COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, AtLee and Malveaux Argued by teleconference

KAREEM HASSON TURNER MEMORANDUM OPINION * BY v. Record No. 1807-16-1 JUDGE RICHARD Y. ATLEE, JR. JULY 17, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Joseph A. Migliozzi, Jr., Judge Andrew M. Sacks (Stanley E. Sack s; Sacks & Sacks, on briefs), f or appellant. Rosemary V. Bourne, Senior Assist ant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A Norfolk jury convicted Kareem Turner 1 of the first-degree murder and attempted robbery of Dajuan Glover (“the vi ctim”), as well as two attenda nt charges of using a firearm to commit those crimes. Turner’s sole assignment of error 2 reads as follows: The trial court erred in overru ling [Turner]’s motions to strik e the first degree murder and associat ed use of a firearm indictments at the conclusion of the Commonwealth’s evidence and at the conclusion of all of the evide nce, and furth er erred in overrul ing [Turner]’s motions to set aside the verdicts of guilty as to th ese

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Two people with the surname Turner were involved in the crimes . We refer to appellant Kareem Turner as “Tu rner” and to his co-defendant and cousin Roy Turner as “Roy.”

2 Although Turner’s petition for a ppeal assigned four errors, a panel of this Court denied the petition as to three of those assignments of error, leaving only one for our consideration. See also infra Part II.A. (discussi ng the effect of the partial den ial of Turner’s pet ition for appeal).UNPUBLISHED- 2 - charges, on the grounds that the evidence was insufficient as a matter of law to support the in dictments and convictions. We find Turner’s appeal meritless, and affirm the circuit court

. I. B ACKGROUND “The evidence and all just and r easonable inferences therefrom must be viewed on appeal in the light most favorable to the [Commonwealth].” Pijor v. C ommonwealth, 294 Va. 502, 516, 808 S.E.2d 408, 415 (2017) (alteration i n original) (quoting Ca rter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). The evidence establishe d that Norfolk police officers found the body of the victim on the sid e of a street in Norfolk . The victim had sustained numerous gunshot wounds, and was pronounced dead at the scene. On the night of the killing, Tr acy Covil, the victim, and anoth er friend went to a house party. Turner, Roy, and a man named Joshua Wood were also at t he party. Some time after 4:00 a.m., the victim left the pa rty with Covil and Ricola Laws hea (an acquaintance with whom the victim had been socializing a t the party). Turner, Roy, an d Wood had already left. Covil testified that he went ahead of the victim and Lawshea as they walked toward the victim’s vehicle. As the three made their way down the street, Covil saw two people following the victim and Lawshea. Accord ing to Covil, a second group of people ahead appeared to be watching them. As Covil prepar ed to unlock the vehicle, a man pulled out a gun and demanded money. After later viewing a phot ographic lineup, Covil identi fied that person as Roy. Roy took Covil’s wallet, ten dollars, and t he keys to the vehicle. A se cond man, whom Covil could not identify, was standing nearby wat ching the robbery. That man b egan running toward the area behind the vehicle where the victim’s body was later found. Co vil testified that Roy then turned his head toward the back of the vehicle. When Covil noticed Ro y’s distraction, he fled. As he escaped, Covil heard numerous gunshots.- 3 - Lawshea testified that she and t he victim were embracing as Co vil walked ahead to open the vehicle. Lawshea saw Turner near the driver’s side of the vehicle. Wood appeared, pushed Lawshea aside, and put a gun to the victim’s side. According t o Lawshea, the victim appeared to be reaching for something, and Wood asked him “What are you rea ching for?” Lawshea then saw Turner moving toward the vic tim and Wood. Turner was holdi ng what Lawshea believed to be a gun. Wood then shot the victim , and Lawshea fled in the d irection of the party. As she did so, she heard more gunshots. Partway down the street, she hid behind a car and saw Wood stand over the victim and shoot him. Within hours of the shooting, L awshea identified Turner from a photographic lineup as the man w ith Wood when the victim was sh ot. 3 Sir Thomas Boyd testified that he also attended the party. He was sitting in his parked car just before the shooting occu rred. He saw two men, whom he later identified as Turner and Roy, walk past his car carryi ng guns. Turner and Roy “boxed in ” a male, then fired their weapons at him. Boyd saw Turne r and Roy again when they walked past Boyd’s car after the shooting. As he drove away, Boyd saw a body on the ground. Police obtained warrants for Turner’s arrest, and arrested him that same day. Turner had a set of car keys and remote entry key fob in his possession. The key fob unlocked a Chevrolet Malibu parked across the street f rom the apartment complex wher e Turner was arrested. Both Turner’s and Roy’s fingerprint s were found on the exterior of t he car. In the center console of the M alibu, police recovered “a plasti c bag containing 31 capsules of tan powder,” later tested and found to be heroin. An analyst from the Virginia Department of Forensic Science developed a “DNA mixture profile ” after analyzing the plastic

3 Lawshea was also previousl y acquainted with Turner.- 4 - bag. Turner could not be eliminated as a contributor to that D NA mixture profile. 4 Also found in the center console were slip s of paper bearing the name “Buc k” and Turner’s telephone number. The Commonwealth estab lished that Turner was also know n as “Buck” or “Hess Buck.” Additionally, a .40 caliber Glock handgun with an exten ded magazine 5 was on the front floorboard of the car. An expert in firearm and toolma rk analysis, employed by the Vir ginia Department of Forensic Science, testified that three different weapons were u sed in the shooting: two .40 caliber handguns and a nine millimeter handgun. That expert te stified that sixteen cartridge casings found at the s cene of the crime were fired from the gun found in the Malibu. An autopsy revealed that the victim had been shot between sixteen and twen ty-three times. Three of the bullets/bullet fragments rec overed from the victim’s body durin g the autopsy could not be eliminated as having been fired from the Glock found in the Mal ibu. The firearm expert was able to determine that these bul lets/bullet fragments were not fired from the two other guns used in the shooting. Turner had a cell phone in his po ssession at the time of his ar rest. Analysis of records associated with that phone showe d that it was active in the are a and near the time of the killing, which occurred around 4:10 a.m. B y 5:02 that morning, the phon e was moving away from the area of the crime, and was used to call Roy’s cell phone. Three different men with whom Tu rner was incarcerated testified at trial to statements Turner made to them. Two days after the killing, Fitzhugh Warr en encountered Turner at the jail

4 Both of Turner’s co-defendants, R oy and Wood, were eliminated as contributors to the DNA mixture profile, as was the victim.

5 The magazine extension had capac ity for twenty-nine rounds of ammunition. Coupled with one chambered round, the r ecovered handgun had a total cap acity of thirty rounds.- 5 - where they were both housed. Warren asked Turner why he was injail. Turner replied that he “just pumped 19 hot into a mother f ucker” and that they “got th at New York mother fucker.” 6 Terrell Crawley testified that he too was incarcerated with Tu rner, and several months after the killing he asked Turne r why he was in jail. Turner s aid he and others “had gone to a funhouse, had a couple drinks and ch ecked the strippers out.” Turner added that he had played a dice game, which “he was los ing and ‘Dee’ was winning.” 7 Turner told Crawley that after people began leaving the party, h e waited outside for “Dee” and eventually “started drilling him.” Turner questioned Crawl ey about how to “beat” a gun char ge. He also told Crawley that the police had gotten the gun out of a car and that he had the keys to the car in his pocket. 8 Finally, Thomas Cain testified t hat he was incarcerated with aman who called himself “Hess Buck.” At trial, Cain tes tified that the man he knew as Hess Buck looked like Turner, but at the time he spoke with him i n jail (over a year and a half b efore trial), the man “had longer dreads and a chin strap [beard] .” According to Cain, the man s aid he was involved in a shooting. He, his cousin “Rawdog,” 9 and a “homeboy” named Joshua had gone to a “dice party.” The man told Cain that during a dice game, “some guy named ‘Little D’ h ad won all the money.” As a result, “[t]hey were upset and hi m, his cousin, and his homeboy went outside and was talking about how to get their money back.” The man told Cain he was c oncerned that others at the party might have seen what happe ned and that the police may hav e found his .40 caliber handgun.

6 The victim was from New Jersey.

7 “Dee” was the victim’s nickname.

8 Crawley admitted that he was incarcerated at the time of Turne r’s trial and that his attorney planned to ask for a re duction of Crawley’s sentence.

9 Roy was identified as “Rawdog” by t he Commonwealth’s evidence.- 6 - At trial, the circuit court admitted a portion of a rap video from YouTube entitled “All I Know.” The video was labeled with the name “Hess Buck” and had been uploaded a few weeks before the killing. In the video, T urner rapped that he “ke[pt ] a Glock with a thirty on it.” The jury returned guilty verdicts as to the two charges at iss ue in this appeal, first-degree murder and use of a firearm i n the commission of that murder. The circuit court imposed the jury’s sentences: thirty years in the penitentiary for first-d egree murder and three years in the penitentiary for use of a firea rm in the commission of that mur der. Turner now appeals.
II. A NALYSIS A. Procedural Background In his petition for appeal, Turn er assigned four errors. Firs t, he alleged that there was insufficient evidence to support hi s convictions for first-degr ee murder and use of a firearm in the commission of that crime. S econd, he alleged that there wa s insufficient evidence to support his convictions for attempted r obbery and use of a firearm in t he commission of that crime. Third, he alleged that the circuit court erred when it admitted a video depicting Turner “discussing a Glock handgun wit h a 30-round extended magazine, on the grounds that such evidence was not relevant . . . or, i n the alternative, its pro bative value was substantially outweighed by the danger of unfair prejudice or the likelihood that the evidence would confuse or mislead the jury.” Fourth, he alleged that th e circuit cour t erred when it admitted “the testimony of Commonwealth witness Thomas Cain relating a purpor ted incriminating conversation with [Turner], on t he grounds that the Commonwealt h failed to sufficiently identify that the person with whom Mr. C ain alleged to be speaking was i n fact [Turner].” Following review by a single j udge of this Court, pursuant to Code § 17.1-407(C), Turner’s petition for appeal was denied as to all four assignme nts of error. Turner v. Commonwealth, Record No. 1807- 16-1 (Va. Ct. App. July 19, 2017) ( per curiam ). Pursuant to- 7 - Code § 17.1-407(D), a three-judge pan el of this Court later gra nted Turner’s petition as to his first assignment of error allegi ng that the evidence was insuff icient to support Turner’s convictions for first-degree mu rder and use of a firearm in the commission of that murder. Turner v. Commonwealth, Record No. 1807-16-1 (Va. Ct. App. Oct. 13, 2017). The three-judge panel denied Turner’s petition a s to the remaining assignments of error. “Only those arguments presente d in the petition for appeal and granted by this Court will be considered on appeal.” McL ean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (emphasis added). Thus , we do not revisit the issue s raised in Turner’s denied assignments of error, nor does Turner ask us to do so. The den ial of those assignments of error is relevant to our consideration of his remaining assignment of er ror, however, because we must view the facts underpinning the de nied assignments of error as proven. That is, when we consider his assertion that the evidence was insufficient to pr ove that he murdered the victim and used a gun to do so, we must assume that he did attempt to rob the victim, and did so with a gun. B. Substantive Analysis When the sufficiency of the e vidence is challenged on appeal, “ this Court ‘has a duty to examine all the evidence that tends to support the conviction.’ ” Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). We view the evidence “in the light most favorable to the Commonwealth as the prevailing pa rty in the trial court, [and] we must uphold the conviction unless it is plainly wrong or w ithout evidence to support it.” Id. Further, this Court must “discard the evidence of the accused in conflict with that of t he Commonwealth, and regard as true all the credible evidence fa vorable to the Commonwealth an d all fair inferences to be drawn” from that evidence . Bowman v. Commonwealth, 290 Va. 492 , 494, 777 S.E.2d 851, 853 (2015) (quoting Kelley v. C ommonwealth, 289 Va. 463, 467-68, 77 1 S.E.2d 672, 674 (2015)).- 8 - “If there is evidence to suppor t the conviction, the reviewing court is not permitted to substitute its judgment, even if its view of the evidence might differ fro m the conclusions reached by the finder of fact at trial.” C ommonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). “Circumstantial evidence [pres ented during the course of a tri al] is as competent and is entitled to as much weight as di rect evidence, provided it is s ufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Holloway v. Commonwealth, 57 Va. App. 658, 665, 705 S.E.2d 510, 513 (2011) ( en banc ) (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). “Circumstantial evidence is not viewed in isolation. While no single piece of evidence may be sufficient, the combined for ce of many concurrent and related circumstances, each insu fficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Muhammad v. Commonwealth, 269 Va. 451, 479, 619 S .E.2d 16, 32 (2005). Turner argues on appeal that the evidence was insufficient to prove him guilty of murder and using a firearm to commit th at murder. Specifically, he co ntends that the testimony of many of the Commonwealth’s witnesses was inherently incredible due t o their prior criminal records or their incentives to testif y falsely against Turner. “[D]etermining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters le ft to the trier of fact.” Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015). “Witness credibility determin ations shall only be disturbed on appeal if the testimony is ‘inhere ntly incredible, or so contra ry to human experience so as to render it unworthy of belief.’” Sanchez v. Commonwealth, 41 Va . App. 319, 335, 585 S.E.2d 327, 335 (2003) (quoting Fisher v. Commonwealth, 228 Va. 296, 2 99, 321 S.E.2d 202, 204 (1984)). “To be ‘incredible,’ testimony ‘must be either so man ifestly false that reasonable men ought not to believe it, or it must be shown to be false by obj ects or things as to the existence and meaning of which reasonable men should not differ.” Juniper v. Commonwealth, 271 Va. 362,- 9 - 415, 626 S.E.2d 383, 417 (2006) (quoting Cardwell v. Commonweal th, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968)). Furthermore, “[t]he fact finder is no t required to believe all aspects of the testimony of a witness” and “ may ‘accept the parts of a wit ness’ testimony it finds believable and reject other parts as impla usible.’” Parham, 64 Va. App. a t 565, 770 S.E.2d at 207 (quoting Moyer v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 ( 2000) ( en banc )). Most of the Commonwealth’s witnes ses were convicted felons, and many had prior misdemeanor convictions for crime s of moral turpitude as well. Both of these factors are appropriate grounds for impeachment. See, e.g., Code § 19.2-26 9 (“A person convicted of a felony or perjury shall not be inc ompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.”) ; Va. R. Evid. 2:609(b) (“The f act that any other witness has previously been convicted of a felony, or a misdemeanor involvi ng moral turpitude, . . . may be elicited during examination of the witness or, if denied, prove d by extrinsic evidence.”); Dowell v. Commonwealth, 12 Va. App. 1145, 1147, 408 S.E.2d 263, 264 (1 991) (“Evidence of a prior conviction of a misdemeanor involv ing moral turpitude is admiss ible to impeach the credibility of a witness.”), aff’d on reh ’g en banc, 14 Va. App. 58, 414 S. E.2d 440 (1992). Some of the witnesses had pending charges where the possibility existed tha t they might be given consideration in the future for their testimony at Turner’s tri al. This too was a legitimate basis for impeachment, to the extent it might tend to show a motivati on to present evide nce at Turner’s trial that was helpful to the Commonwealth, but false. See, e. g., Va. R. Evid. 2:607(a) (viii) (permitting impeachment of a witnes s by use of “any other evide nce which is probative on the issue of credibility because of a logical tendency to convince the tr ier of fact that . . . the sincerity or veracity of the witness is questionable”). However, the right to impeach a w itness simply entitles a party to attempt to persuade the factfinder to disbelieve that witness. It is no guarantee of s uccess in that endeavor. The jury had the- 10 - opportunity to see and hear the w itnesses. The testimony of th ose witnesses was not “manifestly false,” Juniper, 271 Va. at 415, 626 S.E.2d at 417 (quoting Car dwell, 209 Va. at 414, 164 S.E.2d at 701), “or so contrary to human e xperience as to render it un worthy of belief,” Sanchez, 41 Va. App. at 335, 585 S.E.2d at 335 (quoting Fisher, 228 Va. at 299, 321 S.E.2d at 204). Therefore, that testimony was not i nherently incredible as a ma tter of law, and the jury was entitled to accept it. Finding that the testimony was not inherently incredible, we fi nd the evidence more than sufficient. The witness testimony placed Turner at the scene of the shooting, carrying a gun. Further, while in jail, Turner made multiple statements to diff erent individuals indicating that he had used a .40 caliber weapon to fir e numerous shots. He told one witness that he had “just pumped 19 hot into [the victim],” and told another that he had waited for “Dee” to leave the party and then “started drilling [10] him.” He suggested that he was angry because the victim had won money from him gambling at th e party and that he wanted his money back. The testimony of the Commonwealth ’s witnesses was also corrobor ated by the physical evidence. On the day of the shooting and his arrest, Turner ha d keys to a Chevrolet Malibu in his pocket. The Malibu was parked across the street from the apartment complex where he was arrested. Fingerprints, and writings with Turner’s nickname an d telephone number, were found on or in the Malibu. A video admitted into evidence, uploaded to YouTube less than two weeks before the murder, showed Turne r rapping that he “ke[pt] a Gloc k with a thirty on it.” A Glock .40 caliber handgun, with a magazine extension enabling it to h old thirty rounds of ammunition, was found inside the Malibu. Sixte en cartridge casings found a t the crime scene were shot from

10 Turner also argues that, even i f Turner did make this statemen t, the word “drilling” is too ambiguous to qualify as an a dmission to a shooting. Viewin g the term in the light most favorable to the Commonwealth, w e disagree. See Bowman, 290 Va . at 494, 777 S.E.2d at 853 (requiring appellate cou rts to draw “all fair inferences” from the evidence of the prevailing party (quoting Kelley, 289 Va. at 467-68, 771 S.E.2d at 674)).- 11 - that gun. Several bullets/bullet fr agments recovered from the autopsy of the victim could not be eliminated as having bee n fired from that gun. The Commonwealth’s evidence wa s competent, was not inherently incredible, and was sufficient to prove beyond a reas onable doubt that Turner was g uilty of murder and using a firearm to commit that murder. This Court affirms the jury’s v erdict, as it was supported by the evidence and was not plainly wrong.
III. C ONCLUSION The evidence of Turner’s guilt was sufficient, and we affirm. Affirmed.