                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


CURTIS JACKSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2701-99-1                  JUDGE LARRY G. ELDER
                                             NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                     AND COUNTY OF JAMES CITY
                 Samuel Taylor Powell, III, Judge

          Colleen K. Killilea for appellant.

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


     Curtis Jackson (appellant) was convicted in a bench trial

for assault and battery in violation of Code § 18.2-57.2.    On

appeal, he contends the testimony of the victim was inherently

incredible and that, without such testimony, the evidence was

insufficient to support his conviction.   We hold that the

victim's testimony was not inherently incredible but that, even

if it was, the trial court relied largely on the eyewitness

testimony of a third party, the credibility of which appellant

does not challenge on appeal.   We conclude that the evidence as




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a whole, including the third party's eyewitness testimony, was

sufficient to support appellant's conviction.

     When considering the sufficiency of the evidence on appeal

in a criminal case, we view the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).       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.'"

Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,

419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296,

299-300, 321 S.E.2d 202, 204 (1984)).    In all other cases, we

must defer to the conclusions of "the fact finder[,] who has the

opportunity of seeing and hearing the witnesses."    Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).

     Here, the trial court indicated that it relied "largely

upon [Shirley Thomas'] testimony" in convicting appellant of

committing an assault and battery on Katherine Cherrill on

May 29, 1999.   Thomas testified that she heard a "smack" and

then heard appellant say to Cherrill, "If you say one more

thing, I'll hit you."   Thomas then turned around, saw Cherrill

holding her ear, and observed appellant strike Cherrill in the



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mouth.   Thomas' testimony was not inherently incredible, and

appellant does not contend otherwise.

     Although Cherrill, while under oath, gave several different

accounts of the events of May 29, 1999, she testified before the

trial court that appellant struck her in the mouth at least once

on that date, which was consistent with Thomas' testimony.

Cherrill explained that she had recanted her allegations in a

notarized statement dated June 10, 1999, 1 and in her original

testimony in the district court because she was afraid of

appellant.   The evidence indicated that she eventually testified

in the district court that appellant had struck her once on

May 29, 1999.   The mere fact that appellant was incarcerated

during that time did not prevent the court from concluding that

Cherrill was, in fact, afraid of appellant and may have lied as

a result of that fear.

     Therefore, we conclude that Cherrill's testimony that

appellant struck her at least once on May 29, 1999, was not

inherently incredible.   Coupled with the unimpeached testimony

of Shirley Thomas, which the trial court found to be "entirely


     1
       The notarized statement was not, in fact, at odds with
Thomas' testimony that appellant threatened to strike Cherrill
and did strike Cherrill in the mouth. The notarized statement
indicates merely that appellant did not "harm" Cherrill or cause
her "any bodily injury." This notarized statement, if credited
by the trial court, would not be at odds with appellant's
conviction because a conviction for assault and battery does not
require proof of infliction of bodily injury or other harm. See
Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888
(1998).

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credible" and upon which the trial court relied heavily in

convicting appellant, the evidence was sufficient to support

appellant's assault and battery conviction.

     For these reasons, we affirm appellant's conviction.

                                                        Affirmed.




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