Complaining witness was credible in assault case

Where appellant was convicted of misdemeanor assault, the court properly rejected appellant’s version of the events and instead found the complaining witness testified credibly about the incident.

Background

Appellant rented a room in a house owned by Nozary, the complaining witness. Appellant owed rent. Nozary told him he needed to pay or leave. Nozary told appellant he would evict him if necessary.

According to Nozary, as he was leaving the bathroom, appellant attacked him with a stun gun.

The struggle lasted about 45 minutes. “Appellant continued to use the stun gun, mostly contacting Nozary’s clothing, hand, and face.”

Eventually, Nozary began to shake and fell to the floor. Appellant stood over him and held his shirt. Nozary pushed himself off of the floor, ran from the house, went to a neighbor’s house and called 911. Nozary left appellant holding on to the shirt.

Appellant also called 911. In appellant’s version of the events, Nozary and two other men attacked him as he was leaving the bathroom.

At trial, appellant moved to strike the evidence, arguing that it was insufficient to prove an assault and battery. The court denied the motion.

Appellant took the stand and testified that Nozary and two other men assaulted him for 15 minutes as he was leaving the bathroom. He testified that “he had bruises on his shoulder, hip, and knee and that his jaw was inflamed.”

Appellant denied that he had a weapon and claimed he gave a responding police officer more information than what appeared in the officer’s report.

“The court found Nozary’s testimony credible and appellant’s testimony not credible, and it determined that no evidence supported appellant’s claim that he was attacked by three people.

“Moreover, the court discarded as ‘simply not credible’ appellant’s claim that he was ‘brutally kicked and punched by three adult males’ in an attack lasting fifteen minutes but yet ‘ha[d] absolutely no injuries on him at all.’

“By contrast, the court believed Nozary’s account of an attack lasting approximately forty minutes, corroborated by Nozary having ‘at least some little scratches on him’ from ‘having wrestled’ with appellant for that length of time.

“Accordingly, the court convicted appellant of assault and battery.”

Legal standards

“As the present case illustrates, a fact finder’s ‘evaluations of credibility’ often include ‘choosing between competing accounts offered by different witnesses.’ …

“In conducting these evaluations, the fact finder is ‘free to believe or disbelieve, in part or in whole, the testimony of any witness.’ … Moreover, the fact finder is entitled to reject a defendant’s self-serving testimony and ‘conclude that [he] is lying to conceal his guilt.’”

Analysis

Appellant argues that Nozary was not a credible witness, thus there was insufficient evidence to convict.

“Appellant has failed to demonstrate that Nozary’s testimony was inherently incredible as a matter of law. We have held that a witness’ testimony was not inherently incredible when it was corroborated by other evidence, although corroboration is not necessary. …

“[T]he record demonstrates that Nozary suffered numerous injuries, including abrasions on his arms, corroborating his testimony that he was attacked and fell on his back.

“In addition, Nozary was shirtless when Officer Leung arrived, supporting his account of escaping the house while appellant held onto his shirt. By contrast, appellant suffered no visible injuries despite his contention that he was attacked by three men who repeatedly punched and kicked him.

“Additionally, the responding officers searched without success for the other two men appellant claimed had attacked him. Therefore, contrary to appellant’s argument, the physical evidence supports Nozary’s testimony that appellant attacked him. …

“After weighing the evidence and considering the witnesses’ competing accounts, the court credited Nozary’s testimony. Further, the court found that it was ‘simply not credible’ that appellant was ‘brutally kicked and punched by three adult males’ in an attack lasting fifteen minutes and yet ‘ha[d] absolutely no injuries on him at all.’

“Accordingly, having rejected as untrue appellant’s testimony, the court could ‘draw the reasonable inference that his explanation was made falsely in an effort to conceal his guilt.’”

Affirmed.

Ghazavi v. Commonwealth, Record No. 0573-21-4, May 17, 2022. CAV (O’Brien) From the Circuit Court of Fairfax County (Gardiner). Anthony H. Nourse for appellant. Susan Brock Wosk for appellee. VLW 022-7-149, 9 pp. Unpublished opinion.