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Smith v. Commonwealth

Court of Appeals of Virginia

December 17, 2013

HARVEY EUGENE SMITH, JR., S/K/A HARVEY EUGENE WILLIAMS, JR.
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Bruce H. Kushner, Judge

Diallo K. Morris (Black & James, P.C., on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and Huff Argued at Chesapeake, Virginia

MEMORANDUM OPINION [*]

RANDOLPH A. BEALES JUDGE

In a bench trial, the trial court convicted Harvey Eugene Smith, Jr. (appellant) of malicious wounding, in violation of Code § 18.2-51, and attempted robbery, in violation of Code §§ 18.2-26 and 18.2-58. On appeal, appellant challenges the sufficiency of the evidence supporting these convictions. However, we affirm appellant's convictions for the following reasons.

I. BACKGROUND

We consider "the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party" in the trial court. Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004). On November 14, 2010, the victim walked behind a shopping center along a path – or a "cut, " as the victim described it at trial – in the direction of a friend's house. While walking along the "cut, " the victim stated that he was struck from behind and then beaten for ten to fifteen minutes. According to the victim, three people hit him repeatedly and the same three people then felt inside his pockets for money or something else of value. Because the victim's pockets were empty, nothing was taken from him. The victim then rushed to the home of his friend, whose parents immediately called the authorities upon seeing the victim's condition. Among the victim's injuries were a "busted" lip, chipped and damaged teeth, a swollen face that required stitches, and eyes that actually hemorrhaged blood. When the police arrived, the victim told Officer Antonio Spruill that three people attacked him, including a person with dreadlocks named Harvey.

The victim, who was then a student at a high school in the City of Chesapeake, was admitted to the hospital on November 14, 2010 and did not actually return to school until two weeks later. Upon his return to school, the victim met with Officer C. Collins, the high school's resource officer. The victim told Officer Collins that one of his assailants was a fellow student at the high school whom the victim knew as "Little Harvey." The victim stated that he and "Little Harvey" had been in the same physical education class about two years before the attack on the victim. During the meeting with Officer Collins, the victim identified the faces of his assailants after looking at pictures from school yearbooks. Pointing to a picture of appellant, the victim told Officer Collins that appellant was "Little Harvey" – one of the perpetrators on November 14, 2010. The victim also pointed to the pictures of Sharron Johnson and Jabre Bell, indicating that those were the other two perpetrators.

At appellant's bench trial on the charges of malicious wounding and attempted robbery, the victim testified that he saw only four people walking along the "cut" on November 14, 2010. According to the victim, the first person was a lone male, whom the victim passed by upon entering the "cut." The victim testified that this particular person left the area of the "cut" and was not seen again by the victim. Continuing to walk along the "cut, " the victim then saw a group of three males walking toward him. The victim testified that he immediately recognized "Little Harvey" as one of these people – and he also identified appellant as "Little Harvey" at trial. The victim testified that these three males continued to approach the victim and then walked past him. However, the victim's attention was raised when he overheard a comment as they passed by him. The victim testified, "As I was walking past them, I kind of picked up on Mr. Johnson saying something to [appellant]." Without objection, the victim further testified that the comment he overheard "wasn't directed to me, but it was speaking of me."

The victim explained at trial that, after appellant and the other two males passed by him, "I heard them sneaking up on me. They were already sneaking up on me." However, before he could turn around and clearly see who was approaching him from behind, the victim was then attacked from behind. Nevertheless, the victim could detect the "shadows" of his three attackers. As the victim described during direct examination:

I then proceeded to turn around to identify who it was behind me. I saw three shadows of three people standing behind me, Mr. Bell, Mr. Smith [i.e., appellant], and Mr. Johnson, and I was struck in the jaw to prevent me from turning around to identify who was behind me.

"After that I blacked out, " the victim's testimony continued, "and I was repeatedly struck."

Although he was knocked unconscious by the first punch, the victim asserted at trial that he was able to regain some awareness of his surroundings during the course of the attack against him and that he was never actually "confused" while he was being beaten. The victim testified that he could feel punches thrown from "every which way, " that three people were beating him, that he was being pushed back to the ground every time he tried to stand, and that the beating lasted ten to fifteen minutes.

In addition, the victim testified that, when he was finally able to get to his feet, his "pockets were checked." The victim explained that he felt "people sticking their hands in my pockets" and "[r]ummaging for money" or something else of value. However, the victim testified that nothing was taken from his pockets because nothing was in them. Pertinent to this appeal, the prosecutor asked the victim whether the people who put their hands in his pockets were "the same people that attacked" him. The victim responded, "Yes."

Officer Spruill testified that he interviewed the victim on November 14, 2010. According to Officer Spruill, the victim told him that he was attacked by three males between the ages of seventeen and twenty who were wearing black – focusing on "one subject having dreads and going by the name of Harvey." Officer Collins testified that she was familiar with a student at the high school known as "Little Harvey, " identifying appellant as that person. Officer Collins also testified that, before the victim actually began identifying the yearbook pictures of the assailants, the victim told her that "Little Harvey" was one of the assailants. Officer Collins explained that she gave the victim no directions and "didn't help him at all" as the victim was identifying yearbook pictures of his assailants. Instead, the victim ...


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