trial court’s decision denying appellant’s motion to strike is affirmed.

II. The Trial Court Did Not Abuse Its Discretion When It Allowed the Two Audio Recorded Jail
                               Calls to be Played for the Jury.

       Appellant argues that the trial court abused its discretion by allowing two audio recorded

jail calls to be played at trial because they were more prejudicial than probative, and the evidence

was duplicative of the testimony given by Karyz Williams. Appellant further argues that



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allowing the jury to hear the audio recording prejudiced appellant and harmed his ability to have

a fair and impartial trial. We disagree.

        “It is well established that ‘the admissibility of evidence is within the discretion of the

trial court’ and an appellate court will not reject the decision of the trial court unless it finds an

abuse of discretion.” Hicks v. Commonwealth, 60 Va. App. 237, 244-45, 725 S.E.2d 748, 752

(2012) (quoting Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010)).

“On appeal, ‘[t]he burden is on appellant to show that the trial court's admission of evidence

constitutes reversible error.’” Pope v. Commonwealth, 60 Va. App. 486, 517, 729 S.E.2d 751,

766 (2012) (quoting Dunn v. Commonwealth, 20 Va. App. 217, 220, 456 S.E.2d 135, 136

(1995)). And, only when reasonable jurists could not differ can a reviewing court say that an

abuse of discretion has occurred. Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d

738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

        In this case, two calls were made between appellant and his wife while appellant was in

jail. These jail calls were played during appellant’s wife’s cross-examination by the

Commonwealth. At trial, appellant argued that the audio recording of the jail calls should not be

played because the Commonwealth was attempting “to show the evil mind of [appellant] as he

was attempting to tell [his wife] what to say.” Appellant now suggests on appeal that the jail

calls are more prejudicial than probative and do not show any inconsistencies in his wife’s

statements because at trial she could not remember exactly what happened on December 7 and

December 8, 2011. At trial, appellant’s counsel attempted to get appellant’s wife to testify about

the details of those dates to show that appellant was with her the entire time, and therefore, could

not have committed the robbery. Assuming for the sake of discussion that appellant properly

preserved this issue for our consideration, the jury was entitled to hear the recordings in order to

determine whether appellant attempted to influence his wife’s testimony to provide him with an

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alibi. See Ragland v. Commonwealth, 16 Va. App. 913, 920, 434 S.E.2d 675, 679 (1993)

(holding as admissible evidence that a defendant attempted to influence the testimony against

him because “it tends to show the unrighteousness of the defendant’s cause and a consciousness

of guilt” (quoting McMillan v. Commonwealth, 188 Va. 429, 432-33, 50 S.E.2d 428, 430

(1948))). In addition, the recordings were clearly relevant to the jury’s assessment of appellant’s

wife’s credibility. See, e.g., McCarter v. Commonwealth, 38 Va. App. 502, 506, 566 S.E.2d

868,869-70 (2002) (explaining that a common method of witness impeachment is to show that he

or she previously made an inconsistent statement). Appellant has not proved that the trial court

abused its discretion by allowing parts of the jail call recordings to be played to the jury. See

Pope, 60 Va. App. at 517, 729 S.E.2d at 766.

        As such, the trial court did not abuse its discretion when it allowed the audio recording of

the two jail calls to be played to the jury. The trial court’s decision, is thus, affirmed.

                                                                                              Affirmed.




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