COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
JERRY LEE ASHBY
OPINION BY
v. Record No. 2052-99-3 JUDGE LARRY G. ELDER
OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Charles H. Smith, Jr., Judge
Faith Dillow Esposito (Dillow & Esposito, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jerry Lee Ashby (appellant) appeals from his jury trial
convictions for three counts of carnal knowledge of a minor and
two counts of attempted carnal knowledge of a minor in violation
of Code § 18.2-63. On appeal, he contends the trial court
erroneously concluded (1) that he was not denied his right to a
speedy trial as guaranteed by Code § 19.2-243 and the United
States and Virginia Constitutions; and (2) that the evidence of
the complaining witness was not inherently incredible and was
sufficient to support his convictions. We hold that our review
of the alleged constitutional violation is barred by Rule 5A:18.
We further hold that appellant's indictments for violating a
different Code section than he was originally charged under
started the time limitations of the speedy trial statute running
anew and, for this reason, that no statutory violation occurred.
Finally, we hold that the testimony of the complaining witness
was not inherently incredible and was sufficient to support
appellant's convictions. Therefore, we affirm.
I.
BACKGROUND
Appellant was arrested on September 1, 1998, on warrants
charging five violations of Code § 18.2-361, which prohibits
"Crimes against nature." Those warrants charged appellant with
"carnally know[ing]" T.E., "a child of 14 years of age," on
July 31 and August 5, 1998. Appellant was committed to the
Smyth County Jail from the time of execution of the warrants on
September 1, 1998, until his preliminary hearing on October 28,
1998. At the preliminary hearing on that date, the district
court amended several of the warrants so that they charged three
acts of carnal knowledge and two acts of attempted carnal
knowledge. The court certified the amended charges to the grand
jury and indicated that bond "would remain in effect as is."
On December 8, 1998, while appellant was still in custody
on the amended warrants charging violations and attempted
violations of Code § 18.2-361, the grand jury issued direct
indictments charging appellant with violations and attempted
violations of a different statute, Code § 18.2-63. These
indictments were based on the same acts with a child fourteen
- 2 -
years of age and the same offense dates as charged in the
amended warrants, but they did not specifically name T.E. as the
victim. The Commonwealth represented that it sought direct
indictments under Code § 18.2-63 rather than Code § 18.2-361 as
charged in the amended warrants because the former offense took
into account the victim's status as a juvenile and provided for
a heightened penalty as a result. The amended warrants were
never formally dismissed or disposed of by nolle prosequi, and
appellant was never released from custody on those charges or
re-arrested or provided a new bond hearing on the direct
indictments.
By motion filed April 1, 1999, appellant moved to dismiss
the direct indictments on the ground that he had been held
continuously in custody for more than five months without being
brought to trial, a violation of Code § 19.2-243. The motion
was denied.
At appellant's trial on the merits, special education
student T.E. testified about the events on which the indictments
were based, saying they occurred while he and appellant slept in
a tent behind T.E.'s grandmother's house. T.E. did not tell
anyone about the events immediately after they had happened
because he was afraid to do so.
Appellant offered the testimony of James Ashby (Ashby).
Ashby testified that T.E. told him he had made the accusations
because a police investigator threatened to "put rings on my
- 3 -
fingers and sen[d] me to Bristol if I didn't say [appellant]
done it." T.E. admitted having had a conversation with Ashby
about the incidents just a few days before trial but denied
saying he had been coerced into making a statement to the
authorities. When T.E. was recalled as a rebuttal witness, he
said he did not remember ever having had a conversation with
Ashby about the charges against appellant.
Appellant took the stand, admitting he slept in a tent with
T.E. on several occasions but denying the charged offenses had
occurred. He claimed T.E. may have lied because he was mad at
appellant for some other reason, but appellant did not know why.
The jury convicted appellant of the charged offenses.
II.
ANALYSIS
A.
SPEEDY TRIAL
Appellant contends first that he was denied his right to a
speedy trial as guaranteed by Code § 19.2-243 and the United
States and Virginia Constitutions. However, appellant did not
allege the constitutional violations in his argument before the
trial court. Pursuant to Rule 5A:18, absent good cause or to
attain the ends of justice, we will not consider on appeal an
argument that was not presented to the trial court, even if it
involves constitutional claims. See Deal v. Commonwealth, 15
Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). We perceive no
- 4 -
good cause for this failure, and therefore, we do not address
appellant's claim that his constitutional speedy trial rights
were violated.
Code § 19.2-243 provides in relevant part as follows:
Where a general district court has
found that there is probable cause to
believe that the accused has committed a
felony, the accused, if he is held
continuously in custody thereafter, shall be
forever discharged from prosecution for such
offense if no trial is commenced in the
circuit court within five months from the
date such probable cause was found by the
district court . . . .
If there was no preliminary hearing in
the district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five
. . . month[] period[] . . . , set forth in
this section, shall be from the date an
indictment or presentment is found against
the accused.
Our cases interpreting Code § 19.2-243 hold that the
disposal of an indictment by nolle prosequi "'is a
discontinuance which discharges the accused from liability on
the indictment to which the nolle prosequi is entered.'" Arnold
v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183, 185
(quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d
269, 273 (1977)), aff'd on reh'g en banc, 19 Va. App. 143, 450
S.E.2d 161 (1994). Thus, when an indictment is disposed of by
nolle prosequi, with or without notice to the accused, before
the speedy trial statute has run and the accused subsequently is
re-indicted on the same charge, the speedy trial statute begins
- 5 -
to run anew from the time of the second indictment. See, e.g.,
id. "A new indictment is a new charge, distinct from the
original charge or indictment." Id. "'When an original
indictment is supplanted by a second indictment, the terms
contemplated by [Code § 19.2-243] are to be counted from the
time of the second indictment.'" Presley v. Commonwealth, 2 Va.
App. 348, 350, 344 S.E.2d 195, 196 (1986) (quoting Brooks v.
Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)).
Here, although no indictment was ever issued for the
offenses for which appellant was arrested and no nolle prosequi
of the charges on which appellant had been arrested by warrant
was effected, the above-quoted principle espoused in Brooks
nevertheless applies to the facts of this case. Brooks involved
the arrest of the accused on a warrant followed by a preliminary
hearing and a grand jury proceeding which returned an indictment
for grand larceny. 1 Under the version of the statute then in
effect, the speedy trial calculation began running from the date
the "'indictment [was] found [against the accused] and [he was]
held in any court for trial, whether he be in custody or not.'"
210 Va. at 321, 171 S.E.2d at 245 (quoting former Code
§ 19.1-191). Before Brooks was arraigned or tried on the first
1
Although the Commonwealth had sought an indictment for
robbery, the court held in the case of a codefendant whose
indictment contained language similar to the accused's that the
language charged grand larceny rather than robbery. See Brooks,
210 Va. at 320, 171 S.E.2d at 245.
- 6 -
indictment, the Commonwealth obtained a second indictment
charging Brooks with robbery rather than grand larceny, based on
the same events as the first indictment. The Court held:
The second indictment was returned before
the expiration of [the speedy trial statute]
from the date of the first indictment. The
Commonwealth was not barred from obtaining
another indictment which properly charged
the offense of robbery. When an original
indictment is supplanted by a second
indictment, the terms contemplated by the
statute are to be counted from the time of
the second indictment.
Id. at 322, 171 S.E.2d at 246 (footnote omitted). Therefore,
Brooks holds that where a second indictment for an alleged
criminal act is obtained before the speedy trial statute expires
on the first prosecution, the statutory time period is to be
counted from the date of the second indictment. Compare id.
with Clark v. Commonwealth, 4 Va. App. 3, 5-7, 353 S.E.2d 790,
791-92 (1987) (where original charges have been dismissed for
speedy trial violation, subsequent indictment for offense based
on same act or transaction, such as conspiracy to commit the
originally charged offenses, also violates speedy trial
statute). Although the speedy trial statute has been recodified
and amended since the Brooks decision, we have recognized that
those amendments do not alter the principles set forth in
Brooks. See Presley, 2 Va. App. at 351, 344 S.E.2d at 196; see
also 1995 Va. Acts chs. 37, 352; 1993 Va. Acts ch. 425; 1988 Va.
Acts ch. 33.
- 7 -
In appellant's case, it matters not that the speedy trial
statute began to run when the district court found probable
cause at the preliminary hearing or that no indictments were
obtained for the offense for which the general district court
had found probable cause. What matters is that, as calculated
from the beginning of the prosecution--the preliminary hearing
date of October 28, 1998--the speedy trial statute had not
expired when the grand jury returned the new indictments on
December 8, 1998, charging a violation of a different statute
based on the same alleged events. According to the rationale
adopted in Brooks, the new indictment "supplanted" the finding
of probable cause made by the district court. Therefore,
appellant's continued incarceration was based on the
indictments, and the speedy trial statute began to run anew as
of December 8, 1998, the date of the indictments' issuance.
To hold otherwise would be to elevate form over substance.
A prosecutor could dispose of a still-timely indictment by nolle
prosequi moments before obtaining a new, direct indictment for a
similar offense, thereby starting the running of the speedy
trial statute anew, see, e.g., Arnold, 18 Va. App. at 221-22,
443 S.E.2d at 185. In contrast, a prosecutor who effected the
nolle prosequi of the original charge only after the second
indictment or never effected the nolle prosequi would be
required to count the speedy trial limit from the date of the
original indictment or probable cause determination. Such
- 8 -
results would be anomalous. As a result, we conclude that
appellant's April 14, 1999 trial occurred within the time
required by Code § 19.2-243. 2
B.
SUFFICIENCY OF THE EVIDENCE
On appellate review, we examine the evidence in the light
most favorable to the Commonwealth, and we may not disturb the
jury's verdict unless it is plainly wrong or without evidence to
support it. See Traverso v. Commonwealth, 6 Va. App. 172, 176,
366 S.E.2d 719, 721 (1988). The conclusions of the fact finder
on issues of witness credibility may be disturbed on appeal only
when we find that the witness' testimony was "inherently
2
This is not a case in which appellant claimed a due
process violation based on an allegation that the Commonwealth
acted with "improper motives." Presley, 2 Va. App. at 351, 344
S.E.2d at 196-97; see also Arnold, 18 Va. App. at 222, 443
S.E.2d at 185-86 (where Commonwealth sought nolle prosequi due
to "difficulty in securing the attendance of its witnesses and
in an effort to preserve a serious criminal charge[,] . . .
[t]he record suggests no oppressiveness or unfair trial tactic"
and, therefore, does not violate the speedy trial statute).
The only evidence in the record indicates that the
Commonwealth sought indictments under Code § 18.2-63 rather than
Code § 18.2-361 because Code § 18.2-63 took into account the
victim's status as a juvenile and provided for a heightened
penalty as a result. Further, a constitutional speedy trial
claim, where properly preserved, remains available to prevent
abuse by the Commonwealth. Cf. Johnson v. Commonwealth, 252 Va.
425, 429, 478 S.E.2d 539, 541 (1996) (constitutional provisions,
not speedy trial statute, apply to assess length of delay
preceding retrial following reversal on appeal); Holliday v.
Commonwealth, 3 Va. App. 612, 615, 352 S.E.2d 362, 364 (1987)
(constitutional provisions, not speedy trial statute, apply to
assess length of delay which occurs prior to original
preliminary hearing or indictment).
- 9 -
incredible, or so contrary to human experience as to render it
unworthy of belief." Fisher v. Commonwealth, 228 Va. 296,
299-300, 321 S.E.2d 202, 204 (1984). In all other cases, we
must defer to the conclusions of "the fact finder[,] who has the
opportunity of seeing and hearing the witnesses." Schneider v.
Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
These same principles apply in cases involving rape, sodomy and
other sexual offenses, which may be sustained solely upon the
testimony of the victim, even in the absence of corroborating
evidence. See Fisher, 228 Va. at 299, 321 S.E.2d at 203.
Code § 18.2-63 provides that any person who "carnally
knows, without the use of force, a child thirteen years of age
or older but under fifteen years of age, . . . shall be guilty
of a Class 4 felony." Code § 18.2-63 defines carnal knowledge
to include acts of fellatio and anal intercourse.
Here, the victim testified that on July 31, 1998, when the
victim was fourteen years old, appellant put the victim's penis
in appellant's mouth and tried to "stick his penis up [the
victim's] butt." The victim also testified that around August
5, 1998, appellant again placed the victim's penis in his mouth,
"tried to stick [appellant's penis] in [the victim's] butt," and
had the victim "suck [appellant's] penis." This testimony
supported appellant's convictions for three counts of violating
Code § 18.2-63 and two counts of attempting to violate that same
statute. The mere fact that the victim, a special education
- 10 -
student, told no one about the incidents immediately after they
happened, willingly slept in a tent with appellant again after
the events of July 31, 1998, and remained friends with appellant
after the second encounter on August 5, 1998, did not compel the
conclusion that his testimony was inherently incredible.
Further, the jury was entitled to reject appellant's testimony
that the events never happened and James Ashby's testimony that
the victim reported having been coerced into lying about
appellant's behavior.
For these reasons, we hold the trial court did not err in
concluding that appellant's convictions did not violate the
speedy trial statute and that the evidence was sufficient to
support the convictions. Therefore, we affirm appellant's
convictions.
Affirmed.
- 11 -