                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia


PHILLIP WAYNE LINKOUS, JR.
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2725-02-3                                    JUDGE ROBERT P. FRANK
                                                                 DECEMBER 16, 2003
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                                 Ray W. Grubbs, Judge

                 Thomas L. DeBusk for appellant.

                 Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       Phillip Wayne Linkous, Jr., (appellant) was convicted in a bench trial of attempted rape,

in violation of Code § 18.2-61; rape, in violation of Code § 18.2-61; and incest, in violation of

Code § 18.2-366. On appeal, appellant contends the trial court erred in finding the evidence

sufficient to convict him of these three offenses. He argues the victim recanted her story after

trial, which invalidated the convictions. Appellant also argues the trial court erred in denying his

motion to continue a post-verdict hearing. We find the evidence was sufficient to convict

appellant, and we find the trial court did not abuse its discretion when it refused to grant

appellant’s motion for a continuance. Therefore, we affirm the convictions.




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

       J.L. was 15 years old at the time of these incidents. She lived in a house with her parents

and two of her brothers, Matthew and Isaac.1 A third brother, appellant, lived with various other

family members in different houses. Although a court order required appellant to have no

contact with J.L., he frequently visited his parents’ home and the home of his grandparents, who

lived next door to his parents.

       At trial, J.L. testified regarding two incidents of sexual assault. The first incident began

in late February 2001, when Isaac told J.L. that appellant wanted to know if she would have sex

with appellant. Appellant included a threat to beat up J.L. and her boyfriend if J.L. refused. J.L.

refused. Appellant sent Isaac back to J.L. with the same request several times.

       Although she had refused him, appellant went into his parents’ home at night and

knocked on the door of J.L.’s basement bedroom. J.L. admitted him. Isaac saw him go into the

room. Once in the room, appellant got on top of J.L. He put his mouth on her vagina. She told

him to stop. Appellant offered J.L. his “whole paycheck” if she would consent to have sex with

him. She again refused. Appellant held her down and attempted to put his penis into her vagina.

J.L. repeatedly told appellant to stop. J.L. cried out, but her parents, who were sleeping upstairs,

did not respond. The appellant put on his clothes and told J.L. that he would kill her if she told

anyone. J.L. testified this encounter lasted thirty minutes to an hour. Isaac testified appellant

was in J.L.’s room for two to three minutes.

       In March of 2001, another incident occurred in J.L.’s bedroom. Again, Isaac told J.L.

that appellant wanted to “sleep” with her. J.L. said no. Again, appellant came to J.L.’s bedroom.

J.L. was on her bed in her nightgown and underwear, talking on the phone to her boyfriend.


       1
           Matthew was nineteen years old and Isaac was fourteen years old at the time of the trial.


                                               -2-
Appellant said he had forgotten some drugs on top of J.L.’s stereo. After J.L.’s conversation

with her boyfriend ended, appellant got on top of J.L., pulled down her panties, and put his penis

into her vagina. J.L. yelled and told him to stop. J.L. testified he ejaculated on this occasion.

Afterwards, appellant told J.L. that he would kill her if she told anyone.

       After these incidents, J.L. switched mattresses with Isaac because she “couldn’t sleep on

it” anymore.

       At trial, Isaac corroborated his sister’s testimony regarding the first incident. However,

he admitted telling the prosecutor on the morning of the trial that everything he said about

appellant was a “bunch of lies.” Isaac told the trial court that he lied to the prosecutor because he

did not want to see appellant, his brother, get in trouble. Isaac said he testified truthfully. Isaac

also admitted telling his parents that J.L. had offered him money to testify against appellant. He

claimed he never received any money. J.L. denied offering any money to Isaac.

       According to the testimony of Investigator Norman Croy, the reports made to him by J.L.

and Isaac were essentially consistent with their trial testimony. However, he did testify that J.L.

initially told him that appellant had sexual intercourse with her during the first incident.

       Appellant denied having sexual intercourse with J.L. when interviewed by Croy.

Appellant said his DNA would not be found on the bed. However, appellant changed his story

and said his DNA could be on the mattress because he had sexual intercourse with his girlfriend

on J.L.’s bed. J.L.’s mattress, which Croy recovered from the house, had three stains on it that

contained appellant’s semen.

       The father testified that J.L. told him “a couple of months” before trial that she was

calling her probation officer to tell him that her allegations against appellant were lies. The

father saw J.L. make a call, but he did not testify that he heard any conversation. The father also




                                              -3-
testified that sound “carries” from the basement, and he hears “a lot of things” from the

basement.

       Matthew testified that J.L. would have to yell “real loud” from the basement before

anyone could hear her shouts. Although Matthew previously told Investigator Croy that he saw

appellant “locked up” in J.L.’s room and that he heard J.L. “yell out,” he testified at trial that he

had not heard J.L. nor seen appellant in J.L.’s room. When confronted with the signed statement

relating his statement to Croy, Matthew claimed he could not read, and he did not sign the form.

       At trial, appellant denied the charges. He claimed his sister hated him for some unknown

reason. He said he did not know why his brother, Isaac, would lie about these events. Appellant

admitted he had a felony and a theft conviction.

       Appellant’s mother testified he telephoned her from jail. She said, “[H]e was wanting me

to tell that he had been at his [older] sister’s the whole time” and never spent any time at his

grandparents’ house, which was next door to J.L.’s home. The mother told him, “I was not going

to lie for him or any of my kids.” Appellant denied calling his mother. The mother also testified

if J.L. had screamed, she would have heard her, since she was “not a very heavy” sleeper.

       The trial court convicted appellant of rape, attempted rape, and fornication, but acquitted

him of the sodomy charge. In convicting the appellant, the court made the following findings:

               [A]fter fully considering the evidence and the credibility of the
               witnesses, the court is convinced that certain sexual activity did
               occur between Phillip and [J.L.] on the two occasions alleged.
               Regarding first of all the count of attempted rape, Mr. Linkous, the
               court finds you guilty as charged. The complainant made a, quote,
               rape complaint, to her school counselor within about two months
               of the alleged offense. The complaint to the counselor and later to
               Investigator Croy were consistent. To the extent that the defendant
               had the intent to engage in sexual intercourse with his sister, the
               complainant’s testimony is corroborated by her brother, Isaac.
               Absent any crying out, in quotes, there is yet credible evidence that
               the attempted sexual act was against [J.L.’s] will, accompanied by
               force however slight. I find the Commonwealth has proved each
               and every element of this offense beyond a reasonable doubt.
                                              -4-
               Regarding the count sodomy, the court finds the defendant is not
               guilty. The evidence does not show beyond a reasonable doubt
               that the tongue of the defendant penetrated the female sex organ.
               Regarding the count of rape, Mr. Linkous, the court finds you
               guilty as charged. [The DNA evidence] is compelling that sexual
               intercourse occurred between the defendant and his sister. [That]
               testimony offers certain corroboration of [J.L.’s] complaint, once
               again to the counselor and to Investigator Croy. . . . With regard to
               the misdemeanor charge of incest, the court finds Mr. Linkous
               guilty of fornication with his sister, whom he is forbidden by law
               to marry.

       The court set the case for sentencing, and the case was continued several times. On April

12, 2002, appellant filed a motion to set aside the verdict, based on alleged perjury at trial. The

motion cited Isaac’s recantation on the morning of the trial and Isaac’s testimony that J.L.

offered him money to testify. On May 6, 2002, appellant filed a second motion to set aside the

verdict. That motion was based on a recantation by J.L., who executed an affidavit stating she

was pressured into false testimony by threats from her former boyfriend.

       As a result of these motions, the Commonwealth and the defense agreed that appellant

and J.L. would submit to polygraph examinations. The parties waived any objection to the

admission of the test results.2 A polygraph test was administered to appellant on July 22, 2002,

and to J.L. on August 6, 2002.

       On September 10, 2002, the defense filed a motion to continue the proceedings from

September 13, 2002, because his polygraph expert was not available for that hearing date. The

Commonwealth opposed the continuance.

       The court conducted a hearing on September 16, 2002. At the beginning of the hearing,

appellant argued his motion for a continuance. The trial court denied the request. The court

noted appellant was convicted in January and several defense continuances were granted


       2
         The Supreme Court in Lee v. Commonwealth, 200 Va. 233, 237, 105 S.E.2d 152,
154-55 (1958), ruled the results of a polygraph test are not reliable and therefore exclusion of
such evidence is not error. However, the parties here agreed the test results would be admissible.
                                             -5-
previously. The trial court also noted that the parties had agreed on the admission of the

polygraph tests. The court stated:

               When I consider this motion, I don’t know of any other case in
               which this court has afforded the defendant such post-trial
               consideration in testing the integrity of his verdict. Every
               reasonable means have been taken post-trial to assure the
               credibility of the trial proceedings. That having been said, I see no
               further cause for delay . . . .

       The court then heard evidence on the motions to set aside the verdict. Isaac testified he

had lied at trial because J.L. “was supposed” to give him $100, money he never received. Upon

questioning, Isaac initially said he could not remember when J.L. bribed him to testify falsely,

but subsequently said it was about a month before trial. Isaac acknowledged he had inculpated

appellant in a statement to the police months before J.L. allegedly offered him money to “lie.”

       J.L. testified appellant did not have sex with her. She claimed she lied because her

ex-boyfriend had threatened to kill her and her mother if she did not implicate appellant. She

said she had decided to tell the truth because she could not see her brother going to jail “for

nothing,” and because she found out her ex-boyfriend was incarcerated. J.L. acknowledged that

she was living at home with her parents. She acknowledged they were “upset with [her] at first

[for bringing the rape charge] and then I told them the truth and they told me to do the best thing

that I should do.” J.L. said she told the truth during the polygraph examination.

       Agent T.S. Svard of the Virginia State Police testified that both he and his superior

examined the results of the two polygraph tests. He stated the test results indicated that J.L. and

appellant were deceptive when they said they never had sexual intercourse. On

cross-examination, appellant attempted to attack the reliability of the polygraph.

       In denying the motion to set aside the verdict, the trial court found no improper conduct

on the part of any agent of the Commonwealth. The court noted it was aware throughout the

proceedings of Isaac’s contradictory testimony. The trial court stated it had observed the
                                             -6-
demeanor of the witnesses on the stand and assessed their credibility. The trial court considered

the results of the polygraph, “in addition to considering the testimony throughout all these

proceedings, the chronological order in which all the events have taken place, and again in

weighing their credibility,” and concluded the trial testimony was reliable.

                                             ANALYSIS

                                            A. Sufficiency

        Appellant appeals the trial court’s denial of his motions to set aside the verdicts. He

essentially makes two claims: (1) the evidence at trial was insufficient due to inconsistent

statements and impeachment evidence and (2) evidence discovered after the guilt phase of the

trial proved J.L. and Isaac lied at trial. He contends that, if J.L. and Isaac had not testified, then

the evidence at trial would have been insufficient. We find the trial court did not err in refusing

to reject the trial testimony of J.L. and Isaac.

        When considering the sufficiency of the evidence on appeal, we view the evidence in the

light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). “In so doing we must ‘“discard the evidence of the accused in conflict with that of

the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth

and all fair inferences that may be drawn therefrom.”’” Norman v. Commonwealth, 2 Va. App.

518, 520, 346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270

S.E.2d 755, 759 (1980) (quoting Wright v. Commonwealth, 196 Va. 132, 137, 82 S.E.2d 603,

606 (1954))). The trial court’s judgment will not be set aside unless plainly wrong or without

evidence to support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497

(1990) (en banc).




                                               -7-
        First, appellant alleges numerous inconsistencies exist between J.L.’s trial testimony and

her previous statements and between her statements and Isaac’s statements. He also contends the

trial testimony of J.L. and Isaac was impeached, both at trial and by their subsequent

recantations. These matters concerning inconsistencies and impeachment relate to the credibility

of the witnesses. “The credibility of a witness and the inferences to be drawn from proven facts

are matters solely for the fact finder’s determination.” Marable v. Commonwealth, 27 Va. App.

505, 509, 500 S.E.2d 233, 235 (1998). We find nothing in the record to suggest we should take

over the fact finder’s role in this case.

        Second, appellant asserts the jurisprudence of “after discovered evidence” is relevant to

this analysis. He argues that, because two crucial witnesses recanted their statements, the

prosecution’s case was effectively negated. Keeping in mind appellant argues sufficiency only

and does not request a new trial, we will consider the application of an after-discovered evidence

analysis here.3

        The opportunity and temptation for fraud which accompany a motion for a new trial

based on after-discovered evidence require that such a motion be approached guardedly. Lewis

v. Commonwealth, 193 Va. 612, 625, 70 S.E.2d 293, 301 (1952). Therefore, such a motion

should be received cautiously, awarded with great reluctance, and addressed to the sound

discretion of the trial court. Whittington v. Commonwealth, 5 Va. App. 212, 215, 361 S.E.2d

449, 451 (1987). In a motion for a new trial based on after-discovered evidence:

                  [t]he applicant bears the burden to establish that the evidence (1)
                  appears to have been discovered subsequent to the trial; (2) could
                  not have been secured for use at the trial in the exercise of
                  reasonable diligence by the movant; (3) is not merely cumulative,



        3
         We note that after-discovered evidence issues usually arise in the context of a motion
for a new trial, not a motion to set aside the verdict.

                                               -8-
               corroborative or collateral; and (4) is material, and such as should
               produce opposite results on the merits at another trial.

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983).

       As to Isaac’s recantation, appellant does not meet the first burden of this test because the

same evidence was explored at trial during both direct and cross-examination. Appellant refers

to Isaac’s statement that he was promised money to testify against appellant and his alleged

admission to the prosecutor on the morning of trial that he lied to implicate appellant. At trial,

both of these statements were brought to the attention of the trial court. The prosecutor

confronted Isaac about his recantation earlier that day. Isaac testified that the recantation was a

lie, and he affirmed his testimony that appellant had him solicit J.L. for sex. During

cross-examination, Isaac admitted telling his parents that J.L. offered him money to testify

against appellant. Clearly, this evidence was before the court during the trial and thus not

discovered after the trial. Appellant did not meet his burden to show Isaac’s recantation was

“after discovered.”

       The “after discovered evidence” regarding J.L.’s testimony was her recantation of the

trial testimony that appellant did not sexually assault her. Again, this issue was raised during the

trial. Appellant’s father testified that J.L. said she was going to tell her probation officer that the

allegations against appellant were a lie. The father saw J.L. making the call several months

before the trial. Again, J.L.’s recantation was not discovered after the trial.

       More significantly, the recantations would not have “produced opposite results.” Here,

appellant did not ask for a new trial. He asked the trial court, as the fact finder, to reconsider the

sufficiency of the evidence based on the recantations. The trial court, as the fact finder in the

bench trial, considered the testimony of Isaac and J.L. at the hearing to set aside the verdict. The




                                               -9-
court rejected their recantations. The trial court concluded the trial testimony was more reliable

than the testimony at the hearing. The evidence supports the trial court’s conclusion.

        At the trial, DNA evidence corroborated the sexual assault. At the later hearing,

polygraph tests indicated J.L.’s recantation and appellant’s denials were false. Isaac’s and J.L.’s

statements given to the police prior to trial provided further indicia of the credibility of the trial

testimony. The trial court accepted J.L.’s and Isaac’s trial testimony as “reliable.” The trial

court rejected the explanations provided by J.L. and Isaac for their “lies” to the police and during

the trial.

        The trial court, in reconsidering the sufficiency of the evidence, was satisfied the

evidence supported the earlier finding of guilt. As fact finder, he rejected the recantations, which

was within his discretion. Marable, 27 Va. App. at 509, 500 S.E.2d at 235. Thus, we conclude

the trial court did not abuse its discretion in denying the motion to set aside the verdict.

                                          CONTINUANCE

        Appellant contends the trial court erred in denying a continuance of the hearing on his

motions to set aside the verdict. In his motion for a continuance, appellant indicated his

polygraph expert was not available on the September 13, 2002 hearing date. Appellant requested

a continuance to any of three dates available to his expert. On September 16, 2002, appellant’s

counsel told the trial court he did not receive the polygraph results until September 3, 2002, and

he was not able to contact an expert who would be available on September 13, 2002. In denying

the motion for the continuance, the trial court recited the chronology of the case, noting appellant

was convicted on January 4, 2002, with sentencing set for March 15, 2002. The court recalled

appellant had continued the case several times. The trial court concluded, “I don’t know of any




                                              - 10 -
other case in which this court has afforded the defendant such post-trial consideration in testing

the integrity of his verdict.”4

        Whether to grant or deny a continuance is a matter that lies within the sound discretion of

a trial court, and its ruling will not be reversed on appeal unless it is plainly wrong. Lomax v.

Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206

Va. 627, 631-32, 145 S.E.2d 192, 195 (1965). Under these circumstances, we cannot say that the

trial court abused its discretion in denying the continuance. Appellant continued the case

numerous times. He knew the date of the hearing prior to receipt of the polygraph results.

Nothing prevented him from finding an expert who was available on that day, even though he

did not yet have the results of the examinations.

                                          CONCLUSION

        We find the trial court did not abuse its discretion in denying the motion to set aside the

verdict and in denying the motion for a continuance. Therefore, we affirm the convictions.

                                                                                           Affirmed.




        4
           Appellant did not ask for a continuance because his expert lacked adequate time to
prepare his testimony. Instead, he simply claimed his expert was not available on that date.
Appellant did not proffer why his expert was not available, nor did he suggest any scenario here
the trial court might have accommodated the expert’s schedule on the date set for the hearing.
Appellant did not proffer the expected testimony of the expert.
                                              - 11 -
