                   COURT OF APPEALS OF VIRGINIA


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


TERRY LAMONT WHITBY
                                         MEMORANDUM OPINION * BY
v.   Record No. 1343-99-1               JUDGE SAM W. COLEMAN III
                                              JULY 25, 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.


     Terry Lamont Whitby was convicted in a bench trial of

trespassing in violation of Code § 18.2-119, assault and battery

in violation of Code § 18.2-57.2, and robbery in violation of

Code § 18.2-58.   On appeal he argues that the evidence is

insufficient to support his convictions because the victim's

testimony is inherently incredible.   He further argues that his

convictions for assault and battery and robbery violate his

Fifth Amendment right against double jeopardy.    We disagree and

affirm the convictions.



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

     Christian Cushman, the victim, and Terry Lamont Whitby, the

defendant, previously had a romantic relationship and had a

child together.   Shortly after midnight, Cushman was awakened by

Whitby knocking on her back window.      Whitby then knocked on the

back door and, when Cushman did not respond, he went to the

front door and tried to open it.       Moments later Cushman

confronted Whitby coming down the hallway toward her bedroom.

Cushman yelled at Whitby and ordered him to leave, stating that

he was not welcome in her home.    Whitby asked for a cigarette,

and Cushman "threw one at him."    Cushman then left the trailer

from the back door and "walked as fast as [she] could to the

nearest pay phone" to call the police.      Whitby ran up behind

her, picked her up, and carried her toward a gazebo in the park,

where the two had often gone together.      Cushman "pounded" on

Whitby, yelling and screaming for him to let go of her.        Whitby

put her down and she sat on the ground, clutching her purse.

Cushman testified that when she would not go with Whitby to the

gazebo, he snatched her purse and fled.      Cushman suffered two

sprained fingers and several broken fingernails.      Approximately

forty-five minutes later when police officers accompanied

Cushman, who was distraught and crying, to the area where the

incident had occurred, Cushman found her purse "exactly where




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[she] was sitting so it looked liked nothing ever happened."

Cushman reported that five dollars was missing from her purse.

        Cushman had been involved in an automobile accident prior

to this incident and sustained brain injuries, including memory

loss.    She has been diagnosed with bi-polar disorder and suffers

from paranoia.    The day before the incident, Cushman discussed

with her therapist her feelings of paranoia that Whitby might

hurt her.

        Whitby testified that, while they were dating, he took care

of Cushman's finances due to her brain injuries.     Whitby

testified that he went to Cushman's trailer that evening, just

like he did every Monday, Wednesday, and Friday.     On his visits,

the two would talk or take walks.      Whitby testified that he

knocked on the front door, and after not receiving a response,

he knocked on the back door.    Whitby identified himself, but

Cushman did not let him in the house.     Whitby then tapped on the

back window, and Cushman motioned for him to come around to the

front.    Cushman let him in the front door.   Whitby testified

that Cushman was fearful that the landlord would hear Whitby in

the trailer, so Cushman suggested that they go outside.       Before

they went to the gazebo in the park, where the two always

rendezvoused, Cushman wanted to walk to a pay phone and call her

boyfriend.    On the way to the phone, Cushman's leg "gave out"

and she started to have an asthma attack.      Whitby testified


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that, after asking her permission, he picked Cushman up and

placed her on the curb.     Whitby said that he walked her back to

the entrance of the trailer park and left.     He testified that he

did not take anything from Cushman.

                              II.   ANALYSIS

                    A.   Sufficiency of the Evidence

     Whitby argues that the evidence is insufficient to support

his convictions.    He asserts that because Cushman suffered from

memory loss, paranoia, and bi-polar disorder, her testimony was

inherently incredible and not worthy of belief.    He also argues

that Cushman's trial testimony was inconsistent with her

statements to the police and her testimony at the preliminary

hearing.   Specifically, Whitby points to one statement Cushman

made at trial, that she did not make in her statement to the

police or at the preliminary hearing, in which she stated that

Whitby threatened to tell her landlord that she allowed Whitby

into the trailer.    Whitby also points to Cushman's statement to

the police in which she stated that Whitby "braced" her when she

began to fall and that he picked her up and carried her to the

curb when she was having the asthma attack.     At trial, Cushman

stated that since she made that statement, she had time to reflect

on the reason why Whitby picked her up and carried her.    Cushman

testified that she now believes that Whitby picked her up and

tried to carry her to the gazebo.


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      On review of a challenge to the sufficiency of the evidence,

we view the evidence in the light most favorable to the

Commonwealth, the prevailing party, and grant to it all reasonable

inferences fairly deducible therefrom.   See Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998) (citations

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) (citations omitted).

      The evidence viewed in the light most favorable to the

Commonwealth proves that Whitby entered Cushman's trailer without

her permission.    See Jones v. Commonwealth, 18 Va. App. 229, 232,

443 S.E.2d 189, 190-91 (1994) (construing Code § 18.2-119).

Whitby followed Cushman out of the trailer and pursued her until

he caught her.    Whitby picked Cushman up and carried her away from

where she was standing, while she pounded on him and yelled at him

to let her down.    See Perkins v. Commonwealth, 31 Va. App. 326,

330, 523 S.E.2d 512, 513 (2000) (construing Code § 18.2-57).

Finally, Whitby grabbed Cushman's purse, while she was clutching

it.   See Pierce v. Commonwealth, 205 Va. 528, 532, 138 S.E.2d 28,

31 (1964).    Cushman suffered two sprained fingers and broken

fingernails.




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     In order for a witness' testimony to be disregarded as a

matter of law, the evidence must be inherently incredible or the

witness' account of the events must be so contrary to human

experience as to be unworthy of belief.   See Robertson v.

Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991);

see also Owens v. Commonwealth, 186 Va. 689, 696-97, 43 S.E.2d

895, 898 (1947) (stating that inconsistencies and inaccuracies in

a witness' statement do not necessarily render the statement

inherently incredible).   Although Cushman acknowledged that she

has difficulty remembering details and that she had suffered brain

trauma in an automobile accident, Cushman's account of the events

was not inherently incredible, and the trial court was entitled to

weigh this evidence in determining her credibility and Whitby's

guilt.   See Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732.      The

trial court found that Cushman "appeared very truthful to the

Court, very knowledgeable."   The trial court further found that

"her credibility is superior, and beyond a reasonable doubt the

Court would find the defendant guilty of [the charges]."     The

trial court stated that, "[i]t seems to me and incredible to

believe that [Cushman] would come up with this story and call the

police and have the problems she's having when Mr. Whitby says

there's no problem."   Moreover, any inconsistencies between

Cushman's trial testimony and her previous statements goes to her

credibility, which the trial court found to be "superior."


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Further, the sequence of events and the details were largely

corroborated by Whitby's own testimony.     Accordingly, we find

Cushman's testimony was not inherently incredible.    Therefore, the

evidence is sufficient to support the convictions.

                          B.   Double Jeopardy

     Whitby, citing Blockburger v. United States, 284 U.S. 299

(1932), argues that his convictions for assault and battery and

robbery violate his Fifth Amendment right against double jeopardy.

He argues that assault and battery is a lesser offense of robbery

and does not require proof of a separate fact that is not also an

element of robbery.

     Whitby did not raise this argument at trial.     We will not

consider for the first time on appeal an issue not preserved in

the trial court.   See Ohree v. Commonwealth, 26 Va. App. 299,

307-08, 494 S.E.2d 484, 488 (1998).     "No ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."    Rule 5A:18.

"The primary purpose of requiring timely and specific objections

is to afford the trial judge a fair opportunity to rule

intelligently on the issues presented, thus avoiding unnecessary

appeals and reversals."    Rodriguez v. Commonwealth, 18 Va. App.




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277, 284, 443 S.E.2d 419, 424 (1994) (en banc) (citation omitted),

aff'd, 249 Va. 203, 454 S.E.2d 725 (1995).

     We find that Whitby's argument on appeal is barred by Rule

5A:18 because he failed to raise the issue in the trial court.

Moreover, the record does not reflect any reason to invoke the

good cause or ends of justice exceptions to Rule 5A:18.

     Accordingly, we affirm the convictions.

                                                          Affirmed.




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