                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia


ROJAI LAVAR FENTRESS
                                           MEMORANDUM OPINION * BY
v.         Record No. 2056-97-2           JUDGE SAM W. COLEMAN III
                                             SEPTEMBER 15, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     James B. Wilkinson, Judge
           Maureen L. White (Theodore N.I. Tondrowski,
           on brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     Rojai Fentress appeals his jury trial convictions for first

degree murder, Code § 18.2-32, and use of a firearm in the

commission of murder, Code § 18.2-53.1.    He contends:   (1) the

trial court erred in refusing to grant his motion for a mistrial,

and (2) the evidence is insufficient to identify him as the

killer.   We hold that the record does not demonstrate a manifest

probability that the court's denial of a mistrial was

prejudicial, and the evidence is sufficient to prove that

appellant committed the murder.   Accordingly, we affirm the

convictions.

                            BACKGROUND
     The evidence established that the victim, Thomas Foley, and

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
his companion, Julie Howard, drove to the Midlothian Village

Apartments to purchase cocaine.    Howard parked the car near a

streetlight in a well-lit area in front of the breezeway to one

of the apartment buildings.    The victim rolled down the passenger

side window and peered out at a group of six to eight young men

standing approximately fifty yards away from the vehicle.    One of

the men, whom Howard identified in court as the appellant,

approached the victim and asked what he wanted.    When the victim

told appellant that he only "dealt with" another individual,

appellant said the victim would have to "deal with me" and walked

away from the car and rejoined the group.
        A couple of minutes later, appellant returned to the car and

showed the victim two "zip bags" of crack cocaine.    The victim

removed $57 from his pocket, examined the bags of cocaine, told

appellant that the bags did not appear to contain enough cocaine,

and asked if appellant "could do better than that."    Appellant

walked away momentarily and then returned to the car for a third

time.    Howard testified that appellant looked "very nervous" and

that he held his hand in his pants pocket with his shirt "hanging

over his hand."    Appellant told the victim, "If you want to deal

with me, you have to get out of the car."    The victim exited the

car and followed the appellant into an apartment building

breezeway.    Howard saw no other persons enter the breezeway, but

she testified that it was too dark for her to see inside the

breezeway.    "[W]ithin five, ten seconds, tops" after seeing




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appellant and the victim enter the breezeway, Howard heard a

single gunshot.    The victim ran from the breezeway, reentered the

car, and said, "I have been shot in the heart, and I'm going to

die.    [T]he son of a bitch shot me."   The victim later died.

                      REFUSAL TO GRANT A MISTRIAL

        At trial, City of Richmond Police Detective Darryl Street

testified that he performed off-duty security work for the

Midlothian Village Apartments.    Testifying for the Commonwealth,

he stated that appellant and appellant's mother had previously

been residents of the apartment complex.    When the Commonwealth's

attorney asked Detective Street "how often would you see

[appellant] around 4024 Midlothian Village Apartments" after he

had moved out, the detective replied:    "He frequented that area.

. . .    [T]here were several subjects . . . that frequented the

area that I believed . . . were involved in some kind of criminal

activity."
        Appellant immediately made a motion for a mistrial.   The

trial court denied the motion and admonished the jury:    "I am

going to instruct you to totally disregard that [last answer],

take no account whatsoever. . . .    Totally disregard that last

statement."    Before giving the case to the jury, the trial court

further instructed the jury:    "You may not consider any matter

that was rejected or stricken by the court.    It is not evidence

and should be disregarded."

        On appeal, the trial court's denial of a mistrial motion



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will not be reversed unless a manifest probability exists that

such denial was prejudicial.   See Bottoms v. Commonwealth, 22 Va.

App. 378, 385, 470 S.E.2d 153, 157 (1996).   In the present case,

we find no manifest probability that the jury could not or did

not follow the instruction to disregard the inadmissible evidence

or that the denial of a mistrial was prejudicial to appellant.

Cf. Mills v. Commonwealth, 24 Va. App. 415, 482 S.E.2d 860

(1997).   That portion of the officer's statement that appellant

was seen associating with a group of people that the officer

suspected of criminal activity was irrelevant and prejudicial in

that it tended to characterize appellant as a person who

associated with persons suspected of unspecified criminal

activity.   Although improper, the nature of the evidence is not

so prejudicial that a manifest probability exists that the jury

could not disregard the evidence.   The statement did not state

the nature of the criminal activity of which the group was

"suspected" and did not indicate that appellant was "suspected"

of being engaged in criminal activity.   At most, the detective's

evidence suggests that the appellant had been known to associate

with persons "suspected" of some unspecified criminal activity.

The record discloses that the trial court promptly and

effectively instructed the jury to disregard Detective Street's

inadmissible statement.   The court reiterated a similar

admonition when instructing the jury.    In the absence of record

evidence to the contrary, "we presume that the jury followed the



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trial court's instruction to disregard the testimony in

question."    Howard v. Commonwealth, 6 Va. App. 132, 144, 367

S.E.2d 527, 534 (1988).   Accordingly, the trial court did not err

in denying a mistrial.

                     SUFFICIENCY OF THE EVIDENCE

     Appellant next contends the evidence is insufficient to

identify him as the perpetrator of the murder.     We disagree.

     When the sufficiency of the evidence is challenged on

appeal, we must determine whether the evidence, viewed in the

light most favorable to the Commonwealth, and the reasonable

inferences fairly deducible from the evidence support each and

every element of the charged offense.    See Moore v. Commonwealth,

254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr v.

Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).       When

the Commonwealth relies upon circumstantial evidence to prove

guilt, the circumstances proved must be consistent with guilt and

must exclude all reasonable hypotheses of innocence.     See Garland
v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983).

Under familiar principles, we will not disturb the jury's verdict

unless it is plainly wrong or unsupported by the evidence.        See

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,

721 (1988).

     Here, circumstantial evidence is sufficient to prove that

appellant was the person who committed the murder.    Howard

identified appellant as the person she had seen approach the car




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on three occasions attempting to sell cocaine to the victim.     In

close proximity to Howard, appellant and the victim discussed the

quantity of cocaine the victim was trying to buy.   Howard

observed that on the last occasion that appellant approached the

car, appellant looked nervous and appeared to be concealing

something in his pants pocket.    Appellant had the victim exit the

car and led him to the apartment breezeway.   Within seconds after

appellant and the victim entered the breezeway, Howard heard a

gunshot and saw the victim run toward the car holding his chest.

 When he arrived at the car, he stated "the son of a bitch shot

me."
       Appellant contends the evidence failed to exclude the

reasonable hypothesis, based on the testimony of an alibi

witness, that appellant was having dinner with his mother when

the killing occurred.   Appellant further contends the jury could

not have reasonably believed Howard's in-court identification of

him because Howard first saw the appellant at the preliminary

hearing when police brought him into the courtroom in handcuffs. 1

 We find no merit in appellant's arguments.

       The credibility of witnesses and the weight accorded to

       1
      The evidence established that Police Detective James
Hickman showed Howard two "photo spreads" and asked her if the
killer's photograph was among the spreads. Hickman testified
that neither of the photo spreads displayed a picture of the
appellant. Howard "took her time" and "looked at each
[photograph] individually." Eventually, Howard indicated to
Hickman that the killer was not displayed in any of the
photographs.




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their testimony are matters within the exclusive province of the

jury.     See Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d

477, 479 (1993).    From these facts, the fact finder could

reasonably infer that Howard was able to identify the appellant

as the person who was attempting to sell drugs to the victim and

that the victim was referring to appellant when he stated "the

son of a bitch shot me."    On these facts, the jury reasonably

concluded that appellant committed the murder.    On the evidence,

the jury certainly could have found that Howard's identification

of appellant was credible and could have disbelieved appellant's

alibi witness.    Accordingly, the evidence is sufficient to prove

that appellant murdered the victim.
        For the foregoing reasons, we affirm the convictions.

                                                          Affirmed.




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