                               COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Petty and Beales
Argued at Salem, Virginia


ALBERTO BRAVO
                                                           MEMORANDUM OPINION ∗ BY
v.     Record No. 2330-06-3                             JUDGE ELIZABETH A. McCLANAHAN
                                                                  MAY 6, 2008
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                               John J. McGrath, Jr., Judge

                 Aaron L. Cook for appellant.

                 Jennifer C. Williamson, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       In a bench trial, Alberto Bravo was convicted for assault on a family member, third

offense, in violation of Code § 18.2-57.2. Bravo contends the trial court abused its discretion in

forcing him to withdraw his motion for a continuance and proceed to trial without four defense

witnesses who did not appear for trial. Bravo argues the court did so by conditioning the

continuance upon revocation of his release on bail. For the following reasons, we affirm Bravo’s

conviction.

                                          BACKGROUND

       Bravo was charged with third offense assault and battery of a family member, his wife

Rosa Requeno. On the morning of Bravo’s bench trial, his counsel made a motion to continue

the case because four of eight subpoenaed witnesses, whom he represented were “material to the

case,” were not present in court. The subpoena for Josefa Lovo was returned “not found.”


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Michele Pruto was subpoenaed by “posted service” but was not present in court. Service was

attempted at the address defense counsel had for Evodio Baltizar and Marina Requeno, but

service on them had not been achieved. “I attempted to call them,” said defense counsel,

however, “[s]ome of them don’t speak English and I don’t have phone numbers for all of them,

but I attempted to call one that was served this morning and I did not get an answer.” The

Commonwealth’s attorney responded that everyone who witnessed the incident and had been

present at the preliminary hearing was present in court that morning and that the Commonwealth

didn’t understand how the missing witnesses could therefore be considered material and

necessary.

       “What is Michele Pruto going to testify to?” asked the judge. Bravo’s counsel proffered

that Pruto “was present at the scene and can give material testimony as to what happened.” 1 “All

right,” said the judge, “I’ll give you an option. If I continue the case I’m going to lock up your

client to be held until we go to trial. So do you want to try it today or do you want a continuance

to find your key witness?” “Your Honor, . . . that doesn’t leave me with much of a choice,”

replied defense counsel. “Well, . . . we have all the witnesses who appeared at the preliminary

hearing” present and ready to testify this morning, replied the judge. “Mr. Lovo was never

served. The other two haven’t been found. We can’t continue a case because we just can’t find

somebody . . . . The only one who has been served, and that was by posting, who isn’t here is

Pruto.” Defense counsel again protested that the judge’s ruling would not give Bravo any option

but to proceed to trial that morning. Then “I’ll grant your motion for a continuance,” ruled the

judge. “We’ll have a capias issued for Michele Pruto . . . [and w]e’ll schedule this for a bench


       1
         Though having proffered that Pruto “was present at the scene,” Bravo actually testified
that Pruto merely attended the family “cookout” that preceded the subject altercation between
Bravo and his wife and that, at the time of the altercation, Pruto was “[a]bout a half a mile”
away, where the cookout had taken place.

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trial . . . on April 4th, 2006, at 9:00 a.m. and I’m going to revoke [Bravo’s] bond and order him

taken into custody at this time.”

       “Your Honor,” replied defense counsel, Bravo “wants to go forward” without the

witnesses rather than be taken into custody. “Well I’m giving you your continuance if you want

it. I mean is Mr. Pruto, is he or is he not a material witness?” asked the judge. “My client

indicates that he is,” replied defense counsel. “What is your proffer of what . . . [Pruto] . . . was

going to say?” asked the judge. Defense counsel proffered that Pruto would say the victim,

Rosa, was drinking and that Rosa got in a fight with her brother, Luis.

       Defense counsel then said, “How about the other ones? I would like to proffer their

testimony as well.” “Well,” responded the judge, “[Pruto’s] the only one you had service on

who is not here.” Defense counsel simply replied, “Okay.” 2 And no proffer of the other three

absent witnesses was made. The parties then indicated they were ready to proceed with the trial.

       At the end of the trial, the judge stated he had considered all the evidence, “including the

proffer made by the defense attorney as to the statement of Michele Pruto,” and found Bravo

guilty as charged.

                                            ANALYSIS

       Bravo argues the trial court abused its discretion in effectively denying his motion for a

continuance when the court “tied the granting of the continuance with a sua sponte revocation of




       2
         The trial judge then reiterated to defense counsel, “I told you if you want . . . to
subpoena them all again that’s fine.” Defense counsel replied, “I don’t think my client wants to
have his bond revoked.” “Well I understand he doesn’t want to,” the judge stated. Defense
counsel responded, “My only question is on the ones that did come back and it says not found, I
mean typically something does come back.” “All I can tell you is what’s in the file, Mr.
Graves,” the judge explained, to which defense counsel replied, “Okay.” The parties then
indicated they were ready to proceed with the trial.

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[his] bond.” Assuming arguendo the trial court abused its discretion, we conclude Bravo has

failed to establish that prejudice resulted, thus defeating his claim on appeal. 3

       Under settled law, this Court uses

               a two-pronged test for determining whether a trial court’s denial of
               a continuance request is reversible error. Under this test, we may
               reverse a trial court’s denial of a motion for a continuance only if it
               appears from the record: (1) that the court abused its discretion
               and (2) that the movant was prejudiced by the court’s decision.

Lebedun v. Commonwealth, 27 Va. App. 697, 712-13, 501 S.E.2d 427, 434 (1998); see Silcox v.

Commonwealth, 32 Va. App. 509, 513, 528 S.E.2d 744, 746 (2000) (applying the “two-pronged

test”). 4 “Abuse of discretion and prejudice to the complaining party are essential to reversal.”

Butler v. Commonwealth, 264 Va. 614, 621, 570 S.E.2d 813, 817 (2002) (citations omitted and

emphasis added). The absence of one renders inconsequential the presence of the other. See

Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509-10 (1990) (holding that

even if the court were to “assume arguendo” an abuse of discretion, the record did not show


       3
          While we need not address the issue of whether the trial court’s revocation of bond as a
condition to granting a continuance constituted an abuse of discretion, we do note that we have
recently held that a trial court’s threat to revoke or increase bond if a defendant refused to
consent to a bench trial constituted “patent coercion” and invalidated the defendant’s waiver of a
jury trial. See Robinson v. Commonwealth, 36 Va. App. 1, 6, 548 S.E.2d 227, 229 (2001). We
further note, however, that in an appropriate case a trial court has the authority to revoke sua
sponte a defendant’s bond for pretrial release for any one of a variety of reasons, see, e.g, Code
§§ 19.2-121 and 19.2-132; see also Dorsey v. Commonwealth, 32 Va. App. 154, 168-72, 526
S.E.2d 787, 794-96 (2000), and, in fact, has a duty to do so if evidence is presented establishing
that defendant poses a danger to the community during the continuance period. Id.
       4
         See also Mills v. Mills, 232 Va. 94, 96, 348 S.E.2d 250, 252 (1986) (holding a denial of
a continuance can be reversed only “upon a showing of abuse of discretion and resulting
prejudice to the movant”); Rosenberger v. Commonwealth, 159 Va. 953, 957-58, 166 S.E. 464,
466 (1932) (“Abuse of discretion and prejudice to the complaining party are essential to
reversal.” (citation omitted)); Shackleford v. Commonwealth, 32 Va. App. 307, 320-21, 528
S.E.2d 123, 130 (2000) (applying the “two-pronged test” and holding defendant “failed to show
that he was prejudiced” by the denial of the continuance), aff’d, 262 Va. 196, 547 S.E.2d 899
(2001); Price v. Commonwealth, 24 Va. App. 785, 789, 485 S.E.2d 655, 656 (1997) (requiring a
showing of “an abuse of discretion and demonstrated prejudice to the complainant”).

                                                 -4-
prejudice). This Court cannot reverse if the defendant “has shown no prejudice resulting from

what he claims was an abuse of discretion” in denying the continuance. Quintana v.

Commonwealth, 224 Va. 127, 135, 295 S.E.2d 643, 646 (1982). Prejudice, moreover, “may not

be presumed; it must appear from the record.” Lowery, 9 Va. App. at 307, 387 S.E.2d at 510

(citation omitted).

       Where, as here, the motion for a continuance is to secure an absent witness, the above

stated test is applicable in the context of whether the moving party has carried its burden in

showing: (1) that such witness is “material,” Shifflett v. Commonwealth, 218 Va. 25, 30, 235

S.E.2d 316, 319 (1977); (2) that the party exercised diligence to procure the witness’ presence,

see Bryant v. Commonwealth, 248 Va. 179, 181-83, 445 S.E.2d 667, 669 (1994); Smith v.

Commonwealth, 16 Va. App. 630, 636, 432 S.E.2d 2, 6 (1993) 5 ; and (3) “that it is likely that the

witness would be present at a later date,” Chichester v. Commonwealth, 248 Va. 311, 322, 448

S.E.2d 638, 646 (1994). In meeting the materiality requirement, the movant must proffer the

expected testimony of the absent witness. Id.; Lowery, 9 Va. App. at 307-08, 387 S.E.2d at 510.

       As to Michele Pruto, Bravo’s counsel proffered the entire substance of this absent

witness’ expected testimony. Significantly, Pruto was not an eyewitness to Bravo’s altercation

with his wife. Furthermore, the proffered testimony was repeated by Bravo’s witness, Alma

Laredo, as well as by Bravo during his own testimony. As such, the proffer did not add any new

evidence, but was merely cumulative evidence for the trial judge’s consideration in reaching his

verdict. The record thus shows that Bravo’s defense was not prejudiced by a denial of his

continuance motion in regard to Pruto’s absence. See McElroy v. Commonwealth, 153 Va. 877,

883, 149 S.E. 481, 483 (1929) (affirming denial of continuance motion where absent witness’


       5
          We assume, without deciding, that Bravo used due diligence in providing information
for the execution of the subpoenas issued on the four absent witnesses.

                                                -5-
testimony “would have been purely cumulative”); Vineyard v. Commonwealth, 143 Va. 546,

549, 129 S.E. 233, 234 (1925) (no continuance required if absent witness’ testimony “would

have been merely cumulative” in nature).

       As to the other three absent witnesses, Bravo failed to make any proffer as to their

expected testimony. Because he did not establish a proper record for these witnesses, “we are

unable to determine whether prejudice resulted.” Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.

Thus, we “cannot address the merits” of his appeal as to them. Id. at 308, 387 S.E.2d at 510; see

Molina v. Commonwealth, 47 Va. App. 338, 367-68, 624 S.E.2d 83, 97 (1996) (“The failure to

proffer the [witness’] expected testimony is fatal to [appellant’s] claim on appeal.”).

       Finally, Bravo made no showing that any of the four absent witnesses “would likely be

produced if the case had been continued to a later date,” whereas “[s]uch a showing was

necessary.” Piccolo v. Woodford, Adm’r, 184 Va. 432, 440, 35 S.E.2d 393, 396 (1945) (citing

Howard v. Commonwealth, 174 Va. 417, 422, 4 S.E.2d 757, 759 (1939)); see Chichester, 248

Va. at 322, 448 S.E.2d at 646; Bryant, 248 Va. at 181-83, 445 S.E.2d at 669; see also Stewart v.

Commonwealth, 10 Va. App. 563, 569, 394 S.E.2d 509, 513 (1990) (affirming denial of motion

for continuance based on defendant’s “speculation” that missing witness might be potentially

valuable).

                                          CONCLUSION

       The absence of a showing of prejudice, by itself, defeats Bravo’s argument. Accordingly,

we affirm his conviction.

                                                                                     Affirmed.




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