                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Decker and Russell
              Argued at Arlington, Virginia
UNPUBLISHED




              BRIAN TERRELL BOLAR
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1152-17-4                                   JUDGE MARLA GRAFF DECKER
                                                                                 NOVEMBER 27, 2018
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                                Lisa B. Kemler, Judge

                                Robert L. Jenkins, Jr. (Bynum & Jenkins, on brief), for appellant.

                                Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                                Herring, Attorney General, on brief), for appellee.


                      Brian Terrell Bolar appeals his conviction for using a firearm in the commission of a felony

              in violation of Code § 18.2-53.1. He was acquitted of the underlying felony in the same proceeding.

              He argues that acquittal of that offense establishes that the evidence was insufficient to support his

              conviction for the related firearm offense. For the reasons that follow, we affirm the conviction.

                                                        I. BACKGROUND1

                      In February 2017, the appellant was tried by a jury for the murder of Leon Williams and the

              use of a firearm during the commission of the murder. Numerous witnesses at trial identified the

              appellant as the murderer.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                      “On appeal, we . . . consider the evidence in the light most favorable to the
              Commonwealth, as it prevailed in the trial court.” Whitehurst v. Commonwealth, 63 Va. App.
              132, 133, 754 S.E.2d 910, 910 (2014).
        Gregory Scott testified that he and the appellant talked about the death of Williams. Scott

stated that the appellant admitted to shooting Williams in the back and firing the weapon again after

Williams fell.

        Donnell Johnson, the appellant’s cousin, described seeing the appellant chase Williams on

foot. Johnson heard gunshots and then the appellant ran back in his direction and down an alley.

Johnson also saw the appellant throw a gun into a trash can. He testified that he told the police that

the appellant was the shooter.

        James Bolar, the appellant’s uncle, testified that he and the appellant were together when

they encountered Williams, who appeared to be looking for a weapon in his car. Bolar fled to a

nearby playground. He heard gunshots while he was at the playground, and then he walked toward

his car. The appellant ran to Bolar and told him, “[L]et’s go.” Bolar recounted that the appellant

said that he did not “think he hit” Williams because Williams “hit the ground and started running

again.” According to Bolar, the appellant then called “Curtis” and told him to get the gun from a

trash can. In addition, Bolar testified that before the encounter, the appellant told him that he

needed a gun. Bolar also confirmed that the appellant told Scott that he “got” Williams.

        Curtis Davis testified that he received a phone call from the appellant on the day of the

murder and that the appellant told him to retrieve a gun from a trash can near the playground. Davis

found the trash can as instructed, retrieved the gun, and later sold it.

        On cross-examination of Bolar, the appellant established that his uncle had shot someone

with a black handgun six to eight weeks before Williams’ murder. Bolar also admitted that he had

lied to the police about his involvement when questioned about Williams’ murder. Further, Bolar

conceded that he provided false alibis to the police and encouraged witnesses to lie on his behalf.

On cross-examination of Davis, Davis testified that about a month before the shooting, Bolar had in




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his possession the same gun used to kill Williams. Davis further testified that he had told the police

that Bolar, the appellant’s uncle, wanted to kill Williams.

          The appellant argued to the jury that Bolar, his uncle, murdered Williams. He suggested

that the Commonwealth’s witnesses who identified him as the killer had lied to protect Bolar.

          During deliberations, the jury asked whether it could consider the charges of murder and use

of a firearm in the commission of a felony separately and find the appellant guilty on one but not the

other. The trial court responded to the inquiry by stating that the jury “should consider each charge

separately” and could find guilt on just one charge.

          The jury convicted the appellant of using a firearm in the commission of a murder and

acquitted him of the murder count. The appellant filed a motion to set aside the jury’s verdict,

arguing that the evidence did not support the conviction as demonstrated by the jury’s rendering of

inconsistent verdicts. The trial court denied the motion and sentenced the appellant to three years in

prison.

                                             II. ANALYSIS

          The appellant argues that the trial court erred by denying his motion to set aside the verdict.

He challenges the sufficiency of the evidence, contending that the jury’s acquittal of him on the

murder charge signified that “the Commonwealth failed to prove” the charge of use of a firearm in

the commission of murder, a felony, in violation of Code § 18.2-53.1.

          When the sufficiency of the evidence is challenged on appeal, the Court reviews the

evidence and all reasonable inferences flowing from it in the light most favorable to the

Commonwealth as the prevailing party at trial. E.g., Towler v. Commonwealth, 59 Va. App. 284,

290, 718 S.E.2d 463, 466 (2011). In considering the evidence as a whole, the appellate court “does

not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Logan v. Commonwealth, 67 Va. App. 747, 753, 800 S.E.2d 202, 205 (2017) (quoting

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Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)). Instead, the

question on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

        In making its case, the Commonwealth must exclude those “hypotheses of innocence

that flow from the evidence” and not “from the imagination” of the appellant. Tizon v.

Commonwealth, 60 Va. App. 1, 12, 723 S.E.2d 260, 265 (2012) (emphasis omitted) (quoting Scott

v. Commonwealth, 55 Va. App. 166, 172, 684 S.E.2d 833, 837 (2009) (en banc)). However,

whether a “hypothesis of innocence is reasonable is . . . a ‘question of fact.’” E.g., id. (quoting

Cooper v. Commonwealth, 54 Va. App. 558, 573, 680 S.E.2d 361, 368 (2009)). Consequently,

when a trier of fact rejects a defendant’s argument in support of innocence, such a finding may be

set aside on appeal only if it is plainly wrong or without evidence to support it. Jennings v.

Commonwealth, 67 Va. App. 620, 626, 798 S.E.2d 828, 831 (2017).

        We apply these well-established principles when considering whether the evidence was

sufficient to support the conclusion that the appellant used a firearm in the commission of a felony,

in this instance, murder. Code § 18.2-53.1 provides, in pertinent part, that “[i]t shall be unlawful for

any person to use or attempt to use any pistol, shotgun, rifle, or other firearm . . . while committing

or attempting to commit” any of several enumerated crimes, including murder. The purpose of the

statute is “to deter violent criminal conduct” by “‘preventing actual physical injury or death’” as

well as “‘discourag[ing] criminal conduct that produces fear of physical harm.’” Rose v.

Commonwealth, 53 Va. App. 505, 513, 673 S.E.2d 489, 492 (2009) (quoting Holloman v.

Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980)).




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        The record entirely supports the jury’s finding that the appellant used a firearm in the

commission of murder. The Commonwealth’s evidence proved that the appellant intentionally shot

Williams with a firearm and made inculpatory statements admitting that he committed the murder.

        The appellant’s theory of innocence below was that his uncle, Bolar, committed the crimes

and that he and other witnesses lied during their testimony. However, the law is clear that

determining the credibility of the witnesses and the weight afforded the testimony of those

witnesses are matters left to the trier of fact, who has the ability to hear the witnesses and observe

them as they testify. Towler, 59 Va. App. at 291, 718 S.E.2d at 467. “[T]here can be no relief” in

this Court if a witness testifies to facts “which, if true, are sufficient to maintain the[] verdict, . . . [i]f

the trier of the facts . . . base[d] the verdict upon that testimony,” even if that “witness’ credit [was]

impeached by contradictory statements.” Id. (quoting Swanson v. Commonwealth, 8 Va. App. 376,

379, 382 S.E.2d 258, 259 (1989)).

        The “conclusions of the fact 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.”’” Johnson v. Commonwealth, 58 Va. App.

303, 315, 709 S.E.2d 175, 181 (2011) (alteration in original) (quoting Robertson v. Commonwealth,

12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)). Testimony is incredible as a matter of law only

if it is “‘so manifestly false that reasonable men ought not to believe it’ or ‘shown to be false by

objects or things as to the existence and meaning of which reasonable men should not differ.’”

Gerald v. Commonwealth, 295 Va. 469, 487, 813 S.E.2d 722, 732 (2018) (quoting Juniper v.

Commonwealth, 271 Va. 362, 415, 626 S.E.2d 383, 417 (2006)).

        Scott and Bolar both testified that the appellant made inculpatory statements about shooting

Williams. Additionally, Johnson said that he saw the appellant chase Williams. Johnson heard

gunshots immediately before the appellant ran back in his direction and threw a gun into a trash can.

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Witnesses also stated that at the appellant’s request, Curtis later retrieved the gun from that location.

The Commonwealth’s witnesses were not inherently incredible as a matter of law, nor does the

appellant argue that they were. Based on the record, a reasonable fact finder with all of the evidence

before it could have determined that the Commonwealth’s witnesses were credible and that the

appellant used a firearm in the commission of Williams’ murder. The jury, as the finder of fact, was

entitled to reject the appellant’s hypothesis of innocence that his uncle shot the victim. See Tizon,

60 Va. App. at 12, 723 S.E.2d at 265.

        The appellant suggests that the jury’s acquittal on the murder charge signifies that the

evidence was insufficient to support the firearm conviction. However, “inconsistent verdicts

rendered by a jury do not constitute reversible error.” Wilkerson v. Commonwealth, 33 Va. App.

808, 823, 537 S.E.2d 27, 34 (2000). “[S]uch behavior” does not infringe on any of a defendant’s

constitutional rights, “and as a result, states may develop their own rules regarding such verdicts.”

Commonwealth v. Greer, 63 Va. App. 561, 571, 760 S.E.2d 132, 136 (2014) (quoting Wolfe v.

Commonwealth, 6 Va. App. 640, 648, 371 S.E.2d 314, 318 (1988)).

        In the Commonwealth, courts have long observed that “[j]uries may reach inconsistent

verdicts through mistake, compromise, or lenity, but in such instances it is ‘unclear whose ox has

been gored,’ the government’s or the defendant’s.” Ludwig v. Commonwealth, 52 Va. App. 1, 13,

660 S.E.2d 679, 685 (2008) (quoting Wolfe, 6 Va. App. at 648, 371 S.E.2d at 318). Virginia is

“‘more careful than most states to protect the inviolability and secrecy of jurors’ deliberations,’

[such that] a court, in a case like this, is unlikely to discover what motivated the jury.” Reed v.

Commonwealth, 239 Va. 594, 598, 391 S.E.2d 75, 77 (1990) (quoting Caterpillar Tractor Co. v.

Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 750 (1987)). “The most that can be said in such cases is

that the verdict shows that either in the acquittal or the conviction the jury did not speak their real

conclusions, but that does not show that they were not convinced of the defendant’s guilt.” Greer,

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63 Va. App. at 571, 760 S.E.2d at 137 (quoting Wolfe, 6 Va. App. at 647, 371 S.E.2d at 318). “For

this reason and the fact that the government is precluded from appealing the acquittal verdict, . . .

inconsistent verdicts [in the guilt phase of a jury trial] should not provide the basis for an appeal by

the defendant.” Id. (alterations in original) (quoting Wolfe, 6 Va. App. at 648, 371 S.E.2d at 318).

“Despite the apparent inconsistency of a [jury’s] verdict[s], courts may uphold inconsistent verdicts,

provided that the evidence supports the verdict challenged on appeal.” Kovalaske v.

Commonwealth, 56 Va. App. 224, 233, 692 S.E.2d 641, 646 (2010).

        These principles hold true even when the inconsistent verdicts involve “predicate and

compound offenses committed at the same time and place.” Reed, 239 Va. at 597, 391 S.E.2d at 76

(citing Dunn v. United States, 284 U.S. 390 (1932)). “[A] criminal defendant convicted by a jury

on one count [may] not attack that conviction because it was inconsistent with the jury’s verdict of

acquittal on another count.” Wolfe, 6 Va. App. at 647, 371 S.E.2d at 318 (discussing United States

v. Powell, 469 U.S. 57 (1984)).

        For these reasons, the evidence was sufficient to support the conviction, and the inconsistent

verdicts do not provide a basis for reversing. Accordingly, the trial court did not err by denying

appellant’s motion to set aside the conviction for the use of a firearm in the commission of murder.

                                          III. CONCLUSION

        The evidence, viewed in the light most favorable to the Commonwealth, supports the jury’s

conclusion that the appellant committed the crime of use of a firearm in commission of a felony in

violation of Code § 18.2-53.1. Therefore, we affirm the conviction.

                                                                                               Affirmed.




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