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. 
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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. 
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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? 
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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?
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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). 
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"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). 
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 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 
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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 
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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. 
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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.