COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner Argued by teleconference

VICTOR HAIRSTON, JR. MEMORANDUM OPINION * BY v. Record No. 1878-09-3 J UDGE RUDOLPH BUMGARDNER, III AUGUST 3, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE G. Carter Greer, Judge Bill W. Bourland, Assistant Public Defend er (S. Jane Chittom, Appellate Defender; Sand ra Haley, Public Defender, on brief), for appellant. Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.
Victor Hairston, Jr. appeals his conviction of perjury, Code § 18.2-435. 1 He maintains the evidence was insufficient because it failed to pr ove he had the intent to testify falsely. Concluding that the evidence did su pport the conviction, we affirm. When considering the sufficiency of the eviden ce on appeal in a criminal case, this Court views the evidence in the light most favorable to the Commonwealth, gran ting to it all reasonable

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Code § 18.2-435 provides, in relevant part, that [i]t shall . . . constitute perjury for any person, with the intent to testify falsely, to knowingly give testimony under oath as to any material matter or thing and s ubsequently to give conflicting testimony under oath as to the sa me matter or thing. . . . Upon the trial . . . , it shall be suffici ent to prove that the defendant, knowingly and with the intent to te stify falsely, gave . . . differing testimony and that the differing testimony was given on two separate occasions.- 2 - inferences fairly deducible therefrom. See Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). It does not substitute its ow n judgment for that of the trier of fact.
See Cable v. Commonwealth , 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The judgment will not be set aside unless it is plainly wrong or without supporting evidence. See Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). A burglar stole a shotgun, rifle, gun case, ammunition belt, camera, and binoculars from the residence of Stan Foley. The defendant , who lived two houses away, returned the ammunition belt and camera to Fole y shortly after the theft. He told Foley he had found the ammo belt and camera in his backyard. Investigator Don Shumate spoke with the defe ndant shortly after interviewing the victim. The defendant told the officer that he had found th e items that he returned to the victim in his backyard. He stated that he saw a person known as “Tim Tim” on a neighbor’s porch earlier that day holding two guns, one of which was a shotgun. The defendant positively identified Tim Tim as Timothy Hairston 2 from a photographic lineup. The Commonwealth charged Tim Tim with the breaking and entering and grand larceny based on the defendant’s statements and identification. The Commonwealth’s attorney and the inves tigator interviewed the defendant a second time and recorded the interview. The defendant repeated his statements about seeing Tim Tim on the neighbor’s porch holding two guns. He a dded that he saw Tim Tim putting a gun into a car. The defendant agreed to testify for the Commonwealth at Tim Tim’s preliminary hearing. During his testimony at Tim Tim’s preliminary hearing, the defendant denied having seen Tim Tim with any guns on the day of the break-in . He testified that he saw someone place a shotgun in a car, but he was not sure who th e person was. He had seen Tim Tim on the

2 Timothy Hairston is no appare nt relation to the defendant.- 3 - neighbor’s porch the day of the break-in, but Tim Tim had nothing with him. As a result of the defendant’s unexpected testimony, the Commonwealth dismissed th e charges against Tim Tim. The Commonwealth then charged the defendant with grand larceny of the property taken from the Foley residence. The defendant testifie d in his own defense at his preliminary hearing. He stated that he saw Tim Tim at the neighbor’s with two guns and at some point Tim Tim was near a car with the guns. He also testified th at he told the Commonweal th’s attorney at Tim Tim’s preliminary hearing that he had seen Ti m Tim place two guns in a car. His testimony was consistent with his initial statement that in criminated Tim Tim and inconsistent with his testimony at Tim Tim’s preliminary hearing that exonerated Tim Tim. After convicting the defendant of receiving stolen property, the Co mmonwealth charged him with perjury. The trial court found the defe ndant’s subsequent tes timony “was in material conflict with” his earl ier testimony and concluded that the defendant “knowingly gave conflicting testimony in an effort to deflect guilt si nce he was in fact the defendant at the second preliminary hearing.” It found him guilty of perjury. “Testimony is material if it is relevant to a main or collater al issue on trial.” Sheard v. Commonwealth , 12 Va. App. 227, 232, 403 S.E.2d 178, 180 (1991). The defendant’s testimony was “about a fact that could influence the outc ome of the proceeding.” Ronald J. Bacigal, Criminal Offenses and Defenses at 472 (2009-2010 ed.). It did in fact change the outcome of a proceeding by causing the dismissal of the charges against Tim Tim. The defendant initially told the investigator th at he had seen Tim Tim with recently stolen property near the site of the break ing and entering. At the prelim inary hearing of charges placed because of that incriminating statement, the defe ndant stated the opposite. He testified that he had not seen Tim Tim with stolen property. La ter at his own preliminar y hearing, the defendant testified that he had seen Tim Tim with the stol en property. At Tim Tim’ s hearing, the defendant- 4 - exonerated Tim Tim; at his own hearing, the de fendant incriminated him. The defendant’s testimony at the two preliminary hearings was diametrically opposed. Any person who, “with the intent to testif y falsely, . . . knowingly give[s] testimony under oath as to any material matter or thing” and who subsequently gives “conflicting testimony under oath as to the same matter or thing” sha ll be guilty of perjury. Code § 18.2-435. It is sufficient “to prove that the defe ndant, knowingly and with the intent to testify falsely, gave such differing testimony and that the differing testim ony was given on two separate occasions.” Id. The “proof requirements of Code § 18.2-435 are less extensive than those of Code § 18.2-434, which embodies the common law crime of perjury,” Angelone v. Dabney , 263 Va. 323, 327, 560 S.E.2d 253, 255 (2002), because Code § 18.2-435 doe s not require the Commonwealth to prove which of the defendant’s contradictory statements was false in order to obtain a conviction for perjury, Scott v. Commonwealth , 14 Va. App. 294, 297, 416 S.E.2d 47, 49 (1992); see generally Bacigal, supra , at 473. The defendant gave testimony that was the polar opposite on two se parate occasions. Those facts permitted the trial court to make its fi nding that the defendant had the intent to testify falsely. The defendant’s actions ga ve rise to a reasonable inferen ce that he intended the natural and probable consequences of his acts. See Winston v. Commonwealth , 268 Va. 564, 580, 604 S.E.2d 21, 30 (2004). The evidence was sufficient to prove guilt beyond a reasonable doubt. Accordingly, we affirm. Affirmed.