Kodi F. McCollum, s/k/a Kodi McCullum v CW

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COURT OF APPEALS OF VIRGINA

Present: Chief Judge Fitzpatrick, Judges Wllis and Annunziata
Argued at Chesapeake, Virginia

KOO. F. MCOLLUM S/KA
KOD. MCULLUM
MEMORANDUM OPI N ON’ BY
Vv. Record No. 2281- 98- 1 JUDGE JERE M H WILLIS, JR
NOVEMBER 9, 1999
COMVONWEALTH OF VI RGN A

FROM THE CI RCU'T COURT OF SOUTHAMPTON COUNTY
Wstbrook J. Parker, Judge

Theophlise Twtty (Jones & Twtty, on brief),
for appellant.

Fugene Mirphy, Assistant Attorney Ceneral
(Mark L. Earley, Attorney General, on brief),
for appellee.

On appeal fromhis bench trial convictions of attenpted
robbery, in violation of Code 8§ 18.2-58 and 18. 2-26, discharge
of a firearmin an occupied building, in violation of Code
§ 18.2-279, use of a firearmin the commission of a felony, in
violation of Code § 18. 2-53.1, and possession of a firearmafter
having been convicted of a felony, in violation of § 18. 2-308. 2
Kodi F. MCollumcontends that the evidence was insufficient to
support the convictions. Finding no error, we affirmthe

judgnents of the trial court.

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

On appeal, we review the evidence in
the light most favorable to the
Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. 	The
judgment of a trial court sitting without a
jury is entitled to the same weight as a
jury verdict and will not be set aside
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
On January 22, 1998, Vanessa Gutliffe was in the rear of
the Daily Bread Sub Shop when she heard someone yelling, "Give
me the money, give me the money." 	She thought the man was
joking with her co-worker, so she finished washing some dishes.
When she returned to the front of the restaurant, she saw a man
wearing a ski mask with a gun in his hand. 	Although she did not
know his name, she recognized him as a regular customer. 	As she
turned away from the counter, the gunman fired the gun into the
cash register and became increasingly threatening. 	The two
women ran to the back of the restaurant and called the police.
Gutliffe told the police that the assailant's girlfriend,
Jarnice Brown, who was also a regular customer, had been
standing outside waiting for him. 	Gutliffe, who is five feet,
four inches, tall, described the gunman as shorter than she,
perhaps five feet, one inch, or five feet, two inches, tall.
She said that he had a pecan-colored complexion and hazel eyes.
She described his clothing. 	When the police dispatched the
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description of the gunman, they stated that he was believed to
be the boyfriend of Jarnice Brown. 	Deputy Sheriff J. A. Wyche
found McCollum, whom he knew to be Brown's boyfriend, about one
hundred yards from the sub shop. 	At trial, Deputy Wyche
described McCollum as five feet, two inches, tall. 	However, at
trial, McCollum was measured at five feet, five inches. 	An
earlier arrest card gave his height as five feet, five inches.
Gutliffe testified that although the gunman was wearing a
ski mask, she could see his eyes, which she described as hazel.
She also could see enough of his face to recognize him as a
regular customer, although she did not know his name. 	The day
after the crime, Deputy Sheriff J. E. Covington, Jr., showed
Gutliffe a photo array of six pictures. 	She positively
identified McCollum as the gunman. 	She identified him again at
trial.
McCollum contends that the evidence is insufficient to
support his convictions. 	He argues that because Gutliffe
described the gunman as being two to three inches shorter than
she, her testimony is incredible in light of his measurement in
court and his listed height on the previous arrest card.
The sufficiency of the evidence depends on the reliability
of Gutliffe's identification of McCollum as the gunman. 	See
Smallwood v. Commonwealth, 14 Va. App. 527, 530, 418 S.E.2d 567,
568 (1992). 	Factors determining the reliability of an
identification include
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the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
of the witness' prior description of the
criminal, the level of certainty
demonstrated by the witness at the
confrontation, and the length of time
between the crime and the confrontation.
Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663-64
(1987), cert. denied, 485 U.S. 971 (1988), quoting Neil v.
Biggers, 409 U.S. 188, 199-200 (1972).
We cannot say as a matter of law that the testimony of
Deputy Wyche and Gutliffe was inherently incredible merely
because they were mistaken about McCollum's height. 	Gutliffe
unequivocally identified McCollum both in a photo array and at
trial. 	She described other features, such as his complexion and
eye color, without error.
McCollum presented an alibi witness, his aunt. 	The trial
court observed the witnesses, saw McCollum being measured in
court, and weighed the evidence. 	The trial court believed
Gutliffe and the deputy, rather than the defense witness.
"[T]he finding of the judge, upon the credibility of the
witnesses and the weight to be given their evidence, stands on
the same footing as the verdict of the jury, and unless that
finding is plainly wrong, or without evidence to support it, it
cannot be disturbed." 	Yates v. Commonwealth, 4 Va. App. 140,
143, 355 S.E.2d 14, 16 (1987) (citation omitted).
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The j udgnents of the trial court are affirned.

Af firned.