                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judges Willis and Bumgardner


DAVID LEWIS GIBBS
                                      MEMORANDUM OPINION * BY
v.       Record No. 1117-98-3   CHIEF JUDGE JOHANNA L. FITZPATRICK
                                           APRIL 6, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                        James F. Ingram, Judge

             (Lee Hendricks Turpin, on brief), for
             appellant. Appellant submitting on brief.

             (Mark L. Earley, Attorney General;
             Richard B. Campbell, Assistant Attorney
             General, on brief), for appellee. Appellee
             submitting on brief.


     David Gibbs (appellant) was convicted in a bench trial of

perjury, in violation of Code § 18.2-434. 1   On appeal, he

contends that the evidence was insufficient to prove his guilt.

We disagree and affirm his conviction.

                                  I.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     1
      The trial court convicted appellant of two counts of
perjury. We granted appellant's petition for appeal on only one
count, concerning appellant's statements about his operation of
a motor vehicle.
therefrom.     See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).     So viewed, the evidence established

that on June 11, 1997, Detective Mark Hendrix observed appellant

driving a brown Chrysler Lebaron near Hughes Street and

Chatelaine Avenue in the City of Danville. 2     Appellant was

exceeding the speed limit, and his rear license plate was

improperly displayed on his vehicle.      The officer saw only one

occupant in the vehicle, whom he later identified as appellant.

     Hendrix activated his lights and followed appellant's car

through College Park and onto Highway 86.      As appellant crossed

the state line into North Carolina, Hendrix turned off his

lights and returned to Danville.       The officer later determined

that the owner of the vehicle was an individual named "David

Lewis Gibbs," who resided at 148 South Hunter Street.      Hendrix

drove to that address and "[w]hen [he] first pulled up, the

Lebaron was setting [sic] there in the driveway . . . ."

     Hendrix arrested appellant for driving on a suspended

license, eluding the police and possession of cocaine.

Appellant made the following statement to the police:

             [Hendrix]: Okay. Ah, now I think this was
             about a few minutes after twelve, . . .
             [and] you were over at Chatelaine and
             Edmonds Street. Is that right?

             [Appellant]:   Yes sir.


     2
      Hughes Street and Chatelaine Avenue run parallel to each
other and are both intersected by Edmonds Street.

                                  - 2 -
Appellant also admitted that he was driving a brown Chrysler

Lebaron that afternoon.

     At his September 26, 1997 suppression hearing and trial for

the driving offense and possession of cocaine, appellant

testified under oath that he was not telling the truth when he

made the confession to Detective Hendrix on June 11, 1997.

Specifically, appellant testified as follows:

          Q. Well, . . . how did the story work
          itself out?

          A. . . . I can still remember . . . how it
          actually wound up happening was [Hendrix]
          said, he asked me if I was over on Hughes,
          or something like Chatelaine. I said, no
          sir, no I wasn't. I didn't know what he was
          talking about. Basically he said well
          here's how it, [sic] he said you was over on
          Hughes and Chatelaine, he says, and you know
          you was making a buy, you know you was doing
          this. I'm like sir, I don't know what
          you're talking about. He kept on saying,
          yeah you were. I said, yeah, sure,
          whatever. So finally he said if I would say
          a few things like I was over on Hughes and
          Chatelaine making a buy . . . and I was
          indeed driving. . . .

          Q. So you're saying you weren't driving
          either?

          A. Yes sir, I am saying that.   At that time
          I was not driving.

          Q. Your own wife said you arrived after her
          in the brown Chrysler?

          A. She said I arrived. She didn't say I
          was driving now, did she?




                              - 3 -
Q.   Well, who was driving?

A. Sir, I said I wasn't driving at that
time.

Q. Who was driving the brown Chrysler when
you arrived over on South Hunter Street?

A. Well, at that time I think that's a
little irrelevant but, to the whole point of
. . . [.]

Q. It's perfectly relevant, Mr. Gibbs.    Who
was driving?

A. I would have to say, when I got in the
yard, I was driving in the yard.

Q. Well, who was driving before you got to
the yard, Mr. Gibbs?

A. Sir, while I was being accused of being
over on Hughes and Chatelaine, I was nowhere
over there.

Q. Who was driving before you got to the
yard on Hunter Street, Mr. Gibbs?

A.   Sir, I drove down Hunter Street.

Q. Alright. Where did you come from to get
to Hunter Street?

A. Sir, we was coming from Piney Forest,
basically. It was 29, I guess it's
considered as Piney, I call it . . .[.]

Q.   So you never . . . ?

A.   . . . Piney Forest.

Q.   You never drove over on Edmonds Street?

A. I ain't gonna say I've never drove over
in my life, but I wasn't that day.

Q.   That day?   That day you didn't?


                      - 4 -
          A.    That day I did not.

(Emphasis added).

     At the trial for the perjury charge, Deputy Clerk Brenda

Burnett testified that she administered the oath to appellant on

September 26, 1997 for his suppression hearing.     Additionally,

Detective Hendrix testified that on June 11, 1997, he observed

and followed a brown Chrysler Lebaron on Hughes Street and

Chatelaine Avenue.   Hendrix also confirmed that the only

occupant in the vehicle was the driver, who was later identified

as appellant.   Jody Adam Vaden, appellant's brother-in-law,

testified on appellant's behalf.      According to Vaden, appellant

picked him up from the mall on June 11, 1997, and drove directly

to the residence on Hunter Street.      Vaden stated that they were

driving in a "gray car" and that they did not drive on

Chatelaine Avenue or Edmonds Street.     Following closing

arguments, the trial court convicted appellant of perjury.

                                 II.

     When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the Commonwealth, and the reasonable

inferences fairly deducible from that evidence support each and

every element of the charged offense.      See Moore v.

Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr

v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).


                                - 5 -
"In so doing, we must discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn therefrom."     Watkins v.

Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).

We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong

or without evidence to support it.      See Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     The perjury statute under which appellant was convicted

provides as follows:

           If any person to whom an oath is lawfully
           administered on any occasion willfully swear
           falsely on such occasion touching any
           material matter or thing, . . . he shall be
           guilty of perjury, punishable as a Class 5
           felony.

Code § 18.2-434.    "In order to sustain a perjury conviction

under this statute, the Commonwealth ha[s] the burden of

proving:   (1) that an oath was lawfully administered; (2) that

the defendant wilfully [sic] swore falsely; and (3) that the

facts to which he falsely swore were material to a proper matter

of inquiry."   Mendez v. Commonwealth, 220 Va. 97, 102, 255

S.E.2d 533, 535 (1979).   The Commonwealth bears the burden of

proving each of these elements of the offense beyond a

reasonable doubt.    See Holz v. Commonwealth, 220 Va. 876, 880,

263 S.E.2d 426, 428 (1980).

                                - 6 -
     In the instant case, appellant concedes that his statements

concerning the operation of the motor vehicle were made

willingly, under oath and related to a material fact in issue.

However, appellant argues that the Commonwealth failed to

establish that he knew the statements were false.   We disagree.

     "'[A] perjury conviction under Code § 18.2-434 requires

proof of falsity from the testimony of at least two witnesses or

other corroborating evidence of falsity in the event the case is

supported by the testimony of only one witness.'"    Stewart v.

Commonwealth, 22 Va. App. 117, 120, 468 S.E.2d 126, 127 (1996)

(quoting Keffer v. Commonwealth, 12 Va. App. 545, 549, 404

S.E.2d 745, 747 (1991)).   "[A]lthough the corroborating evidence

'must be of a strong character, and not merely corroborative in

slight particulars,' it need not be equal in weight to the

testimony of a second witness.    Rather, the corroborating

evidence must confirm the single witness' testimony in a manner

strong enough 'to turn the scale and overcome the oath of the

[defendant] and the legal presumption of his innocence.'"     Id.

(citations omitted) (alteration in original).

     In the instant case, Detective Hendrix was the only witness

who testified that appellant was driving a brown Chrysler

Lebaron on June 11, 1997, on Hughes Street and Chatelaine

Avenue.   Therefore, unless other evidence corroborates Hendrix's




                                 - 7 -
testimony that appellant testified falsely about not driving on

those two streets, appellant's perjury conviction cannot stand.

     Sufficient evidence in the record corroborates Detective

Hendrix's testimony that appellant was driving on Hughes and

Chatelaine.    First, appellant's confession to the police was an

admission that he was driving on that particular day in that

particular area of Danville.     Appellant made the following

statement:

             [Hendrix]: Okay. Ah, now I think this was
             about a few minutes after twelve, . . .
             [and] you were over at Chatelaine and
             Edmonds Street. Is that right?

             [Appellant]:   Yes sir.

Although appellant later denied driving his vehicle on Hughes

and Chatelaine on the afternoon of his arrest and testified that

his confession was false, the fact finder was not required to

believe him nor give any weight to his testimony.     See Marable

v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998) ("In its role of judging witness credibility, the fact

finder is entitled to disbelieve the self-serving testimony of

the accused and to conclude that the accused is lying to conceal

his guilt.").    Thus, the trier of fact could conclude that

appellant's confession was, in fact, the truth.

     Additionally, the "material and transparent deficiencies"

in appellant's testimony at the suppression hearing corroborates



                                  - 8 -
the officer's account of the events on June 11, 1997.       Stewart,

22 Va. App. at 121, 468 S.E.2d at 128 (noting that the "material

and transparent deficiencies" in the defendant's testimony "turn

the scale" in favor of guilt).    During cross-examination by the

Commonwealth's Attorney, appellant wove an inherently incredible

tale in his testimony about who was driving the Chrysler Lebaron

on Hughes and Chatelaine. 3   Appellant gave no plausible

explanation about who was driving the vehicle and the trier of

fact could conclude from appellant's responses that he was lying

to conceal his guilt.   Cf. Stewart, 22 Va. App. at 121-22, 468

S.E.2d at 128 ("[Defendant's] lack of knowledge about the basic

details of the accident and ownership of the automobile he

claimed to have been driving, facts that he necessarily would

know or be able to explain, corroborate [the witness'] testimony

that [defendant] perjured himself.").

     We recognize that "in a perjury prosecution, the

Commonwealth has the burden of proving beyond a reasonable doubt

not only that the statements made under oath by the accused were

false, but also that he knew they were false when made."


     3
      The Commonwealth's Attorney questioned appellant six times
about "who was driving" the vehicle on that particular day.
Appellant gave the following responses: "I said I wasn't
driving at that time."; "I think that's a little irrelevant
. . . ."; "[W]hen I got to the yard, I was driving in the
yard."; "I was nowhere over there."; "I ain't gonna say I've
never drove over [there] in my life, but I wasn't that day."
Nevertheless, appellant failed to answer the question by the
Commonwealth's Attorney.

                                 - 9 -
Waldrop v. Commonwealth, 255 Va. 210, 215, 495 S.E.2d 822, 825

(1998).    In the instant case, the trial court obviously accepted

the Commonwealth's evidence that appellant was, in fact, driving

his vehicle on Hughes and Chatelaine on the afternoon of his

arrest and later lied under oath when he disavowed his earlier

admissions.   Consequently, the trial court concluded that

appellant, with knowledge of his whereabouts on June 11, 1997,

willfully swore falsely when he stated under oath that he was

not driving that day.   The Commonwealth's evidence, including

the officer's eyewitness identification of appellant,

appellant's own earlier confession, and his evasive answers, was

competent, was not inherently incredible and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of

perjury.   Accordingly, appellant's conviction is affirmed.

                                                         Affirmed.




                               - 10 -
