                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Willis, Elder and Bray


RODNEY JAMES MILLER
                                            MEMORANDUM OPINION * BY
v.   Record No. 1629-00-2                JUDGE JERE M. H. WILLIS, JR.
                                                 MAY 29, 2001
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF POWHATAN COUNTY
                      Thomas V. Warren, Judge

           (Wayne R. Morgan, Jr., on brief), for
           appellant. Appellant submitting on brief.

           (Mark L. Earley, Attorney General; Donald E.
           Jeffrey, Assistant Attorney General, on
           brief), for appellee. Appellee submitting
           on brief.


     On appeal from his convictions of rape, in violation of

Code § 18.2-61, and breaking and entering with the intent to

commit rape, in violation of Code § 18.2-90, Rodney James Miller

contends that the trial court abused its discretion in refusing

to grant him a continuance.      Finding no error, we affirm the

judgment of the trial court.

                            I.   BACKGROUND

     On February 4, 1997, at approximately 12:45 a.m., the

victim's home at 2030 Old Tavern Road in Powhatan County was

broken into, and she was raped.     A Powhatan County grand jury


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
indicted the victim's estranged husband, Rodney James Miller,

for one count each of rape, breaking and entering with the

intent to commit rape, and inanimate object sexual penetration.

     On June 6, 1997, the day of trial, Miller's counsel moved

the trial court for a continuance on the ground that several

witnesses were not present.   She stated, "I was under the

impression that these witnesses would come voluntarily.    I have

contacted the witnesses.   Some of them are going to be able to

come and some of them aren't.   Some of them are material."   She

further stated, "I did not subpoena witnesses for character

because [Miller has] worked for nine years.   His father is

hospitalized.   He is not here because he is having surgery

today.   He is not available and neighbors aren't here."

     Miller told the court that he had talked with his attorney

on at least two occasions for approximately two or two and a

half hours.   When asked by the court whether he was satisfied

with the services rendered by his attorney, he stated, "No

. . . [b]ecause not all of my witnesses have been subpoenaed

that can enlighten this case, and . . . I have basically very

few character witnesses here today on my behalf."

     When asked by the trial court whether all of the witnesses

were character witnesses, Miller's counsel responded that they

were not and that the witnesses would "contradict some of the

evidence that we have heard at the preliminary hearing."     When

questioned by the trial court why these witnesses had not been

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subpoenaed, Miller's counsel responded, "Just because of the

nature of the people were good friends. . . . Also, I have had

to work with an assistant who I can't get rid of and haven't had

for long."    Noting that the witnesses had not been subpoenaed

and that Miller's counsel had "four months" to prepare for

trial, the trial court denied the motion for a continuance.

     Miller was tried by a jury and was convicted of rape and

breaking and entering with the intent to commit rape, but was

acquitted of inanimate object sexual penetration.     On appeal, he

contends that the trial court abused its discretion in denying

his motion for a continuance.

                     II.   MOTION FOR A CONTINUANCE

     A motion for a continuance in order to obtain the presence

of a missing witness is addressed to the sound discretion of the

trial court.     See Shifflett v. Commonwealth, 218 Va. 25, 30, 235

S.E.2d 316, 319 (1977).

             The Virginia Supreme Court has established 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) (citation omitted).




                                  - 3 -
     We find no abuse of discretion in the trial court's denial

of Miller's motion for a continuance.   "In determining whether

the trial court properly exercised its discretionary powers, we

look to the diligence exercised by the moving party to locate

the witness and secure his attendance at trial."     Cherricks v.

Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399

(1990).   In Cherricks, we said "[h]ad the witness in fact not

been subpoenaed, the appellant would be in no position to

dispute the denial of a continuance.    Such a lack of [due]

diligence on his part would bar him from contesting the trial

court's ruling."   Id. at 100, 396 S.E.2d at 400.    See also

Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20 (holding that the

accused had not exercised due diligence in issuing a subpoena

two days before trial).   The record establishes that Miller

failed to exercise due diligence in securing the presence of his

witnesses, and the trial court implicitly so found.    Miller's

counsel had four months to prepare for trial.   She provided no

justifiable reason for her failure to subpoena the witnesses.

See McDonnough v. Commonwealth, 25 Va. App. 120, 129, 486 S.E.2d

570, 574 (1997).

     Further, the record fails to establish that Miller was

prejudiced by the denial of his motion for a continuance.

Although his counsel stated that the missing witnesses were

"material," she made no proffer in support of this

characterization of the expected testimony.   Thus, whether

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Miller was prejudiced by the denial of a continuance is a matter

of speculation.   We cannot determine whether the testimony of

the missing witnesses would have been in his favor.     See

Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151

(1994) (holding that the prejudice allegedly resulting from the

denial of a continuance cannot be based on mere speculation and

must appear from the record).

     For these reasons, we hold that the trial court did not

abuse its discretion in denying Miller's motion for a

continuance.

                                                          Affirmed.




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