COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, Virginia 

CURTIS JACKSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2701-99-1 JUDGE LARRY G. ELDER 

 NOVEMBER 14, 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. 

 Curtis Jackson (appellant) was convicted in a bench trial 

for assault and battery in violation of Code § 18.2-57.2. On 

appeal, he contends the testimony of the victim was inherently 

incredible and that, without such testimony, the evidence was 

insufficient to support his conviction. We hold that the 

victim's testimony was not inherently incredible but that, even 

if it was, the trial court relied largely on the eyewitness 

testimony of a third party, the credibility of which appellant 

does not challenge on appeal. We conclude that the evidence as 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
a whole, including the third party's eyewitness testimony, was 

sufficient to support appellant's 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. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The 

conclusions of the fact finder on issues of witness credibility 

"may only be disturbed on appeal if this Court finds that [the 

witness'] testimony was 'inherently incredible, or so contrary 

to human experience as to render it unworthy of belief.'" 

Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 

419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296, 

299-300, 321 S.E.2d 202, 204 (1984)). In all other cases, we 

must defer to the conclusions of "the fact finder[,] who has the 

opportunity of seeing and hearing the witnesses." Schneider v. 

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). 

 Here, the trial court indicated that it relied "largely 

upon [Shirley Thomas'] testimony" in convicting appellant of 

committing an assault and battery on Katherine Cherrill on 

May 29, 1999. Thomas testified that she heard a "smack" and 

then heard appellant say to Cherrill, "If you say one more 

thing, I'll hit you." Thomas then turned around, saw Cherrill 

holding her ear, and observed appellant strike Cherrill in the 

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mouth. Thomas' testimony was not inherently incredible, and 

appellant does not contend otherwise. 

 Although Cherrill, while under oath, gave several different 

accounts of the events of May 29, 1999, she testified before the 

trial court that appellant struck her in the mouth at least once 

on that date, which was consistent with Thomas' testimony. 

Cherrill explained that she had recanted her allegations in a 

notarized statement dated June 10, 1999,1 and in her original 

testimony in the district court because she was afraid of 

appellant. The evidence indicated that she eventually testified 

in the district court that appellant had struck her once on 

May 29, 1999. The mere fact that appellant was incarcerated 

during that time did not prevent the court from concluding that 

Cherrill was, in fact, afraid of appellant and may have lied as 

a result of that fear. 

 Therefore, we conclude that Cherrill's testimony that 

appellant struck her at least once on May 29, 1999, was not 

inherently incredible. Coupled with the unimpeached testimony 

of Shirley Thomas, which the trial court found to be "entirely 

 1

 The notarized statement was not, in fact, at odds with 

Thomas' testimony that appellant threatened to strike Cherrill 

and did strike Cherrill in the mouth. The notarized statement 

indicates merely that appellant did not "harm" Cherrill or cause 

her "any bodily injury." This notarized statement, if credited 

by the trial court, would not be at odds with appellant's 

conviction because a conviction for assault and battery does not 

require proof of infliction of bodily injury or other harm. See

Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888 

(1998). 

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credible" and upon which the trial court relied heavily in 

convicting appellant, the evidence was sufficient to support 

appellant's assault and battery conviction. 

 For these reasons, we affirm appellant's conviction. 

Affirmed.

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