                  COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


MICHAEL WILLIAM KOULOURIS
                                        MEMORANDUM OPINION * BY
v.   Record No. 1953-99-1               JUDGE NELSON T. OVERTON
                                              MAY 23, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                   Lydia Calvert Taylor, Judge

          Allan D. Zaleski (Weisberg & Zaleski, P.C.,
          on brief), for appellant.

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


     On appeal from his conviction of statutory burglary, in

violation of Code § 18.2-91, Michael William Koulouris contends

that the trial court erred in denying his motion to suppress an

eyewitness identification and that the evidence was insufficient

to support his conviction.   Finding no reversible error, we

affirm.

               On appeal, we review the evidence in
          the light most favorable to the
          Commonwealth, granting to it all reasonable
          inferences fairly deducible therefrom. 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

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
             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).

     At approximately 3:00 a.m. on June 11, 1998, Richard Strom

was awakened by a noise in his bedroom.    Strom saw a man

crouching at the foot of his bed.    Strom began shouting at the

man and reached for his handgun, which he kept in the bedside

table.    The burglar then pointed a weapon at Strom.   Strom

chased the man out of his bedroom and into the yard.     The man

grabbed a bicycle, belonging to Strom's wife, and rode away.

Later, Strom realized that five fishing rods had been taken from

his shed.

     On June 20, 1998, Koulouris sold one of Strom's fishing

rods to an employee of Harrison's Fishing Pier.    Koulouris

returned a few days later to sell additional rods.      The pier

employee notified police of possible stolen property, and the

police arrived at the pier to arrest Koulouris.

     The pier employee called Strom to notify him of the arrest.

Strom arrived at the pier, where he asked police if he could see

Koulouris.    Detective Guy Evans, the investigating officer at

the pier, refused, stating that showing Koulouris to Strom while

in the back of the police car would be too suggestive.      Strom

noted that the man sitting in the back of the car, whom he



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glimpsed, appeared to be the burglar, but that he could not be

sure.

        Strom testified that Detective Evans then showed him a

photo array of suspects, with six pictures.    Detective Evans

testified that he did not recall showing Strom the array, which

he had brought to the pier to show the pier employee.      The array

did not contain a photograph of Koulouris, although Strom did

pick out one of the pictures as the man who had been in his

home.    Before leaving the pier, Strom did have the opportunity

to see Koulouris after he exited the police cruiser; Strom told

police that Koulouris was the man he had seen in his house.

        Koulouris, after being indicted for grand larceny and

statutory burglary, filed a motion to suppress all evidence

regarding Strom's identification of him, as being unduly

suggestive.    Koulouris sought to suppress evidence of Strom's

identification of Koulouris at the fishing pier, Strom's

identification of Koulouris at the preliminary hearing, at which

Koulouris was restrained and wearing prison clothing, as well as

any further in-court identification that Strom would be asked to

provide.

        The trial court found that the basis for Strom's

identification of Koulouris, "be that mistaken or correct

identification, [was] a source of what he saw at the scene of

the crime and not a suggestive view at the scene or at the

preliminary hearing."    The motion to suppress was denied.

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Koulouris pled guilty to the grand larceny charge, which was

later amended to a conviction of grand larceny by receiving

stolen property, in violation of Code § 18.2-95.    The trial

court, after hearing evidence, convicted Koulouris of statutory

burglary, in violation of Code § 18.2-91, and sentenced him to a

total of twenty-three years imprisonment, with eighteen years

suspended.

     Koulouris contends that the trial court erred in denying

his motion to suppress any evidence regarding Strom's

identification of Koulouris.    He argues Strom's identification

had been unduly influenced by seeing Koulouris at the pier, in

the police cruiser, and then again at the preliminary hearing

while restrained and wearing prison clothing.

                  In determining the reliability of a
             witness' identification, we look to the
             factors enunciated in Neil v. Biggers, 409
             U.S. 188 (1972), as significant
             circumstances that may be considered along
             with other evidence. See Charity v.
             Commonwealth, 24 Va. App. 258, 262-63, 482
             S.E.2d 59, 61 (1997). These factors include
             the following: "the opportunity of the
             witness to view the criminal at the time of
             the crime, the witness' degree of attention,
             the accuracy of the witness' prior
             description of the criminal, the level of
             certainty demonstrated by the witness at the
             confrontation, and the length of time
             between the crime and the confrontation."
             Biggers, 409 U.S. at 199-200. "The fact
             finder, who has the opportunity to see and
             hear the witnesses, has the sole
             responsibility to determine the weight of
             the evidence, the credibility of witnesses,
             and the inferences to be drawn from proven


                                 - 4 -
           facts." Commonwealth v. Taylor, 256 Va.
           514, 518, 506 S.E.2d 312, 314 (1998).

Currie v. Commonwealth, 30 Va. App. 58, 73-74, 515 S.E.2d 335,

343 (1999).

     Strom had ample opportunity to view Koulouris at the scene

of the crime.   Koulouris was standing at the foot of Strom's bed

when Strom saw him.   Although it was night, the room was

illuminated by light from the television screen, a security

light outside the window, and light from the living room, which

was fifteen feet down the hall.   Strom testified that he was

"eyeball to eyeball" with the burglar, who stood at the bed long

enough for Strom to shout at him and reach for a weapon.    Strom

then was able to view Koulouris three more times as he left the

house.   As Koulouris was picking up the bicycle, and twice as he

was riding away, he looked over his shoulder at Strom, who was

standing in the yard.

     Strom's testimony at the suppression hearing was full of

detail, both about the crime itself and about Koulouris'

description.    As the trial court described Strom's testimony

relating to the night of the crime, "[i]t is clear from his

testimony that [Strom] was in a state of heightened awareness

out of fear for the safety of himself and his family and

exhibited a high level of attention to detail."   On the night of

the burglary, Strom described Koulouris as a young white male,

approximately sixteen years old, five feet, seven inches tall,


                                - 5 -
one hundred and forty to one hundred and fifty pounds, wearing a

gray sweatshirt, blue jeans, and a dark baseball cap.   When

arrested, Koulouris, a young white male, described himself as

seventeen years old, five feet, seven inches tall, and weighing

one hundred and fifty pounds.

     Strom testified that he was very certain as to his

identification of Koulouris.    At the motion hearing, he

explained fully any inconsistencies or gaps in his previous

descriptions of the burglar.    The trial court was satisfied with

Strom's credibility, and we cannot say as a matter of law that

his testimony was inherently incredible.   Further, a lapse of

twelve days between the crime and Strom's viewing of Koulouris

at the pier is not, of itself, a long enough period of time to

sufficiently taint Strom's memory of events, especially

considering the detailed account of the crime and subsequent

events.   Thus, based upon those factors enunciated in Biggers,

we find that the identification of Koulouris was not so

influenced by unduly suggestive procedures as to violate

Koulouris' right to due process.   Accordingly, the motion to

suppress was rightly denied.

     Koulouris next contends that the evidence was insufficient

to support the conviction for statutory burglary, in violation

of Code § 18.2-91.   He argues that the only evidence supporting

the conviction is Strom's identification and the fact that he

was in possession of the fishing rods after the burglary.

                                - 6 -
     For the reasons stated above, Strom's testimony identifying

Koulouris as the burglar was not admitted in error.

     Koulouris admitted to possessing the stolen rods, but

testified that he had bought the rods from a friend, so that he

could resell them for profit.   The only evidence offered as to

this transaction was the testimony of Koulouris.    "The

credibility of the witnesses and the weight accorded their

testimony are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is being

presented."   Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1985).

     While it is true that Koulouris offered an explanation

regarding his possession of the stolen rods, the truth of such

explanation is a question of fact, and the trial court is under

no duty to accept that explanation.     See Roberts v.

Commonwealth, 230 Va. 264, 272, 337 S.E.2d 255, 260 (1985).     The

trial court's rejection of Koulouris' explanation, his

possession of the rods nine days later, and Strom's

identification of Koulouris as the man who was in the house the

night of the crime, all support Koulouris' conviction.

     The judgment of the trial court is affirmed.

                                                           Affirmed.




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