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Continuance request on trial day properly denied

Where appellant moved for a continuance on the morning of his rape trial to follow up on information the prosecution provided eight months earlier, the trial court correctly denied the motion.

Further, the record belies appellant’s argument that he was not permitted to ask the victim about her prior rape accusations against him.

Finally, the jury was free to believe the victim’s version of the events and disregard appellant’s.


“The appellant challenges the trial court’s denial of the requested continuance. He argues that because J.B.’s credibility was the central issue in the case, he should have been permitted to interview and possibly subpoena the officers who were involved with investigating the prior rape allegation J.B. had made against him.

“The appellant asserts that a continuance was necessary so he could ‘“find out” what caused those detectives to doubt [J.B.’s] credibility and what the underlying issues were.’ He concludes that the trial court ‘in essence denied [him] the opportunity to present relevant, probative, and material evidence and testimony in his defense.’ …

“Despite learning eight months earlier about the prior reported rape allegation, the appellant waited until the morning of his jury trial to ask for time to interview the detectives who investigated that earlier accusation.

“He did not explain his delay to the court when arguing for the continuance. On the morning of the trial, witnesses were present to testify, a venire had been assembled for the jury trial, and both the prosecutor and the defense attorney were prepared to proceed.

“Under the circumstances, the trial court’s decision was neither unreasonable nor arbitrary because defense counsel took no steps to gather the evidence he claims was necessary in the eight months available before trial and provided no explanation for the delay.”

Prior accusations

“The appellant argues that ‘the trial court erred when it denied the defense the opportunity to question the complaining witness about her prior rape allegations against’ him, both reported and unreported.

“This assignment of error is directly contradicted by the record. The trial court ruled that the defense could ask J.B. if she made the earlier allegations and if they were false, noting that the defense would be ‘stuck with the answer, if any.’ J.B. testified that the appellant had raped her three times previously but that she had only reported one prior instance to the police.

“During cross-examination, J.B. acknowledged that the alleged rape she reported in 2016 had not been prosecuted. Counsel questioned J.B. at length about the alleged three previous rapes and her decision not to report two of them.

“The defense also asked J.B. about her decision to sleep in the nude in the appellant’s presence despite her claim that he had raped her before.

“In closing argument to the jury, counsel argued that the circumstances of the previous rape allegations were inconsistent and did not make sense.

“The appellant had the opportunity to ask J.B. about her prior rape allegations against him and in fact did so extensively. Therefore, this assignment of error necessarily fails.”

Sufficient evidence

“The appellant argues that the evidence is insufficient to support his conviction. He asserts that J.B.’s testimony was inherently incredible and unworthy of belief. He notes that there were ‘inconsistencies between the story she told the police officers on the scene the night of the incident, what she told the forensic nurse examiner, and what she testified to at trial.’

“The appellant also argues that her behavior was illogical. Based on these factors, he reasons that J.B.’s ‘claims should not be believed.’ Finally, he asserts that his own testimony was consistent and is more believable. …

“[T]he jury’s verdict hinged on witness credibility. The jury heard from the victim and the defendant. The law is clear that ‘[t]he fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts.’ …

“[T]he jury credited J.B.’s version of the events despite the purported inconsistencies the appellant notes in J.B.’s accounts. … J.B.’s testimony established that the appellant penetrated her vagina with his penis against her will and by force.

“Despite J.B.’s clear statement that she did not want to have sex with the appellant, he invited himself into her bedroom. When he pushed his penis into her vagina, she said no and fought him. At one point, she pushed him away, but he continued to force himself on her.

“At another point, she pushed him off the bed, yet he returned to the struggle. Only after J.B. retrieved her handgun and fired a warning shot was she able to stop the attack.

“The defense highlighted for the jury the variations in her statements and testimony. The appellant’s attorney also argued that her behavior suggested that the sexual contact was consensual.

“A host of evidence was before the jury as trier of fact. J.B. explained her initial behavior, in part, as the result of her exhaustion that day.

“She also testified that she allowed the appellant, with whom she had an on-again, off-again relationship, to remain with her. J.B. stated she did not perceive him as a threat considering his assurance that he had not come to her house to have sex.

“Although J.B. did not exhibit any visible injuries during her medical exam, the nurse examiner expert testified that a lack of visible injuries is common among sexual assault victims.

“J.B.’s testimony describing the rape was not ‘inherently incredible’ nor ‘so contrary to human experience as to render it unworthy of belief.’”


Irvin Jr. v. Commonwealth, Record No. 1331-21-2, Nov. 1, 2022. CAV (Decker). From the Circuit Court of Chesterfield County (Rockwell III). Stephen K. Armstrong for appellant. Timothy J. Huffstutter, Jason S. Miyares for appellee. VLW 022-7-491, 11 pp.

VLW 022-7-491

Virginia Lawyers Weekly