COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Bumgardner Argued by teleconference

LUCIO HENRY CABRERA-SANCHEZ MEMORANDUM OPINION * BY v. Record No. 1183-07-4 J UDGE RUDOLPH BUMGARDNER, III FEBRUARY 12, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Gaylord L. Finch, Judge (Charles J. Swedish, on brief) , for appellant. Ap pellant submitting on brief. Karen Misbach, Assistant At torney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Lucio Henry Cabrera-Sanchez appeals his c onvictions after a benc h trial for two counts of assault and battery on a fam ily or household member, third or subsequent offense, Code § 18.2-57.2. He contends the evidence was insuffici ent to support either conviction. Concluding the evidence was sufficient, we affirm. “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). On August 2, 2006, Laura Gutierrez called the poli ce to report that Cabrera-Sanchez, her live-in boyfriend and the father of her childre n, had attacked her. Officer Patrick Kinney responded and found Gutierrez agitat ed and crying with red marks on her face. The victim

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - provided the police with a handw ritten statement describing the event. The next day, the defendant telephoned the victim from jail and repeatedly tried to persuade her to claim that the incident was just a misunderstanding and th at she wanted to drop the charges. On August 31, 2006, Gutierrez again called the po lice. Officer Sara Gorny responded to the scene and found Gutierrez outside the residence. She had tear s in her eyes, her voice was shaking, and she had fingerprint marks on both uppe r arms and a “brush burn” on her foot. The officer went in the residence and spoke with the defendant. He was seated in the living room in a relaxed manner and had an odor of alcohol on his breat h. He admitte d making the marks on the victim but claimed he was trying to keep her from hitting him. At trial, the victim minimized the defendant’s role in both incidents. She claimed that she struck the defendant on August 2 and she th rew herself down the stairs on August 31. She maintained she had lied to the police about both incidents. However, the victim acknowledged that the defendant had hit her hard enough to knock her down and that she was in pain the day after the August 2 incident. She also acknowledged that the night of August 31 she had told the police that the defendant grabbed her a nd caused her to fall down the steps. The defendant’s only objecti on to the Commonwealth’s othe r evidence was sustained. The trial court sustained an objection to the offi cer recounting the victim’s statements when he first arrived on August 2. However, without contemporaneous objection, the Commonwealth introduced the victim’s handwritten statement made at the scene. It recounted the defendant was spanking the couple’s son and the victim pulled the defendant away. The defendant reacted by hitting her in the head “real ly hard” and knocking her to the floor. The Commonwealth introduced a recording of the telephone call the de fendant made from jail. In it the defendant tried to talk the victim out of proceeding with the charges, but in response she confirmed that the defendant had hit her.- 3 - The trial court believed the Commonwealth ’s evidence showing the defendant was the aggressor. It rejected the vict im’s retraction of her earlier stat ements and the defendant’s version of the events. “The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see a nd hear that evidence as it is presented.” Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). We find no error with the trial court’s determination of credibility. The argument in the defendant’s brief consists of three, one-sentence paragraphs citing a single case. 1 The defendant contends the evidence was (1) insufficient to convict because it proves the defendant acted in self-defense, and (2) was insufficient because it could only have been based on prior inconsistent statements. Su ffice it to say, the evidence did not raise the issue of self-defense nor did the de fendant argue that on appeal. The second argument makes an admissibility of evidence argument when raising a sufficiency issue. The defendant inserts the rule on the admissibility of prior in consistent statements that were used to impeach into an issue addressing the weight to be given conflicti ng statements admitted without objection. The testimony of the officers, the victim’s written report, the defendant’s statements, and the physical evidence of the vic tim’s injuries constituted sufficient evidence to permit a finding that the defendant committed a ssault and battery on August 2. Li kewise, the victim’s demeanor at the scene and obvious injuries combined with the officer’s observati ons were sufficient to permit a finding that the defendant committed the second assault and battery on August 31. The defendant’s behavior and lack of any injuries be lied his claim that he merely defended himself.

1 Thornton v. Downes , 177 Va. 451, 14 S.E.2d 345 (1941), that stands for the proposition that a prior inconsistent statement that is used to impeach a witness is not evidence to prove the fact stated in it.- 4 - The Commonwealth’s evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt both counts of domestic assault and battery. A ccordingly, we affirm. Affirmed.