                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia


IDRIS KASHEEN HARRIS
                                                           MEMORANDUM OPINION∗ BY
v.     Record No. 2412-05-2                             JUDGE ELIZABETH A. McCLANAHAN
                                                                MARCH 27, 2007
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                 Daniel T. Balfour, Judge

                 Steven D. Goodwin (Gregory R. Sheldon; Goodwin, Sutton &
                 DuVal, P.L.C., on brief), for appellant.

                 Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Idris Kasheen Harris (Harris) was convicted in a bench trial of robbery in violation of

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

§ 18.2-53.1.1 On appeal, he maintains the evidence was insufficient to support his convictions.

We affirm the trial court.

                                        I. BACKGROUND

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).

That principle requires us to “discard the evidence of the accused in conflict with that of the



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Code § 18.2-53.1 provides, in pertinent part: “It shall be unlawful for any person to use
or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a
threatening manner while committing or attempting to commit . . . robbery, . . . or abduction.”
(Emphasis added).
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (citations and internal quotations marks omitted).

       So viewed, on November 16, 2004, Crystal Vaughn was operating her vehicle in Henrico

County when she approached a stop sign at an intersection. After she stopped her vehicle, a man

walking along the street beside her vehicle got into her car, held a gun to her, and told her to give

him her money. Although she gave him all of her money, $47, he then dumped out the contents

of her purse and took her cellular phone. Vaughn was “terrified” when the gun was pointed at

her. After he got out of her car, the assailant proceeded to walk in the opposite direction from

which Vaughn was going and disappeared between some houses. Vaughn did not observe any

other individuals on the street and did not observe the assailant make contact with any other

person. After sitting “paralyzed” for a few minutes, Vaughn drove around the corner to

Walgreens to pick up her mother who then called the police.

       Investigator J.M. Mitchell responded to the call and conducted the investigation of the

robbery. After arriving at Walgreens, Mitchell called Vaughn’s cell phone number from his own

phone and a male voice answered the phone. Mitchell told the man that Vaughn wanted her

phone back, and the man told Mitchell she was not getting it back and terminated the call.

According to Mitchell, the robbery was reported to the police at 4:02 p.m. and he made the call

to Vaughn’s phone at 4:28 p.m. In the days following the robbery, Mitchell obtained and

reviewed Vaughn’s cellular phone records. Based on calls made and received on that phone,

Mitchell developed Harris as the suspect in the robbery. After an arrest warrant was issued and

police picked up Harris on January 18, 2005, Mitchell interviewed Harris regarding the robbery.

Harris told Mitchell that at the time of the robbery he was “hanging” on the corner of Brookland

Park Boulevard and Third with a friend named “Skeet.” According to Mitchell, this location

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would be five or ten minutes by car from where the robbery occurred. Harris told Mitchell that a

white female pulled up in her car wanting to buy some drugs and that “Skeet” got into the car

with her. According to Harris, “Skeet” came back shortly carrying her cell phone and told Harris

he had robbed her. Harris told Mitchell he purchased the phone from “Skeet” for $25. Harris

was unable to provide Mitchell with a description of “Skeet,” or provide a real name or an

address or phone number for this person.

       Harris’ mother testified that Harris was with her on the day of the robbery until close to

6:00 p.m., at which time she dropped him off two blocks from Brookland Park Boulevard and

Third. She testified that at 3:30 or 4:00 that afternoon, Harris was with her on a car lot looking at

a Mercedes Benz and nowhere near Brookland Park and Third. Further, she testified that Harris

was not with an individual named “Skeet” at that time. She confirmed that after the date of the

robbery, Mitchell spoke with her about phone calls that were made to and from Vaughn’s cell

phone. She told Mitchell that it was her son who was calling her from Vaughn’s cell phone

number after Mitchell asked her if she knew Harris.

       The trial court overruled Harris’ motions to strike the evidence and found Harris guilty on

both charges.

                                          II. ANALYSIS

       On appeal, Harris argues that the evidence was insufficient to establish that he was the

criminal agent who committed the robbery.

       In reviewing the sufficiency of the evidence, “the judgment of the trial court sitting

without a jury is entitled to the same weight as a jury verdict.” Saunders v. Commonwealth, 242

Va. 107, 113, 406 S.E.2d 39, 42 (1991) (citation and internal quotations marks omitted). “[T]he

trial court’s judgment will not be set aside unless plainly wrong or without evidence to support

it.” Hunley v. Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999). “The

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credibility of a witness and the inferences to be drawn from proven facts are matters solely for

the fact finder’s determination.” Marable v. Commonwealth, 27 Va. App. 505, 509, 500 S.E.2d

233, 235 (1998). “In its role of judging witness credibility, the fact finder is entitled to

disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to

conceal his guilt.” Id. at 509-10, 500 S.E.2d at 235. “This Court does not substitute its judgment

for that of the trier of fact.” Hunley, 30 Va. App. at 559, 518 S.E.2d at 349.

       “Robbery is a common law crime against the person, which is proscribed statutorily by

Code § 18.2-58.” Clay v. Commonwealth, 30 Va. App. 254, 258, 516 S.E.2d 684, 685 (1999)

(en banc). Robbery is “the taking, with intent to steal, of the personal property of another, from

his person or in his presence, against his will, by violence or intimidation.” Commonwealth v.

Jones, 267 Va. 284, 286, 591 S.E.2d 68, 70 (2004) (citations and internal quotation marks

omitted); see also Spencer v. Commonwealth, 42 Va. App. 443, 448, 592 S.E.2d 400, 402-03

(2004). Harris does not contend the Commonwealth failed to prove these essential elements.

Rather, he challenges the convictions on the narrow ground that the evidence was insufficient to

prove he was the person who committed the crimes.

       Harris first contends the Commonwealth failed to prove he ever possessed the cellular

phone taken from Vaughn during the robbery. Considering the evidence in the light most

favorable to the Commonwealth and all fair inferences that may be drawn from such evidence, it

was reasonable for the trial court to conclude that Harris was referring to Vaughn’s cell phone

during his discussion with Mitchell. The statements by Harris to Mitchell were made in the

context of Mitchell’s investigation of the robbery of Vaughn. Further, Harris’ mother discussed

with Mitchell placing calls to Vaughn’s cell phone number, and subsequently confirmed that it

was Harris who was calling her from that number. Thus, there was credible evidence to support

the trial court’s conclusion that Harris was in possession of Vaughn’s cell phone.

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        Harris also argues that his mere possession of the stolen cell phone was insufficient to

sustain his conviction of robbery and use of a firearm in commission of the robbery. He relies on

Bazemore v. Commonwealth, 210 Va. 351, 170 S.E.2d 774 (1969), wherein the Court held that

the trial court committed error by giving an instruction that allowed the jury to believe it could

convict the defendant of robbery based on his mere possession of the recently stolen goods. Id.

at 353, 170 S.E.2d at 776. We disagree with Harris that the trial court’s judgment was based

solely on his possession of the stolen cell phone. In response to Harris’ arguments at trial, the

trial court noted at least twice that it had “to look at all of the evidence.” In reaching its decision,

the trial court specifically cited the testimony of Vaughn describing her assailant and the

circumstances surrounding the robbery in addition to the implausible story given by Harris to

Mitchell.

        The evidence before the trial court identifying Harris as the man who robbed Vaughn

included more than just his possession of the stolen phone. Vaughn described her assailant, and

the trial court was in the best position to observe the defendant and accord the proper weight to

Vaughn’s description. Mitchell developed Harris as the suspect based on the calls made to and

from Vaughn’s cell phone after it was taken from Vaughn. It was reasonable for the trial court to

conclude that the person described by Vaughn and the person using the cell phone after it was

taken was the same person who committed the robbery.

        Furthermore, the trial court was entitled to find that the explanation Harris made to

Mitchell was false and to consider it as additional evidence of Harris’ guilt. “A defendant’s false

statements are probative to show he is trying to conceal his guilt, and thus is evidence of his

guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991). When

questioned by Mitchell regarding the stolen phone, Harris told Mitchell that someone named

“Skeet” got into a car with a white female who wanted to buy drugs, stole the phone, and then

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sold it to Harris at a different location. The trial court, sitting as fact finder, rejected the story

given by Harris noting that it was being asked to believe that “[Harris] didn’t do it because

somebody named Skeet did it at a different location at about the same time.”

        Though Harris presented an alibi from his mother, it was inconsistent with the alibi

Harris gave Mitchell. The trial judge was entitled to weigh the testimony and choose to either

believe or disregard it. “The 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)

(citations omitted). The trial court clearly rejected the alibi offered by Harris’ mother stating that

her testimony was “certainly not helpful.”

        Based on the foregoing evidence, the trial court’s conclusion that Harris was the man

who committed the robbery was not plainly wrong or without evidence to support it. Thus, we

affirm the judgment of the trial court.

                                                                                         Affirmed.




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