COURT OF APPEALS OF VIRGINIA
Present: Judges McCl anahan, Haley and Beales Argued at Salem, Virginia

DEVIN LAMONT STREATER MEMORANDUM OPINION * BY v. Record No. 1253-08-3 J UDGE RANDOLPH A. BEALES NOVEMBER 10, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge James C. Martin (Martin & Martin Law Firm, on brief), for appellant. Donald E. Jeffrey, III, Senior A ssistant Attorney Ge neral (William C. Mims, Attorney General, on brief), for appellee.
Devin Lamont Streater (appellant) was convicted in a jury trial of two counts of robbery, in violation of Code § 18.2-58; one count of shooting within an occ upied dwelling, in violation of Code § 18.2-279; four counts of us ing a firearm in the commission of a felony, in violation of Code § 18.2-53.1; one count of armed burglary, in vi olation of Code § 18.2 -89; and one count of malicious wounding, in violation of Code § 18.2-51. Ap pellant was convicted in a separate bench trial of possession of a firearm by a convicted felon, in violation of Code § 18.2-3 08.2. Appellant appeals all these convictions, arguing that the trial court abused its discretion when it prohibited him from introducing, as impeachment evidence, the miside ntifications made by two witnesses, who both claimed that different individuals in a photogr aphic lineup were appellant’s co-conspirators to these crimes, although those indivi duals were not su spects. In addition, ap pellant argues that the trial court improperly denied his motion for a mistrial during the sentencing ph ase of his jury trial.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Finally, appellant argues th at the evidence was insufficient to support his convictions. We disagree with appellant’s arguments, and we affirm hi s convictions for the following reasons.
I. B ACKGROUND On November 30, 2006, at approximately 10:30 p.m., P.C. 1 was in the kitchen of her Pittsylvania County home. Also in the home, in diff erent rooms, were P.C.’s sons, K.C. and S.J., and two other women, T.C. and T.M. 2 P.C. heard someone outside yell, “Police!” Suddenly, a group of at least four intruders burst through th e front door. The intruders all wore black skull caps, baggy jeans, and white tee-shirts undern eath hooded jackets. Demanding money and jewelry, they ordered the victims to the floor. S. J. was struck several times in the head with a gun, leaving a large pool of blood on the hallway fl oor. In addition, both K.C. and T.C. were threatened at gunpoint. Furthermore, the intrude rs took several hundred dollars in cash from T.C. and a smaller sum of cash from T.M.’s dres ser. The home invasion finally concluded after one of the intruders yelled that there was someone outside and gunshots we re fired. The victims heard and smelled the gunshots, and a police inve stigator later found sh ell casings and bullet holes on the property. At trial, three of the five victims identif ied appellant as a participant in the home invasion. T.M., who was in the living room when the intruders burst thro ugh the door, testified that appellant was the first intruder through the door. She stated th at he “act[ed] like he wanted to hurt and kill someone.” T.M. testified that appellant was the intruder who hit S.J. in the back of the head, causing a wound that took seven staples to close. P.C., who was able to peer down the hallway during the invasion, te stified that appellant entered K.C.’s bedroom carrying a black

1 We use initials here to identify the vict ims so as to better protect their privacy.

2 Also present were P.C.’s boyfriend, who wa s sleeping in a bedroom, and the babies of T.C. and T.M.- 3 - handgun. K.C. testified that appellant entered his bedroom and searched for items to take in the closet. In addition, Johneisha Davis, a co-defendant who entered a guilty plea for her role in the crimes, testified that she accompanied appellant to P.C.’s home. Davis, who had dated S.J.’s cousin, knew where the home was located and was ab le to direct appellant there at his request. When they arrived, appellant told her that he and the other perpetrators were going inside the house to “scope the scene out” and to “rob” the victims. According to Davis, appellant wore a bullet-proof vest and carried a handgun. Davis fl ed when she heard gunshots, but she testified that she saw appellant several weeks later – be fore he was charged with these offenses. Appellant told Davis that he stru ck S.J. in the head with a gun. He instructed Davis not to tell anyone about the incident. Appellant offered several witnesses – incl uding his sister, his girlfriend, and another co-defendant – all of whom testified that appe llant attended a party on the night of November 30, 2006. Appellant himself also testified accordingly. Rejecting this alibi defense, both the jury and the trial court (on the posse ssion of a firearm by a felon indi ctment) found appellant guilty of the aforementioned offenses.
II. A NALYSIS A. A LLEGED M ISIDENTIFICATIONS I NVOLVING P HOTOGRAPHIC A RRAYS IN WHICH A PPELLANT ’ S P HOTOGRAPH W AS N OT I NCLUDED In a written pretrial moti on and later at trial, appella nt sought to introduce evidence indicating that – while viewing photographic spreads containing pictures of suspects other than appellant – some of the victims had mistakenly iden tified as appellant’s accomplices in this home invasion pictures of individuals who were not consider ed suspects, whose pictures were included in the photographic spreads only as “fille r,” as described by appellant’s counsel in the trial court. Appellant contended that these alleged misidentificati ons were relevant and material- 4 - to the proceedings because the accuracy of th e victims’ identification of appellant as a perpetrator of these crimes was th e main issue at trial. Appellant argued that “any mistakes these same witnesses have made in identifying any potentia l co-defendant’s [sic] in this same incident are highly probative and even esse ntial to the defendant’s case.” At the pretrial stage, the trial court found that evidence of the victims’ alleged misidentifications of other suspects in photographic arrays was not sufficiently relevant to appellant’s guilt to warrant admission by the court. The court remarked that if it were to permit appellant to present such evidence, the proceedings would “get directed off from . . . trying this defendant” so that “the whole trial [would be ] spent on whether somebody else was involved in the crime or not.” At the close of the trial, a ppellant asked the court to reconsider its ruling. Appellant proffered that one of the allegedly mi sidentified individuals wa s actually in prison at the time of the crimes committed here. 3 The trial court declined to reconsider the issue, finding both that this proffer occurred too late in the pr oceedings and that “where the tentacles of that [subject] could go” were “endless.” Appellant now appeals this ruling. In a criminal proceeding, “the determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion.” Thomas v. Commonwealth , 263 Va. 216, 236, 559 S.E.2d 652, 663 (2002). “‘Only when reasonable jurists could not differ can we sa y an abuse of discretion has occurred.’” Tynes v. Commonwealth , 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (quoting Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)).

3 As to two other allegedly misidentified indi viduals, appellant was ab le to proffer merely that they were not considered suspects by the police for the crimes committed here.- 5 - Appellant argues on appeal th at the trial court abused its discretion in prohibiting appellant from attempting to impeach P.C. and T.M. 4 by demonstrating that they identified “filler” photographs of “filler” i ndividuals rather than photographs of the actual suspects. Appellant admits that the photographic arrays in question did not contain appellant’s photograph. Relying mainly on a case from another state, People v. Watkins , 320 N.E.2d 59, 63-64 (Ill. App. 1974), appellant contends that P.C.’s and T.M.’s identifications of “filler” individuals gave rise to an inference that their identifications of appellant at trial we re mistaken. Thus, he argues, the trial court should have permitted appellant to present evidence of these alleged misidentifications for impeachment purposes. We disagree with appellant’s contention that the trial court abused its discretion to rule upon evidentiary matters here. See Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The trial court’s decision was based on a reasonable in ference – that the subject of the trial would shift from whether appellant was a criminal agent here (an appropriate consideration in his trial) to the collateral ma tter of whether “somebody else was involved in the crime or not.” “A fact is wholly co llateral to the main issu e if the fact cannot be used in evidence for any purpose other than for contradiction.” Seilheimer v. Melville , 224 Va. 323, 327, 295 S.E.2d 896, 898 (1982). “‘The test as to whether a matter is material or collate ral, in the matter of impeachment of a witness, is whether or not the cross-examining party would be entitled to prove it in support of his case.’” Id. (quoting Allen v. Commonwealth , 122 Va. 834, 842, 94 S.E. 783, 785-86 (1918)). Here, appellant sought to introduce evidence of the allegedly mistaken

4 These were the only two witnesses menti oned in appellant’s question presented; therefore, we consider this issue only to the extent it involves misiden tifications by P.C. and T.M. See Rule 5A:12(c).- 6 - identification of “filler” individuals, a misi dentification that did not even involve the identification of appellant, who was not included in these particular pho tographic arrays. He simply sought to introduce this evidence merely to contradict P.C. a nd T.M. regarding an identification that did not even involve him. If we were to conclude such evidence was admissible, we would be starting down a “slippery slope,” where the logical conclusion wo uld allow a defendant to impeach any witness by introducing evidence of every mi sidentification of any individua l made by that witness – even in cases where, as here, one perpetrator, because of his own actions, is clearly the primary focus of the witnesses’ attention. A witness’ misident ification of a person that she simply saw on the street could become admissible evidence for the purposes of impeachment. Such a trend would introduce a significant amount of irrelevant inform ation to trials, drawing attention away from the actual issues in cases and confusing the factfinder. Significantly, P.C. and T.M. did not claim to be able to identify any other perpetrators with the same certainty that they had when identifying appellant, see People v. Stepney , 360 N.E.2d 1206, 1208 (Ill. App. 1977) (distinguishing Watkins on this basis). Indeed, no evidence in the record establishes that P.C. and T.M. should have been able to identify the other perpetrators with the same specifi city or accuracy. Rather, both w itnesses testified at trial that appellant was a very prominent perpetrator in committing these crimes. According to T.M., appellant was the first intrude r to burst through the door, a la rge and menacing figure, who looked “like he wanted to hurt and kill someon e” and who she observed striking S.J. several times in the back of the head. Clearly, T.M. paid a significant amount of attention to this perpetrator, whom she identified as appellant. Li kewise, P.C. testified that appellant carried a handgun as he walked into her son’s bedroom, crea ting a reasonable inference that she paid more attention to this perpetrator, who appeared to create the greatest danger to her son. Therefore,- 7 - while several perpetrators part icipated in this home invasion, nothing at trial would support an inference that P.C. and T.M. necessarily observe d any other perpetrator under identical or even similar circumstances to the way in which th ey noted that they observed appellant. See Commonwealth v. Franklin , 318 N.E.2d 469, 473 (Mass. 1974); see also DeLilly v. State , 276 A.2d 417, 420 (Md. App. 1971). Moreover, we also note that the trial court, while excludi ng the misidentifications of “filler” individuals, admitted imp eachment evidence that P.C. and T.M. were unable to identify appellant from photographic arrays that actually contained appellant’s picture . Nevertheless, both the jury and the trial court (in the separate bench trial involving the firearm-possession-by-a-felon convic tion) found the witnesses’ later identifications of appellant were credible, which the jury and trial cour t were entitled to do as factfinders. See Summerlin v. Commonwealth , 37 Va. App. 288, 295, 557 S.E.2d 731, 735 (2002). Based on these facts, therefore, we conclude that the trial court committed no abuse of discretion here.
B. M OTION FOR M ISTRIAL Appellant also argues that th e trial court improperly denied his motion for a mistrial based on the prosecutor’s allegedly improper reference to appellant’s prior felony convictions during rebuttal argument before the jury at the sentencing phase of the trial. 5 Under settled law, a “timely motion for a mistrial or a cautionary instruction is required to pr eserve the issue for appeal even if an objection was properly made to the conduct or comments and improperly overruled by the trial judge.” Morris v. Commonwealth , 14 Va. App. 28 3, 287, 416 S.E.2d 462, 464 (1992) (en banc); see also Schmitt v. Commonwealth , 262 Va. 127, 14 8, 547 S.E.2d 186, 20 0-01 (2001). “There

5 The trial court granted appellant’s objecti on to the admission of certified copies of his prior felony convictions, owi ng to the Commonwealth’s failure to comply with Code § 19.2-295.1. Appellant, however, later admitted in his own testimony that he had prior felony convictions.- 8 - appears to be no exception in Virginia law to the strict application of this rule.” Bennett v. Commonwealth , 29 Va. App. 261, 281, 511 S. E.2d 439, 448-49 (1999). Appellant conceded at oral ar gument that he did not move for a mistrial until after the prosecutor finished his rebuttal ar gument and after the jury retire d to deliberate the sentence. Appellant’s motion for a mistrial, therefore, was clearly untimely. 6 See Schmitt , 262 Va. at 148, 547 S.E.2d at 201. Accordingly, we hold that appellant failed to pr eserve for appeal his objection to the prosecutor’s rebuttal argument , and we express no op inion on whether the ar gument was, in fact, improper. See Bennett , 29 Va. App. at 281, 511 S.E.2d at 449.
C. S UFFICIENCY OF THE E VIDENCE Appellant argues lastly that the evidence was insufficient to support his convictions. Appellant presents two arguments here. First, con cerning the robbery, shoo ting within an occupied dwelling, use of a firear m in the commission of a felony, armed burglary, and malicious wounding convictions that were de cided by the jury, appellant’s sufficiency of the evidence argument addresses only his contentions that the identificatio ns of him at trial were unreliable and that his alibi witnesses were more credib le than the Commonwea lth’s witnesse s who identified him as a perpetrator of these crimes. Second, concerning the felon-in-possession-of-a-firearm conviction decided by the trial court, appellant argues that th e evidence was completely insufficient to prove that he possessed a firearm. When considering the sufficiency of the evidence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the tr ial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth , 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light

6 In addition, we note that a ppellant’s alternative motion fo r a curative instruction was also untimely as the jury had already actually re tired to deliberate the sentence when the motion was made.- 9 - 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), “[w]e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Crowder , 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility of th e trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, an d to draw reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319.
1. J URY T RIAL C ONVICTIONS Appellant argues that the Comm onwealth failed to prove that he was a perpetrator in the November 30, 2006 home invasion, and, therefore, he essentially contends that no rational factfinder could have found beyond a reasonable doubt that he committed the crimes for which the jury convicted him. Appellant claims that the victims who identified him at trial were “confused,” as indicated by their at tempts to identify him in various pretrial photographic arrays. Furthermore, appellant claims that Davis, a ppellant’s co-defendant, was a self-interested “ex-lover” who fabricated appellan t’s involvement in the offenses to minimize her own guilt. Thus, appellant asserts that his own alibi witnesses were more credible than the Commonwealth’s witnesses. However, “[i]n a jury trial, the credibility of the witnesses and the weight accorded to their testimony are matters solely wi thin the province of the jury.” Lynn v. Commonwealth , 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998). Furthermore, viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party below, ample evidence supported a finding that ap pellant was a perpetrator here. Three of the victims – P.C.,- 10 - K.C., and T.M. – identified appellant at trial. Davis testified that appellant said he intended to rob the home, that appellant entered the home wearing a bullet-proof vest and armed with a handgun, and that appellant later told her that he had struck S.J. in the head. A rational factfinder could certainly have found that appellant committed the crimes for which the jury convicted him.
2. B ENCH T RIAL C ONVICTION Appellant also argues that the evidence wa s insufficient to prove that he possessed a firearm, and, therefore, he claims that his conviction under Code § 18.2-308.2 in the separate bench trial should be reversed. In a felon- in-possession-of-a-firearm prosecution, “once the Commonwealth proves the accused is a convicted fe lon who possessed an object made to ‘expel a projectile by the combustion of gunpowder or ot her explosive,’ then it has proven all the necessary elements of the crime based on the plain language of the statute.” Armstrong v. Commonwealth , 36 Va. App. 312, 320-21, 549 S.E.2d 641, 645 (2001) (quoting Code § 18.2-308.2). Appellant’s contention that the evidence wa s insufficient here because no firearm was recovered from his possession is meritless, since circumstantial evidence can support a conviction under Code § 18.2-308.2. See Redd v. Commonwealth , 29 Va. App. 256, 258-59, 511 S.E.2d 436, 437-38 (1999). Here, there was cr edible testimony that appellant possessed what certainly appeared to be a firearm a nd that shots were fired. That testimony was corroborated by physical evidence that shots indeed were fired, such as bullet holes found in the house and empty shell casings found around the ho me after the home invasion was over. A rational factfinder, such as the trial court here, wa s certainly permitted to infer from this evidence that appellant carried an actual fi rearm, rather than a toy gun or wa ter pistol, as appellant claims on appeal. Based on these facts, therefore, we c onclude that the evidence was also sufficient for- 11 - a rational factfinder to convict appellant of be ing a convicted felon in possession of a firearm under Code § 18.2-308.2.
III. C ONCLUSION For the foregoing reasons, we affi rm each of appellant’s convictions. Affirmed.