                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia


CHARLES A. EDWARDS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0469-00-1                   JUDGE RICHARD S. BRAY
                                                APRIL 10, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Johnny E. Morrison, Judge

          Joseph Ryland Winston, Special Appellate
          Counsel (Public Defender Commission, on
          brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Charles A. Edwards (defendant) of first

degree murder and related use of a firearm, violations of Code

§§ 18.2-32 and -53.1, respectively.    On appeal, defendant contends

the trial court erroneously severed his trial from that of a

codefendant and challenges the sufficiency of the evidence to

support the convictions.    Finding no error, we affirm the trial

court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     Prior to commencement of trial, defendant, by counsel, moved

for a continuance, complaining the court had postponed trial of

the codefendant, after previously ordering a joint trial over

defendant's objection, without notice to counsel.    Defendant

maintained the resulting severance, confirmed by his counsel "less

than twenty-four hours from trial," required him to "completely

change strategy and to prepare for a separate trial."    Following

argument of counsel, the court denied defendant's motion and

proceeded with trial.   Thus, relying upon Rule 1:13, defendant

first contends the court erroneously failed to require endorsement

of counsel or notice with respect to the order continuing trial of

the codefendant.

     Rule 1:13 provides, in pertinent part, that "[d]rafts of

orders and decrees shall be endorsed by counsel of record, or

reasonable notice of the time and place of presenting such drafts

together with copies thereof shall be served [on] all counsel of

record who have not endorsed them."     However, "[c]ompliance with

this rule . . . may be modified or dispensed with by the court in

its discretion."   Rule 1:13.   When dispensing with endorsement or

notice pursuant to Rule 1:13,

          a better practice would be for a trial court
          to include a statement reflecting its
          decision to exercise its discretion, [but,]
          in the absence of such a statement, we
          presume that a trial court exercised its
          discretion . . . . Courts are presumed to
          act in accordance with the law and orders of

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          the court are entitled to a presumption of
          regularity.

Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 (2001).

     Accordingly, on the instant record, we must presume the court

exercised discretion in dispensing with both the endorsement and

notice requirements that attended the continuance order in issue.

The proper exercise of such discretion is strengthened by evidence

that the resulting severance comported with defendant's earlier

objection to a joint trial.   Moreover, defendant failed to present

evidence, by proffer or otherwise, of any prejudice suffered by

him as a result of the alleged error.

                                 II.

     Defendant next challenges the sufficiency of the evidence to

support the convictions.   In reviewing the sufficiency of the

evidence, we consider the record "in the light most favorable to

the Commonwealth, giving it all reasonable inferences fairly

deducible therefrom."   Watkins v. Commonwealth, 26 Va. App. 335,

348, 494 S.E.2d 859, 866 (1998) (citation omitted).

               [T]he fact finder is not required to
          accept entirely either the Commonwealth's or
          the defendant's account of the facts.
          Similarly, the fact finder is not required
          to believe all aspects of a defendant's
          statement or testimony; the judge or jury
          may reject that which it finds implausible,
          but accept other parts which it finds
          believable.

Pugilese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993) (citation omitted).    Thus, "[t]he conclusions of the fact


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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."'"   Moyer v. Commonwealth, 33 Va.

App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc) (citations

omitted).   The judgment of the trial court will not be disturbed

unless plainly wrong or unsupported by the evidence.   See Code

§ 8.01-680.

     Defendant contends "the Commonwealth's entire case rests upon

the testimony of [Tyrone] 'Woo Woo' [Wallace]," evidence

characterized by defendant as "inherently incredible and unworthy

of belief."   Properly viewed on appeal, Wallace's testimony

established that, while he spoke with the victim, Deontrace Ward,

at a Portsmouth gas station, defendant "come [sic] up in a . . .

four door gray car" and "asked [Ward] 'Can I talk to you for a

second.'"   Ward responded, "Sure," and walked with defendant to

the gray car.   While "they was talking[,] . . . one thing led to

another," and defendant "pull[ed] a gun out and put it to [Ward's]

head."   Ward then "grabbed [defendant's] arm[,] . . . tossed him

across the car" and fled "through the traffic," with defendant

pursuing in the gray car.   Wallace's recollection of these initial

events was corroborated in significant particulars by another

Commonwealth's witness, Francesca Dillard-Moore, although she was

unable to identify anyone involved in the confrontation.



                               - 4 -
     Wallace further testified that he "and a couple other guys

. . . ran behind [defendant and Ward] to see what happened" and

observed defendant and his nephew, Anthony Edwards, "jump[] out of

the car" and chase Ward on foot.   When Ward "was caught" by the

two, both "started shooting" him with handguns.

     An independent Commonwealth's witness, Kenneth Duke, also saw

two men exit a gray car and shoot Ward.   The first man initially

shot Ward while he "was on his knees[,] . . . hands in the air,"

pleading "please don't shoot me . . ." and, again, after he "fell

over."   When shot by the second man, Ward was already wounded and

"on the ground."   Several additional witnesses, including a police

officer, also recounted the attack on Ward, substantially

corroborating the testimony of Wallace and Duke.

     The fact finder heard and considered the testimony, including

evidence that tended to discredit Wallace, and believed his

recollection of events.   When considered with the entire record,

we are unable to find such evidence either incredible or unworthy

of belief.

     Defendant's reliance upon testimony at the sentencing hearing

in support of his challenge to Wallace's credibility is without

merit.   Such evidence was not before the jury during the guilt

phase of the proceeding and, therefore, relevant only in

determining an appropriate sentence.




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     Accordingly, the record clearly proved the subject

convictions beyond a reasonable doubt and, finding no error

otherwise, we affirm the trial court.

                                                   Affirmed.




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