                               COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia


DAVID THOMAS HORN, S/K/A
DAVE THOMAS HORN
                                                            MEMORANDUM OPINION* BY
v.     Record No. 1317-02-3                               JUDGE JEAN HARRISON CLEMENTS
                                                                 DECEMBER 30, 2003
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                Keary R. Williams, Judge

                 Kelly Combs Necessary (Dudley, Galumbeck, Necessary & Dennis,
                 on brief), for appellant.

                 Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       David Thomas Horn was convicted, upon a plea of nolo contendere, of rape, in violation

of Code § 18.2-61. On appeal, Horn contends the trial court erred in denying his motion at the

sentencing hearing to withdraw his plea of nolo contendere. Finding no error, we affirm the

conviction.

       As the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       “Under familiar principles of appellate review, we examine the evidence in the light most

favorable to the Commonwealth, the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.” King v. Commonwealth, 264 Va. 576, 578, 570 S.E.2d

863, 864 (2002). So examined, the evidence presented to the trial court established that, on

February 2, 1998, Horn told the police that he had raped his fifteen-year-old sister-in-law (the

complaining witness) on January 31, 1998, in the stairwell of a local hospital and that he “wanted

to go to jail.” He further admitted that the complaining witness “tried to get [him] to stop but

[he] wouldn’t” and that, after raping her, he told the complaining witness he “would kill her if

she told” anyone about the rape.

       When subsequently contacted by the police and the Commonwealth’s Attorney’s office,

the complaining witness, who was the sister of Horn’s wife, confirmed that Horn “had sexual

intercourse with [her] without [her] consent” in the stairwell of the hospital. She further reported

that Horn used a knife in the commission of the rape.

       On May 5, 1998, Horn was indicted on charges of rape, in violation of Code § 18.2-61,

and abduction with intent to defile, in violation of Code §§ 18.2-48 and 18.2-10. On November

30, 1998, Horn entered into a plea agreement with the Commonwealth, wherein he stipulated

there was sufficient evidence to find him guilty of raping the complaining witness and agreed to

enter a plea of nolo contendere to the rape charge. In exchange, the Commonwealth agreed to

move to nolle prosequi the abduction with intent to defile charge.

       At a hearing before the trial court that same day, the Commonwealth moved to nolle

prosequi the abduction with intent to defile charge. The court granted the Commonwealth’s

motion. Horn was then arraigned and, “after private consultation with and being advised by his

. . . counsel,” entered a plea of “no contest” to the rape charge and stipulated that “the evidence

                                                -2-
to be presented by the Commonwealth would be sufficient for a finding of guilt.” After

thoroughly examining Horn as to his understanding of his nolo contendere plea, the trial court

found that Horn “fully understood the nature and effect of his plea and of the penalties that may

be imposed upon conviction, and of the waiver of trial by jury and of appeal” and that the “plea

was freely and voluntarily given.” “[B]efore fixing punishment or imposing sentence,” the trial

court took Horn’s plea under advisement and ordered that a pre-sentence report be prepared. The

trial court continued the case to allow for the preparation of that report. The court’s findings and

rulings were memorialized in an order entered January 19, 1999.1

       On February 10, 1999, Horn’s cousin, Willie Mack, took the complaining witness and her

mother to defense counsel’s office. During a recorded interview, the complaining witness told

Horn’s attorney that the sexual intercourse she had with Horn in the hospital stairwell on January

31, 1998, was consensual and that Horn did not have a knife at the time. She also stated that she

could not remember if she and Horn said anything to each other before they “slept together” in

the stairwell or whose idea it was. When asked why she gave the police a different account of

what happened, the complaining witness said she did not know, she “just did.” Later, when

asked why she told her mother she was raped, the complaining witness said her “mother would

be concerned that [she] slept with anyone.” When asked why she later told her mother she was

not raped, the complaining witness responded, “I guess my sister.” Asked to explain her answer,

she said, “Well, if [Horn] goes to jail, she is going to be mad at me. . . . I decided to say [there

was no rape committed] because there ain’t no use in somebody going to jail . . . when they got

kids, leave my sister sitting up there with kids. They need took care of.” When asked if she had

been threatened or coerced by Horn to change her statement, the complaining witness replied, “I




       1
           The Honorable Donald R. Mullins presided over these initial proceedings.
                                              -3-
don’t want to answer.” Later, she responded affirmatively when asked if she was giving the

statement to defense counsel “voluntarily and of [her] free will.”

       At the March 15, 2002 sentencing hearing, Horn requested that he be allowed, based on

the complaining witness’ February 10, 1999 statement to his attorney recanting her accusation of

rape, to withdraw his plea of nolo contendere, enter a plea of not guilty, and proceed to trial.

The Commonwealth objected to Horn’s request, arguing that Horn should not be allowed to

withdraw his nolo contendere plea because the complaining witness’ statement of February 10,

1999, was coerced by Horn and his family. In support of its objection, the Commonwealth

called the complaining witness to the witness stand.

       The complaining witness testified that her statement to the police that Horn had a knife

and raped her in the hospital stairway was the truth. She admitted that she went to the office of

Horn’s attorney and recanted that statement, but explained that she did so only because her

mother and sister, who was married to Horn, pressured her to retract her accusation of rape. She

testified her mother told her to retract the accusation because Horn called the mother and

threatened to burn down the mother’s house with the family inside if the complaining witness did

not recant her statement accusing Horn. The complaining witness further testified that Mack

also made threats and that she was scared. The complaining witness also testified that her sister

pressured her to say the sexual intercourse with Horn was consensual by making her “feel real

bad because of the kids,” telling her that the children “would be without their daddy” and that the

sister “would be by herself” raising the children. The complaining witness further testified on

cross-examination as follows:

               [DEFENSE COUNSEL]: Okay. I just want to make sure that I
               understand. The statement that you gave to me . . ., you’re now
               telling me it’s not true and correct, is that correct?

               [COMPLAINING WITNESS]: Correct.

                                                -4-
               [DEFENSE COUNSEL]: I guess my problem is how am I going
               to know which is true and which is not true?

               [COMPLAINING WITNESS]: I don’t know. I mean I’m telling
               the truth now. The reason I gave the statement to you is because I
               was scared. I mean I didn’t really know what else to do. I was
               thinking of the kids. Plus I was scared of what his family might do
               or what he might do. And I was really confused.

               [DEFENSE COUNSEL]: I guess my question then would be if
               you were scared then why aren’t you scared now?

               [COMPLAINING WITNESS]: Well, I am.

               [DEFENSE COUNSEL]: All right. If you were thinking of the
               children then why are you not thinking of the children now?

               [COMPLAINING WITNESS]: It hurts me –

               [DEFENSE COUNSEL]: What is your reason?

               [COMPLAINING WITNESS]: It hurts me that the children is
               going to be without their daddy. My sister calls saying that her
               kids is crying, but that’s not my fault. That’s his fault.

                          *       *      *       *       *      *       *

               [DEFENSE COUNSEL]: Then why did you come [to give the
               statement]?

               [COMPLAINING WITNESS]: Because I was scared. I was
               scared for my life.

       Horn testified at the sentencing hearing that the sexual intercourse he had with the

complaining witness in the hospital stairwell on January 31, 1998, was consensual and that he

did not use a knife or other weapon. He further testified that he turned himself in to the police

because he had committed statutory rape.

       Following the presentation of evidence and argument by counsel, the trial court found

that, after entering a plea of “no contest” to the charge of rape, Horn attempted, “through and by

counsel,” to alter the circumstances underlying his plea “by taking a statement from the

prosecuting witness that would change the nature of that offense[].” Thus, the court noted, it had
                                                -5-
to decide whether to accept “the original version of the facts” given by the complaining witness

to the police or the version of the facts “given to [Horn’s] attorney by way of a statement

sometime after that.” In making that decision, the trial judge found as follows: “I’ve listened to

[the complaining] witness testify here on the witness stand today. I’ve observed her demeanor

and her person as she testified and I can tell you here now, Mr. Horn, I accept her version of

those facts and the original version of those circumstances.” The trial court then pronounced

Horn guilty of rape and sentenced him to fifty years in prison.

       This appeal followed.

                                           II. ANALYSIS

       On appeal, Horn contends the trial court abused its discretion in not allowing him to

withdraw his plea of nolo contendere and proceed to trial upon the “new evidence” that the

complaining witness recanted her claim that the sexual intercourse at issue was not consensual.

We disagree and affirm the judgment of the trial court.

       “[A] plea of nolo contendere is not a confession of guilt . . . . Nonetheless, by entering a

plea of nolo contendere, the defendant ‘implies a confession . . . of the truth of the charge . . .

[and] agrees that the court may consider him guilty’ for the purpose of imposing judgment and

sentence.” Commonwealth v. Jackson, 255 Va. 552, 555, 499 S.E.2d 276, 278 (1998) (citation

omitted) (quoting Honaker v. Howe, 60 Va. (19 Gratt.) 50, 53 (1869)). Code § 19.2-296 allows a

defendant to withdraw a plea of nolo contendere before sentence is imposed. Jefferson v.

Commonwealth, 27 Va. App. 477, 485, 500 S.E.2d 219, 223 (1998). Pleas of guilty and nolo

contendere are treated “alike in the context of a motion to withdraw” a plea under Code

§ 19.2-296. Id.

                       [W]hether or not an accused should be allowed to withdraw
               a plea of [nolo contendere] for the purpose of submitting one of
               not guilty is a matter that rests within the sound discretion of the
               trial court and is to be determined by the facts and circumstances
                                                 -6-
                 of each case. No fixed or definite rule applicable to and
                 determinative of all cases can be laid down. However, the motion
                 should not be denied, if timely made, and if it appears from the
                 surrounding circumstances that the plea of [nolo contendere] was
                 submitted in good faith under an honest mistake of material fact or
                 facts, or if it was induced by fraud, coercion or undue influence
                 and would not otherwise have been made.

Parris v. Commonwealth, 189 Va. 321, 324, 52 S.E.2d 872, 873 (1949). In other words, “[t]he

least surprise or influence causing a defendant to plead [nolo contendere] when he [or she] has

any defense at all should be sufficient grounds for permitting a change of plea from [nolo

contendere] to not guilty.” Id. at 325, 52 S.E.2d at 874 (quoting 14 Am. Jur. Criminal Law

§ 287).

          “Determining whether a court erred in declining to allow withdrawal of a [nolo

contendere] plea ‘requires an examination of the circumstances confronting [the] accused

immediately prior to and at the time he [or she] pleaded to the charge.’” Jones v.

Commonwealth, 29 Va. App. 503, 512, 513 S.E.2d 431, 436 (1999) (latter alterations in original)

(quoting Parris, 189 Va. at 322, 52 S.E.2d at 872). “The court’s finding as to the credibility of

witnesses and the weight of the evidence in support of a motion to withdraw a [nolo contendere]

plea will not be disturbed unless plainly wrong or without evidence to support it.” Id. at 512,

513 S.E.2d at 435.

          Considering the facts and circumstances of this case, we conclude that the record fails to

show that Horn’s plea was involuntary; induced by fraud, coercion, or undue influence; or based

upon any surprise or honest mistake of material fact. To the contrary, the record contains ample

evidence to support the trial court’s denial of Horn’s motion to withdraw his plea of nolo

contendere.

          Horn entered a plea of nolo contendere to the rape charge and stipulated that “the

evidence to be presented by the Commonwealth would be sufficient for a finding of guilt.” After

                                                 -7-
examining Horn concerning his decision to enter a plea of nolo contendere and his understanding

of the effect of that plea, the trial court correctly found, based upon Horn’s responses, that Horn

“fully understood the nature and effect of his plea” and that Horn’s nolo contendere plea was

“freely and voluntarily given.” Horn presented no evidence to the contrary at the sentencing

hearing. Accordingly, we find that Horn’s plea was voluntary and was not induced by fraud,

coercion, or undue influence.

       The evidence presented at the sentencing hearing established that Horn told the police

that he had raped the complaining witness in the stairwell of a hospital and that he “wanted to go

to jail.” Horn also told the police that, during the rape, the complaining witness “tried to get

[him] to stop but [he] wouldn’t” and that, after raping her, he told the complaining witness he

“would kill her if she told” anyone about the rape.

       In the complaining witness’ initial statement to the police regarding the incident, she

stated that she did not consent to the sexual intercourse with Horn and that he used a knife during

the rape. After Horn entered his plea, however, the complaining witness told Horn’s attorney

that the sexual intercourse with Horn was consensual and that Horn did not have a knife with

him at the time.

       At the sentencing hearing, the complaining witness testified that she recanted her

accusation because her sister and mother had pressured her to do so. She explained that her

sister, who was married to Horn, made the complaining witness “feel bad because of the kids”

and told her that she did not want to raise her children alone. She also testified that her mother

informed her about threats from Horn and his family due to the complaining witness’ accusation

against Horn. Horn had threatened to burn down the mother’s house with her family inside if the

complaining witness did not recant the accusation. The complaining witness testified that she




                                                -8-
retracted her accusation because she was afraid for her life, that her original statement to the

police was true, and that she was, in fact, raped by Horn.

       The trial court accepted the complaining witness’ testimony at the sentencing hearing,

concluded that her recantation was untrue, and rejected Horn’s testimony that the sexual

intercourse was consensual. The court’s conclusions are amply supported by the record and not

plainly wrong.

       Thus, the record fails to show that Horn entered his plea of nolo contendere based upon

any surprise or honest mistake of material fact. Consequently, the trial court did not abuse its

discretion in denying Horn’s motion to withdraw his plea of nolo contendere.

       Accordingly, we affirm Horn’s conviction.

                                                                                           Affirmed.




                                                -9-
