COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

LARRY JOE ELLISON 

 MEMORANDUM OPINION* BY 

v. Record No. 1370-97-3 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 3, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY 

Ray W. Grubbs, Judge 

 Stephanie G. Cox (Marshall J. Frank, P.C., on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Larry Joe Ellison appeals his conviction of failing to stop 

at the scene of an accident involving personal injury in 

violation of Code § 46.2-894. He argues that the Commonwealth 

failed to prove that he knew that an accident had occurred. 

Finding that there was evidence to prove that element of the 

offense, we affirm his conviction. 

 We construe the evidence in the light most favorable to the 

Commonwealth with all reasonable inferences fairly deducible 

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 

218 S.E.2d 534, 537 (1975). Evidence which conflicts with the 

Commonwealth's case must be discarded. See Cirios v. 

Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

The trial court's ruling will not be disturbed on appeal unless 

plainly wrong or without evidence to support it. See Smith v. 

Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993). 

 The defendant and Jocylyn Ann Graham, the victim, had a 

stormy relationship which they were ending. They agreed to meet 

at a used car lot to break it off. The defendant arrived first, 

but when Graham approached the car lot, he decided "to pull 

a . . . fast one on her" by driving away. Graham saw the 

defendant, got out of her vehicle, and tried to get him to stop 

by yelling and whistling. He heard her but would not stop. She 

walked and then began running toward Ellison's car. 

 Ellison's car reached the end of the lot and looked as if it 

would make a right hand turn onto the street. It stopped, and it 

was "sitting still" as Graham came up beside the car. She saw 

Ellison's eyes through the rear view mirror. She was reaching 

for the door handle when he "hit the gas" and pulled into the 

road. The back of the car hit her on her left side, and she 

"rolled over the car" into the street. While lying in the road, 

Graham saw Ellison drive forty to fifty feet, stop with his brake 

lights on, and "then he just took off." Graham suffered a broken 

collar bone and bruised hips. 

 The defendant conceded that he knew Graham was there and was 

pursuing him. Ellison testified that he "wanted to get out of 

Dodge." When he turned out of the lot, "I know I [ran] over a, a 

snow bank." That was all he remembered. He testified he did not 
- 3 - 

see the accident because he had a heater in the back of the car 

which obstructed his view. He did not remember stopping forty to 

fifty feet up the road. 

 The only other witness to the events was the manager of the 

used car lot. She saw two people arguing in the parking lot and 

saw Graham trying to stop the defendant's car. She stated that 

when the car reached the street, it "swung this hard right . . . 

the rear of [the] car appeared to swing back . . . this is when 

[Graham] rolled over the back of the trunk of the vehicle into 

the street." The manager testified that snow was "kind of packed 

up around the front of that sidewalk area." 

 The sole issue is whether the Commonwealth proved beyond a 

reasonable doubt that the defendant knew that he had been 

involved in a personal injury accident. Code § 46.2-894 imposes 

an affirmative duty on a driver involved in an accident to stop 

and provide assistance. Knowledge that the accident occurred is 

an essential element of the crime. See Herchenbach v. 

Commonwealth, 185 Va. 217, 220, 38 S.E.2d 328, 329 (1946). 

"[T]he Commonwealth must prove that the defendant possessed 

actual knowledge of the occurrence of the accident, and such 

knowledge of injury which would be attributed to a reasonable 

person under the circumstances of the case." Kil v. 

Commonwealth, 12 Va. App. 802, 811, 407 S.E.2d 674, 679 (1991).1

 

 1But see Johnson v. Commonwealth, 14 Va. App. 769, 418 

S.E.2d 729 (1992) (conviction sustained where Commonwealth proved 

defendant "knew or should have known" accident occurred and that 

personal injury was involved). The Commonwealth acknowledges the 
- 4 - 

See Herchenbach, 185 Va. at 220, 38 S.E.2d at 329. 

 "Absent proof of an admission against interest, knowledge 

necessarily must be shown by circumstantial evidence." Lewis v. 

Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983) 

(guilty knowledge of receiving stolen goods can be proven by 

circumstantial evidence). The essential evidence from which 

knowledge can be inferred is the victim's testimony that the 

defendant stopped just forty to fifty feet from where she lay. 

 The defendant accelerated rapidly knowing that she was 

approaching. The rear of the car hit her, she rolled over the 

trunk, and then he stopped just up from where she lay in the 

road. After a pause, he continued down the road. From that 

sequence, the trial court could reasonably infer that the 

defendant knew that there was an accident in which Graham might 

have been injured. 

 This case rests on the credibility of the witnesses. The 

victim's testimony is not "inherently incredible," and if it was 

believed, it is sufficient to support Ellison's conviction. See

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

419 (1991). It is the exclusive province of the fact finder to 

assess the witnesses' credibility and to weigh their testimony. 

See Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 

736-37 (1985). 

 

inconsistency, but does not rely on the lesser standard in 

arguing the sufficiency of the evidence in this case. 
- 5 - 

 The defendant's testimony contradicts the Commonwealth's 

evidence, but the fact finder can accept or reject a defendant's 

statement in whole or in part. See Durham v. Commonwealth, 214 

Va. 166, 169, 198 S.E.2d 603, 606 (1973). The fact finder may 

reject his statement that he did not remember if he stopped, and 

it can find that he did stop because he knew something had 

happened. The fact finder may infer that defendant's 

self-serving testimony was intended to conceal his guilt. See

Ward v. Commonwealth, 205 Va. 564, 570, 138 S.E.2d 293, 298 

(1964); Price v. Commonwealth, 18 Va. App. 760, 768, 446 S.E.2d 

642, 647 (1994). Thus, the fact finder could find that Ellison's 

testimony that he went over a snow bank as he entered the road 

was designed to account for knowing he had hit something. It 

could find his testimony that his rear view was obstructed was to 

conceal his knowledge that he saw something when he stopped. 

 While the Commonwealth's evidence must exclude all 

reasonable hypotheses of innocence, the hypotheses "which must be 

thus excluded are those which flow from the evidence itself, and 

not from the imaginations of defense counsel." Cook v. 

Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983). "A 

court is not required to accept as true that which it knows from 

human experience is incredible." Terry v. Commonwealth, 174 Va. 

507, 515, 6 S.E.2d 673, 676 (1939). 

 By finding the defendant guilty, the trial court accepted as 

true the evidence given by the victim and rejected that from the 
- 6 - 

defendant. Accordingly, there was evidence to prove the element 

of knowledge, and the trial court properly denied the motion to 

strike. We affirm the conviction. 

 Affirmed.