COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Elder 

Argued at Salem, Virginia 

HENRY CHRISTIAN OLSEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2305-97-3 JUDGE SAM W. COLEMAN III 

 DECEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NELSON COUNTY 

J. Michael Gamble, Judge 

 Bruce R. Williamson, Jr. (Williamson & 

Toscano, on briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Henry C. Olsen was convicted by a jury of two counts of 

aggravated sexual battery and one count of forcible sodomy. On 

appeal, Olsen contends the trial court erred (1) in denying his 

motion for a new trial, (2) in denying his motion for a 

continuance before his cross-examination of Commonwealth witness 

Russell Goldberg, and (3) in admitting the testimony of Deborah 

Cole. Finding no error, we affirm the convictions. 

I. BACKGROUND

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth and grant to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. App. 349, 352, 218 S.E.2d 534, 537 (1975). 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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 In 1993, Olsen developed a friendship with a ten-year-old 

boy, B.A. With permission from B.A.'s parents, Olsen began 

taking B.A. on various outings. On the second outing, Olsen 

began rubbing B.A.'s "back," "butt," and "privates." Within a 

year, B.A. was spending nights with Olsen in Olsen's bed, and 

Olsen had initiated other sexual acts. "He [tried to] st[i]ck 

his penis in [B.A.'s] butt." Olsen asked B.A. to put his mouth 

on Olsen's penis and also directed B.A. to wrap his hand around 

Olsen's penis and rub until Olsen ejaculated. 

 In 1995, B.A.'s nine-year-old brother T.R. began visiting 

Olsen at the communal home where Olsen lived. While swimming 

together, Olsen touched T.R.'s genitals. Also, Olsen "played" 

with T.R.'s genitals while T.R. showered, and on one occasion 

Olsen had T.R. "wash . . . [Olsen's] penis off with soap." Olsen 

had T.R. nap with him and would rub the boy's penis asking if "it 

was hard enough." During the naps Olsen also had the boy rub 

Olsen's penis. Eventually T.R. spent nights at Olsen's during 

which Olsen would put lotion on T.R.'s "butt" and "rubbed hard." 

 Defense witnesses testified that they had never observed 

Olsen behave inappropriately with the children. Olsen testified 

that he had served as a foster parent between 1977 and 1988 for 

several boys and denied making any sexual advances towards those 

boys. 

 The Commonwealth, in rebuttal, called Deborah Cole who lived 

in the same community home as Olsen. The Commonwealth elicited 
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from Cole testimony unfavorable to Olsen. On cross-examination, 

Cole acknowledged that she left her three-year-old son at the 

community residence while she worked without concern about 

Olsen's presence. Then on re-direct, the Commonwealth gave her 

an opportunity to explain why she permitted her child to remain 

at the community home in her absence. Over Olsen's objection, 

Cole testified: 

 I've seen a photo plate of the kids that 

Henry has, well, I don't know, he, he told me 

about these kids. They were all about the 

same age. And Tray [Cole's son] is 

substantially below that age, so I've had no 

concerns about anything in regards to Tray. 

Second of all, I hire Arlene to watch him and 

I assume that's what she is doing, and I know 

he's safe when she's watching him. 

 Also in rebuttal, the Commonwealth called Russell Goldberg. 

 Goldberg testified that Olsen had cared for him as a foster 

parent and during that time, Olsen fondled his genitals and 

engaged in oral and anal sex with him. Following an adoption 

proceeding by Carol Marcasano, which Olsen contested, Marcasano 

adopted Goldberg. Pursuant to court order, during the pendency 

of the adoption, Goldberg visited Olsen every other weekend until 

the final adoption. According to Goldberg, the sexual abuse 

continued on those weekend visitations. Goldberg testified that 

he told his social worker he wanted to end the visits with Olsen. 

 He also testified that he did not remember visiting with his 

guardian ad litem during the adoption proceeding. 

 Goldberg further testified on cross-examination that as an 
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adolescent he was hospitalized for mental conditions and attended 

private schools for troubled youths. During his stay at one 

hospital, Goldberg disclosed having been sexually abused by 

Olsen. The Department of Social Services investigated the 

allegations but did not institute charges against Olsen. Prior 

to this trial, however, Goldberg had never revealed the full 

extent of Olsen's sexual abuse. Goldberg also testified on 

cross-examination that he had been convicted in Maryland of a 

felony, the malicious destruction of property. 

 After Goldberg testified, Olsen moved for a continuance to 

give him time to obtain records from the hospitals that had 

treated Goldberg. The trial judge denied the motion. 

 Following Olsen's conviction, he made a motion for a new 

trial based on after-discovered evidence that he claimed 

discredited Goldberg's testimony. The evidence included proof of 

previously undisclosed convictions. Also, Olsen proffered that 

Goldberg's guardian ad litem during the adoption proceedings, and 

Olsen's attorney during the adoption proceedings would testify 

that, contrary to Goldberg's trial testimony, Goldberg had 

expressed a desire during the pendency of the adoption proceeding 

to continue his visits with Olsen. At this trial, Goldberg 

testified that he had visited Olsen during the adoption 

proceeding only because he was under court order to do so. Olsen 

proffered that Goldberg's therapist from the time of the adoption 

would also testify that Goldberg was angry at having to leave 
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Olsen and that Goldberg continued to have positive feelings for 

Olsen many months after leaving his residence. Finally, Olsen 

proffered two of Goldberg's writings from the period when 

Goldberg was in Olsen's care. In neither writing did Goldberg 

refer to Olsen in negative terms, and in one writing he expressed 

positive feelings toward Olsen stating, "The special thing about 

my Dad is that he give [sic] me hugs." 

 After hearing arguments in support of the motion for a new 

trial based on after-discovered evidence, the trial court denied 

the request for an evidentiary hearing and the motion for a new 

trial. 

II. ANALYSIS

A. Motion for Continuance

 Whether to grant a mid-trial continuance "rests within the 

sound discretion of the trial court." Bennett v. Commonwealth, 

236 Va. 448, 459, 374 S.E.2d 303, 310 (1988). If a party is 

surprised by evidence in the midst of trial, the trial judge 

shall exercise sound discretion in deciding under the 

circumstances whether to grant a continuance. See id.; Snyder v. 

Commonwealth, 10 Va. App. 67, 72, 389 S.E.2d 727, 730 (1990). 

 The denial of Olsen's motion for a mid-trial continuance to 

investigate matters that he knew or should have known might arise 

was not an abuse of the trial court's discretion. In a pretrial 

motion in limine, Olsen had moved the court to suppress any 

evidence of prior allegations of sexual abuse by Olsen. Olsen 
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conceded that he was aware of Goldberg's prior accusation of 

fondling. Furthermore, Olsen failed to establish that the 

evidence he would have used in an effort to discredit Goldberg's 

testimony was unavailable before trial. 

B. Motion for a New Trial

 Olsen contends the trial court erred in refusing to grant 

him a new trial based on evidence from a post-trial investigation 

which he claims proves that Goldberg committed perjury. After 

accepting Olsen's proffer of the allegedly impeaching evidence, 

the trial court denied the motion for a new trial. 

 The standard by which a trial court evaluates a motion for a 

new trial is well established: 

 Motions for new trials based on 

after-discovered evidence are addressed to 

the sound discretion of the trial judge, are 

not looked upon with favor, are considered 

with special care and caution, and are 

awarded with great reluctance. . . . The 

applicant bears the burden to establish that 

the evidence (1) appears to have been 

discovered subsequent to 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, 

corroborative or collateral; and (4) is 

material, and as such should produce opposite 

results on the merits at another trial. 

Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387 

(1984). 

 Olsen contends that this test violates due process because 

under the test, after-acquired evidence proving that a rebuttal

witness committed perjury will never warrant a new trial. 
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Therefore, Olsen urges that this Court adopt a new test. 

 Although Olsen did not specifically argue at trial that a 

new standard to evaluate a motion for a new trial should be 

adopted for rebuttal witnesses because the established standard 

violated due process, he is not procedurally barred from making 

such an argument on appeal. By timely making the motion for a 

new trial and presenting evidence in support thereof, Olsen 

"afford[ed] the trial court an opportunity to rule intelligently 

on the issues presented." Weidman v. Babcock, 241 Va. 40, 44, 

400 S.E.2d 164, 167 (1991). Because the trial court had no 

authority to disregard Virginia law and adopt a new standard, 

Olsen's failure to argue for a new standard did not deny the 

trial court an opportunity to rule meaningfully on the motion for 

a new trial and does not preclude his making the argument here. 

 Although Olsen may argue for a new standard on appeal, stare

decisis limits our authority to grant such a request. "[W]e are 

bound by decisions of the Supreme Court of Virginia and are 

without authority to overrule [them]." Tart v. Commonwealth, 17 

Va. App. 384, 392, 437 S.E.2d 219, 224 (1993). Accordingly, we 

review Olsen's appeal under the established standard as announced 

by the Supreme Court in Stockton. 

 Under the applicable standard, Olsen's argument is not 

sound. Nevertheless, the accepted standard does not, as Olsen 

claims, preclude granting a new trial upon discovery that a 

rebuttal witness committed perjury. Where the rebuttal evidence 
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is so material that if disbelieved, it would clearly have 

affected the trial's outcome, evidence that the rebuttal witness 

committed perjury would be sufficient to grant a new trial. No 

Virginia case law supports Olsen's claim or suggests a different 

application of the standard to rebuttal evidence. In this case 

the rebuttal evidence was devastating. Had Olsen's 

after-discovered evidence proven that Goldberg committed perjury, 

a different result might have obtained. 

 However, Olsen failed to prove that Goldberg committed 

perjury. Proof of perjury requires evidence that an individual 

intentionally make a false material declaration under oath. See

Scott v. Commonwealth, 14 Va. App. 294, 297, 416 S.E.2d 47, 49 

(1992). The proffered evidence fails to show that Goldberg's 

testimony, rather than certain extrajudicial statements, was 

false. Additionally, many of the statements that Olsen offers to 

impeach Goldberg, far from establishing perjury, are not even 

inconsistent with Goldberg's testimony of a sexually abusive 

relationship. The testimony showing that Goldberg expressed love 

and devotion towards Olsen does not necessarily contradict 

evidence that the relationship also involved sexual abuse and is 

not sufficient to warrant setting aside a verdict and awarding a 

new trial. 

 Notwithstanding Olsen's argument to the contrary, the trial 

court's finding that Olsen could have secured the evidence prior 

to trial was not clearly erroneous. Because Olsen was aware of 
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Goldberg's fondling accusations, and because Olsen presented no 

evidence that the material obtained post-trial was unavailable 

prior to trial, we cannot say that the trial court's finding was 

clearly erroneous. 

 Accepting that the after-discovered evidence may have 

undermined Goldberg's credibility, the trial judge did not abuse 

his discretion in determining that the results of the trial would 

not have been different had Olsen presented the proffered 

evidence at trial. 

 [W]hen the newly discovered evidence is 

confined to testimony concerning the bad 

character of a witness by his own 

inconsistent statements made prior to trial 

but not under oath, or by evidence of other 

inconsistent facts, a new trial generally 

will not be granted. 

Mundy v. Commonwealth, 11 Va. App. 461, 480, 390 S.E.2d 525, 535, 

aff'd en banc, 399 S.E.2d 29 (1990). Appellant's "newly 

discovered evidence" was limited to evidence that might tend to 

impeach the credibility of Goldberg, a rebuttal witness, and was 

evidence that could have been obtained before trial. Under these 

circumstances, the trial court did not abuse its discretion in 

denying Olsen's motion for a new trial. 

C. Deborah Cole's Testimony

 Olsen contends that the trial court erred in admitting the 

"opinion" testimony of the Commonwealth's rebuttal witness 

Deborah Cole. On re-direct, the Commonwealth sought to have Cole 

explain her cross-examination testimony that she willingly and 
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consistently left her own child in the housing complex where 

Olsen lived. In explanation, Cole stated that she believed her 

child was younger than the children that Olsen was alleged to 

have sexually abused. 

 Once a party has "opened the door" to inquiry 

into a subject, the permissible scope of 

examination on the subject by the opposing 

party is a matter for the exercise of 

discretion by the trial court, and we will 

not disturb the trial court's action on 

appeal unless it plainly appears that the 

court abused its discretion. 

Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282 

(1990) (citation and internal quotation marks omitted). Here, 

Olsen opened the door to the challenged testimony by the "manner 

in which he attacked [Cole's] credibility on cross-examination." 

Id. Cole's testimony on re-direct was admissible to explain 

Olsen's challenge to her credibility. Under these circumstances, 

the trial court did not abuse its discretion in allowing the 

challenged testimony. 

 For the reasons stated, we affirm the trial court's 

conviction. 

 Affirmed.