                       COURT OF APPEALS OF VIRGINIA


Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


STEVEN CRESPO
                                          MEMORANDUM OPINION * BY
v.   Record No. 2045-02-2              JUDGE JERE M. H. WILLIS, JR.
                                               JUNE 3, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                       James A. Luke, Judge

          Stephen L. Hewlett for appellant.

          Amy Hay Schwab, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     On appeal from his conviction as a principal in the second

degree of malicious wounding and use of a firearm in the

commission of a felony, Steven Crespo contends that the evidence

was insufficient to support his convictions and argues that the

Commonwealth's evidence failed to "exclude every reasonable

hypothesis except that of guilty, and that it is not inconsistent

with his innocence."   We affirm the judgment of the trial court.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"    Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(citation omitted).    "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).    "The judgment of a trial court

sitting without a jury is entitled to the same weight as a jury

verdict and will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence

to support it."     Martin v. Commonwealth, 4 Va. App. 438, 443,

358 S.E.2d 415, 418 (1987).

     As Alan Rufus and Chris Thorsen left a house to get into

their car, Rufus saw three or four men who were "[p]robably

African American" standing around the corner.      They were armed

with a handgun and a shotgun.    One of the men approached Rufus,

put his arm around Rufus's shoulder, and demanded money.         After

the man "put a gun to" Rufus, Rufus gave him his wallet.         The

man said, "I know you have something else."      When Rufus denied

having anything else, the man hit Rufus in the head, causing an

injury that required thirteen stitches.      As Rufus "scrunched up"

under the car, he heard gunshots.

     Detective George Burgess investigated the incident.         Based

on the evidence he collected, Burgess developed a list of

suspects, one of whom was Larry Starks.      Following an unrelated

incident, a shotgun was recovered.       Based on results from



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testing this shotgun, Starks was charged with assaulting and

robbing Rufus.

     During the course of Starks's prosecution, the

Commonwealth's Attorney provided a copy of a letter Crespo had

written to Starks.   In this seven-page letter, which was

admitted into evidence in Starks's trial, Crespo wrote:

          Now about this case, I know it's hard for
          you and all and your [sic] worried and don't
          know what to do. You say you want to
          snitch, I can't tell you what to do but if
          you think and listen to what I say you will
          see I'm trying to help you out. I'm going
          to tell you like this if you do turn us in
          you know you will have to testify against
          us. Then what you going to say either that
          you were with us but you were just driving
          the car, and you'll still get in trouble
          because you suppose to report any crime that
          you seen or no [sic] about to the police or
          you can get a charge for that (go to the law
          library) and also for lying to the police
          because then who was driving the car plus
          there [sic] going to ask you all types of
          questions like how you know this and that
          why you ended up w/the gun and if it was
          your [sic] how did we get it. Regardless if
          you snitch or not I'm not going to snitch on
          you about your driving the car and being
          part of it because I want to see you go home
          plus snitching ain't me my dad tought [sic]
          me that. . . . [R]emember even thou [sic]
          you weren't at the actual scene you were
          part of it we were all together you were
          just driving the car. I take blame and
          responsibility for my actions. I know what
          I did and that this is part my fault but
          realize that I got almost the same blame as
          you, just a little more, we were all in it
          together, I just went and did more but
          remember that I didn't do the smacking with




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the gun or the shooting the car. I didn't
do nothing to get us cought [sic]. . . .

I know we did [f---] up we should help pay
your lawyer or get a better lawyer, I ain't
got no excuse for that; I don't blame you
for hating me for that even tho [sic] I put
money in your books it weren't [sic] much
but it still don't make up for that. . . .

I know that after words [sic] we could blame
it on Chris and get away w/it but after you
put it on us you have to tell the truth to
get us found guilty or the Commonwealth
won't let you get away plus by getting them
charged I'll get kicked out of this program
and if I do beat the charges I'll have to
start my time all over. This is what I
think you should do and say . . . . First
the main idea is for all of us to go home
and not have to do time for this. So put it
on Chris. Just say you had lent the car to
Chris that night and the only reason you did
was because he had a license. You had your
car, me you and Will were together ya'll
dropped me off at Keosha house and ya'll
were planing [sic] on going to Richmond but
when ya'll stopped at your Grandma's house
ya'll decided to stay since alot [sic] of
your family was there and they were playing
card [sic] and having a good time. When you
had lent the Stanza to Chris you must of
[sic] left the hat in the car. (That's two
of the evidence). The next day Chris
brought you the car back but he ain't never
tell you what happened (you didn't know
nothing about it, but you had a feeling when
they towed the car and talked to us about
it). A couple of day's [sic] later Chris
asked you to hold the gun after him he put
it under your seat himself, then Chris got
killed and you got stuck w/the gun, you had
forgot about it and got cought [sic] w/it
(That's the other two evidence).

     This way Will and I don't have to be
mentioned as doing it and since you didn't




                    - 4 -
          know nothing about it that's less questions
          and more hope (Chris is dead plus he is
          already known for robbery), also get as many
          of your people to be witnesses to say that
          you and Will were at your Grandma's house
          all night till the next morning (that will
          help alot)[sic] . . . .

               P.SS . . . First you messed up telling
          your lawyer the truth because at first he
          said you were ok [sic] and that they didn't
          have enough evidence and that you had a very
          good chance of beaten [sic] the charges and
          now it's the total opposite. He probably
          went and told the police that's why they
          said you couldn't beat it to convince you to
          snitch (to scare you).

     Detective Burgess took this letter and visited Crespo at

Riverside Jail.   He advised Crespo of his Miranda rights.   When

Burgess said he wanted to talk about Starks and the robbery,

Crespo said, "I know what you are talking about, yes."   Burgess

took two statements from Crespo before showing him the letter.

After Crespo's first statement, Burgess suggested that Starks

had provided a different story, that Starks claimed to have been

at his grandmother's house.   Crespo then gave another statement,

adding that Starks had been at his grandmother's and explained

the presence of a hat that had been collected as evidence.   When

Burgess then showed Crespo the letter, Crespo "was kind of taken

back . . . and after a moment or so" admitted that he had

written the letter.   Burgess referred to the robbery when he

asked Crespo about the letter.




                                 - 5 -
     At trial, Crespo admitted being present during the robbery,

but claimed he was "staying outside the car" and "went down the

street."    He claimed he did not know the robbery was occurring,

and only learned of the robbery when the police talked to him

later that day.   He admitted writing the letter after talking to

the police.   He admitted it was his idea to "blame Chris" for

everything.   He also admitted his statement that if Starks

testified truthfully, he (Crespo) would be found guilty, and

that he wrote the letter to help Starks and himself.   He

testified that he did not intend to implicate himself in

robbery, malicious wounding, or firearm charges when he wrote

the letter to Starks.   He asserted that he is not

African-American.

     The trial court, sitting as fact finder, believed the

Commonwealth's evidence and rejected portions of Crespo's

evidence.   It found that the Commonwealth had proved beyond a

reasonable doubt that, as a principal in the second degree,

Crespo committed malicious wounding and used a firearm in the

commission of a felony.   This finding is supported by direct

evidence that proved Crespo's guilt beyond a reasonable doubt.

"[W]hether the Commonwealth relies upon either direct or

circumstantial evidence, it is not required to disprove every

conceivable possibility of innocence, but is, instead, required

only to establish guilt of the accused to the exclusion of a



                                - 6 -
reasonable doubt."     Saunders v. Commonwealth, 18 Va. App. 825,

829, 447 S.E.2d 526, 529 (1994).

     Direct evidence proved that someone took Rufus's wallet

from him at gunpoint and hit him on the head, inflicting an

injury that required thirteen stitches.    Direct evidence proved

that these acts were done by one from a group of three or four

men who were "probably" African-American.    Although Crespo

denied being African-American, his race is listed on his arrest

warrant as "H," which presumably denotes Hispanic.    No evidence

refuted his perception as African-American.    When Burgess went

to the jail and told Crespo he wanted to talk to him about

Starks and the robbery, Crespo said, "I know what you are

talking about, yes."    He admitted writing the incriminating

letter to Starks.    He admitted being present during the robbery,

claiming only that he was "outside the car" and was "down the

street."   He admitted that it was his idea to blame Chris for

everything, and admitted that he wrote that if Starks testified

truthfully, he (Crespo) would be found guilty.    This evidence

was sufficient to establish Crespo's guilt beyond a reasonable

doubt.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




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