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Recantation of trial testimony was coerced

The trial court correctly refused to set aside appellant’s rape and firearm convictions based on the victim’s recantation of her trial testimony after determining the recantation was coerced.

Further, there was sufficient evidence to support the convictions because inconsistencies in the victim’s testimony did not “render her testimony completely unworthy of belief.”

Sufficient evidence

“Appellant argues F.J.’s testimony was inherently incredible. He points to various alleged inconsistencies in F.J.’s testimony to say her claim that appellant raped her is unworthy of belief. He claims the physical evidence is consistent with his story that the whole incident was a prostitution transaction gone wrong.

“Because the trial court as the finder of fact believed her story and it is not so contrary to human experience to be beyond belief, this Court affirms appellant’s convictions. None of the inconsistencies, either individually or in combination, are such that would render her testimony completely unworthy of belief.

“Weighing F.J.’s credibility in light of the inconsistencies was the jury’s responsibility, and this Court will not usurp that role. The main points of her story remained wholly consistent: Appellant asked to use F.J.’s phone. While he still had the phone, she observed his firearm in his pants. He directed her back into the alley. She went with him because he still had her phone and she was afraid not to comply.

“They struggled as he forcibly removed her pants and underwear. He then forcibly engaged in intercourse with her and then stuck his penis in her mouth. He was wearing a condom. She bit his penis, and he hit her in the face with the gun and then ran away.

“Moreover, the physical evidence is consistent with her story. The police found a used condom at the scene, and appellant could not be eliminated as a DNA contributor. The police also found the gun appellant used near the scene. F.J.’s face had marks consistent with being struck. Each of these things supports her version of events – i.e., that appellant raped her.”

Motion to set aside

The commonwealth concedes the trial court erred when it ruled that it lacked jurisdiction to set aside the verdict more than 21 days after the conviction order was entered. In fact, the trial court had jurisdiction to do so until the sentencing order, which was the final order in the case, was entered.

The court’s sentencing order provided that it heard argument on the motion to set aside the verdict based on F.J.’s recantation of her trial testimony. The order provided that the motion was denied because the court determined the recantation was coerced.

“[T]he trial court’s conclusion is amply supported by the record. The record demonstrates F.J. was repeatedly contacted by appellant’s family, supporting the trial court’s conclusion she was coerced.

“Moreover, at the hearing on the motion, F.J. testified that her trial testimony was true and that she only recanted to get appellant’s family to leave her alone. Therefore, this Court affirms that the evidence was sufficient to support the trial court’s denial of the motion to set aside the verdict.”

Affirmed.

Beamon v. Commonwealth, Record No. 1695-18-1, Nov. 12, 2019. CAV (Huff) from Suffolk Cir. Ct. (Sandwich). Gregory K. Matthews for appellant, Eugene Murphy for appellee. VLW 019-7-194, 11 pp. Unpublished.

VLW 019-7-194

Virginia Lawyers Weekly