COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

BENJAMIN PERRY GORDON, III 

 MEMORANDUM OPINION* BY 

v. Record No. 1087-96-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 13, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Thomas S. Shadrick, Judge 

 Lynndolyn T. Mitchell, Assistant Public 

Defender, for appellant. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Following a jury trial, appellant, Benjamin Perry Gordon, 

III, was convicted of three counts of aggravated sexual battery 

in violation of Code § 18.2-67.3. On appeal, he contends his 

constitutional right to speedy trial was violated and that the 

evidence was insufficient to support his convictions. We 

disagree and affirm. 

I. CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

 Three arrest warrants were issued in September 1992, 

charging that appellant committed acts of aggravated sexual 

battery against the four-year-old daughter of R.J.N. and a 

five-year-old neighbor boy. The crimes allegedly occurred during 

the period February 1, 1990 through April 30, 1990, at R.J.N.'s 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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home in Virginia Beach, in which appellant then resided. 

 When the warrants were issued, appellant was incarcerated in 

Ohio awaiting trial; following trial appellant was sentenced to 

serve one hundred thirty-five years. The Virginia warrants 

remained unexecuted until August 1995, when the Commonwealth 

first sought to extradite appellant. Only then did appellant 

learn of the Virginia warrants; he waived extradition and was 

returned to Virginia. 

 In September 1995, appellant filed a motion in the juvenile 

and domestic relations district court, praying that the warrants 

be dismissed on the ground that the delay in their execution 

violated his due process rights under the Fifth and Fourteenth 

Amendments of the United States Constitution. The motion was 

denied. Appellant was indicted for the felony offenses in 

November 1995, and he reasserted his constitutional claim in a 

motion to dismiss filed in circuit court in December 1995. In a 

supplementing memorandum, appellant argued that the delay had 

violated his Sixth Amendment right to speedy trial. 

 At the hearing on that motion, appellant argued that the 

delay had impinged his ability to prepare his defense. 

Specifically, appellant testified he had been unable to locate 

three material witnesses. He asserted that Jeanette Thomas would 

testify that appellant lived with her during the relevant time 

period, February 1990 through April 1990, and that Kurt and 

Brenda Bridges could testify that R.J.N. sought revenge against 
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appellant for money he had borrowed from her. Appellant further 

asserted he had difficulty remembering events in 1990. The trial 

court denied the motion to dismiss, stating that, "proving only a 

possibility of prejudice is not sufficient to support a speedy 

trial violation; and I think that's all we have here." 

 Appellant's predominant contention on appeal is that the 

trial court erred in requiring him to prove actual prejudice to 

establish a Sixth Amendment speedy trial violation. See Doggett 

v. United States, 505 U.S. 647, 654-58 (1992) (addressing proof 

required to establish prejudice prong of Barker v. Wingo, 407 

U.S. 514 (1972), balancing test). Appellant's reliance on Sixth 

Amendment jurisprudence to support his contention overlooks an 

important aspect of this case: appellant's complaint does not 

fall within the Sixth Amendment right to speedy trial. See

United States v. Marion, 404 U.S. 307, 320 (1971); United States 

v. Lovasco, 431 U.S. 783, 788-89 (1977); Holiday v. Commonwealth, 

3 Va. App. 612, 616, 352 S.E.2d 362, 364 (1989); Fowlkes v. 

Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 (1978). 

 Appellant argues that the delay resulting from the 

Commonwealth's failure to execute the arrest warrants violated 

his right to speedy trial under the Sixth Amendment. However, 

"[a]s far as the Speedy Trial Clause of the Sixth Amendment is 

concerned, [preindictment] delay is wholly irrelevant . . . only 

`a formal indictment or information or else the actual restraints 

imposed by arrest and holding to answer a criminal charge . . . 
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engage the particular protections' of that provision." Lovasco, 

 431 U.S. at 788-89. See also Fowlkes, 218 Va. at 766, 240 

S.E.2d at 664 ("a suspect becomes `accused' within the intendment 

of the Sixth Amendment when he is placed under arrest"); Holiday, 

3 Va. App. at 616, 352 S.E.2d at 364 (same). We find that none 

of the purposes of the speedy trial guarantee would be met by 

ordering the dismissal of the indictments against appellant 

simply because the Commonwealth delayed the execution of arrest 

warrants against appellant who, serving time for multiple life 

sentences in a sister state, knew nothing of the warrants until 

they were executed. See Marion, 404 U.S. at 320. In short, 

appellant was not "accused" within the meaning of the Sixth 

Amendment until the warrants were executed. 

 Appellant's proper avenue for relief from the pre-arrest 

delay is the due process claim he alleged in his motion to 

dismiss but failed to pursue either at trial or on appeal. See

Lovasco, 431 U.S. at 789; Hall v. Commonwealth, 8 Va. App. 526, 

529, 383 S.E.2d 18, 20 (1989). Assuming without deciding that 

appellant's due process claim is not procedurally defaulted, that 

claim is without merit because it is clear appellant suffered no 

actual prejudice from the delay. See id. Appellant first 

asserted that his witness, Thomas, could not be found. He stated 

that Thomas would testify that he lived with her during the 

relevant time period. To the contrary, Thomas was found and 

testified that appellant did not live with her at that time. 
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Moreover, appellant admitted that he lived with R.J.N. at the 

time the crimes were alleged to have been committed. Appellant 

also acknowledged that he had made no effort to locate the 

Bridges, nor had he provided his attorney with any pertinent 

information to facilitate locating them. Furthermore, even 

assuming to be true appellant's proffer that the Bridges would 

testify that R.J.N. sought revenge against appellant because he 

owed her money, such testimony is immaterial to appellant's 

defense: R.J.N. was not the complaining witness, nor was she an 

eyewitness to the crimes alleged. Indeed, even assuming such 

testimony would fully discredit R.J.N.'s testimony at trial, that 

testimony was not an integral or even important part of the 

Commonwealth's case. Instead, it merely corroborated relatively 

insignificant aspects of the testimony of the two complaining 

witnesses. 

II. SUFFICIENCY

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 

415 S.E.2d 218, 220 (1992). The jury's verdict will not be set 

aside unless it appears that it is plainly wrong or without 
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supporting evidence. Code § 8.01-680; Traverso v. Commonwealth, 

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). "It is 

fundamental that `the credibility of witnesses and the weight 

accorded their testimony are matters solely for the fact finder 

who has the opportunity of seeing and hearing the witnesses.'" 

Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175, 

176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382, 

337 S.E.2d 735, 736-37 (1985)). 

 Code § 18.2-67.3(A)(1) provides that "[a]n accused shall be 

guilty of aggravated sexual battery if he or she sexually abuses 

the complaining witness, and . . . [that person] is less than 

thirteen years of age." 

 "Sexual Abuse" means an act committed with 

the intent to sexually molest, arouse, or 

gratify any person, where: 

 a. The accused intentionally touches 

the complaining witness's intimate parts or 

material directly covering such intimate 

parts; 

 b. The accused forces the complaining 

witness to touch the accused's, the witness's 

own, or another person's intimate parts or 

material directly covering such intimate 

parts; or 

 c. The accused forces another person to 

touch the complaining witness's intimate 

parts or material directly covering such 

intimate parts. 

Code § 18.2-67.10(6). 

 We find sufficient evidence to support appellant's 

convictions. S.N. testified that appellant used to live in the 

residence she shared with her mother, R.J.N. D.B., a neighbor 

boy, was S.N.'s best friend. D.B. used to come to S.N.'s house 
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when only S.N. and appellant were home. Appellant would force 

S.N. to lie on top of D.B. on the living room couch and "hump" 

him. To S.N., "humping" meant "sex"; she stated she would be 

moving her body against D.B. Sometimes when these acts occurred, 

S.N. and D.B. would be dressed; other times they would be naked. 

 Sometimes S.N. would be on top of D.B., and other times their 

positions were reversed. Appellant also touched S.N.'s vagina 

when she was naked, and S.N. touched appellant's penis when he 

was naked; S.N. also touched D.B.'s penis. S.N. also stated that 

appellant penetrated her with a spoon. Appellant told S.N. and 

D.B. that if they told anyone about these events, he would kill 

S.N.'s mother and D.B.'s dog, mother and father. S.N. was four 

years old; D.B. was five. 

 D.B. testified that he used to go to S.N.'s house when his 

mother went to work. Appellant would be there with the children. 

 Appellant forced S.N. to lie on top of D.B. in the living room 

and "go up and down." Sometimes the children would be dressed; 

other times they would be naked. Appellant forced S.N. to touch 

D.B. on the penis with her hand and lips and place his penis in 

her mouth. D.B. testified that while hiding from appellant in an 

upstairs room he looked through a hole in the floor to see 

appellant touch S.N.'s vagina and put his penis in S.N.'s mouth. 

 D.B. testified that sometimes when he witnessed these events, 

S.N. and appellant were dressed, and other times they were naked. 

 Appellant told the children that if they did not comply he would 
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kill S.N.'s mother or D.B.'s dog. The children first reported 

the abuse in 1992 when R.J.N. caught them in a closet doing what 

appellant had "taught them." 

 R.J.N. and R.B., D.B.'s father, also testified. R.J.N. 

testified that appellant lived with her and her daughter during 

the relevant time period. She testified that D.B.'s mother would 

bring D.B. to her house and that the children were left in 

appellant's care while the victims' mothers went to work. R.J.N. 

confirmed that in 1992 she found S.N. and D.B. in the closet, 

acting like they were having sex. She further confirmed the 

existence of a hole in the floor of the second story of the 

residence. R.B. testified that his wife left D.B. at R.J.N.'s 

home during the relevant time period. He further testified that 

he spoke with the children in 1992 after they had been discovered 

in the closet and that they gave consistent accounts of the 

alleged incidents. Contrary to appellant's complaints, the 

absence of physical evidence to corroborate the children's 

accounts and their delay in reporting the incidents do not 

contradict the Commonwealth's evidence, but merely address the 

weight of it. 

 The decision of the trial court is accordingly affirmed. 

Affirmed.