                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Haley
Argued at Salem, Virginia


BEVERLY LAM
                                                              MEMORANDUM OPINION* BY
v.     Record No. 3236-03-3                                     JUDGE LARRY G. ELDER
                                                                   MARCH 29, 2005
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                John J. McGrath, Jr., Judge

                 James N. Dickson, III, for appellant.

                 Josephine F. Whalen, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Beverly Lam (appellant) appeals from his bench trial conviction for driving after having

been declared a habitual offender. On appeal, he contends the evidence was insufficient to prove

he drove the vehicle at issue. We hold the evidence was sufficient, and we affirm the challenged

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. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975). Circumstantial evidence is sufficient to support a conviction provided

the evidence as a whole, viewed in the light most favorable to the Commonwealth, excludes all

reasonable hypotheses of innocence flowing from it. Coleman v. Commonwealth, 226 Va. 31,

53, 307 S.E.2d 864, 876 (1983).


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       In its role of judging witness credibility, the fact finder is entitled to disbelieve the

self-serving testimony of the accused, in whole or in part, and to conclude that the accused is

lying to conceal his guilt. Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98

(1987) (en banc). However, a trial court’s conclusion that the accused has lied is not substantive

evidence of guilt and is insufficient, standing alone, to support a conviction. Tarpley v.

Commonwealth, 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001) (noting fact that accused lied

provided basis for rejection of accused’s testimony but was not substantive evidence of guilt).

Rather, it is merely “a circumstance, similar to flight from a crime scene, that a fact-finder may

properly consider as evidence of guilty knowledge.” Covil v. Commonwealth, 268 Va. 692, 696,

604 S.E.2d 79, 82 (2004) (finding evidence sufficient to support larceny conviction based on

presumption of guilty knowledge flowing from defendant’s possession of recently stolen goods in

light of trial court’s rejection of defendant’s innocent explanation for that possession).

       Here, appellant’s testimony that he was not driving the car, which the trial court rejected

as false, was insufficient, standing alone, to prove the converse--that he was, in fact, driving the

car at the time of the accident. Nevertheless, the remaining evidence, both direct and

circumstantial, was sufficient to support the necessary finding that he drove the car on the

evening in question.

       When appellant testified at trial, he admitted being in the car that evening but claimed he

was merely a passenger. He averred that Judith Hammer, the woman with whom he had lived

for two years, was driving. Hammer gave similar testimony. Both also testified that the vehicle

sustained damage on the passenger’s side. Finally, appellant claimed that both he and Hammer

correctly described the damage to the car as being on the passenger’s side when State Trooper

Q.M. Garber interviewed them immediately following the accident.




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       Trooper Garber’s testimony regarding the contemporaneous interviews was at odds with

appellant’s. Garber testified that when he attempted to question Hammer, the vehicle’s owner,

on March 3, 2003, immediately after the accident, appellant “intervened numerous times” and

Trooper Garber had to “advise[] [appellant] to sit quietly.” Garber testified that Hammer then

gave an unequivocal but wholly inaccurate description of the accident and the damage sustained

by the vehicle. Garber testified Hammer related that “a deer jumped out and struck the driver

door” (emphasis added) and insisted all damage to the car was on the driver’s side. The physical

evidence, however, indicated the car sustained damage only on the passenger’s side and that it

did so when the car “veered off the road slightly” and “struck . . . two trees [on] the passenger

side front.” Trooper Garber testified that when he interviewed appellant, appellant, in contrast to

Hammer, was “very knowledgeable of what took place” during the accident and was “able to

describe consistently the damage to the vehicle.” Appellant also admitted to Trooper Garber that

the gun in the backseat “was my gun on that night,” and Trooper Garber found the ammunition

for the gun primarily in the driver’s side floorboard of the car.

       Thus, the evidence supported a finding that appellant attempted unsuccessfully to

interrupt Hammer as she erroneously, but with great certainty, described the accident to Trooper

Garber. Appellant, unlike Hammer, was able to give an accurate description of the damage to

the vehicle in the interview immediately following the accident. When appellant was unable to

correct Hammer’s version by interrupting the interview, he lied at trial by claiming Hammer had

accurately described to Trooper Garber both the accident and damage to the vehicle. Finally, the

bulk of the ammunition for the gun appellant admitted was “[his] on that night” was located on

the driver’s side floorboard. The only hypothesis flowing from this evidence, viewed in the light

most favorable to appellant, is that appellant was alone in the vehicle at the time of the accident

and, thus, was the individual driving.

                                                -3-
       For these reasons, we hold the evidence was sufficient to support appellant’s conviction

for driving after having been declared a habitual offender, and we affirm.

                                                                                       Affirmed.




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