# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 29th 

### day of June, 2010

.
Dustin Allen Turner, Petitioner, against Record No. 1836-07-1 Commonwealth of Virginia, Respondent.
Upon a Rehearing En Banc Upon a Petition for a Writ of Actual Innocence Before Chief Judge Felton, Judges El der, Frank, Kelsey, McClanahan, Haley, Petty, Powell, and Alston
David B. Hargett (Hargett Law, PLC, on briefs), for petitioner. Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for respondent.
Dustin Allen Turner petitioned this C ourt for a writ of actual innocence based upon newly-discovered, non-biological evidence, pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia, alleging that his 1996 convictions for the abduction with intent to defile and murder of Jennifer L. Evans should be vacated because in 2002 Billy Joe Brown, who was convicted of these same crimes, 1 confessed that he acted alone in killing Evans. This Court remanded the matter to the circuit court to certify findings regarding fa ctual issues in dispute. The circuit court conducted a hearing in this matter and supplied this Court with its certified fi ndings of fact, including its finding that Brown was “credible in his assertion that he acted independently in murdering the victim and . . . Turner played no role in the murder or in the restraining of the victim.” A divided panel of this Cour t held that Turner met his burden of proving, by clear and convincing evidence, that the recantation was truthful and that, had the statement been produced at trial,

1 Brown was also convicted of the attempted rape of Evans.-2- “no rational trier of fact could ha ve found proof of guilt [of felony murder and abduction with intent to defile] beyond a reasonable doubt[,]” granted his petition for a writ of actual innocence, vacated Turner’s convictions for first-de gree murder and abduction with inte nt to defile, and remanded the matter to the circuit court with instructions to m odify the order of convic tion to reflect Turner’s conviction for being an acce ssory after the fact. See Turner v. Commonwealth , 54 Va. App. 458, 680 S.E.2d 312 (2009). We granted the Comm onwealth’s petition for rehearing en banc and stayed that order. On rehearing en banc , we hold that Brown’s credible reca ntation does not provide this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, we dismiss Turner’s petition for a writ of actual innocence and vacate the August 4, 2009 order issued by a panel of this Court. I. Background On June 18, 1995, Brown, a Navy SEAL trainee, spent much of the day drinking. Over the course of the day, Brown consumed six beers and eight to ten shots of Jim Beam in his room at the barracks. That night, Brown decided to go to a Virginia Beach nightclub called The Bayou with Turner, a fellow trainee. While Turner drove to th e nightclub, Brown drank six more beers. That same night, Jennifer Evans, who was v acationing in Virginia Beach with her friends, Michelle McCammon and Andria Burdette, decide d around 11:00 p.m. to go to The Bayou. While at the nightclub, Evans noticed Turner, whom she had not previously met, and began talking with him. Throughout the remainder of the night, she alternated between socializ ing with her friends and speaking with Turner. Though Evans met Brown briefly, she did not spend time talking with him. Around midnight, Burdette wanted to leave, but Evans stalled to continue talking with Turner. Turner and Evans appeared to be getting along very we ll, so well that at one poi nt Turner sat in a chair-3- s face. while Evans perched on the armrest. About an hour la ter, Evans finally agreed to leave but not before writing the phone number at the home where she was staying on a napkin for Turner. Burdette and McCammon then left the nightclub with Turner a nd Evans trailing behind. As the women entered their vehicle, Turner leaned agains t the back door and cont inued talking to Evans through the open window. Turner offered to drive Ev ans home, but Burdette refused. Burdette and McCammon eventually agreed to leave Evans at the nigh tclub and return at 2:00 a.m. to take her home. After this agreement was reached, Turner opened Evan s’ door with “surprising force.” Evans appeared happy with this arrangement and retu rned to the nightclub with Turner. Around 1:15 a.m., Turner approached Karen Bis hop, Brown’s ex-girlfriend, and asked her to give Brown a ride home if Turner did not return to th e bar before it closed. Bishop reluctantly agreed. Between 1:15 and 1:30 a.m., the lights came on signali ng that it was almost closing time. After the lights came on, Julio Fitzgibbons, a Na vy SEAL who had met Brown and Tu rner that night, approached Turner to see whether Turner had any plans for that night. 2 Turner said that he and Brown were going to have a threesome with Evans. Evans was approxima tely fifteen yards away at this time. Within a few seconds of this, Evans approached and Turner introduced her to Fitzgibbons as she stood next to Brown. Fitzgibbons then gave them the thumbs up sign, which Turner returned with a smile on hi At approximately 1:35 a.m., Bishop saw Turner and Evans, who were holding hands, leave the nightclub. Brown was with Bishop a nd one of her friends at this ti me. At approximately 1:45 a.m., Brown indicated that he wanted to leave, but Bishop told him that sh e needed to wait a few minutes for her friend. Brown had consumed an additional eight to ten beer s, eight to ten shots, and twelve mixed drinks while at the nightclub. He was noticeably intoxicat ed and on the verge of losing consciousness.

2 Fitzgibbons admitted that he was drinking that night, but could not remember how much he consumed other than less than twelve beers.-4- Brown, indicating an unwillingness to wait for Bishop’s friend, left the nightclub. Bishop followed him out of the bar at approximately 1:50 a.m. and told him that she would wait for a few minutes to give him a ride home in case he was unab le to find Turner. Aro und 2:10 or 2:15 a.m., Bishop went back inside the bar, found her friend, and went to her car. Bishop and her friend drove around the parking lot looking for Brown but left after not seeing him. When Burdette and McCammon returned to the nightclub at approximately 1:50 a.m., Evans was not in the parking lot where she ha d promised to meet them. They searched for several hours but could not find Evans. The women filed a missing persons re port with the police the ne xt day. After reading about Evans’ disappearance, Bishop contacted the police to tell them that she had seen Turner and Brown with Evans on the night Evans disappeared. At approximately 9:00 p.m. on June 21, 1995, Speci al Agents Thomas L. Carter and Robert Elliott of the Federal Bureau of Investigation intervie wed Turner to try to determine what Turner did the weekend Evans disappeared. Notably, Turner told th e agents that on Sunday night, he and Brown went to The Bayou where they stayed until closing time before returning to the barracks by themselves. When asked for more details, Turner said he had a conversation with some other SEAL trainees that he met there. He also told the agents that he met two women that evening: one was a tall woman whose name he could not recall and the other was a woman, who the agents later lear ned was Evans, who was at the nightclub with two female friends. The agents specifically asked Turn er about the second woman, and he said he could not recall her name but that they talked for a while. He said that her two companions decided to leave and retu rn around closing time to pick her u p. Turner said he continued to talk with her for a while before he left to speak with other people that he knew. He told the agents that he spoke to her again around last call. The woman to ld him that she would be there for the week and wanted him to call her. She wrote her name and phone number on a cocktail napkin for him. Turner said that he and Brown left while she was waiting for her friends.-5- After the agents suggested several possible names for the woman, Turner said he might be able to provide her name because he thought that he still had the cocktail napkin in his barracks. Then, Turner and Special Agent Elliott went to Turner’s barra cks so that Turner could retrieve the napkin. The napkin had the name Jennifer and a phone number written on it. Once the agents verified that Turner had spent ti me with Evans, they continued to question him about her, and he repeated that he ha d met her and her friends at the bar. He told the agents that at some point in the evening, he believed that Evans might agree to leave the bar with him. Based on this belief, he asked Brown to ride home with Bishop so that he was free to leav e with Evans. Turner said that Brown told him that he did not want to ride home with Bishop. Turner told investigators that when he realized that he would not be able to be alone with Evans that night, he told her that he would try to contact her later in the week. He stated that he left Evans standing at the bar and returned to the barracks with Brown. Turner told th e investigators that neither man had been drinking. He stated that they woke up around 9:00 a.m. on Monday and jointly signed a lease on an ap artment before driving back to the base. During the entire interview, the agents thought that Turner was very calm and collected and that his answers seemed very forthright. Sergeant Thomas Baum, a member of the Virginia Beach Police Department’s homicide unit, participated in a subsequent interv iew of Turner at FBI headquarters in Richmond, Virginia. During that interview, Turner said he and Brown went to The Bayou, where he saw some other SEALS and spent most of the night talking with one of them, a Mexi can or Puerto Rican man whose name Turner did not know. Turner also said that Bishop a nd one of her friends were there. He said he didn’t start talking to Evans until around midnight or 12:30 a. m. Turner told the sergeant that he introduced himself to Evans while she was standing with her friends. Turner sa id they spoke for only a few minutes before he returned to Brown and the other SEALS. Turner told Sergeant Baum that he resume d talking with Evans around 1:00 a.m. while her friends were still there. Soon, her fr iends wanted to leave, so he walk ed the women to their car. Evans-6- sat in the back seat, but the door wa s not closed. He said that he to ld Evans and her friends that they should stay because the nightclub clos ed in one hour. Evans agreed to stay, and her friends agreed to pick her up in front of The Bayou at closing. He said that he and Evan s returned inside to talk as her friends drove away. When the lights came on in the nightclub, he asked Evans for her number. Turner told Sergeant Baum that he spoke with Evans for a few more minutes before returning to Brown. He said that he saw Evans talking with two unknown men. Turner told Sergeant Baum that he and Brown left around 1:45 or 2:00 a. m. without Evans. Shortly after Sergeant Baum finished interviewing Turner, Detectives John T. Orr and Al Byrum, also of the Virginia Beach Police Department, intervie wed Turner. The detectives noticed that as they did so, Turner’s original story began to change and “his denials became weaker and weaker.” Eventually, Turner said that he w ould speak to the detectives after he talked with his chief warrant officer. After allowing him to do so, the detectives asked Turner where they could find Evans’ body, and Turner agreed to take them to it. In response to direct questioning, Turner stated that he was not the person who killed Evans but that he was present when Brown killed her in Turne r’s car. He explained that Brown choked Evans until she was dead while they were in the parking lot of The Bayou. Turner agreed to provide police with his ca r and clothing from that night. When Brown was interviewed, he told investigat ors that Turner spent the entire night talking with Evans but that Brown was not interested. Brown stated that Turner indicat ed that he was “hooking up” with Evans, and he confirmed that Turner ha d arranged for Bishop to give Brown a ride home. Brown did not want a ride home fr om Bishop because he was concerne d that he would have sexual intercourse with her and that woul d ruin his current relationship. Br own said that when he left the nightclub and headed out into the parking lot, he saw Turner jump out of his ca r and order Brown to get into the car. Brown saw Evans laying in the backs eat with blood coming out of her nose and her clothes torn open. According to Brown, Turner told him, “I think I fucking killed her.” Turner then implemented a plan to dispose of Evans’ body and cover up the murder.-7- Turner’s trial for murder and abduction with inte nt to defile began in August of 1996. Charlotte Lowe, the forensic supervisor who analyzed the cr ime scene, testified that Evans’ body was in an advanced state of decomposition a nd skeletalization, such that many of her bones were exposed. The vest Evans had been wearing on the night she disa ppeared was pulled back and her bra was pushed up, exposing her breasts. Her shorts and underwear had been pulled down so that they were around only one leg. Lowe examined Turner’s vehicle for semen, urine, fingerprints, and other physical evidence but found nothing of forensic value in the vehicle. Dr. Leah Bush, Assistant Chief Medical Examiner for the Commonwealth of Virginia in the Tidewater district, performed the autopsy on Evans’ body and opined that it was impossible to determine Evans’ exact cause of death due to the severe skeletalization but concluded that manual strangulation was a possibility. Dr. Bush descri bed the various chokeholds that could have led to Evans’ death and how long each method would likely take to have killed her. Dr. Bush conclusively ruled out a broken neck as a cause of death because Evans’ spin al cord did not show signs of fracture. Todd Ehrlich, a Navy SEAL who completed some tr aining with Brown and Turner, also testified against Turner. He told the jury about Turner and Brown’s reputations for engaging in group sexual

encounters. 3 Specifically, he testified that he recalled seeing the two men socia lizing with two women on June 16, 1995. According to Ehrlich, Turner alte rnated between talking to one of the young women and then talking to Brown to give him a “progress report.” He could not re call the specifics of the conversation between Turner and Brown but said it involved the two of them attempting to get the young women to go home with them. Ehrlich testified that the two women left together without Turner and Brown. Ehrlich further testifie d about an incident where he witn essed Brown and Turner engage in group sexual intercourse with a woman while the three were stationed in Califor nia. Ehrlich told the

3 Several other witnesses also testified that Turner and Brown had a reputation for having group sexual encounters.-8- jury that he later had a conversat ion with Turner and Brown in whic h they bragged about repeating the group sexual intercourse with that woman. Turner took the stand in his own defense and decl ared that he never inte nded to have sex with Evans. According to Turner, his original plan was to take Evans to the beach to continue talking. He testified that he abandoned that idea because it would have been impo ssible to do so and still return by 2:00 a.m. to meet Evans’ friends. Turner testified th at, instead, he and Evans we nt to his vehicle to wait for Evans’ friends. While waiting, Turner saw Brown approach and told Evans to “pay no attention to this guy. He’s drunk. Don’t believe a word he says.” Brown then entered th e vehicle and sat in the back seat directly behind Evans. Brown began cursing and making belligerent remarks about Turner and Bishop. Although Turner stated that he could not remember many deta ils of the night, he recalle d that Brown shifted his attention towards Evans and began making crude remark s to her. Specifically, Brown asked her whether she was a virgin and whether she had ever had sex w ith a “frogman.” Out of the corner of his eye, Turner saw Brown touch Evans, and she slapped hi s hand away. At that moment, Turner saw Brown reach around and make a jerking motion with both arms. According to Turner, Brown had both arms locked around Evans’ neck and was making a squeezing motion. Turner testified that he tried to pry Brown’s arms from her neck but co uld not. After a minute, Brown let go, and Turner checked Evans’ vital signs but could not find a pulse. Brown yelled at Turner to drive, and Turner complied. As Turner drove away, Brown reached beneath Evan s’ shorts until Turner yelled at him to stop. Brown then passed out. Turner drove to a secl uded area near some w oods where he and Brown removed Evans’ body from the vehicle. Turner went back to the vehicl e to look for a shovel, and when he returned, he found Brown lying on top of Evans’ body. Turner pulled Brown off, and Brown said, “It doesn’t matter because I couldn’t get it -- a hard on anyway.” They le ft after covering Evans’ body with leaves. Before returning to the military base, they went to a diner. The next day, Turner and Brown signed a lease to be roommates for the coming year.-9- In response to Ehrlich’s testimony about group sexua l intercourse in California, Turner stated that “it all center[ed] around one in cident and bragging about that one incident.” He confirmed talking to Fitzgibbons on the night of June 18, 1995, but he de nied talking about engaging in a threesome with Brown and Evans. Turner reiterated that he “did not actively try to sleep with [Evans]” because “she wasn’t that type of girl at all.” On September 5, 1996, the jury, after having been in structed on the legal th eories of concert of action as well as principal in the first and second de grees, found Turner guilty of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in violation of Code § 18.2-32. The trial court imposed a prison sentence of 82 years. Both this Court and the Supreme Court of Virginia denied Turner’s petitions for appeal. On July 2, 2002, Brown, who did not testify at Turn er’s trial, provided a tape-recorded interview in which he avowed that he had lied to investigat ors about Turner’s involveme nt in Evans’ death and testified falsely about those events at his own trial. Brown stated that he spontaneously choked Evans and then blamed Turner because Turner had betray ed him by telling investigators what happened and where Evans’ body was hidden. On February 28, 2003, Brown signed an affidavit that memorialized this interview. Based on Brown’s affidavit, Turner filed a petition for a writ of actual innocence based upon newly-discovered, non-biological ev idence. In his petition, Turner relied upon Brown’s 2002 admission and 2003 affidavit in which Brown stated that he alone killed Evans and that Turner played no part in it. Turner asserted that other evidence in the record supported Brown’s statement absolving Turner. The Commonwealth filed a motion to dismiss Turner’s pe tition, alleging that the pe tition was without merit because Brown’s confession was not credible and even if it was credible, the other evidence against Turner was sufficient to find him guilty either as a principal in the second degree or under the felony-murder doctrine.-10- Upon consideration of Turner’s petition, the Atto rney General’s motion to dismiss, Turner’s reply thereto, and the record, this Court denied the motion to dismiss and remanded the matter to the circuit court to certify findi ngs of fact regarding f actual issues in dispute. 4 Specifically, this Court instructed the circuit court to answer four questions: 1) whether Brown’s recanted testimony is credible in his assertion that he testified falsely at his own trial, 2) if the answer to Question #1 is “yes ,” did Brown testify falsely as to any material fact, 3) if the answer to Question #1 is “yes,” was Brown’s recantation testimony unknown or unavailable to the petitioner or his counsel at the time the conviction became final, or could such recantation testimony, through the exercise of diligence, have been discovered or obtained before the expiration of 21 days following en try of the final order of conviction, [and] 4) is Brown credible in his assert ion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim? 5

4 The concurring opinion states that [p]rior to its decision to grant the writ of actual innocence, the three-judge panel of this Court made two preliminary decisions that were critical to the ultimate outcome. The first was to defer ru ling on the Commonwealth’s motion to dismiss. The second was to remand the case to the circuit court for a factual finding rega rding the credibility of the testimony of Billy Brown. This opinion repeatedly refers to “the panel.” As set forth by statute, “[e]ach panel [of this Court] shall hear and determine, independently of the others, . . . the other cases assigned to that panel.” Code § 17.1-402(C) (emphasis added). Th us, it must be noted that the divided panel that granted Turner’s petition for a writ of actual innocence was a separate panel from the one that refe rred the matter to the circuit court for factual findings. The concurring opin ion relies upon the position that the first panel did not rule on the Commonwealth’s motion to dismiss. Contrary to this position, the referring panel did not defer ruling on the Commonw ealth’s motion to dismiss. “Motion to Dismiss” is the style that the Commonwealth gave its response to Turner’s petition for a writ of actual innocence. Indeed, the relief sought by the Commonwealth was th at this Court “should not order an evidentiary hearing but should dismiss the petition.” Thus, by refe rring the matter to the circuit court for an evidentiary hearing and ultimately sending th e matter on to be h eard on its merits, th e referring panel im plicitly denied the Commonwealth’s motion to dismiss.
5 This Court posed this four th question to the circuit court upon a motion by Turner.-11- On May 28, 2008, the circuit court conducted an ev identiary hearing in which Brown testified that on the night of June 18, 1995, he did not want to engage in se xual intercourse and purposefully consumed excessive amounts of alcohol. He stated th at he recalled briefly talk ing to Evans and claimed he did not know Turner’s intenti ons concerning Evans aside from Turn er’s wanting to spend more time with her. Brown confirmed Turner’s prior testim ony that Bishop was to give Brown a ride home but that Brown did not want to wait for Bishop’s friend to arrive. Brown admitted that, by this point, he was extremely intoxicated and on the verge of passing out. He testified that he found Turner’s vehicle and climbed into the back seat behind Evans. Br own recalled saying something vulgar but could not remember specifically what he said . Brown testified that “one mi nute [he] was normal and the next minute [he] snapped and [he] started choking [Evans ,]” by putting his left arm against her neck and holding it with his right arm. 6

6 It appears that there are two versions of an affidavit signed by Brown. In one version, which was notarized and presented in support of Turner’s pe tition, Brown stated that Evans died instantly, and in the other, Brown stated that she revived and he choked her a second time killing her. At oral argument, the Commonwealth asserted that the exis tence of the two differing versions was critically important to the circuit court’s determination of Brown’s credibility. Speci fically, the Commonwealth argued that it was entirely possible that the circuit court would have f ound Brown not to be credible if it had known of the two versions. Even though both vers ions of the affidavit we re not physically before the circuit court, the fact that a discrepancy existed betw een them was before the circuit court. The Commonwealth questioned Brown at th e evidentiary hearing about the ve rsion of the affidavit in which Brown said that he had to strangle Evans twice to kill her and his earlier testimony at the hearing that Evans died instantly. More specifically, duri ng cross-examination, the following was said: [Commonwealth:] Let me read you a few sentences of this affidavit you signed. . . . He did not encourage me in any way and, in fact, I remember one instance while I was choking Jennifer[,] Dustin tried to pull my hands away. Jennifer became unconscious and I believed she was dead. I fell back in the seat, and she woke up. I then choked her again until blood came out of her nose and am certain she was dead at that time. We were still in the parking lot. I do not know why I did it.

* * * * * * * That statement reflects, does it not, that she was not killed instantly or rendered helpless instan tly but, in fact, revived and you had to choke her a second time, correct? [Brown:] Yes.-12- Brown testified that when he realized that Evan s was dead, he instructed Turner to drive. He further told the circuit court that he removed Evans’ vest and pulle d her pants down before passing out. Brown also testified that he attemp ted to have sex with Evans’ body afte r he and Turner placed it in the woods. Brown acknowledged having given conflicting ac counts of how the murder occurred. He admitted that he lied to the police and that he repeated the lies at his own trial. He testified that he fabricated Turner’s involvement in the murder because he was angry with Turner for telling the police where Evans’ body was located. He stated that at th e time, he perceived no difference between telling one lie and telling several lies. In explaining his recent recantation, Br own stated that his conversion to Christianity was his primary reason for his coming forw ard. Brown said that as long as he truthfully confessed to what had happened th at night, he did not car e whether his testimony would help exonerate
Turner. Upon considering the testimony fr om the evidentiary hearing and the transcripts from the original trials of Turner and Brow n, the circuit court found that Brown “i s credible in his assertion that he testified falsely at his own trial, ” that Brown “testified falsely as to a material fact in the case,” that “Brown’s recantation of his earli er testimony was unknown and unavailab le to the petit ioner in this proceeding . . . at the time of his conviction and at the time his conviction became final,” and that Brown “is credible in his asserti on that he acted independently in murdering the victim and that . . . Turner played no role in the murder or in the restraining of the victim.”

Brown then responded affirmatively when asked by the Commonwealth: “[W]as there a period where [Evans] was seemingly unconscious or worse and then revived and then you had to assault her a second time?” Despite these contradictions, the circuit court found that Brown’s testimony in that proceeding was credible, and we are bound by that determination.-13- II. Analysis A. Standard of Review Code § 19.2-327.10 confers original jurisdiction upon the Court of App eals of Virginia to consider a petition for a writ of actual innocence based on newly-di scovered, non-biological evidence filed by any individual “convicted of a felony upon a plea of not guilty.” See also Carpitcher v. Commonwealth , 273 Va. 335, 342, 641 S.E.2d 486, 490 (2007). “The writ shall lie to the court that entered the conviction . . . .” Code § 19.2-327.10. To obtain a writ of actual innocen ce, a petitioner must allege, inter alia , that the newly-discovered evidence (1) “was previously unknown or unavaila ble to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court;” Code § 19.2-327.11(A)(iv), (2) “ is such as could not, by the exercise of diligence, have been discovered or obtained before the expi ration of 21 days following entry of the final order of conviction by the court;” Code § 19.2-327.11(A)(vi), (3) “is material and when considered with all of the ot her evidence in the current record, will prove that no rati onal trier of fact could have found proof of guilt beyond a reasonable doubt;” Code § 19.2-327.11(A)(vii), and (4) “is not merely cumulative, corroborative or collateral,” Code § 19.2-327.11(A)(viii). Carpitcher , 273 Va. at 343-44, 641 S.E.2d at 491. The pa rties agree that the newly-discovered, non-biological evidence at i ssue in this case is Brown’s confession that he alone restrained and killed Evans. Brown provided this confession six years afte r Turner’s conviction. Thus , of the four elements listed above, only the third is at i ssue in this case: Whether Turner has carried his burden of proving, by clear and convincing evidence, 7 (a) that Brown’s new confession is “material” and (b) that, when

7 The concurrence avers that “the new evidence must conclusively show that the petitioner’s guilt is a factual impossibility .” (Emphases added). It attempts to draw a distinction based on the level of certainty of guilt provided by DNA evid ence as compared to what it vi ews as the lesser degree of certainty provided by testimonial evidence. The c oncurring opinion views afte r-discovered testimonial-14- considering Brown’s confession with all the other evidence in the curr ent record, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 8 Code § 19.2-327.11(A)(vii). In analyzing Turner’s petition, we must first de termine whether Brown’s statement is “material.” In order to be “material” w ithin the meaning of Code § 19.2- 327.11(A)(vii), “evidence supporting a petition for a writ of actual innocence based on non-biological evidence must be true.” Carpitcher , 273 Va. at 345, 641 S.E. 2d at 492. If the circuit court cannot determine whether the original testimony, the recantation testimony, or some other version of events is true, the petitioner has not met his burden of proving materiality because “the General Assembly in tended to provide relief onl y to those individuals who can establish that they did not, as a matter of fact, commit the crime for which they were convicted”

evidence as “uncertain” because “when a witness testifies to a fact,” he “could be telling the truth as he understands it, but he could be mistak en due to poor eyesight or poor memory,” or he “[could] appear entirely credible[] but actually be ly ing.” It posits, as a result, that “testimony can be credible—that is, believable—without being f actually dispositive of the issue of innocence.” Although this statement is certainly true in the abstract, th e concurrence implies that the circuit court’s finding on referral that Brown’s testimony is credible does not mean we must accept Brown’s testimony over other evidence, presented at trial, with which it conflicts. What the concurrence fails to acknowledge is that both our legal system in general and the actual innocence statutes in particular equa te credibility with truth. If the fa ct finder—in this case the circuit court to which the matter was referred for a dditional findings—concludes the testimony given on referral is credible, we treat th at testimony as “the truth.” See Johnson v. Commonwealth , 273 Va. 315, 323-24, 641 S.E.2d 480, 484-85 (2007) (using the terms “t ruth” and “credibility” interchangeably in analyzing the impact of the circ uit court’s findings on referral); see also, e.g. , Molina v. Commonwealth , 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (holding that on direct appellate revi ew, “we must ‘regard as true all the credible evidence favorable to [the part y who prevailed below]’” (quoting Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (e mphases added))). Further, no practical distinction exists in our jurisprudence between “truth” based on testimonial evidence and “truth” based on scientific evidence such as DNA. Just as the accuracy of eyewitnes s testimony depends on factors such as perception, memory, and cred ibility, DNA evidence depends upon the qualification and credibility of the analyst and the quality control and othe r procedures of the laboratory.

8 This confession is a recantation because it unequivocally repudiates the version of events implicating Turner that Brown gave to investigators in 1995 and under oath at his own trial in 1996. See Black’s Law Dictionary 1295 (8th ed. 2004) (defining the term “r ecant” as “[t]o w ithdraw or renounce prior statements or testimony formally or publicly”) (emphasis added). It is immaterial that Brown did not testify at Turner’s trial, espe cially in light of the sworn testim ony Brown had previously given at his own trial, which clearly demonstrat ed his intent to incriminate Turn er if he were called. Brown’s recantation testimony was unavailable at the time of Tu rner’s original trial, and the Commonwealth does not contend otherwise.-15- and not to those “who merely produce evidence contrary to the eviden ce presented at their criminal trial.” Id. “Because the Court of Appeals cannot hold its own evidentiary hearing to assess a witness’ credibility, but must ultimately determine whethe r a recantation is true, Code § 19.2-327.12 provides a mechanism to assist the Court of Appeals in this task.” Johnson v. Commonwealth , 273 Va. 315, 322, 641 S.E. 2d 480, 484 (2007). Pursuant to that code section, [i]f the Court of Appeals determines . . . that a resolution of the case requires further development of the facts, the court may order the circuit court in which the order of convictio n was originally entered to conduct a hearing . . . to certify findings of fact with respect to such issues as the Court of Appeals shall direct. Code § 19.2-327.12 (emphasis added). To determine the credibility of Brown’s statemen t, we ordered the circuit court in which the order of conviction was originally entered to conduct a hearing on the credibility of Brown’s recantation testimony and issue certified findings of fact. 9 See Code § 19.2-327.12; see also Johnson ,

9 The concurrence asserts that it was unnecessary to remand this matter to the circuit court for an evidentiary hearing. As previously mentioned, two separate panels addres sed different issues in this case. It is the decision by th e second panel, the merit panel, th at is before this Court sitting en banc . As set forth by the General Assembly, this Court shall sit en banc (i) when there is a dissent in the panel to which the case was originally assigned and an a ggrieved party requests an en banc hearing and at least four judges of the court vote in favor of such a hearing or (ii) when any judge of any panel shall certify that in his opinion a decision of such panel of the court is in conflict with a prior decision of the court or of any panel thereof and three other judges of the court concur in that view. The court may sit en banc upon its own motion at any time, in any case in which a majority of the court determines it appropriate to do so. Code § 17.1-402(D). Contrary to th e view expressed by the concurre nce, the issue of whether the referring panel needlessly sent the matter back to the circuit court for factual fi ndings is not an issue on which either party sought review , nor is it an issue granted by this Court for consideration en banc . The panel’s decision to remand the case for factual findings was unanimous, and no judge has certified that the panel decision was in conflict with a prior decision of this Court. Moreover, this Court has made no motion, joined by a majority of the Court, to sit en banc to reconsider the referring panel’s decision to remand the matter to the circuit court. Therefore, th e referring panel’s decision is not before this Court sitting en banc . To determine at this juncture that th e decision to remand was improper, without complying with Code § 17.1-402(D), or allowing the par ties to brief the issue, w ould be inappropriate.-16- 273 Va. at 322-23, 641 S.E. 2d at 484 (involving a referr al of the recantation of a co-defendant, which the circuit court found was not cr edible). After conduc ting an evidentiary hearing, as well as reviewing in detail the evidence that was presented in the prior trials of both Brown and Turner, the circuit court expressly found Brown credible both in his assertion that he te stified falsely to a “material” fact at his own trial and in his present statement that “he acted independently in murdering [Evans] and that Turner played no role in th e murder or any restra int of the victim.” Code § 19.2-327.13 then provides, in relevant part: [u]pon consideration of the petiti on, the response by the Commonwealth, previous records of the case, the reco rd of any hearing held under this chapter and, if applicable, any findings certified from the circuit court pursuant to an order issued under this chapter , the Court of Appeals, if it has not already summarily dismissed th e petition, shall either dismiss the petition for failure to state a claim or assert grounds upon which relief shall be granted; or the Court shall (i) dismiss the petition for failure to establish previously unknown or unava ilable evidence sufficient to justify the issuance of the writ, or (ii) only upon a finding that the petitioner has proven by clear and convincing evidence al l of the allegations contained in clauses (iv) through (viii) of subsection A of § 19.2-327.11, and upon a finding that no rational trier of fact could have found proof of guilt beyond a reasonable doubt, grant the writ, and vacate the conviction . . . . (Emphasis added). The plain language of this code section requires that we give “consideration” to “any findings certified from the circ uit court pursuant to an order issued [under Code § 19.2-327.12].” See Marble Techs., Inc. v. City of Hampton , 279 Va. 409, 418, 690 S.E.2d 84, 88 (2010) (“‘Legislative intent is determined from the plain meaning of the words used.’” (quoting City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 80, 387 S.E.2d 471, 473 (1990))). Moreover, in explaining how the “f actual findings certified by the circuit court in response to the Court of Appeals’ order referr ing certain factual issues pursu ant to Code § 19.2-327.12” should be treated by Virginia’s appellate courts, the Supreme Court of Virginia establishe d the analytic framework

This case is in a different pro cedural posture from that of Startin v. Commonwealth , 56 Va. App. 26, 690 S.E.2d 310 (2010) ( en banc ), in which this Court most recently overruled a prior panel decision. In Startin , this Court was specifically asked on brief to consider the continuing viability of Sprouse v. Commonwealth , 19 Va. App. 548, 453 S.E.2d 303 (1995).-17- to be applied, mandating that “[s]uch factual findings are similar to circuit court findings made under Code § 8.01-654(C) in habeas corpus cases in which [t he Supreme Court] ha[s] original jurisdiction and ha[s] referred certain factual issues to the circuit court for an evidentiary hearing.” 10 Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 490 (citations omitted). In habeas corpus cases, “[t]he circuit court’s factual findings . . . are entitled to deference and are binding upon [the Supr eme] Court unless plainly wrong or without evidence to support them.” Hedrick v. Warden , 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002); see also Yarbrough v. Warden , 269 Va. 184, 195, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden , 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003). The rati onale for this framework is that a determination of a witness’ credibility hinges on more than his mere words. As the trier of fact, the circuit court is charged with the responsibility of considering various factors, incl uding the witness’ demeanor, his opportunity for knowing the things about which he has testified, his bias, and any prior inconsistent statements relating to the subj ect of his present testimony. In addition, the circumstances of a particular case may raise other factors that the circ uit court deems relevant in assessing a witness’ credibility. Johnson , 273 Va. at 323, 641 S.E.2d at 485 (citations omitted). These observations are available only through live witness testimony. This Court is not authorized to hear testimony and, as a result, we are not equipped to judge the credibil ity of a witness’ testimony based on his demeanor. Despite our

10 Because the concurrence asserts that it was unne cessary to remand this matter to the circuit court, it further contends that the credibility determinations made by th at circuit court are irrelevant. Specifically, in footnote 36, the conc urring opinion states that in Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 490, the Supreme Court of Virginia recited “the standard of review that it would apply in its appellate function of reviewing this Court’s dismissal of an actual innoc ence petition” and held that the circuit court’s “factual findings pursuant to Code § 19.2-327.12 are only binding if they are approved by the Court of Appeals.” This interpretation of Carpitcher considers only part of the pronouncement by the Supreme Court of Virginia and ignores the anal ytical framework clearly outlined by the Supreme Court. Contrary to the concurring opinion’s position that the Supreme Court of Virginia was referring only to the standard of analysis th at it would apply to factual findings as approved by this Court, clearly the Supreme Court was also indicatin g that because factual findings refe rred to and made by the circuit court under the Writ of Actual Innocence code sections are similar to those in habeas corpus cases, the same standard of deference, i.e., that findings are binding unless plainly wr ong or without evidence to support them, applies to our treatment of the circuit court’s findings.-18- original jurisdiction and the unique na ture of the writ, we simply cannot sit as a fact finder in the same sense that a jury or circuit court does. Therefore, like the Supreme Court of Virginia when it sits with original jurisdiction in habeas corp us cases and reviews factual findings made by a circuit court pursuant to Code § 8.01-654(C), 11 we must accept the circuit court’s f actual findings made pursuant to Code § 19.2-327.12 unless they are plainly wr ong or without evidence to support them. In other words, we may not simply ignore the circuit court’s findi ngs as though they had never been made, as the concurrence advocates. Here, the order of referral stated as follows: “Upon consideration of th e petition, the response of the Attorney General [entitled “Motion to Dismiss”], petitioner’s reply, the reco rds of prior proceedings in this case, and the other exhibits, this Court finds that a resolution of the case requires further development of the facts.” (Emphasis added). Thus, as previously stated, the initial panel that decided to refer Turner’s case to the circuit court fo r an evidentiary hearing implicitly denied the Commonwealth’s motion to dismiss and made preliminary determinations as to materiality and relevance. On rehearing en banc , we may reject the initial panel’s le gal conclusions related to relevance and materiality but not the factual findings made by the circuit court at the panel’s instruction. See Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 490; Johnson , 273 Va. at 323, 641 S.E.2d at 485. Therefore, we are bound to accept the circuit court’s determinations that Brown “is credible in his assertion that he testified falsely at his own trial,” that Brown “testified falsely as to a material fact in the case,” that “Brown’s recantation of his earlier testimony was unknown a nd unavailable to the petitioner in this proceeding . . . at the time of his conviction and at the time his convicti on became final,” and that

11 Code § 8.01-654(C)(1) confers ex clusive jurisdiction upon the Supreme Court of Virginia to consider and award writs of habeas corpus in ca ses where the petitioner is held under a sentence of death. In such cases, the Supreme Court of Virg inia may order the circuit court to conduct an evidentiary hearing to make necessary factual findings as instructed by the Supreme Court.-19- Brown “is credible in his asserti on that he acted independently in murdering the victim and that . . . Turner played no role in the murder or in the restraining of the victim.” 12 Moreover, we reject the Comm onwealth’s contention that the ci rcuit court’s factual findings were fatally incomplete and conclusory. On referral to the circuit court for f actual findings, “[t]here is no mandatory formula for a circuit co urt’s consideration of the credibility of a particular witness.” Johnson , 273 Va. at 323, 641 S.E. 2d at 485 (citations omitted ). Here, the circuit court clearly answered, albeit briefly, the four questions referred by this Court and thus fulfilled its obligations under Code § 19.2-327.12. Having fully considered the record in this case, we cannot say that the circuit court’s

12 Although the en banc Court may revisit the legal significance of the circuit court’s findings on referral, the concurrence’s position th at the statute requires us to view Brown’s recantation testimony as “just another piece of evid ence that the jury would have consider ed” strips the statute of its primary purpose in allowing for referral to the circuit co urt and flies in the face of the holdings in Carpitcher and Johnson . A fundamental issue in dispute at this stage of our review of Turner’s petition is our treatment of the circuit court’s findings. This Court is bound by the plain language of Code § 19.2-327.13, which dictates that we are to give “consideration” to “an y findings certified from the circuit cour t pursuant to an order issued [unde r Code § 19.2-327.12].” See Marble Techs., Inc. , 279 Va. at 418, 690 S.E.2d at 88. We, therefore, must consider, at this stage of the proceedings, the circuit court’s findings regarding the credibility of Brown’s confession, al ong “with all of the other evidence in the current record,” to reach our ultimate decision of whether Turner has “prove [d] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11. In other words, we may not simply ignore the circuit court’s findings as though they had never been made , as the concurrence advocates. Upon our referral, the circuit court acted as the fact finder to dete rmine whether Brown’s most recent statement was his definitive testimony regarding what ha ppened rather than just “o ne more in a series of conflicting and unreliable tales.” Th e concurring opinion, in noting it is “quite reasonable to conclude that a hypothetical juror w ould have chosen to ignore Brown’s testimony in its entirety and decide the case on the same evidence considered by the original ju ry,” mistakenly ignores the fact that the circuit court, with regard to the questions referenced fr om this Court, became the fact finder, i.e., the hypothetical juror of which the c oncurrence speaks—a substitute fo r the original trial jury—and concluded that Brown’s recantation te stimony should be credited in the c ontext of the questions posed to it. Here, because the circuit court found Brown’s recantation testimony that he alone restrained and killed Evans to be credible in the context of the en tire record, we must evalua te the record by rejecting all evidence that is in conflict with the circuit court’s findings before assessing whether “no rational trier of fact could have found proof of guilt beyond a r easonable doubt” upon the evidence that remains. Code § 19.2-327.11(A)(vii).-20- factual findings are plainly wrong or without evidence to s upport them and, ther efore, we are bound by these findings. B. Turner’s Role in Evans’ Death Next, we must consider whether Brown’s credible confession, “whe n considered with all of the other evidence in the current record, . . . prove[s] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Turner was convicted of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in vi olation of Code § 18.2-32, under the felony-murder doctrine. Thus, Brow n’s recantation must obvi ate Turner’s participation in killing Evans and sever the causal connection between Brown’s c onduct and the underlying crime that gave rise to Evans’ murder. Turner argues that we cannot arbitrarily di sregard Brown’s recantati on and that all other evidence must be viewed in the context of Brown’s a ssuming sole responsibility fo r the murder. To that end, Turner asserts that the Common wealth’s evidence against him is merely circumstantial and does not exclude the reasonable hypothesis of innocence that Brown acted independently in murdering Evans and that Turner had no role in the murder or re straint of Evans. The Commonwealth responds that, based on all of the evidence, a reasonable fact fi nder could find that Turner abducted Evans with the intent to defile her and, ther efore, is not entitled to a writ of actual innocence. Before this Court may properly grant the writ of actual innocence that Turner seeks, he must demonstrate by clear and convincing evidence that based on all of the evidence in the record, “ no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii) (emphasis added); accord Carpitcher , 273 Va. at 344, 641 S.E.2d at 491. This analysis is not as simple as merely accepting the circuit court’s determination that Brown testified credibly that he acted alone when he physically comm itted the murder and that Turner played no role in-21- murdering or restraining Evans. 13 The relevant question is not wh ether Brown acted alone in killing Evans, but whether Turner abducted he r with the intent to defile her. 14 If he did, the fact that Brown may have acted alone in restraining Evans and in murd ering her does not absolve Turner of his guilt. In order to be granted a writ of act ual innocence, Turner must produce cl ear and convincing evidence that he did not abduct Evans with the intent to defile he r and, therefore, that he is not guilty of felony murder. It is this Court’s statutory duty to examine the entire record, including Brown’s credible confession to Evans’ murder, to determine whether Turner has met his burden. See Code §§ 19.2-327.11 to 19.2-327.14. Having examined the entire record, 15 we conclude that Turner has not met his statutory burden. From the record, a rational fact finder could have f ound that Turner abducted Evans by deception—meaning no finding of force or rest raint would have been required—and that the abduction ended with Evans’ murder. Therefore, we dismiss Turner’s request for a writ of actual innocence and deny his request to vacat e his convictions for murder and a bduction with intent to defile.

13 The dissent states that “[i]f X says that he did it and that Y di d not participate in any way, and the jury believes X, there is no legal way to convi ct Y.” This analysis grossly oversimplifies the question of Turner’s guilt because th e fact finder in Turner’s original trial was instructed as to felony murder, contrary to the dissent’s as sertion that this is a novel theory, and Brown’s most recent recitation of events that has been accepted as credible states only that Turner di d not participate in restraining or murdering Evans. Brown’s confession is si lent, as it necessarily must be, as to Turner’s intent at the time that he left the club with Evans . Thus, based on the theory of this case presented to the fact finder—i.e., felony murder predicated on Turner’s abduction of Evan s with the intent to defile her—it cannot be said that there is “ no legal way to convict” Turner.

14 The dissent’s determination that “[t]he circ uit court, by referring to the murder and the restraint in the disjunctive, contemplated Brown’s re cantation in light of both the actual killing and the underlying crime of abducti on” is unsupported and require s an inferential leap.

15 We have received correspondence from the Co mmonwealth alleging that it has discovered evidence that would call into ques tion the credibility of Brown’s recantation and tend to support a finding of Turner’s guilt. The Commonwealth has ne ither made a formal motion nor asked anything of this Court in light of this alle ged evidence. Assuming, without d eciding, that this information is credible, it would only strengthen our position. Therefore, even if the Commonwealth properly asked this Court to consider the alleged new evidence, it would at best be cumulative and not change the disposition of Turner’s petition for a writ of actual innocence.-22- A defendant is guilty of first- degree murder under Code § 18.2-32 where the killing occurs “in the commission of, or attempt to commit, arson, ra pe, forcible sodomy, inanimate or animate sexual penetration, robbery, burglary or ab duction.” This legislation codi fies the common law doctrine of felony murder and “elevate[s] to murder a hom icide committed during the course of a felony by imputing malice to the killing.” King v. Commonwealth , 6 Va. App. 351, 354, 368 S.E.2d 704, 705 (1988). “[T]he felony murder statute applies where the initial fel ony and the homicide were parts of one continuous transaction, and were cl osely related in point of time , place, and causal connection.” Berkeley v. Commonwealth , 19 Va. App. 279, 286, 451 S.E.2d 41, 45 (1994) (holding that a fact finder could reasonably infer that an a bduction with intent to rape conti nued until the victim’s death and, therefore, felony murder occurred). Abduction is a cont inuing offense and “‘it [is] for the fact finder to determine in each case . . . whether the [abduction] had been terminated within the purview of [Code § 18.2-32].’” Barnes v. Commonwealth , 33 Va. App. 619, 629, 535 S.E.2d 706, 711 (2000) (quoting Haskell v. Commonwealth , 218 Va. 1033, 1043, 243 S.E.2d 477, 483 (1978)). Thus, to determine whether Turner committed felony murder, we must firs t decide whether the evidence in the record is such that a rational finder of fact could conclude th at Turner abducted Evans w ith the intent to defile her. A person commits abduction when he “[b]y force, intimidation or deception and without legal justification or excuse, seizes, takes, transports, detain s or secretes the person of another, with the intent to deprive such person of his pers onal liberty . . . .” Code § 18.2-47. 16 Abduction requires proof of asportation or detention, either of which may be accomplished by force, intimidation, or deception. Jerman v. Dir. of the Dep’t of Corr. , 267 Va. 432, 439, 593 S.E.2d 255, 259 (2004) (citing Scott v. Commonwealth , 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984)). The accused need not have used any physical force or restraint against the victim. Kent v. Commonwealth , 165 Va. 840, 841-42, 183 S.E.

16 The penalty is enhanced “for the abduction of any person with the in tent to defile such person.”-23- 177, 177-78 (1936). 17 Virginia case law is clear that, under Code § 18.2-47, an abduction includes a taking away or detention of a pe rson induced by fraud or deception. Jerman , 267 Va. at 439, 593 S.E.2d at 259.
In Jerman , the Supreme Court of Virginia found that an abduction occurre d where the evidence proved that one of the petitioner’s c onfederates convinced the victim to come with her under the ruse of selling illegal narcotics to her and petitioner when their true intent was to harm the victim. Id. ; see also Taylor v. Commonwealth , 260 Va. 683, 688, 537 S.E.2d 592, 595 (2000) (holding that the appellant accomplished the abduction through the use of both decep tion and intimidation). The Supreme Court of Virginia made no mention of any “restraint ” upon the victim in the first abduction in Jerman ; rather, the fact that the victim was tricked in to getting into the vehicle and tr aveling with the co-conspirator was enough to prove abduction. 267 Va. at 439, 593 S.E.2d at 259. Similarly in Kent , the defendant kidnapped the victim with intent to extort money for pecuniary benefit. 165 Va. at 842, 183 S.E. at 178. The evidence showed that the defendant induced the victim to accompany him to Washington, D.C., on the assurance th at he would obtain money to satisfy a debt he owed her. Id. at 842, 183 S.E. at 177-78. The defendant ar gued that he could not be found guilty of kidnapping because the evidence failed to show any fo rce or restraint was used by the accused in taking the victim with him. Id. at 841, 183 S.E. at 177. The Supreme C ourt of Virginia disagreed with the defendant and held that he was gui lty of kidnapping because the eviden ce showed that the accused took the victim with him under “such circumstances [t hat] amounted to fraud and coercion on [the defendant’s] part and for the purpose of pecuniary benefit . . . .” 18 Id. at 842, 183 S.E. at 178.

17 The dissent refers to Kent and Jerman as cases where the appellants told “specific lies” to accomplish the abductions. However, Code §§ 18.2-47 and 18.2-48 do not require that the deception be verbalized and, certainly, it is well se ttled that one’s intention, such as the intent to deceive, may and often must be proven through the us e of circumstantial evidence. Williams v. Commonwealth , 278 Va. 190, 194, 677 S.E.2d 280, 282 (2009) (reiterating that “[ a]bsent a direct admi ssion by the defendant, intent . . . must necessarily be proved by circumstantial evidence”).

18 When Kent was convicted the then in effect statute stated, “[i]f any person seize, take or secrete any other person with intent to extort mone y, or pecuniary benefit, he shall be punished with-24- Thus, if based on all of the evidence before th is Court, any rational fact finder could have concluded that Turner deceived Evans into leaving th e club while at the same time intending to defile her, then a writ of actual innocence should not issue. The intent to defile element requires proof th at the perpetrator intende d to engage in sexual contact against the victim’s will. See, e.g. , Code §§ 18.2-61 (rape), 18.2-67.1 (forcible sodomy), 18.2-67.3 (aggravated sexual battery), and 18.2-67.1 (sexua l battery). To prove that Turner abducted Evans with the intent to defile, the Commonwealth wa s required to prove that he had the specific intent to sexually molest her. Simms v. Commonwealth , 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986). “Intent is the purpose formed in a person’s mind whic h may, and often must, be inferred from the facts and circumstances in a particular case.” Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Code §§ 18.2-47 and 18.2-48 do not require that the deception be verbalized and, certainly, it is well settled that one’s intention, such as the intent to deceive, may and often must be proven through the use of circ umstantial evidence. See Williams v. Commonwealth , 278 Va. 190, 194, 677 S.E.2d 280, 282 (2009) (reiterating that “[a]bsent a direct admission by th e defendant, intent . . . must necessarily be proved by circumstantial evidence”). “There is no distinction in the la w between the weight or value to be given to either direct or circumstantial evidence.” Muhammad v. Commonwealth , 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied , 547 U.S. 1136 (2006). Our Supreme Court has held that “‘circumstantial evidence is competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude ev ery reasonable hypothesis except that of guilt.’” Finney v. Commonwealth , 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth , 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). Furthermore, circumstantial evidence “is not viewed in isolation.” Muhammad , 269 Va. at 479, 619 S.E.2d at 32. “While no single piece of evidence may be suffici ent, the combined force of many
death, or within the discretion of the jury be confin ed in the penitentiary not less than eight nor more than twenty years.” The holding in Kent points out the error in the dissent’s position that every abduction necessarily includes restrain t. Indeed, that was the very de fense advanced by Kent—that he could not be found guilty of kidnapping because the evid ence failed to show force or restraint. The Supreme Court of Virginia disagreed, holding that the evidence was sufficient because he took the victim by fraud or coercion.-25- concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). Brown v. Commonwealth , 54 Va. App. 107, 119, 676 S.E.2d 326, 332 (2009). Turner’s acts, conduct, and statements may be considered to discer n his state of mind. Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). “The fact finder may consider the conduct of the person involved and all the ci rcumstances revealed by the evidence.” Wynn v. Commonwealth , 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). “When weighing the evidence, the fact finder is not required to accept entirely either pa rty’s account of the facts. The fact finder may reject that which it finds implausible, yet accept ot her parts which it finds to be believable.” Barnes v. Commonwealth , 33 Va. App. at 630, 535 S.E.2d at 711-12 (2000) (citing Barrett v. Commonwealth , 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)). Because it is Turner’s intent th at is relevant, Brown’s credible confession to killing Evans cannot be found to be dispositive of what Turner was thi nking when he left the club with Evans. Indeed, Brown’s confession only establishes what occurred af ter he got into the car with Turner and Evans. 19 Thus, Brown’s confession does not change the evidence of Turner’s intent to defile that was before the jury in Turner’s trial. The jury was instructed that abduction with the intent to defile could be accomplished by, inter alia , deception and could have found that Turner deceived Evans into leaving the bar, his nefarious intent unbeknownst to her. 20 Accordingly, it cannot be said that no rational trier of fact could have found Turner guilty beyond a re asonable doubt as the jury did.

19 In his confession, Brown reiterates his prior statements that he did not intend to have sex that night. His recent confession, however, has no bearing on what a reasonable fact finder could conclude about Turner’s and Brown’s sexual intent prior to Brown joining Evans and Turner in Turner’s car because Brown’s confession and the credibility findi ng made by the circuit court focused on the details of how he killed Evans and what followed after he me t them in the car. Indeed, Brown’s protestations that he was not sexually interested in Evans are belie d by his interview with Turn er’s attorney and by his own testimony at the evidentiary hearing where he recounted his sexual overtures toward Evans immediately upon getting into Turner’s car and adm itted to trying to have in tercourse with Evans’ corpse twice.

20 Though the record, unfortunately, is devoid of the closing argu ments made to the jury in Turner’s trial, it is clear from the trial court’s ru ling on Turner’s motion to strike and from the jury-26- Moreover, contrary to the dissent ’s contention that “the record is devoid of any evidence that Turner ever engaged or intended to engage in any sexual activity against the will of” Evans, a review of the entire record before this Court reveals that it is replet e with evidence from which a rational finder of fact could reach a conclusion that Turner deceived Evans into leaving the club with him for stated innocent purposes while his tr ue intent was to defile her. Turner testified that he only wanted to talk with Evans and that he had no sexu al interest in her. Turner’s actions and, more tellingly, his own words, belie his claim that he did not intend to have sex with Evans. Turner arranged for Bishop to give Brown a ride home if Turner did not return to the club by closing time. During that conversation, Bishop asked Turner if she needed to give Brown a ride home because Turner “was going home with [Evans], and [Turner] said yes.” When Bishop warned Turner that “if that’s what [he’s] going to do, use a condom,” Turner just smirked and laughed in response. 21

instructions specifically stating that Turner could have used “force, in timidation or decep tion [to] seize, take, transport, detain or secrete . . . Evans” that the abduction by deception theo ry was advanced in the trial court. In ruling on Turner’s motion to strike, the trial court held that there was sufficient evidence from which a fact finder could conclude that Evan s did not “knowingly and w illingly [go] with . . . Turner to the parking lot or to his car for the purposes of engaging in a threesome or what has been discussed as group sex with [Turner] and . . . Brown; but we certainly know from the evidence in this case that that was the defendant’s intent. . . . It’s clear from all the circumstan ces in evidence in this case that the defendant had a sexual mode; and, of course, his specific intent to defile or sexually molest . . . can be deri ved not only from his conduct but from his statements as well .” (Emphasis added).

21 Bishop testified as such in Brown’s trial. Code § 19.2-327.11(C) permits the Commonwealth’s response to a petition for a writ of actual innocence to “c ontain a proffer of any evidence pertaining to the guilt of th e petitioner that is not included in the record of the case, including evidence that was suppressed at trial. ” Moreover, “[t]he Court of App eals may inspect the record of any trial or appellate court action, and the Court may, in any case, award a writ of certiorari to the clerk of the respective court below, and have brought before the Court the whole record or any part of any record.” Code § 19.2-327.11(D). Here, the Commonw ealth requested and the circuit court ordered, without objection from Turner’s counse l, that the entire record in Brown’s trial be made a part of the record in Turner’s petition for a writ of actual in nocence. Thus, all of the testimony given in Brown’s trial may be considered by this Court when determining whether a writ of actual innocence should issue.-27- The most telling piece of evidence is Turner’s conversation with Fitzgibbons in which Turner stated that he and Brown were goi ng to have a “threesome” with Evans. 22 Within a few seconds of this, Evans approached and Turner introd uced her to Fitzgibbons as she stood next to Brown. Before leaving, Fitzgibbons gave them the thumbs up sign, whic h Turner returned with a smile on his face. 23 While Turner denies having made this statemen t, his petition for a writ of actual innocence supports this sequence of events and the fact th at there was an exchange with him, Brown, and Fitzgibbons regarding a “threesome.” In paragraph fo rty-seven of his petition, Turner states under oath Petitioner was happy with Bishop’s re sponse and he went to tell Brown about the arrangements. Petitioner remark ed that the plan was if he wasn’t back by 2:00 a.m., Bishop should take Brown home. Brown asked Petitioner where he was going with “tha t chick,” and Petitioner explained. Brown was slurring his words and aske d Petitioner what the chances were for him to “get it on with her too .” At that moment, [Fitzgibbons] walked up to them and asked what their plans were for the night. Brown said something to the effect, “I’m going to get a threesome going.” (Emphasis added). Turner confirms that he talked with Brown after he arranged for Bishop to take Brown home. Based on Turner’s own version of events, it is clear th at Turner planned to have a sexual encounter with Evans as Brown’s response was to inquire about the chances for him to “get[] it on with her too .” (Emphasis added). The evidence is also clear that the plan was formulated for both Turner and Brown to have sex with Evans as Fitzgibbons was told th at they were going to have a “threesome.” While Turner tries to attribute the “threesome” comment to Brown, Fitzgibbons was clear that it was a declaration made by Turner. Clearly, Brown and Turner made a plan befo re either left the club to have sex with Evans.

22 Fitzgibbons testified that he understood “three some” to mean a sexua l encounter involving Turner, Brown, and a woman, in this instance, Evans.

23 According to the evidence in the record, Turner arranged a ride for Brown around 1:15 a.m. Sometime later, around 1:30 a.m., Turner and Brown ar e together and make the threesome comment to Fitzgibbons. Fifteen minutes would have been more than enough time for thei r plan to have changed.-28- Turner’s intent to have sex with Evans despite th at he did not believe Evans would agree is also clear from Evans’ character. Evans’ friend, Burde tte, described Evans as a woman who would not speak to anyone using sexual overtures. Burdette also test ified that she believed that Evans would not have been speaking to Turner had he made any sexual i nvitations to Evans. Evans’ other friend, McCammon, similarly believed that Evans had no intent to have a “romantic interlude” that ni ght. As further proof of his intent to defile Evans, Turner confirms these de scriptions of Evans. He testified that during the course of the evening, he never discussed sex with he r. He also echoed Evans’ friends with regard to her character. Specifically, he stated that in the short time he spent with her, Evans was not the kind of woman who would have engaged in a “threesome.” Ye t, he spoke to two diffe rent people about having sex with her, although she and he had not discussed it. Moreover, he unreservedly declared that he was going to have a “threesome” with Evans and Brown, even though he did not believe she would have willingly engaged in a “threesome.” From this, a rati onal trier of fact could conclude that Evans was unaware of Turner’s sexual plans for her and would not have willingly engaged in a “threesome,” despite that being his intention. The record also contains evidence of Turner’s aggressive nature, es pecially when things were not going his way. Burdette testified that Turner wa s “exceptionally rude” to her and McCammon and that he spoke to them in a “horribly bell igerent tone[.]” Burdette told the jury that Turner “pulled the [car] door open with surprising force” when he and Evans fi nally prevailed in devising the plan for Evans to stay with Turner for one additional hour. Moreover, statements and conduct of an accused after the events that constitute the charged crime also are relevant circumstantial evidence of intent. See Canipe v. Commonwealth , 25 Va. App. 629, 645, 491 S.E.2d 747, 754 (1997). Here, Turner’s callous disregard for Evans, displayed after her murder, is consistent with a finding that he intend ed to defile her before she was murdered. The evidence demonstrates that within minutes of Brown killing Evans, Turner alone took the lead in finding an isolated spot to dispose of her body, as both men testified that Brown pa ssed out seconds after he-29- killed Evans. Rather than making known what occurred, Turner drove from Virginia Beach to a secluded area in a Newport News city park wher e it was unlikely that Evans’ body would be found. After finding the appropriate spot, he then woke Brown up to assist him in moving and covering Evans’ body. The day after Turner witnessed Brown e nd a young woman’s life wit hout any provocation, Turner still desired to rent an apartment with Brown. Additionally, a few days after the police and FBI agents interviewed Turner and Brow n at the naval base, Turner and Brown had occasion to peruse the current, local newspaper covering Ev ans’ death. One of the newspape rs contained a composite sketch purportedly of Turner. Throughout th e meal, Turner and Brown repeatedly laughed and joked that the sketch looked nothing like Turner. Turner’s aptitude for being convincing even when being deceptive is also demonstrated by the record. An FBI agent interviewing Turner found him to be “very calm, very collected” and his answers seemed very forthright while Turner repeatedly li ed to police and FBI offici als about leaving the club separately from Evans. Another police officer presen t for the interview said that Turner “seemed calm, cool. Had his thoughts about him and talked very straightforward.” Thus, the record provides ample evidence of Turner’s art of deception, determination to spend time with Evans, aggressive demeanor toward he r friends, and unremorseful reaction after witnessing Brown end Evans’ life. There is al so significant, contradictory eviden ce of Turner’s claim that he had no interest in having sexual relati ons with Evans and his attempts to facilitate such relations. The evidence further proves that Turner walked Evans to his car on the pretext of waiting for her friends. He did not disclose to her his stated intention to Fitzgibbons to have a “threesome” with her and Brown. Certainly, the act of engaging in a “threesome” does not , in and of itself, provi de evidence of Turner’s intent to defile Evans. However, the evidence in the record when considered as a whole—including Turner’s belief that Evans would not be receptive to sexual advances, Turner’s claims that he had no interest in having sexual relations with Evans, and his declaration to Fitzgibbons that he intended to-30- have a “threesome” with Evans—enables a rational trie r of fact to infer that Turner intended to have sexual relations with Ev ans against her will. As discussed above, the record in toto provides more than sufficient evidence from which a rational trier of fact could conclude that Turner deceived Evans into goin g to his car with the true intent of both he and Brown having a “threesome” with Evan s against her will. Moreover, the fact finder could also reasonably find that this was a shared intent as Brown was present when Turner told Fitzgibbons that he and Brown inte nded to have a “threesome” with Evans. The evidence also demonstrates that when Turner saw Brown approaching, he cautione d Evans not to believe a word Brown said. The evidence further sh ows that when Brown joined Evan s and Turner in Turner’s car, Brown asked Evans whether she was a virgin and whether she had ever had sex with a “frogman” immediately before “snapping” and k illing her. From all of this ev idence, a rational trier of fact could conclude that Brown and Turner intended to forcibly have sexual relations with Evans and that Brown killed Evans when she rebuffed his advances. The tr ier of fact could have found that because of this shared sexual desire, the abduction had not ended prior to Evans’ murder. III. Conclusion Based on all of the evidence in the record, it can not be said that Brown’ s credible recantation provides this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, Turner was pr operly convicted of abduction with intent to defile and murder. Accordingly, we dismiss his petition for a writ of actual innocence and vaca te the August 4, 2009 order issued by a panel of this Court.

Petty, J., concurring, with whom Kelsey and Haley, JJ., join. While I concur that a writ of actual innocence sh ould not issue in this case, my rationale for this conclusion is quite differen t from that to which the majority subscr ibes. Therefore, I write separately.-31- Before we can address the merits of Turner’s petiti on, I believe that we mu st address the distinct procedural posture of this case. Pr ior to its decision to grant the writ of actual innocence, the three-judge panel of this Court made tw o preliminary decisions that were critical to the ultimate outcome. The first was to defer ruling on th e Commonwealth’s motion to dismiss. The seco nd was to remand th e case to the circuit court for a factual finding re garding the credibility of th e testimony of Billy Joe Br own. Before this Court sitting en banc can address the merits of th e petition, we must address whether thos e two decisions are binding upon the full court. For me, the answer to that question is no . I believe that once this Court granted the Commonwealth’s moti on for a rehearing en banc , it did more than just stay the panel’s decision that the writ should issue. I beli eve our grant of rehearing en banc also effectively vacated the other two decisions made by the panel. Thus, I believe that the full Court is bo und by neither the panel’s decision that further development of the facts by way of a remand is required, nor the pa nel’s order to the circuit court setting out the specific factual findings to be ma de by that court. For this reason , I believe that Turner’s petition for a writ of actual innocence based on non-biological evid ence as well as the motio n to dismiss filed by the Attorney General ar e now before this Court, sitting en banc , for our de novo consideration. I further conclude that in considering Turner’s pe tition and the supporting affidavit, we are bound by the General Assembly’s manifest intent that th e writ was to be an extr aordinary measure granting extraordinary relief. The General As sembly did not choose to call this the “writ of more likely than not innocent,” or even the “writ of probably innocent.” It chose the phrase the “writ of actual innocence” because it intended for this writ to issue only when the newly-discovered evidence was of such a compelling nature that no reasonab le juror would disagree that the defendant was both factually and legally innocent. Because I believe that the evidence that Tu rner has offered falls woefully short of the extremely high burden of proof esta blished by the General Assembly, I believe this Court need go no further than to grant the Attorney General’s motion and dismiss the petition.-32- I. Procedural Posture At the outset, I note that both the majority and th e dissent refer to the “sta ndard of review” to be used in analyzing this case. This is an example of how this Court has conflated our traditional appellate role with our role as the court havi ng original jurisdiction in this case. There is no “standard of review” because we are not reviewing anything. We, the Court of Appeals sitting en banc , are charged by statute with assessing the weight to be assigned to the evidence before us and making the initial decision on whether the writ should issue. 24 Neither the majority nor the di ssent have addressed this unique procedural posture—how does a multi -panel appellate court, sitting en banc , consider a matter of original jurisdiction? I believe that this fundamental procedural Gordian knot must be unraveled before we can begin to consider th e merits of the petition. In doing so, we need to recognize why this case is unique among other cases that come before us. First, the General Assembly vested this Court—no t the circuit court—with original jurisdiction over cases involving actual innocen ce petitions based on non-biologi cal evidence. Code § 19.2-327.10. 25 Original jurisdiction is the “jurisdiction to take cognizance of a case at th e outset, to try it, and to decide

24 This is why the majority is incorrect in its assertion that “the issu e of whether the referring panel needlessly sent the matter back to the circuit court for factual findings is not an issue on which either party sought review, nor is it an issue granted by this Cour t for consideration en banc.” Supra at 15 n.9. We do not sit to review the d ecision of either the panel or of th e circuit court—we sit to decide the issue before us.

25 When developing the writ of actual innocence based on non-biol ogical evidence, the General Assembly surveyed the post-convicti on relief available to actual innocence claimants in all fifty states, and rejected the approaches of stat es that vested trial-level courts with original jurisdiction in cases involving claims of actual innocence. See Writ of Actual Innocence Based on Non-Biological Evidence , Rep. of the Va. State Crime Comm’n (2004), App’x 5 (h ereinafter Crime Comm’n Rep.). Some states vest their trial courts with this authority by statute, see, e.g. , N.Y. C.P.L. § 440.30 (Consol. 2010) (setting forth procedures for motions to vacate j udgment or to set aside sentence on the basis of after-discovered evidence, includ ing DNA evidence); Ill. Comp. Stat . § 116.3 (2007) (setting forth a specific procedure for actual innocen ce claimants to follow in the trial court), while others do so by decision, see, e.g. , Summerville v. Warden , 641 A.2d 1356, 1369 (Conn. 1994) (“[A] substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional vi olation that affected the result of his criminal trial.”).-33- the issues.” Bryan A. Garner, A Dictionary of Modern Legal Usage , 626 (2d ed. 1995). One group of issues we are responsible for deciding are the fact ual findings that ultimately determine the outcome of the case. These factual findings include both the cr edibility of the witnesses and the weight of the evidence. Jackson v. Virginia , 443 U.S. 307, 319 (1979) (The trier of fact has “the responsibility . . . fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate fact s.”). And, the term “[t]he wei ght of the evidence refers to a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.” Tibbs v. Florida , 457 U.S. 31, 37-38 (1982) (int ernal quotation marks and citations omitted). To be clear, the General Assembly’s grant of original jurisdiction to decide cases involving writs of actual innocence to this Court means that this Cour t sits as a trial court in these

cases. 26 Just like the Supreme Court of Virginia, when exercising its original jurisdiction, this Court “considers the evidence and makes factual determinations de novo .” Judicial Inquiry & Review Comm’n v. Lewis , 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002). T hus, it is this Court’s ultimate responsibility to make both the findings of fact and conclusions of law necessary to determine whether a writ should issue. 27

26 Indeed, the delineation between original and appellate jurisdiction is one of the most basic—and longstanding—in American jurisprudence. See Marbury v. Madison , 5 U.S. 137, 175-76 (1803) (discussing the difference between original and appellate jurisdicti on and noting that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not creat e that cause” and that to “issue . . . a writ . . . . seems not to belong to appellate, but to orig inal jurisdiction”).

27 Of course, we recognize that there are situations where an ev identiary hearing will be required to resolve certain issues. For t hose situations, the General Assembly provided a mechanism in Code § 19.2-327.12 for the taking of additional evidence in the ci rcuit court to enable this Court to ultimately determine the exonerating nature of the proffe red evidence. For instance, DNA analysis may conclusively establish that the biological sample did not come from the defendant. However, its exonerating nature may well depend on where the sample was found. Blood found on a victim’s body may well be quite probative of innocence; blood found on the street a block away, perhaps not. Similarly, before this Court could evaluate the proba tive value of an after-discovered video recording apparently showing another individual committing the crime, an evidentiary hearing might be necessary to authenticate the reco rding. This does not mean, however , that all factual findings, including-34- Additionally, when this Court granted the Attorney General’s petition for rehearing en banc , it vacated the panel opinion in this case. Glenn v. Commonwealth , 49 Va. App. 413, 423 n.3, 642 S.E.2d 282, 287 n.3 (2007) ( en banc ). “The grant of en banc review vacates the prior panel opinion in toto .” Id. (emphasis added), cited with approval in Moore v. Commonwealth , 276 Va. 747, 755, 668 S.E.2d 150, 155 (2008). This view of the ef fect of a grant of a rehearing en banc is consistent with that employed by a majority of the United Stat es Courts of Appeals, which employ an en banc process similar to that employed by this Court. Compare 28 U.S.C. § 46 (c); Fed. R. App. P. 35 with Code § 17.1-402(D) (setting forth the procedures for en banc review in the United States Courts of Appeal and this Court, respectively); see also Hon. George C. Pratt, 20A-355 Moore’s Fed. Practice – Civil § 335.11 (“The effect of an order granting en banc rehearing on the panel’s decision depends on local practice.”). The Fourth Circuit falls within this majority, United States v. Moye , 454 F.3d 390, 394 (4th Cir. 2006) (“Granting of rehearing en banc vacates the previous panel judgment and opinion.”), along with eight other federal circuits. See, e.g. , SEC v. Tambone , 597 F.3d 436, 450 (1st Cir. 2010) (reinstating portions of panel opinion that were vacated upon grant of rehearing); Guilmette v. Howes , Rec. No. 08-2256 (6th Cir. Ct. App. Mar. 12, 2010) (granting rehearing en banc , and noting that Local Rule 35(a) of the Sixth Circuit Court of Appeals provides that “[t]he effect of granting a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the manda te and to restore the case on the docket sheet as a pending appeal”); Wis. Cmty. Servs. v. City of Milwaukee , Rec. No. 04-1966 (7th Cir. Ct. App. Aug. 3 1, 2005) (granting rehearing en banc , vacating the panel’s decision and judgment, staying the mandate, and restoring the case to the docket as a pending appeal); Scoop-Gonzalez v. INS , 272 F.3d 1176, 1186 n.8 (9th Cir. 2001) (“The Court’s decision to rehear a case en banc effectively means that the original thre e-judge panel never existed. . . . [T]he en banc court acts as if it were hearing the case on appe al for the first time.”); 5th Cir. R. 41.3 (“Unless otherwise expressly

credibility, need be referred to the circuit court. If the proffered testimony is sufficiently incredible on its face, we are perfectly capable of making that determination.-35- provided, the granting of a rehearing en banc vacates the panel opinion a nd judgment of the court and stays the mandate.”); 11th Cir. R. 35.11 (“Unless otherw ise expressly provided, th e effect of granting a rehearing en banc is to vacate the panel opinion and to stay the mandate.”); but see United States v.
Cavera , 550 F.3d 180 (2d Cir. N.Y. 2008) (notin g that the panel opinion was vacated after the en banc hearing); 10th Cir. R. 35.6 (“The grant of rehearing en banc vacates the judgment, stays the mandate, and restores the case on the docket as a pending app eal. The panel decision is not vacated unless the court so orders.”). Because the decision to rehear a case en banc “effectively means that the original three judge panel never existed,” Scoop-Gonzalez , 272 F.3d at 1186 n.8, logic dictates that decisions of the panel that were critical to the ultimate outcome of the cas e are vacated as well. Otherwise, those members of this Court who were not members of the panel woul d be precluded from exercising their independent judgment regarding the merits of the enti re petition. Hence, this Court, sitting en banc , is not bound by any of the panel’s decisions in this case. All of those decisions were a component of the panel’s final order that was nullified by this Court’ s decision to grant a rehearing in th is case. Therefore, as the Court with original jurisdiction, this Court, sitting en banc , has both the authority and the duty to decide the issues presented in this case as if th e panel proceedings had never occurred. The majority’s reliance on what appears to be an application of the interpanel accord doctrine, 28

see supra at 10, n.4; 15-16 n.9, ignores the f act that this case is before us for consideration by the full court. The majority notes that the panel that determin ed to certify this case for a credibility finding was separate from the panel that ultimately granted the wr it in this case, and to address the first panel’s

28 Under Virginia law, a decision of one panel “becomes a predicate for application of the doctrine of stare decisis ” and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court. Johnson v. Commonwealth , 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996).-36- decision at this time woul d be “inappropriate.” 29 While it is true that two separate panels were involved in this case, it cannot be said that the first panel’s decision was final or binding. This was an interlocutory order reflecting the initial panel’s decisi on to take further evidence , not a disposition of the

case. 30 Further, even if the initial panel’s remand order were a final decision, this Court, sitting en banc, “may overrule any previous decision by any panel or of the full court.” Code 17.1-402(D). And it matters not whether the decision to be overru led is from the case on which we granted en banc review, or a previous decision of another panel. Startin v. Commonwealth , 56 Va. App. 26, 39-40, 690 S.E.2d 310, 316 (2010) (Powell, J.) (finding “a mistake exist[ed] in our prior de cisions” and “exercis[ing] our authority under Code § 17.1-402(D) [to] overrule [tha t decision]” (citations and internal quotation marks omitted)). Thus, I believe that my colleagues’ position that we are now bound by the original panel’s decision to certify this case to the circuit court for a credibility determination, as well as the results of that credibility determination, is mistaken. The Comm onwealth petitioned this C ourt to rehear the case. When we granted that petition, we completely vacated the panel’s orde r. Upon the grant of rehearing en banc , the panel’s decision, and all that went along with it, was nullified, and we must determine this

29 I note that the panel that entered the order send ing this matter to the circuit court for specific fact finding consisted of two active members of this Court and one senior judge. If the majority is correct in its assertion that this de cision is binding on the fu ll court, it would mean that all but two of the members of this en banc Court would be denied the opportunity to opine on this critical decision. When the General Assembly granted original jurisdiction to this Court, it is my belief that it intended all the members of the Court, when sitting en banc, to participate equally in all of the decisions that determine whether this extraordinary writ should issue.

30 This Court frequently enters preliminary orders during the adjudication of our appellate cases. See, e.g. , Woody v. Commonwealth , 53 Va. App. 188, 193, 670 S.E.2d 39, 42 (2008) (explaining that this Court directed the trial court to clarify incons istencies in its final orde r prior to our deciding the appeal). Adopting an approach whereby each of thes e orders could become the subject of rehearings en banc could bog this Court down in an endle ss cycle of interlocutory rehearings.-37- case anew. Accordingly, I conclude that this ca se is in the same posture before this Court en banc as a misdemeanor conviction appealed from a distri ct court to a circuit court—we start over. 31 II. Background In 1996, a jury convicted Dustin Turner of acting in concert with Billy Joe Brown in the abduction with intent to defile and the murder of Jennifer Evans. In an earlier jury trial, Brow n had been co nvicted of the same crimes, as well as one count of attempted rape. This Court affirmed Brown’s convictions, Brown v. Commonwealth , 28 Va. App. 315, 504 S.E.2d 399 (1998), and, in an unpublished order, denied Turner’s petition for appeal on the issues of sufficiency and admissibility of evidence, Turner v. Commonwealth , Rec. No. 0381-97-1 (Va. Ct. App. Jan. 23, 1998). The Virginia Supreme Court also denied both Turner and Brow n’s petitions for appeal. Turner v. Commonwealth , Rec. No. 980220 (Va. May 29, 1998); Brown v. Commonwealth , Rec. No. 982174 (Va. Feb. 23, 1999). Four years later, Brown provided a new version of the events of the crime that was in consistent with his testimony at his own trial and the sundry other versions of the crime to which he had previously subscribed. 32 At that time , in an interview with Turn er’s attorney, Brow n stated that he acted alone in

31 A de novo appeal vacates the decision of the lowe r court as if it had never occurred and provides for a wholly new trial in the circuit court. See, e.g. , Peterson v. Commonwealth , 5 Va. App. 389, 398, 363 S.E.2d 440, 445 (1987) (“An appeal taken in accordance with Code § 16.1-132 is, in effect, a statutory grant of a new tria l to the accused. ‘It annuls the judgment of the inferior tribunal as completely as if there had been no previous trial.’” (quoting Gaskill v. Commonwealth , 206 Va. 486, 490, 144 S.E.2d 293, 296 (1965))).

32 The first two times Brown was questioned by law enforcement regarding Jennifer Evans’ disappearance, he denied having any knowledge of her. A few days later, Brown and Turner were both taken to the FBI office in Richmond for questioning. At that time, in the space of five hours, Brown told law enforcement officers three different stories regard ing Jennifer Evans’ death. First, he told FBI agents that he did not have any knowledge of what happened to Jennifer Evans. Second, Brown stated that he and Turner took Jennifer Evans to an area near some beach houses and, when she began to struggle, jointly killed her—Turner choking her while Brown held her arms and legs. Third, Brown told law enforcement that he came out to the car, from the bar, and found that Turner had killed Jennifer Evans when she resisted his sexual advances. Br own’s sworn testimony at hi s own trial essentially tracked his third statement—that Turner acted alone in killing Jennifer Evans—and is inconsistent with his sworn affidavit and his sworn testimony before the circuit court in this acti on. Brown also explained in his statement to Turner’s attorn ey that Brown originally told his own attorney in 19 99 that he acted alone in killing Jennifer Evans. Brown’s attorney did not believe him. A few weeks later, Brown-38- killing Jennifer Evans. Th is newest version of the facts was consistent with, and apparently based on, Turner’s testimony at Turner’s trial. At that time, Turner testified that he and Jennifer Evans had been sitting together in the fr ont seat of his car, which wa s parked in a busy parking lo t of a bar. Brown came out of the bar and sat in the back seat behind Evans. According to Turner, Brown became enraged and suddenly reached around the seat and choked Jenn ifer Evans until she di ed. Turner testifie d that he was in shock, had made a futile a ttempt to pull Brown’s arms off of Evans, and, when commanded to by Brown, had driven away. Turner maintained th at Evans died almost instantaneously. 33 The transcript of Brown’s 2002 interview was filed by Turner as support for his petition. It begins with Brown explaining that during the days and weeks leading up to the murder, he engaged in heavy alcohol, steroid, and mariju ana use. On the actual da y of the murder, Brown consum ed a large quantity of alcohol as well. Because of Brown’s self-destructive behavior, he could only remember “bits and pieces” of the events on the night Jennifer Evans died, both because of his impaired memo ry and because he had blacked out several times that night. While Brown’s new statement is cons istent with Turner’s testimony at Turner’s trial, it is important to note that this “newly discovered testimony” is simp ly a version of the facts th at had been presented to, and rejected by, Turner’s jury. In fact, three times in his recorded stat ement, Brown indica ted that portions of his “memories” of that night ca me from reading Turner’s statement. First, Brown could not recall how he came to be in Jennifer Evans’ presence: I left [the bar] and went to find [T urner]. I saw him in the car, him and Jennifer was [sic] sitting in the car. I had gotten in the ca r and they let me
recanted his story. Finally, as the Attorney Gene ral points out, in 2000 through 2001 Brown asserted in his pro se habeas corpus pleadings that Turner acted alone in killing Jennif er Evans, and that at most, Brown was guilty of being an accessory afte r the fact to Jennifer Evans’ murder.

33 At Turner’s trial, the jury was also presented evidence from the medical examiner who indicated that it typically takes thre e-to-five minutes of constant pressu re on the carotid artery to deprive the brain of sufficient oxygen and blood flow to cause death by manual stra ngulation. Moreover, the security guard who patrolle d the parking lot in which Turner clai med his car was parked at the time of the murder testified at Turner’s trial. According to the security guard, he patr olled the parking lot during the relevant time and saw nothing amiss.-39- in the back seat and I be gan talking with them and I read Dustin [sic] testimony and honestly I don’t remember all the bits and pieces, I only remember bits and pieces, I don’t remember all the details. (Emphasis added). Second, when Turner’s attorney asked Brown what he, Turner, and Evans discussed while all three of them were in the car, Brown’s me mory failed him: “Honestly I vaguely remember. I think I was making rude comments to her. What [sic] I read the report that Dusty had given and I was making comments to her.” (Emphasis added). Fi nally, when Turner’s attorney asked Brown what Turner was doing while Brown was choking the victim—a critical quest ion considering that Turner’s conviction was predicated on a concert of action theory— Brow n responded, “Honestly, I vaguely remember a little bit but I read in his [Turner’s] report that he had tried to pull my hand away and I think I do recall, I believe at one point, I believe I recall his hand on my arm.” (Emphasis added). Turner’s attorney subsequently had the recorded statement reduced to an affidavit for the purposes of Turner’s petition for act ual innocence. In the version of the affidavit 34 that was subm itted with the petition for actual innocence, Brown described the act of Evans’ murder as follows:

34 Brown’s affidavit, upon which Turner is basing his petition, is surrounded by inconsistencies. In fact, there are, inexplicably, two versions of th e affidavit that are identical except for an altered second page. It is apparent upon examining the alte red page that the font size has been changed to ensure that the altered second page ends at the same point as the unaltered second page. The altered version was attached to Turner’s petition, a nd includes the following testimony from Brown: We were sitting there talking and next thing you know I reached up and choked Jennifer. I did this on my own without prior discussion with Dustin Turner. He did not encourage me in any way and in fact, I remember one instance while I was c hoking Jennifer, Dustin trying to pull my hands away. Jennifer became unconscious and I am certain she was dead at that time. The other affidavit, which had been provided to the Attorney General’s office by Turner, stated the following: We were sitting there talking and next thing you know I reached up and choked Jennifer. I did this on my ow n without any prior discussion with Dustin Turner. He did not encourage me in any way and in fact, I remember one instance while I was c hoking Jennifer, Dustin trying to pull my hands away. Jennifer became unconscious and I believed that she was dead. I fell back in the seat, and sh e woke up. I then choked her again-40- I left the bar and went to find Dusty. I saw him in the parking lot. He and Jennifer were sitting in the car. I had gotten in the car and they let me in the back seat and I began talking with them. I was being vulgar and I vaguely recall [sic]. We were sit ting there talking and next thing you know I reached up and choked Jennifer. I did this on my own without any prior discussion with Dustin Turner. He did not encourage me in any way and in fact, I remember one instance while I was choking Jennifer, Dustin trying to pull my hands away. Jennifer became unconscious and I am certain she was dead at that time. We were still in the parking lot. I do not know why I did it. Turner, relying on the affidavit, then filed a pe tition for a writ of act ual innocence in this Court pursuant to Code §§ 19.2-327.10 throug h 19.2-327.13. The Attorney General f iled a motion to dismiss, arguing that Brown’s inherently incredible statem ent could not meet the burden of proof imposed on Turner by Code § 19.2-327.13. Upon consider ation of the pleadings and the record, a panel of this Court, without acting on the Commonwealth’s motion to dismiss, certified this case to the circuit court, pursuant to Code § 19.2-327.12, 35 with instructions to as sess Brown’s credibility. B ecause the circuit court found Brown’s statement credible, 36 the panel granted Turner’s petition. Turner v. Commonwealth , 54 Va. App. 458, 491-92, 680 S.E.2d 312, 329 (2009).

until blood came out of her nose and am certain that she was dead at that time.

35 Code § 19.2-237.12 states, in pertinent part: If the Court of Appeals determines . . . that a resolution of the case requires further development of the f acts, the court may order the circuit court in which the order of convictio n was originally entered to conduct a hearing . . . to certify findings of fact with respect to such issues as the Court of Appeals shall direct.

36 I note that other members of the Court believe that these factual fi ndings are conclusively binding on this Court. Although my view of the procedur al posture of this case means that these factual findings are now irrelevant to the cas e before us, I do take issue with this view of the circuit court’s factual findings. The Supreme Cour t discussed the standard of re view for factual findings made pursuant to Code § 19.2-327.12 in Carpitcher : This is the first occasion we have had to state the standard of review we will apply in this Court to an appeal of a final judgment of the Court of Appeals disposing of a petition for a writ of actual innocence based on non-biological evidence. The judgment be fore us in this appeal is based-41- Upon the Commonwealth’s petition for re hearing, this Court granted an en banc hearing to consider Turner’s petition. As discussed above, becau se this Court has original jurisdiction in cases involving writs of actual innocence based on non-bi ological evidence, it is our responsibility to determine both the scope of the ev idence before us and the merits of Turner’s petition. Code § 19.2-327.10. Finally, this Court sitting en banc must now “consider and d ecide the case” and in doing so we “may overrule any previous decision of an y panel or of the full court.” Code § 17.1-402(D).

partly on factual findings certified by th e circuit court in response to the Court of Appeals’ order re ferring certain factual issues to the circuit court pursuant to Code § 19.2-327.12. Such factual findings are similar to circuit court findings made under Code § 8.01-654(C) in habeas corpus cases in which we have original ju risdiction and have referred factual issues to the circuit court for an evidentiary hearing. Therefore, we will apply to the factual findings containe d in the record of the Court of Appeals a standard of review similar to the standard we apply to factual findings entered in our original jurisdiction habeas corpus proceedings. We will be bound by the factual find ings in the present record as approved by the Court of Appeals , unless they are plainly wrong or without evidence to support them. Carpitcher v. Commonwealth , 273 Va. 335, 342-43, 641 S.E.2d 486, 490 (2007) (emphasis added) (citing Yarbrough v. Warden , 269 Va. 184, 195, 609 S.E.2d 30, 36 (2005); Lovitt v. Warden , 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003); Hendrick v. Warden , 264 Va. 486, 496, 570 S.E.2d 840, 846 (2002)). A careful examination of this language from Carpitcher reveals two things. First, the Virginia Supreme Court was stating the standard of review it would apply in its appellat e function of reviewing this Court’s dismissal of an actual inno cence petition. Second, th e circuit court’s factual findings pursuant to Code § 19.2-327.12 are only binding if they are approved by the Court of Appeals. Our Supreme Court’s use of the word “approved” is consistent with this Court’s role as the ultimate finder of fact in cases involving the writ. We are not required to rubber-stamp the circuit court’s credibility determination made pursuant to Code § 19.2-327.12. Instead, we must independently review the record, and make the n ecessary factual findings ourselves. See, e.g. , Hudson v. Clark , 200 Va. 325, 329, 106 S.E.2d 133, 136 (1958) (A chancellor retain s his authority to reje ct the findings of a commissioner in chancery if they are plainly wrong or at odds with the we ight of the evidence); Higgins v. Higgins , 205 Va. 324, 328-29, 136 S.E.2d 793, 796 (1964) (“When a cause is referred to a commissioner in chancery the chancellor does not delegate his judicial function to him. . . . It is the duty of the chancellor to weigh the evidence according to correct principles of law and arrive at his own conclusions.”). See also Judicial Inquiry & Review Comm’n v. Peatross , 269 Va. 428, 444, 611 S.E.2d 392, 400 (2005) (In exercising its orig inal jurisdiction, our Supreme Co urt “independently review[s] the record created by the Commission [to] determine whethe r there is clear and convi ncing evidence of [an ethical] violation . . . .” ).-42- III. Discussion I believe that the record before us is sufficient to decide the case and no further development of the facts is necessary. Upon consideration of that re cord, I believe we must gr ant the Attorn ey General’s motion to dismiss Turner’s petitio n. The evidence upon which Turn er exclusively relies—Brown’s affidavit and statement—simply does not meet the high burden of proof set fort h in Codes §§ 19.2-327.11 and 19.2-327.13. Brown’s highly im peachable and dubious statement does not, and never could, prove that Turner is factually and le gally innocent of the crim e for which the jury convict ed him. Hence, as the subsequent discussion shows, there is no reason for this Cour t to remand the case to the circuit co urt for an evidentiary hearing. This Court is perfectly capable of evaluatin g the petition and supp orting affidavit in light of the statutory burden of pr oof. Simply put, Turner’s proffered after-discovered evidence simply is not of the requisite conclusive nature to wa rrant granting the writ of actual innocence. “Once a defendant has been afforded a fair tria l and convicted of the offense for which he was charged, the presumption of innocence disappears . . . .” Herrera v. Collins , 506 U.S. 390, 399-400 (1993). Accordingly, “in the eyes of the law, petitioner does not come before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process of law of [a] brutal murder[].” Id. In order to overcome the fact that he is, as a matter of law, guilty of Jennifer Evans’ murder, Dustin Turner must meet quite possibly th e heaviest burden the law imposes. According to Code § 19.2-327.11, a petitioner must produce evidence that is not only material to the issue of actual innocence, but is also the kind of evidence that “when considered with all of the evidence in the current record . . . prove[s] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii) (emphasis added). This Court is required to apply Code § 19.2-327.11(A )(vii) in a manner that is “harmonious with its legislative purpose and [to] avoid a ny construction defeating that purpose.” Carpitcher v. Commonwealth , 273 Va. 335, 345, 641 S.E.2d 486, 492 (2007). To that end, we must “consider the words the legislature has employed, the subject matter of the statutes governing writs of actual-43- innocence based on non-biological eviden ce, the statutes’ apparent object , and the legislative purpose in enacting the statutes[.]” Id. (citing Esteban v. Commonwealth , 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003); Commonwealth v. Bruhn , 264 Va. 597, 602, 570 S.E.2d 866, 869 (2002); Lucy v. County of Albemarle , 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999); Mapp v. Holland , 138 Va. 519, 527-28, 122 S.E. 430, 432-33 (1924)). The history of both th e biological and non-bio logical writs of actual innocence is instructive as to the General Assembly’s purpose in enac ting them. Hence, a discussion of that history can guide this Court in applying the law in accordance with the General Assembly’s intent.
A. Statutory History 1. Development of the Writ Approximately a decade ago, scientific advances a nd Virginia’s twenty-one-d ay rule collided. At that time, an individual who had been convicted of a crime could only challenge his conviction on the basis of after-discovered evidence within twenty-one days of the trial court’s entr y of final judgment—regardless of whether the evidence comp letely exonerated him. See Rule 1:1. Advances in the preservation, extraction, and analysis of human bi ological evidence, commonly referred to as DNA evidence, highlighted a flaw in the application of the twenty-one-day rule . Using DNA evidence, seve ral convicts, including one on death row, 37 were able to conclusively prove that they did not commit the crim es for which they had been convicted. In each of these cases, the proo f of innocence often was only obtained well after the twenty-one-day pe riod had run. See, e.g. , William J. Dinkin and Cullen D. Seltzer, Criminal Law and Procedure , 35 U. Rich L. Rev. 537, 561-64 (2001); Marjorie A. Shields, DNA Evidence as Newly Discovered Evidence Which Will Warrant Grant of New Trial or Other Postconviction Relief in Criminal Cases , 125 A.L.R. 5th 497 (collecting cases, statutes, and cour t rules). Virginia was thus placed

37 On October 2, 2000, Former Governor James S. Gilmore, III pardoned Earl Washington, a death-row inmate who had been convicted of rape and capital murder. Governor Gilmore pardoned Washington on the basis of after-discovered DNA eviden ce because “a jury afforded the benefit of the DNA evidence and analysis available today would have reached a different verdic t regarding the guilt of Earl Washington, based on reasonable doubt.” Rep. to the Gen. Assemb., “List of Pardons, Reprieves, and Other Forms of Clemency,” Sen. Doc. No. 2 (2001).-44- in the indefensible position of prohibiting an individua l who was demonstrably and factually innocent of a crime from seeking judicial re lief from his incarceration. In response to that situation, our General Asse mbly created an exceedingly narrow exception to Virginia’s twenty-one-day rule: the writ of actual innocence based on af ter-discovered biological evidence (biological evidence wr it). 2001 Va. Acts ch. 873, 874; see also 35 U. Rich L. Rev. at 562 (discussing the passage of the writ of actual innocence based on after-discovere d biological evidence); Crime Comm’n Rep. at 5 (discussing the twenty-one-day rule). 38 Following the enactment of the biological evid ence writ, members of the General Assembly recognized that there could be other conclusi ve, exonerating evidence besides DNA evidence, and proposed the creation of a writ of actual innocence based on non-biolog ical evidence. Crime Comm’n Rep. at 7, 12. According to the Crime Commission’s Report, the proposed legislation was designed to “use[] the same high level of proof that must be met in order to obtain relief” under the biological evidence writ. Id. at 16 (emphasis added). The Commission’s proposed legi slation, which eventually became the writ for actual innocence based on non-biological innocence, Code §§ 19.2-327.10 through 19.2-327.13, closely tracked the language of the biological evidence writ and, just like the biological evidence writ, reflected Virginia courts’ long-held suspicion of af ter-discovered evidence. Crime Comm’n Rep. at 13. Because the General Assembly relied “on Virginia’s traditional treatment of

38 According to Code § 30-156(A), The Virginia State Crime Commission is a part of the legislative branch of the Commonwealth of Virginia. The purpose of the Commission shal l be to study, report and make recommendations on all areas of public safety and protection . . . . The Commission shall make such recomme ndations as it deems appropriate with respect to the foregoing matters , and shall coordi nate the proposals and recommendations of all commissions and agencies as to legislation affecting crimes, crime control and criminal procedure. Thus, the Crime Commission’s report on the need for a non-biological evidence writ of actual innocence is a vital resource in ascertaining the General Assembly’s purpose in en acting the statutes we seek to apply in this case.-45- after-discovered evidence,” Id. at 7 & 7 n.13, the writs reflect the deference with which Virginia has always viewed the final judgment of a trial court, Carpitcher v. Commonwealth , 47 Va. App. 513, 526, 624 S.E.2d 700, 706 (2006) (“A verdict resulting from a tr ial, during which the ev idence has been tested by the adversarial process, is pres umed to be correct, and, thus, a heavy burden is placed upon those seeking to overturn it.”). 2. After-Discovered Evidence Standard As part of that deference for th e finality of judgment, Virginia law views motions for a new trial based on after-discovered evidence w ith disfavor. They “are consider ed with special care and caution, and are awarded with great reluctance.” Commonwealth v. Tweed , 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002). This is so because the law “give[s] every litigant one, and only one, opportunity of presenting his case to the jury or before the court, a nd when this has been had, the results of the trial will not usually be dist urbed . . . .” Pauley v. Commonwealth , 151 Va. 510, 518, 144 S.E. 361, 363 (1928). It is well settled in Virginia law that a new trial will be granted on the grounds of after-discovered evidence only if the moving party can prove that: 1) the evidence was discovered since the trial; 2) the evidence could not, by the exercise of reasonable diligence, have been discovered before the trial terminated; 3) the evidence is material and such as ought to produce a different result on the next trial; and 4) the evidence is not merely cumula tive, corroborative, or collateral. See, e.g. , Avent v. Commonwealth , 279 Va. 175, 206, 688 S.E.2d 244, 261 (2010). However, in recognition that the relief sought by actual innoc ence petitioners is complete exoneration and release from prison—instead of a new trial—the burden of proof an actual innocence petitioner must meet with his afte r-discovered evidence is much higher. Criminal defendants seeking a new trial need only show that th e after-discovered evidence would likely lead to a different result upon retrial. In sharp contra st, actual innocence petitioners must produc e clear and convincing evidence that proves that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt” in light of the newly-discovered evidence, ta ken together with the rest of th e evidence in the case. Code-46- §§ 19.2-327.3(A)(vii); 19.2-327.11(A)(vii). In other word s, the new evidence must conclusively show that the petitioner’s guilt is a factual impossibility. The General Assembly, as reflected in the language of the statute and the pur pose of the legislation, intended that an actual innocence petitioner—regard less of whether he proceeds under the biological evidence writ or the non-biologica l evidence writ—meet a bu rden of showing not merely evidence that could call his conviction into question, but evidence that actually ex onerates him of the crime for which he was convicted. 39 Indeed, our Supreme Co urt has specifically recognized this high burden: By enacting these provisions, the Ge neral Assembly intended to provide relief only to those individuals w ho can establish that they did not, as a matter of fact , commit the crimes for which they were convicted. . . . [The writ was] not intended to provide relief to individuals who merely produce evidence contrary to the evidence pres ented at their criminal trial. Carpitcher , 273 Va. at 345, 641 S.E.2d at 492 (emphasis added). Because the General Assembly adopted the same requirements for the non-biological writ as it did for the biological evidence writ, the General Asse mbly clearly demonstrated its intent to limit the application of the writ to newly-discovered evidence of the same conclusive nature as DNA evidence. Thus, the writ at issue in th is case establishes, and was intended by the General As sembly to establish, an extraordinarily high burden. Although there is no restriction on the type of evidence upon which a petitioner may rely in his attemp t to prove his actual innocence, see Code § 19.2-327.11; Crime Comm’n Rpt. at 16, only “a truly persuasive demonstration of actual innocence made after trial” will provide “the necessarily . . . extrao rdinarily high” “threshold showing” required to demonstrate actual innocence. Herrera , 506 U.S. at 417-18 (O’Connor, J., conc urring) (discussing the assumed due process right a prisoner would have to challenge a capital sentence wi th after-discovered evidence of

39 The General Assembly surveyed the available po st-conviction relief under the laws of all fifty states when developing the non- biological evidence writ. See Crime Comm’n Rpt. at App’x. 3 & 4. Thus, the General Assembly consid ered and rejected approaches fa vored by other states, including awarding a retrial, using state habeas review as a vehicle for actual innocence clai ms, or applying a lesser standard of proof that woul d merely call the petiti oner’s conviction into question, rather than require the petitioner to dem onstrate his factual innocence.-47- actual innocence). A truly persuasive demonstrati on of actual innocence, the n, will prove to be a difficult task, because evidence th at will meet the high standard required by Code § 19.2-311(A)(vii) is of necessity limited.
B. Burden of Proof Unless the petitioner proffers after-discove red evidence that can prove, by clear and convincing evidence, that “no reasonable trier of fact could have found proof of guilt beyond a reasonable doubt,” upon consideration of the new evidence along with th e evidence presented at trial, Code § 19.2-327.11(A)(vii), our inquiry should end, and we should dismiss the petition. Code § 19.2-327.13. If the proffered evidence cannot conclusi vely establish innocence , there is simply no reason to proceed further; factual findings are not “require[d].” Code § 19.2-327.12. Of course, the General Assembly did not create this Court’s function in determining whether the after-discovered evidence can support the petitio ner’s claim out of whole cloth. Again, this procedure is similar to that employed by a circuit court in deciding whether to grant a motion for a new trial based on after-discovered evidence. “Whe n . . . evidence supporting the new trial motion is contradicted by evidence in opposition to the motion, the circuit court is not permitted to presume that the moving party’s evidence is true but is required to weigh all th e evidence presented . . . .” Orndorff v. Commonwealth , 271 Va. 486, 505, 628 S.E.2d 344, 354 (2006) (citations omitted). In sorting through that conflicting evidence, “t he court’s role resembles that of a fact finder in determining whether the evidence is such that it should produce an opposite result on the merits at a new trial.” Id. However, unlike a circuit court’ s evaluation of after-discovered evidence proffered in support of a motion for a new trial, this Court must evaluate the probative value of uncorroborated, after-discovered witness testimony in an actua l innocence proceeding th rough the prism of the incredibly high burden of proof se t by the General Assembly. Eff ectively, we must ask ourselves whether this new testimony would produce the certainty of opinion in the minds of jurors that the-48- statute demands. This type of witness testimony is problematic because it is, by its very nature, uncertain. When a witness testifies to a fact, he is testifying not to what that fact ac tually is, but rather his belief in or perception of that fact. See Judicial Inquiry & Revi ew Comm’n v. Peatross , 269 Va. 428, 445-46, 611 S.E.2d 392, 401 (2005) (determining that eviden ce of credibility was in equipoise when three witnesses gave conflicting evidence based on each witness’ “honest[] . . . recollection of the events . . . .”). The witness coul d be telling the truth as he underst ands it, but he could be mistaken due to poor eyesight or poor memory. Or, the witn ess can appear entirely cr edible, but actually be lying. Either way, testimony can be credible—that is, believable—without being factually dispositive of the issue of innocence. That is why our criminal justic e system allows tw elve jurors, as triers of fact, to individually assess and weigh testimony and assign it such credence as each individual juror determines appropriate. Jurors are instructed that they may “accept or disregard al l or part of the testimony of a witness as [they] th ink proper” and that they may “determine which witnesses are more believable and weigh their testimony accordingly.” 1-2 Virginia Model Jury Instructions, Criminal Instruction No. 2.500 (2009). Hung juries are proof positive that there are times when reasonable jurors do not agree on whether to believe a witness’ testimony. 40

40 The majority contends that our jurispr udence “equate[s] credibility with truth.” Supra at 14 n.7. The majority relies on Johnson v. Commonwealth , 273 Va. 315, 323-24, 641 S.E.2d 480, 484-85 (2007), and Molina v. Commonwealth , 272 Va. 666, 671, 636, S.E.2d 470, 473 (2006) for this statement. In Johnson , as discussed infra , the ultimate issue upon which John son’s “actual innocence” hung was whether a key trial witness had lied at trial, or had lied in his subseque nt recantation. Were the witness telling the truth when he recanted his trial testimony, then th ere would be no evidence linking Jo hnson with the crime of which he was convicted. Hence, in that context, it was appropriate—if confusing— to use the terms “truth” and “credibility ” interchangeably. And wh ile the term “credible ev idence” means “[e]vidence that is worthy of belief; trustworthy evidence,” Black’s Law Dictionary 637 (9th ed. 2 004), it does not logically follow that all of the “believable” evidence is of necessity true. If that were the case , the English language would not require two different words fo r the concepts of “credibility” and “truth.” Molina stands for the proposition that we mu st, on appellate review, “‘regard as true all the credible evidence favorable to [the party who prevailed belo w.]’” 272 Va. at 671, 636 S.E.2d at 473 (quoting Parks v. Commonwealth , 221 Va. 492, 498, 27 0 S.E.2d 755, 759 (1980) (emphases added)). This principle is inapplicable in this case fo r two reasons. First, as explained above, this case does not involve an appellate review. The Court of Appeals is th e court of original jurisdiction for cases involving th e writ of actual-49- That is not to say that a newly- discovered witness’ testimony can never be conclusive enough to survive a motion to dismiss the petition. Howe ver, to reach that poin t, the after-discovered testimonial evidence must “undermin e[] the prosecution’s entire case.” In re Clark , 855 P.2d 729, 734 (Cal. 1993). “It is not sufficient that the evidence might have w eakened the prosecution case or presented a more difficult questi on for the judge or jury.” Id. at 739. Nor is it sufficient that the new evidence, when combined with other evidence favorable toward the petitioner, put the evidence as to the petitioner’s guilt or innocence in equipoise. See Peatross , 269 Va. at 446, 611 S.E.2d at 402 (holding that evidence which is in equipoise cannot satisfy the clear a nd convincing burden of proof). Instead, only evidence that “casts fundamental doubt on the accuracy and reliabi lity of the proceedings . . . [and] undermine[s] the entire prosecu tion case and point[s] unerringly to innocence[,]” In re Clark , 855 P.2d at 739, needs to be further examined for credibility. That is exactly the situation that was before the Supreme Court in both Carpitcher and Johnson v. Commonwealth , 273 Va. 315, 641 S.E.2d 48 0 (2007). In both of those cases, the after-discovered testimony consisted of the recantation of testimony presented at tria l and without whic h the petitioner could not have been convicted. If the recantation we re true, there would have been no evidence that the petitioner committed the crime for which he was conv icted. Or, put another wa y, if the only evidence supporting the convictions pr oved to be false, no reasonable juror could have convicted the petitioners in those cases.

innocence based on non-biological evidence. Second, the prevailing party in this case was the Commonwealth—Turner comes to us as a person convicted of a brutal murder by a jury of his peers. We owe Turner’s proffered evidence not one bit of deference. In fact, credibility often ha s nothing to do with th e truth. Credible simp ly means “be lievable.” Bryan A. Garner, A Dictionary of Modern Legal Usage , 235 (2d ed. 1995). As we now know, innocent individuals have been convicted based on entirely cred ible, but wrong, testimony . In 1982, Arthur Lee Whitfield was convicted of two rapes based on the highl y credible testimony of the two victims, both of whom positively identi fied Whitfield as their attacker. In 20 04, DNA evidence exonerated Whitfield of both crimes and identified a convicte d rapist as the actual assailant. Whitfield was subsequently pardoned by the governor in 2009. See Rep. to the Gen. Assemb., “List of Pa rdons, Reprieves, and Other Forms of Clemency,” Sen. Doc. No. 2 (2010); see also In re: Arthur Lee Whitfield , Rec. Nos. 042086 & 042087 (Va. Oct. 21, 2005).-50- In Carpitcher , the complaining witness recanted her tr ial testimony that Carpitcher sexually abused her. 273 Va. at 340, 641 S.E.2d at 489. Th e complaining witness was “the Commonwealth’s only witness during the trial, and, thus, the jury predicated Carpitcher’s convictions solely upon her testimony .” Carpitcher , 47 Va. App. at 517-18, 624 S.E.2d at 702 (2006) (emphasis added). Thus, because the only evidence supporting Carpitcher’s convicti on would have been eliminated had the recantation testimony been true, no reasonable juror could have convicted Carpitcher. Carpitcher , 273 Va. 345-46, 641 S.E.2d at 492-93. There, the Supreme Court affirmed this Court’s determination to certify two specific questions to the circuit court: first, “[ w]hether the victim in this case has r ecanted the testimony she gave at trial in any material way with regard to the culpability of the petitioner;” and second, “if such material recantation of her trial testimony has taken place, whether or not such recantation is the product of duress, undue influence or inapprop riate pressure from others.” Id. at 341, 346, 641 S.E.2d at 489, 493. The Supreme Court also affirmed this Court’s subsequent decision to dismiss the petition upon the circuit court’s finding that the victim was no longe r a credible witness beca use “she had testified inconsistently about the same issues on three separate occasion s” and had been subjected to threats and intimidation designed to elicit her recantation. Id. at 341, 348-49, 641 S.E.2d at 489-90, 494. The Supreme Court came to a similar conclusion in Johnson . There, the petitione r was convicted of capital murder and conspiracy to commit capital mu rder for hire. 273 Va. at 31 8, 641 S.E.2d at 482. One of Johnson’s co-conspirators, Smith, testified at Johns on’s trial and established that “Johnson asked Smith to kill [the victim] or find someone to kill her. According to Smith, Johnson st ated that he would ‘give his next paycheck’ to any person w illing to kill [t he victim].” Id. at 319, 641 S.E.2d at 482. Smith’s testimony provided the critical link between J ohnson and the crime for which Johnson was convi cted. Several weeks after the trial, however, Smith recant ed his trial testimony, and Johnson relied upon that recantation in pursuit of a writ of actual innocence. Id. at 319-20, 641 S.E.2d at 482-83. This Court certified the question of Smith’s credibility to the circuit court. Id. at 320, 641 S.E.2d at 483. Af ter the circuit co urt found that-51- Smith’s testimony was “neither logical or believa ble,” this Court di smissed the petition , and our Supreme Court affirmed. Id. This case is distinguishable from Carpitcher and Johnson in that Brown’s most recent statement in no way undermines the Commonwealth’s en tire case at trial. First and foremost, Brown did not testify at Turner’s trial—thus, hi s new statement, unlike the recantations in Carpitcher and Johnson —did not reduce the quantum of evidence pr esented at trial and with which the Commonwealth met its burden. 41 Second, in a related point, th e Commonwealth did not rely on Brown to make the critical link between Turner and the crime. Instead, the Commonwealth relied upon extensive direct and circumstantial evidence 42 to carry its burden of proving that Turner participated in the murder and abduction of Jennife r Evans. Finally, Brown’s proffered testimony is simply a repetition of the testimony Turner gave at trial—testimony that was specifically rejected by the jury that heard the case.
C. Evaluating the Evidence Thus, in evaluating the petition, this Court shoul d view Brown’s affidavit along with the other evidence in the record to determine whether Turner’s newly-discovered evidence could possibly be conclusive on the issue of his innocence. Code § 19.2-327.11(A)(vii) (“[W]hen c onsidered with all of the other evidence in the cu rrent record [the after-discovered eviden ce] will prove that no rational trier

41 Both the majority and dissent refer to Brown’ s affidavit as a “recantation.” I reject that characterization. While he may have recanted the stat ements he gave to the police and his testimony at this own trial, Brown did not testif y at Turner’s trial and, thus, there was no testimony in this proceeding for him to recant. Unlike Carpitcher and Johnson, Turner was not convicted based solely on testimony that the witness later claimed was fa lse. In the context of the matter before us, Brown’s new version of the events of that fatal night shoul d be analyzed the same way trial co urts deal with th e garden-variety after-discovered alibi witness test imony that prompts motions for ne w trials on a daily basis.

42 Although it is axiomatic, it seems worth repeat ing that “[c]ircumsta ntial evidence is as acceptable to prove guilt as direct evidence, a nd in some cases, . . . it is practically the only method of proof.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis in the original) (citing Turner v. Commonwealth , 218 Va. 141, 145-56, 235 S.E.2d 357, 360 (1977); Toler v. Commonwealth , 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949)).-52- of fact could have found proof of guilt beyond a reasona ble doubt.”). If the newly-presented evidence is not of such a clear and convinci ng nature that we can say that no reasonable juror would have voted to convict, he has failed to state a cl aim and we must dismiss the petition. To determine whether Turner stated a claim, this Court need only evaluate the evidence he proffered. This Court must then must weigh the pr offered after-discovered ev idence with the evidence in the trial record and decide whet her the after-discovered evidence is so absolute and compelling that no reasonable juror would have voted to convict the accused in light of that evidence. See House v. Bell , 547 U.S. 518, 538 (2006) (discussing claims of act ual innocence in the federal habeas corpus context) (“Because [an actual innoc ence] claim involves evidence the tr ial jury did not have before it, the inquiry requires the . . . court to assess how reasonable jurors would react to the overall, newly supplemented record.”). Hence, it is our proper function to evaluate th e probable effect this evidence would have had on a jury. When properly viewed through the prism of the statute, Brown’s statement becomes just another piece of evidence that the jury would ha ve considered. Even though Brown was undeniably an eyewitness to the crime, it is quite foreseeable that a reasonable juror would have considered Brown’s statement as what it was—simply one more in a series of conflic ting and unreliable tales emanating from the steroid and alcohol impaired me mory of a self-confessed murderer. It is quite reasonable to conclude that a hypot hetical juror would have chosen to ignore Brown’s testimony in its entirety and decide the case on the same evidence cons idered by the original jur y. In fact, finders of fact are explicitly allowed to do just that under our jurisprudence. 43 See Bridgeman v. Commonwealth , 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986) (The finder of fact may accept or

43 The majority suggests that this “mistakenly igno res the fact that the circuit court . . . became the fact finder, i.e., the hypothe tical juror” and a “substitute fo r the original trial jury.” Supra at 19 n.12. This statement is irrelevant to my analysis that we can decide this case without resort to further factual findings. However, I do reject the notion that eith er our jurisprudence or our General Assembly would sanction the idea that a circuit cour t could substitute its factual findi ngs for those of the jury whose findings both this Court and the Supreme Court have affirmed.-53- reject a witness’ testimo ny in whole or in part.); see also Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (A fact finder is at liberty to reject the conflicting evidence presented on behalf of the accused.). Furthermore, Brown’s ma ny inconsistent prior statements, which would have certainly been used to impeach his testimony, make hi s statement the very antithesis of the kind of evidence that can support a petition fo r a writ of actual innocence: that is, rock-solid evidence that has the same unquestionable, conclusi ve nature as DNA evidence.
IV. C ONCLUSION It is incumbent upon an actual innocence petition er to present clear and convincing evidence proving that his guilt is a factual impossibility. The writ was “not intended to provide relief to individuals who merely produce eviden ce contrary to the evidence presen ted at their criminal trial.” Carpitcher , 273 Va. at 345, 641 S.E.2d at 492. Even assuming that Brown’s testimony would have been consistent with his affidavit, that testimony is not , either by its nature or its weight, sufficient to convince me that no reasonable juror would have voted to convict Turner had they heard it. Therefore, in my opinion, Turner has not met the high standard of proof set by the Gene ral Assembly in Code § 19.2-327.11(A)(vii). I would grant the Commonwea lth’s motion and dismiss Turner’s petition pursuant to Code § 19.2-327.13.

Elder, J., concurring in part , dissenting in part, and di ssenting from the judgment. I concur in Parts I and II(A) of Judge Powell’s opinion. However, I believe applying the proper standard of review, 44 as set out in Part II(A), to the facts in this case compels the granting of the petition

44 The concurrence accuses the majority and my disse nt of “conflat[ing] our traditional appellate role with our role as the court havi ng original jurisdiction in this case” because we refer to the “standard of review.” The concurrence reads too much into our use of traditional jurisprudential nomenclature. As the majority clearly explains, th e “standard of review” in this case simply refers to the deference we must give to the credibility findings of the circuit court juxtaposed with the totality of the evidence in the record. See supra at 19 n.12. The standard of review sets fo rth the analytical framework within which we “consider[] . . . the petition, the response by the Co mmonwealth, previous reco rds of the case . . . and-54- for a writ of actual innocence. Thus, for the reason s stated below, I respec tfully dissent from the remainder of the opinion. The foregoing opinions dismissing the petition for a writ provide a lengthy recitation of facts and many paragraphs of heart-wrenching, emotional narrative. There is no denying that this case involves a horrible crime that has had an unimaginable impact on the victim’s family. Howe ver, that is not what this petition for actual innocence con cerns. We are not charged with de termining whether Dustin Turner is without moral fault. He is not. We are not char ged with determining whether he reacted in a morally or legally proper way when Billy Joe Brown ended Je nnifer Evans’ life. He did not. Instead, we are charged with applying the existing legal framework to determine if Turner is “a ctual[ly] innocen[t]” of the murder and abduction for which he was previously convicted. I believe the record before us compels the conclusion that he is. 45 In the previous panel majority, I discussed at length the detailed legal rationale for the panel’s decision—a rationale I continue to follow and explain more fully in th e pages below. This case has taken many twists and turns and involves a comple x record of conflicting evidence. However, we instruct jurors they are entitled to use their common sense. I suggest th e fact that we normally write in

. . . [the] findings certified from the circuit court pur suant to an order issued under this chapter” for the purpose of evaluating Turner’s petition for a writ of actual innocence. Code § 19.2-327.13.

45 As the majority mentions, “[w]e have r eceived correspondence from the Commonwealth alleging that it has discovered evidence that woul d call into question the credibility of Brown’s recantation and tend to support a fi nding of Turner’s guilt.” See supra at 22 n.16. The Commonwealth has not provided this information in the form of a sworn statement; these new allegations are wholly unverified and contain multiple levels of hearsay. This Court may not accept the alleged informant’s statements at face value without first obtaining the a ssurance of their credibility via formal fact-finding procedures pursuant to Code § 19.2- 327.12, particularly in light of the alleged informant’s status as a previously convicted felon awaiting sentencing on four additional felonies. Furthermore, the Commonwealth does not allege “goo d cause” for extending the 60-day deadline imposed on it to file “any information pertinent to the petitioner’s guilt, including proffers of eviden ce outside the trial court record.” Rule 5A:5(b)(7). Given the absen ce of a request from the Commonwealth to take any action relative to these new allegations, this Court has chosen not to refer the matter to the circuit court for a credibility determination. Accordin gly, this alleged new information is not a part of the record and has no bearing on my dissent.-55- great detail—with many citations to legal authority—does not negate th e fact that we, too, should apply a commonsense approach. There is no denying that th is petition is of a most serious nature. Having said that, and no matter how many novel legal theories we apply to th is case, the issue before us is really quite simple. First, a clear majority of this Court agrees on the proper standa rd of review, as enunciated in Carpitcher v. Commonwealth , 273 Va. 335, 641 S.E.2d 486 (2007). A panel of this Court referred this matter to the circuit court for fact finding pur suant to Code § 19.2-327.12, and we are bound by that decision. The Supreme Court of Virginia could not ha ve been clearer in setti ng out the relevant legal principles in Carpitcher and Johnson v. Commonwealth , 273 Va. 315, 322, 641 S.E.2d 480, 484 (2007) (giving “the Court of Appeals broad discretion to certify to the circuit court issues of fact that must be resolved before deciding the merits of a petition” (emphasis added)). Second, the circuit court found th at “Brown [was] credible in his assertion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim.” Because the referring panel determined th at Brown’s recantation was material to Turner’s petition for a writ of actual innocence and, therefore, that referral to the circuit court was required, we must accept the circuit court’s findings of fact in that regard unless plainly wrong. See Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 640 (bindi ng this Court “by the factual findi ngs in the present record . . . unless they are plainly wrong or w ithout evidence to support them”). Much is made of the contention that “credibility” and “truth” are not necessarily the same. While th is is an accurate assessment of reality, our judicial system has always been based on credibility findings made by the trier of fact. I am aware of no legal concept that allows an appellate court, even one acting on a matter over which it has original jurisdiction, to ignore a credibility finding because it might not be “the truth,” unless the record meets the higher burden of establishing that credibili ty finding is plainly wr ong. Although the search for real truth is elusive, it is abundan tly clear in this case th at the trier of fact cr edited Brown’s testimony that he alone restrained a nd killed the victim with no participation from Turner.-56- Third, the question then becomes whether any rati onal fact finder could convict Turner of the victim’s murder and abduction when told it had to accept the above finding as credible—that is, that the fact finder was required to believe Brown’s most recent testimony . The answer to that question is obvious: If X says that he did it an d that Y did not participate in any way, and the jury believes X, there is no legal way to convict Y. A rational fact finder simply cannot apply any interpretation to the remaining circumstantial evidence that will allow it to find Y guilty in light of this direct credible evidence. Because Brown’s credible recantation prev ents a finding that Turner participated directly in Evans’ murder, the majority applies a novel theory of abduction by deception in order to manufacture the intent to defile, a required el ement a rational fact finder would n eed to find Turner guilty of felony murder. However, the record is devoid of any evid ence that Turner ever enga ged or intended to engage in any sexual activity against the will of the participant. Turner’s mere desire to engage in sexual activity with Evans cannot serve as the basis for c oncluding he would have us ed force if she did not consent. Applying the theory of abduction by dece ption in this fashion lends itself to abuse. Dustin Turner deserves no accolades for his behavi or on the terrible night of the victim’s death, but based on the circuit court’s findings regarding Brow n’s credibility in the context of the entire record, the evidence proves Turner di d not restrain or murder the victim. He has been incarcerated for fourteen years for a crime the fact finder has found he di d not commit. The petition should be granted.
TURNER’S PARTICIPAT ION IN THE CRIMES My disagreement with the majo rity stems from its holding that “a rational fact fi nder could have found that Turner[, acting with intent to def ile,] abducted Evans by deception—meaning no finding of force or restraint would have been required—and that the abduction en ded with Evans’ murder.” The majority first errs by not considering, in light of Brown’s credible recan tation, whether Brown acted alone in killing Evans. While the majority properly recognizes that we must “rej ect[] all evidence that is in conflict with the circuit court’s findings,” I believe Brown’s recantation has a more far-reaching-57- impact on the circumstantial evidence relevant to demonstrating Turner’s intent than the majority acknowledges. I would conclude Br own’s testimony on referral compels us to reject any evidence that suggests Brown and Turner acted in c oncert to engage in sexual intercou rse with Evans against her will. Second, and central to my dissent, I believe no rational fact finder could find Turner guilty of abduction with intent to defile and felony murder based on the remaining circum stantial evidence contained in the record. Where two or more parties engage in criminal concert of action, one who participates in the initial felony giving rise to the homicide may be f ound guilty of murder whether or not he was the one who actually dealt the killing stroke. See Rollston v. Commonwealth , 11 Va. App. 535, 543, 399 S.E.2d 823, 828 (1991) (recognizing the applic ation of concert of action in felony murder cases); see also Wooden v. Commonwealth , 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981); Berkeley v. Commonwealth , 19 Va. App. 279, 286-87, 451 S.E.2d 41, 45 (1994) (holding that the victim’s death resulted from her abduction so that the defendant’s participation in the continuing transaction provided sufficient evidence to affirm his conviction of firs t-degree murder). “Concer ted action is defined as ‘[a]ction that has been planned, arranged, adjusted, ag reed on and settled betwee n parties acting together pursuant to some design or scheme.’” Rollston , 11 Va. App. at 542, 399 S.E.2d at 827 (quoting Black’s Law Dictionary 262 (5th ed. 1979)). “[W]hen the homicide is within the res gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that felony.” King v. Commonwealth , 6 Va. App. 351, 354, 368 S.E.2d 704, 705 (1988). Our courts have interpreted this concept to prohib it application of the felony-murder doctrine where the killing merely co incided with the underlying felony and was not a consequence thereof. 46 See id. at 356, 368 S.E.2d at 707 (citing Commonwealth v. Redline , 137 A.2d

46 The underlying crime used to support Turner’s c onviction for felony murder is abduction with intent to defile. “Any person who, by force, intimida tion or deception, and without legal justification or excuse, seizes, takes, transports, deta ins or secretes the person of anothe r, with the intent to deprive such-58- 472, 476 (Pa. 1958)); see also Griffin v. Commonwealth , 33 Va. App. 413, 425, 533 S.E.2d 653, 659 (2000) (requiring evidence that the killi ng “resulted from an act which was an integral part of the felony or an act in direct furtherance of or necessitated by the felony” (emphases added)). As a result of Turner’s petition for a writ of act ual innocence, this Court ordered the circuit court to make factual findings on four questions, only one of which related directly to the specific offenses for which Turner had been convicted, murder and abduction wi th intent to defile: “4) [I]s Brown credible in his assertion that he acted independently in murder ing the victim and that Tu rner had no role in the murder or any restraint of the victim ?” (Emphasis added). In response to that question, the circuit court determined Brown was “credible in his assertion that he acted independently in murdering the victim and that . . . Turner play ed no role in the murder or in the restraining of the vi ctim.” (Emphasis added). By assuming Brown’s recantation “has no bearing on wh at a reasonable fact finder could conclude about Turner’s . . . sexual intent,” the majority does not view both the question and th e answer in the context of the convictions Turner challenges—for murd er and abduction with intent to defile. The circuit court, by referring to the murder and the restraint in the disjunctive, contemplated Brown’s recantation in light of bot h the actual killing and the underlying crime of abduction. “Restrain” means “‘[t]o control’” or “‘[t]o ta ke away freedom or liberty of.’” United States v. Stokely , 881 F.2d 114, 116 (4th Cir. 1989) (quoting Webster’s Second New Riverside University Dictionary (1984)); see also Black’s Law Dictionary 1340 (8th ed. 2004) (defining “restrai nt” as “[c]onfinem ent,” “limitation,” or “[p]rohibition of action”). Th e legislature has provide d that abduction as defi ned in Code § 18.2-47 is synonymous with kidnapping, see Code § 18.2-47(C), which is not separately defined in the Virginia Code. At common law, kidnapping re quired proof of both “an unlawful restraint” and an asportation.
See State v. Dix , 193 S.E.2d 897, 899 (N.C. 1973).

other person of his personal liberty . . . shall be guilty of ‘abduction.’” Code § 18.2-47. Code § 18.2-48 provides an enhanced penalty “for the abduction of any person with intent to defile such person.”-59- Relying on Jerman v. Dir. of the Dep’t of Corr. , 267 Va. 432, 593 S.E.2d 255 (2004), and Kent v. Commonwealth , 165 Va. 840, 183 S.E.2d 177 (1936), the majority concludes “[t]he accused need not have used any physical force or restraint against the victim” in orde r to uphold a conviction for abduction. (Emphasis added). Alth ough our legislature, like many ot hers, now permits a conviction for abduction upon proof of a dete ntion without any asportation, see, e.g. , Scott v. Commonwealth , 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984), the statutory language provides no indication the legislature has removed the “restraint” requirement. To the contrar y, one who “seizes, takes, transports, detains or secretes the person of another,” as those terms are used in Code § 18.2-47, “restrains” that person under the accepted legal definition of the term. The Su preme Court has recognized that a conviction for abduction under Code § 18.2-47 requires proof of rest raint of the victim either by asportation or detention and that the asportation or detention may be accomplished by force, intimidation, or deception.
Jerman , 267 Va. at 439, 593 S.E.2d at 259; see John L. Costello, Virginia Criminal Law and Procedure § 5.1[6] (2009) (“[A]bduction consists of restraints on the personal liberty of another.” (Emphasis added)). Thus, an asportation by force or deception is a type of restraint 47 and, if the other statutory elements are proved, constitutes abduc tion in violation of Code § 18.2-47. Based on the crimes for which Turner was convicted, the wording of the question posed by this Court to the circuit cour t, and the accepted “assum[ption] th at trial judges have knowledge of the Commonwealth’s laws and properl y apply those laws” absent clear evidence to the contrary, Wilson v.

47 Other states have incorporated such definitions into their statutes. See, e.g. , State v. Wilcox , 758 A.2d 824, 838 (Conn. 2000) (noting that Conn. Gen. Stat . § 53a-91 requires proof of restraint to support a conviction of abduction and defines “‘rest rain’ . . . as ‘restric ting a person’s movements intentionally and unlawfully in such a manner as to in terfere substantially with his liberty [either (1)] by moving him from one place to another [asportation], or [(2)] by confini ng him either in the place where the restriction commences or in a place to which he has been moved [deten tion], without consent’”); People v. Valero , 521 N.Y.S.2d 527, 528 (N.Y. App. Div. 1987) (holding an abduction is a “serious form of restraint” under New York law); Romero v. State , 34 S.W.3d 323, 325 (T ex. Crim. App. 2000) (noting that under Tex. Pen. Code Ann. § 20.01 abduction requires proof of restraint, which means “to restrict a person’s movements without consent, so as to interfere substantially with her liberty, [(1)] by moving her from one place to another [asportation] or [(2)] by confining her [detention]”).-60- Commonwealth , 23 Va. App. 318, 326 477 S.E.2d 7, 10 (1996), I w ould hold the circuit court’s use of the word “restraint” constitutes a finding that Turner did not participate with Brown in an abduction by either force or deception. I would therefore reject the theory that Turner and Brown engaged in any criminal concert of action such th at any rational fact finder could be lieve any causal connection existed between Turner’s conduct and Evans’ death. In light of the circuit court’s acceptance of Brow n’s testimony that Turner did not participate in the murder or the abduction leading to the murder, the hypothetical fact finder must necessarily reject any evidence or interpretation thereof that suggests an agreement between Turner and Brown existed to undertake these acts. 48 Specifically, I would reject the ma jority’s conclusion that Fitzgibbons’ testimony, heavily relied upon by the ma jority, implies a formulated plan between Turner and Brown to engage in group sex with Evans against her will. A pl ain reading of the record compels such a rejection. At approximately 1:15 a.m., Turner made arrangements with Kate Bishop to take Brown home if Turner did not return to the club in time to do so himself. Then, at approximately 1:30 a.m., Turner spoke to Fitzgibbons and indicated that he, Brown, and Evans were going to have a “threesome.” The majority posits that “[f]ifteen minutes would have been more than enough time fo r their plan [to have sex with Evans] to have changed[,]” but it inexplicably ignores the fact that at approximately 1:45 a.m., Bishop approached Brown to take him home. Accordin g to Bishop’s testimony, Brown refused to accompany her because he did not want to wait for Bishop’s friend to arrive and not because he had alternate plans with Turner to engage in sexual inte rcourse with Evans. It is a stre tch of the imagination to believe a rational fact finder could conclude Turner made arrangements to ha ve sex with Evans without Brown, changed the plans to include Brown in the sexual activity, ch anged his mind again to have Brown ride

48 As the circuit court noted, the evidence establishing Turner’s guilt was largely circumstantial. Brown did not testify at Turner’s tr ial and did not provide his false in culpatory testimony to the jury. All of the Commonwealth’s eyewitness testimony confirmed that Evans was last seen with Turner on the night of her death, a fact Tu rner readily concedes. There ar e, however, no eyewitnesses—besides the two convicted men—who identified the actual killer.-61- home with Bishop, and finally returned to the original plan of engaging in a threes ome, all in the span of thirty minutes. Under the same logic, we cannot inte rpret Brown’s salacious request to “get [] it on with [Evans] too” as evidence of a nefarious agreemen t between him and Turner. No rational fact finder could infer from this evidence that an agreement between Turner and Brown existed to engage in a threesome with Evans against her will. In the absence of such an agreement, no rational trier of fact could find the men acted in concert to abduct or kill Evans. Because the two men each acted of their own volition, Turner’s conduct and Brown’s entry into the vehicle a nd subsequent killing were not “int erdependent objects of a common criminal design.” Edmonds v. Commonwealth , 229 Va. 303, 310, 329 S.E.2d 807, 813 (1985). Indeed, Turner’s waiting with Evans in his vehicle merely accounted for his “presence at the location of the [murder], and nothing directly related to the commission of the felony that ca used the [murder].” King , 6 Va. App. at 358, 368 S.E.2d at 708 (finding no causa l connection between fl ying a plane containing marijuana as part of a drug smuggling operation and th e death of a co-felon caused by crashing the plane into a mountain); see Rollston , 11 Va. App. at 542, 399 S.E.2d at 827 (“Mere presence during the commission of a crime is not sufficient to render one cr iminally liable.”). Whatever intentions Turner possessed when he left the club with Evans, the circuit court’s findings on referral compel the conclusion that he did not act in concert with Brown to lure her into leaving the club for the purpose of engaging in sexual intercourse agai nst her will. Those findings inst ead compel the conclusion that Brown acted as an independent and superseding fo rce so that his actions constituted a separate—and completely coincidental—enterprise with no causal connection to Turner’s own conduct. Not only has Brown’s recantation severed Turner from the criminal enterprise leading to Evans’ murder, but, in light of the circuit c ourt’s acceptance of Brown’ s recantation, I believe a rational trier of fact could not have concluded beyond a reasonable doubt that Turner abducted Evans with intent to defile prior to and separate from Brown’s acts of restraint an d murder. The majority takes the opposite view that “a ra tional fact finder coul d have found that Turner abducted Evans by-62- deception.” It is at this critical juncture where the majority premises its dismissal of Turner’s petition for a writ of actual innocence and where the heart of my dissent lies. Under Code § 18.2-47, abduction requires pr oof of an asportation or detention. See Scott , 228 Va. at 526, 323 S.E.2d at 576. The accused need not ha ve used any actual force against the victim in order to sustain a conviction. Kent , 165 Va. at 841-42, 183 S.E. at 177-78. Instead, restraint for purposes of abduction includes a taking away or detention induced by fraud or deception. See Code § 18.2-47; Jerman , 267 Va. at 439, 593 S.E.2d at 259; Kent , 165 Va. at 841-42, 183 S.E. at 177-78; Costello, supra , § 5.1[6]. However, the evidence must show that the accused effected such deception with the specific intent to defile the victim. See Johnson v. Commonwealth ( Johnson II ), 221 Va. 872, 879, 275 S.E.2d 592, 597 (1981); see also Simms v. Commonwealth , 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986) (equating “defile” with “s exually molest”). This intent-t o-defile element requires proof of an intent to engage in sexual contac t against the will of the claimed victim. See, e.g. , Code § 18.2-61 (rape), 18.2-67.1 (forcible sodomy) , 18.2-67.3 (aggravated sexual batt ery), 18.2-67.4 (sexual battery). “‘Intent is the purpose formed in a person’s mi nd which may, and often must, be inferred from the facts and circumstances in a particular case.’” Hughes v. Commonwealth , 18 Va. App. 510, 519, 446 S.E.2d 451, 457 (1994) (quoting David v. Commonwealth , 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986)). The state of mind of an accused may be shown by his conduct and by his statements. Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). “Circumstantial evidence is as competent and is entitled to as much weight as dir ect evidence, provided [the evidence as a whole] is sufficiently convincing to exclude every re asonable hypothesis excep t that of guilt.” Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). In its role of judging witness credibility, the fact finder is entitled to disbe lieve, in whole or in part, the self -serving testimony of the accused and to conclude that the accused is lying to conceal his guilt. Speight v. Commonwealth , 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) ( en banc ). The rejection of that te stimony, however, does not provide-63- substantive evidence that the opposite is true. Tarpley v. Commonwealth , 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001). In both Kent and Jerman , the Court determined that the abductions occurred when the defendants told a specific lie that induced or coerced their respective victims into goi ng places they would not otherwise have gone. In this case, by contrast, no rational fact finder could find beyond a reasonable doubt that Turner made any statement or engaged in any act showing an intent to deceive Evans for the purpose of sexually molesting her against her wi ll. Although the evidence does not preclude the possibility that Turner had such an intent, reasonable hypotheses of innocence flow from the evidence, thereby precluding any rational trie r of fact from finding Turner gui lty beyond a reasonable doubt of abduction with intent to defile. To support its conclusion, the majo rity applies a novel theory of abduction by deception to manufacture the intent to de file that a rational fact finder would require to find Turner guilty of felony murder. In essence, the majo rity concludes that it is rational to find that any rude individual who desires sex al so harbors an in tent to defile. 49 The record contains neither legal authority nor fact ual support for su ch a conclusion.
In Johnson II , the Supreme Court of Virginia reversed the defendant’s conviction of abduction where his acts of restraint were “done in furtherance of his sexual adva nces and not with the intent to deprive [the victim] of her personal liberty.” 50 221 Va. at 879, 275 S.E.2d at 597. In that case, the

49 The majority further suggests that because the jury at Turner’s original trial was “instructed that abduction with the intent to defile could be accomplished by, inter alia , deception and could have found that Turner deceived Evans into leaving the bar, ” and apparently so found, “it cannot be said that no rational trier of fact could have found Turner guilty beyond a reasonable doubt.” In other words, the majority says that a rational trier of fact could have found the petitione r guilty because the original jury did. However, to say that a rational trier of f act could have found the petitioner guilty because the original jury did fails to take into consideration the new evidence found credible on referral and would mandate the dismissal of every petit ion for a writ of actual innocence.

50 The defendant in Johnson II was charged with abduction with intent to defile, but the jury convicted him of abduction. 221 Va. at 873, 877, 275 S.E.2d at 593, 595. The Court clarified its ruling by stating that “the evidence did not support a finding that Johnson intended either to defile his victim or to deprive her of her personal liberty.” Scott , 228 Va. at 525, 323 S.E.2d at 576 (footnote omitted).-64- defendant followed the victim into her kitchen af ter knocking on her door. He grabbed the victim from behind, attempted to kiss her, and rubbed his hips against her buttocks. When the victim’s landlady responded to her cries for help, the defendant rel eased the victim and walked rapidly out of the apartment. The Court held that the defendant clearly “entered the apartment with the intention of having sexual intercourse with the [victim] and that the advances he made, however limited and fleeting, were designed to accomplish that purpose. However, his a ssault was frustrated by her resistance and stopped short of constituting an attempted rape.” Id. at 879, 275 S.E.2d at 596-97. On those facts, the evidence did not prove the defendant acted with the separate in tent to deprive the victim of her personal liberty with the intent to defile. Similarly here, the circumstantial evidence “f ails ‘to form an unbr oken chain which links [Turner] to the crime beyond a reasonable doubt,’” Hickson v. Commonwealth , 258 Va. 383, 388, 520 S.E.2d 643, 645 (1999) (quoting Bishop v. Commonwealth , 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)), because a rational trier of fact could find Turner acted with an intent to defile Evans, i.e., to engage in sexual contact against her will, onl y by “resorting to speculation and surmise,” Patterson v. Commonwealth , 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). Turner’s stated purpose for leaving the club with Evans was to wait with her in his vehicl e for her friends Andria Burdette and Michelle McCammon to return. Although a rational fact finder could have rejected Turner’s testimony regarding his purpose, such a rejection does not support a finding th at he acted instead with the requisite criminal intent to abduct Evans with an intent to defile. See Tarpley , 261 Va. at 256-57, 542 S.E.2d at 764. Indeed, even if a rational fact fi nder could conclude Turner lied to Evans about his purpose in going with her to his car and that he ac tually hoped to have some form of sexual contact with her, the record contains no indication that Turner act ed with the intent to have that sexual contact by force if Evans had refused. The evidence provided by Andria Burd ette, Michelle McCamm on, and Turner himself indicating that Evans would have refu sed such advances does not bridge that gap in logic. Moreover, it defies rationality to suggest that displaying poor manners toward an individual’s friends and opening a-65- door with “surprising force” could indi cate an intent to defile. In fact , the record contains no evidence that Turner overbore Evans’ will at any point during their en counter. Turner did no t force Evans to stay behind; she willingly agreed to remain with him at th e club and to meet her friends later that night. Turner did not make Evans uncomfortable; to the cont rary, she appeared to have enjoyed his company. The evidence of the condition in which Evans’ b ody was found supports a finding that she had been sexually molested because her pants and underwear had been removed and her vest had been pushed up. However, Brown’s recantation, credited by the circu it court on referral, account s for this because he fully admitted to defiling Evans’ body after he had killed her. In a similar vein, Turner’s callous behavior after Evans’ murder goes toward his guilt of being an accessory after the fact, a crime he conceded to have committed. In sum, the majority makes a fatal leap in logic from Turner’s possible desire to engage in sexual intercourse to his alleged intent to defile Evans. In light of Brown’s recantation, the evidence proves beyond a reasonable doubt, at most, that when Turner invited Evans to wait with him in his vehicle for her friends, he did so with the hope of persuading her to have consensual sexual contact. The record is devoid of evidence supporti ng a rational finding that Tu rner acted with the intent to force Evans into having sex against her will. Brown’s recantation ne gates the inculpatory evidence against Turner to such an extent that no rational trier of fact coul d have found Turner guilty beyond a reasonable doubt of abduction with intent to defile.
CONCLUSION For these reasons, I would conclude Turner has met his burden of proving, by clear and convincing evidence, that Brown’s recan tation is truthful and, consequent ly, that no rational trier of fact could have found proof beyond a reasonable doubt of abduc tion with intent to defile and felony murder. Code § 19.2-327.11(A)(vii). For the reasons stated in the panel majority opinion, I would further “accept Turner’s concession that he is guilty of being an accessory after the fact.” Turner v. Commonwealth , 54 Va. App. 458, 491, 680 S.E.2d 312, 328 (2009) . Accordingly, I would grant-66- Turner’s petition for a writ of actu al innocence and vacate his convictio ns for abduction with intent to defile and first-degree murd er. I respectfully dissent.

Because the issues addressed he rein are of first impression and potential litigants and members of the bar may benefit from the directives herein , we direct the Clerk to publish this order. The Commonwealth shall recover of the petitioner th e costs in this Court. The Attorney General shall recover of the petitioner his costs expended herein. Costs due the Commonwealth by petitioner in Court of Appeals of Virginia: Costs of transcripts, briefs, and appendices, pursuant to Court’s November 6, 2008 and December 16, 2008 orders Attorney General’s costs: Attorney’s fee $50.00

A Copy,
Teste: original order signed by the Clerk of the Court of Appeals of Virginia at the direction of the Court Clerk

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 25th 

### day of August, 2009

.
Dustin Allen Turner, Petitioner, against Record No. 1836-07-1 Commonwealth of Virginia, Respondent.
Upon a Petition for Rehearing En Banc Before Chief Judge Felton, Judges Elder, Frank, Ke lsey, McClanahan, Haley, Petty, Powell and Alston
On August 18, 2009 came the respondent, by the A ttorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered he rein on August 4, 2009, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the order entered herein on August 4, 2009 is stay ed pending the decision of the
Court en banc , and the petition for writ of ac tual innocence is reinstated on the docket of this Court. Notwithstanding the provisions of Rule 5A: 35, the following briefing schedule hereby is established: Petitioner shall fi le an opening brief upon rehearing en banc within 21 days of the date of entry of this order; respondent sha ll file an answering brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and petitioner may file a reply brief upon rehearing en banc within 14 days of the date on which the answering br ief is filed. The petitioner shall attach as an-2- addendum to the opening brief upon rehearing en banc a copy of the order previously rendered by the Court in this matter. It is further ordered that the respondent sha ll file twelve additional copies of the appendix previously filed in this case.

A Copy, Teste: Cynthia L. McCoy, Clerk original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 4th 

### day of August, 2009

.
Dustin Allen Turner, Petitioner, against Record No. 1836-07-1 Commonwealth of Virginia, Respondent.
Upon a Petition for a Writ of Actual Innocence Before Judges Elder, Powell and Senior Judge Coleman
David B. Hargett (Hargett Law, PLC, on brief), for petitioner. Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for respondent.
Dustin Allen Turner (Turner) petitions this Court for a Writ of Actual Innocence Based Upon Non-biological Evidence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. Turner was convicted of the abduction with intent to defile and murder of Jennifer L. Evans in the Circuit Court of the City of Virginia Beach on September 5, 1996. In a prior proceeding, Billy Joe Brown was convicted of these same crimes, as well as attempted rape. In 2002, Brown gave a taped interview in which he confessed to acting alone in kil ling Evans. Brown signed an a ffidavit in 2003 memorializing his statements from the taped interview. Based on Brown’ s new confession, Turner claims he is innocent of the offenses for which he was convicted. Upon consideration of Turner’s petition, the At torney General’s motion to dismiss, Turner’s reply thereto, and the record, this Court remanded th e matter to the circuit cour t to certify findings of fact regarding factual issues in dispute. The circu it court conducted a hearing in this matter and supplied this Court with its certified findi ngs of fact, including its finding that Brown was “credible in his assertion that he acted inde pendently in murdering the victim and that . . . Turner played no role in the-2- murder or in the restraining of the victim.” Applying the mandatory statutory standard to these findings and the non-conflicting evidence adduced at Turner’s tria l, we conclude no rati onal trier of fact could have found Turner guilty of murder or abduction with intent to defile . While Turner’s conduct creates a suspicion of guilt, the evidence, viewed in the context of Brown’ s recantation, cannot support findings of guilt beyond a reasonable doubt. We therefore grant petitioner’s request for a writ of actual innocence, vacate his convictions for murder and abducti on with intent to defile, find him guilty of being an accessory after the fact, and remand the matter to th e circuit court with instructions to modify the order of conviction accordingly, pursuant to Code § 19.2-327.13.
I. BACKGROUND
A. FACTS ADDUCED AT TRIAL On June 18, 1995, while vacationing in Virginia Beach, Evans and two friends, Andria Burdette and Michelle McCammon, drove to a local nightclub called the Bayou. Turner and Brown, Navy SEAL trainees at the time, were also at the Bayou during a break in their trainin g. Evans noticed Turner, whom she had not previously met, and the two st ruck up a conversation. Throughout the night, Evans alternated between talking with he r friends and socializing with Turn er. She briefly met Brown, but did not have a sustained conversation with him. From all appearances, Evans and Turner were getting along very well. Throughout the night, Brown drank cons iderable amounts of alcohol until he was on the verge of losing consciousness. Around midnight, Burdette wanted to leave, but Ev ans expressed her desire to stay in order to continue talking with Turner. At 1:00 a.m., Evan s agreed to leave with her friends and wrote her telephone number on a napkin that she gave to Turner . Burdette and McCammon went to the restroom before leaving and returned to fi nd Turner sitting in a chair with Evans sitting on the armrest.-3- Burdette and McCammon left the club with Turner and Evans trailing behind. Burdette, McCammon, and Evans entered their vehicle, and Tu rner leaned against the back door to continue talking to Evans through the open window. Turner ex pressed his desire to c ontinue socializing with Evans, and Burdette and McCammon eventually agr eed to leave Evans at th e club and return at 2:00 a.m. to take her home. Evans appeared happy w ith this arrangement and got out of the vehicle to return to the club with Turner. Kristen Bishop, an ex-girlfriend of Brown, testif ied that she saw Turner and Brown at the club on June 18. She briefly socialized with Brown before l eaving to go to another club. When she returned to the Bayou, she noticed Turner talking to Evans and he r friends. At approximately 1:15 a.m., Turner approached Bishop and asked her to give Brown a ride home if he was not back by 2:00 a.m. Bishop reluctantly agreed. Between 1:25 and 1:30 a.m., the lights came on, announcing last call. At approximately 1:35 a.m., Bishop saw Turner and Evan s leave the club holding ha nds. At approximately 1:45 a.m., Bishop told Brown she would give him a ride home but they had to first wait for Bishop’s friend to return. Brown, who was noticeably intoxicated by this point, did not ag ree to this arrangement and left the club to find Turner. Bishop caught up with Brown in the pa rking lot and agreed to wait to make sure he had found Turner before leaving. Bi shop did not see Brown agai n after this conversation and left a few minutes later. Julio Fitzgibbons, a Navy SEAL commander, testifie d that he first met Turner and Brown at the Bayou on June 18. He talked briefly with them rega rding the SEAL training pr ocess. He next met up with Turner at last call when th e lights came on. He approached Turn er to find out what he was doing that night after leaving the bar. Turner responde d “that him and Brown . . . were going to have a threesome.” Brown was standing nearby as Turner made this remark. Evans approached Turner at this point, and he introduced her to Fitzgibbons. As Evan s and Turner left, Fitzgibbons “gave him a thumbs up for good-bye and left.” Turner responded by giving Fitzgibbons a “thumbs up” and smiling.-4- Officer K.C. Reilly was assigned to patrol the parking lot and general area surrounding the clubs to detect illegal activity, includ ing underage drinking, fighting, a nd public urination. At 1:24 a.m., Reilly left his vehicle to inspect the parking lot on foot for suspicious activity, specifically people lingering in their vehicles. Reilly did not make any a rrests for illegal activity and signed back into his vehicle at 1:51 a.m. Bruce Moore al so testified in his capacity as a contract security officer for the nearby hotel. He conducted a similar patrol of the pa rking lot and encountered no suspicious activity. Burdette and McCammon returned to the club at approximately 1:50 a.m., but Evans was not in the parking lot where she had promised to meet them . They searched for se veral hours but could not find Evans. They filed a missing persons report with the police the next day. Bishop read about Evans’ disappearance and contacted the authorities with the information she had regarding seeing Evans with Turner and Brown on the night of her disappearance. The authorities interviewed Turner and Brown on multiple occasions in the subsequent week. Turner initially denied leaving the club with Evans but eventually agreed to l ead the authorities to her body. He told the police that Brown choked Evans to de ath in his vehicle while they sat in the parking lot of the Bayou. When confronted with Turner’s confession, Br own accused Turner of murdering
Evans. Both men were indicted for various crimes relate d to Evans’ death. Brown was tried first in June 1996. He chose to take the stand and testified that he did not want to receive a ri de back to the military base from Bishop, so he went outsi de to look for Turner. According to Brown, Turner leapt out of the vehicle as Brown approached and ordered him to get i n. Brown testified, under oa th, that Turner stated he had killed Evans in the vehicle and that it was so lely Turner’s idea to def ile and dispose of Evans’ body. Brown was subsequently convicted of abducti on with intent to defile, attempted rape, and murder. Turner’s trial began in August 1996. Charlotte Lo we, the forensic supervisor who analyzed the crime scene, testified that Evans’ body was in an advanced state of decom position and skeletalization,-5- such that many of the bones were exposed. Evans’ vest had been pulled back around the shoulders and over the chest, and her bra was pushed up, exposing he r breasts. Her shorts and underwear had been pulled down so that they were attached to only one leg. Lowe also examined Turner’s car for semen, urine, fingerprints, and other physical evidence, but c ould not find anything of fo rensic value in the car. Dr. Leah Bush performed the autopsy on Ev ans’ body and confirmed that the rate of decomposition was significantly accele rated by the heat and outdoor cond itions. In her expert opinion, it was impossible to determine the exact cause of d eath due to the severe sk eletalization, but manual strangulation was a possibility. Dr . Bush described the various chokeho lds that could lead to death. Specifically, she said the carotid sleeper hold, commonly performed by squeezing the neck, causes death within three to five minutes by rest ricting blood flow to the brain. Sh e also testified that the bar-arm chokehold—in which the assailant pre sses a solid object, such as a polic e baton or a forearm, against the windpipe—could cause death in less th an a minute due to the heightened risk of crushing the airway. Dr. Bush further explained that brac ing the victim’s head against a soli d object could assi st an assailant in performing the bar-arm chokehold. Dr. Bush conclusively ruled out a broken neck as a cause of death because the spinal cord did not show signs of fracture. Significant to Dr. Bush’s conclusion was th at the headrest in the car would have greatly hindered hyperextension of the neck. While she acknowledged that she relied only on x-rays of Evans’ neck to form her conclusions, Dr. Bush stated that an extensive autops y was unnecessary due to the decomposition fully exposing the spinal cord. Todd Ehrlich testified as to Turner and Brown’s reputati on for engaging in group sex. Specifically, he recalled seeing the two men socializing with two wome n on June 16 while stationed at Fort AP Hill, Virginia. According to Ehrlich, Tu rner alternated between talking to one of the young women and then talking to Brown to give him a “progr ess report.” He could notrecall the specifics of the conversation but said it involv ed Turner and Brown attempting to get the young woman to go home with them. Ehrlich testified that the two women left toge ther without Turner a nd Brown, and Turner did-6- not follow them or attempt to restrain them in any way. Ehrlich further recalled a conversation he had with Turner and Brown regarding group sex while stat ioned in California. Sp ecifically, Ehrlich claimed to have witnessed Turner and Brown engage in group sex with a woman and later heard them brag about the incident. Ehrlich affirmed that there was no indication that the incide nt of group sex occurred against the woman’s will. Turner testified in his own defense and asserted that he never intended to have sex with Evans. According to Turner, his original plan was to take Evans to the beach to continue talking, but he abandoned that idea because it would have been impossi ble to do so and still return by 2:00 a.m. to meet Evans’ friends. Instead, Turner testified that he a nd Evans went to his vehicle to wait there for Burdette and McCammon to return. While waiting, Turner saw Brown approach and to ld Evans to “pay no attention to this guy. He’s drunk. Don’t believe a word he says.” Brown then entered the vehicle and sat in the back seat directly behind Evans. He began cursing and maki ng belligerent remarks towards Turner and Bishop. Turner testified that he could not remember detail s, but he recalled that Brown shifted his attention towards Evans and began making crude remarks to her. Out of the corner of hi s eye, Turner saw Brown touch Evans, and she slapped his hand away. At that moment, Turner saw Brown reach around and make a jerking motion with both arms. From Turn er’s description, Brown had both arms locked around Evans’ neck and was making a squeezing motion. Turner tried to pry Brown’s arms from her neck but could not. After a minute, Brown let go and Turner checked Evans’ vital signs , but he could not find a pulse. Brown yelled at Turner to drive, and he complied. As Turner drove away, Brown reached beneath Evan s’ shorts until Turner yelled at him to stop. Brown then passed out. Turner drove to a seclud ed area near some woods where he and Brown took Evans’ body out of the vehicle. Turner went back to the vehicle to look for a shovel, and when he returned, he found Brown lying on to p of Evans’ body. Turner pulled Brown off, and Brown said, “It doesn’t matter because I couldn’t ge t it – a hard on anyway.” They drove off after covering Evans’ body-7- with leaves, ate at a diner, and then returned to th e military base. The next day, Turner and Brown woke up and signed a lease to be room mates for the next year. Responding to Ehrlich’s testimony regarding the incident of group sex in California, Turner stated that “it all center[ed] around one incident and bragging about that one in cident.” He confirmed talking to Fitzgibbons on the night of June 18, but he denied talking about enga ging in a threesome with Brown. Turner reiterated that he “d id not actively try to sleep with [Evans,]” and that “she wasn’t that type of girl at all.” On September 5, 1996, the jury found Turner guilty of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in viola tion of Code § 18.2-32. The trial court imposed a prison sentence of 82 years. Both this Court and th e Virginia Supreme Court de nied Turner’s petitions for appeal.
B. BROWN’S RECANTATION On July 2, 2002, Brown, who did not testify at Turn er’s trial, provided a tape-recorded interview in which he stated he had lied to investigators about Turner ’s involvement in Evan s’ death and testified falsely about those events at his own trial. Brow n admitted in the interview that he spontaneously choked Evans and then blamed Turner because Turner had betrayed him by telling investigators what happened and where Evans’ body was hidden. On Fe bruary 28, 2003, Brown signed an affidavit that memorialized this interview. Turn er then filed in this Court a pe tition for a writ of actual innocence based upon newly-discovered, non-biol ogical evidence. In his peti tion, Turner relied upon Brown’s 2002 admission and 2003 affidavit in which Brown stated that he alone killed Evans and that Turner played no part in it. Turner av erred that other evidence in the r ecord supported Brown’s statement absolving Turner. The Commonwealth filed a motion to dismiss Turner’s petition, alleging that the petition was without merit because Brown’s confessi on was not credible and because even if it was-8- credible, the other evidence against Turner was suffici ent to find him guilty either as a principal in the second degree or under the felony-murder doctrine. Pursuant to Code § 19.2-327.12, this Court ordere d the circuit court to conduct an evidentiary hearing and to make factual findings as to four ce rtified questions: 1) whether Brown’s recanted testimony is credible in his assertion that he testified falsely at his own trial; 2) if the answer to Question #1 is “yes ,” did Brown testify falsely as to any material fact; 3) if the answer to Question #1 is “yes,” was Brown’s recantation testimony unknown or unavailable to the petitioner or his counsel at the time the conviction became final, or could such recantation testimony, through the exercise of diligence, have been discovered or obtained before the expiration of 21 days following entr y of the final order of conviction; and 4) is Brown credible in his assert ion that he acted independently in murdering the victim and that Turner had no role in the murder or any restraint of the victim? 1 On May 28, 2008, the circuit court conducted an evid entiary hearing. Brown testified that on the night of June 18, he did not want to engage in sexual intercourse a nd purposefully consumed excessive amounts of alcohol. He recalled briefly talking to Evans and cl aimed he did not know Turner’s intentions concerning Evans aside from his wanting to spend more time with her. Brown confirmed Turner’s prior testimony that Bishop was to give Brow n a ride home but that he did not want to wait for Bishop’s friend to arrive. Brown admitted that, by this point, he was on the verge of passing out due to intoxication. He found Turner’s ve hicle and climbed into the back se at behind Evans. Brown recalled saying something vulgar, but could not remember specifi cally what he said. Br own testified that “one minute [he] was normal and the next minute [he] sn apped and [he] started choking [Evans,]” by putting his left arm against her neck and holding it with his right arm. He recalled that Evans’ head was up against the headrest.

1 This Court posed the four th question to the circuit court upon motion by Turner.-9- Brown confirmed telling Turner to drive. He further admitted to pulling Evans’ vest off and then pulling her pants down before passing out. Brown also confirmed he attempted to have sex with Evans’ body after he and Turner pl aced it in the woods. Brown acknowledged having given conflicting ac counts of how the murder occurred. He admitted that he lied to the police and repeated the lie at his own trial. He explained that he fabricated Turner’s involvement in the murder because he was angry with Turner for telling the police where Evans’ body was located. He stated that at the time, he perceived no difference between telling one lie and telling several lies. In explaining his recent recantation, Brown clarifie d that his conversion to Christianity was the main reason for his coming forwar d. Brown stated that so long as he truthfully confessed to what had happened th at night, he did not car e whether his testimony would help exonerate
Turner. Upon considering the testimony from the evidentiary hearing and the transcripts from the original trials of Turner and Brow n, the circuit court found that Brown “i s credible in his assertion that he testified falsely at his own trial, ” that Brown “testified falsely as to a material fact in the case,” that “Brown’s recantation of his earli er testimony was unknown and unavailab le to the petit ioner in this proceeding . . . at the time of his conviction and at the time his conviction became final,” and that Brown “is credible in his assertion that he acted independently in murdering the victim and that . . . Turner played no role in the murder or in the restraining of the victim.”
II. ANALYSIS
A. STANDARD OF REVIEW Code § 19.2-327.10 confers original jurisdiction upon the Court of App eals of Virginia to consider a petition for a writ of actual innocence based on newly-di scovered, non-biological evidence filed by any individual “convicted of a felony upon a plea of not guilty.” See also Carpitcher v.-10- Commonwealth , 273 Va. 335, 342, 641 S.E.2d 486, 490 (2007). “The writ shall lie to the court that entered the conviction . . . .” Code § 19.2-327.10. To obtain a writ of actual innocen ce, a petitioner must allege, inter alia , that the newly-discovered evidence (1) “was previously unknown or unavaila ble to the petitioner or his trial attorney of record at the time the conviction became final in the circuit court,” Code § 19.2-327.11(A)(iv); (2) “ is such as could not, by the exercise of diligence, have been discovered or obtained before the expi ration of 21 days following entry of the final order of conviction by the court,” Code § 19.2-327.11(A)(vi); (3) “is material and when considered with all of the ot her evidence in the current record, will prove that no rati onal trier of fact could have found proof of guilt beyond a reasonable doubt,” Code § 19.2-327.11(A)(vii); and (4) “is not merely cumulative, corroborative or collateral,” Code § 19.2-327.11(A)(viii). Carpitcher , 273 Va. at 343-44, 641 S.E.2d at 491. The par ties agree that the newly-discovered, non-biological evidence at issue in this case is Brown’s confession—given si x years after Turner’s conviction—that he alone killed Evans. Of the four elements listed above, only the third is at issue in this case: Whether Turner has carried his burd en of proving, by clear and convincing evidence, (a) that Brown’s new confession is “material” and (b) that, when considering Brown’s confession with all the other evidence in the current record, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 2 Code §§ 19.2-327.11(A)(vii), -327.13. In analyzing Turner’s petition, we must fi rst determine whether Brown’s statement is “material.” In order to be “material” within the meaning of Code § 19.2-327.11(A)(vii), “evidence

2 This confession qualifies as a recantation becau se it unequivocally repud iates the version of events implicating Turner that Brown gave both to investigators around the tim e of his arrest in 1995 and under oath at his own trial in 1996. See Black’s Law Dictionary 1295 (8th ed. 2004) (defining the term “recant” as “[t]o withdraw or renounce prior statements or testimony formally or publicly” (emphasis added)). It is irrelevant that Brown did not testify at Turner’s trial, especially in light of the sworn testimony Brown had just given at his own tria l, which clearly demonstrated Brown’s intent to incriminate Turner. Brown’s recantation testimony was unavailable at the time of Turner’s original trial, and the Commonwealth does not contend otherwise.-11- supporting a petition for a writ of act ual innocence based on non-biologic al evidence must be true.” Carpitcher , 273 Va. at 345, 641 S.E. 2d at 492. If the circuit court cannot determine whether the original testimony, the recantation tes timony, or some other version of ev ents is true, the petitioner has not met his burden of proving materiality because “t he General Assembly inte nded to provide relief only to those individuals who can establish that they did not, as a matter of fact, commit the crime for which they were convicted” and not to those “who merely produce evidence contrary to the evidence presented at their criminal trial.” Id. “Because the Court of Appeals cannot hold its own evidentiary hearing to assess a witness’ credibility, but must ultimately determine whether a recantation is true, Code § 19.2-327.12 provides a mechanism to assist the Court of Appeals in this task.” Johnson v. Commonwealth , 273 Va. 315, 322, 641 S.E. 2d 480, 484 (2007). Pursuant to that code section, If the Court of Appeals determines . . . that a resolution of the case requires further development of the facts, the court may order the circuit court in which the order of convictio n was originally entered to conduct a hearing . . . to certify findings of fact with respect to such issues as the Court of Appeals shall direct. Code § 19.2-327.12 (emphasis added). “The statute does not place any restrictions on the subject matter of such referral orders.” Johnson , 273 Va. at 322, 641 S.E. 2d at 484. Before determining whether further factua l development is required, this Court should determine whether the recantation, if believed, will “prove that no rationa l trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). If, assu ming the recantation is found to be credible by the circuit co urt, a rational trier of fact could still conclude all the evidence proves guilt beyond a reasonable doubt, th en a referral to the circuit cour t for determining the credibility of the recantation is not “ require[d] ” under Code § 19.2-327.12. (Emphasis added). If this Court orders the circuit court to evaluate the credibili ty of the recantation, however, the holding in Carpitcher applies, and the circuit court’s determination of the credib ility of the recantation testimony is binding in this
Court. Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 490.-12- In order to determine the credibility of Brown’s statement, we ordered the circuit court in which the order of conviction was origin ally entered to conduct a heari ng on the credibil ity of Brown’s recantation testimony and issue ce rtified findings of fact. See Code § 19.2-327.12; see also Johnson , 273 Va. at 322-23, 641 S.E. 2d at 484 (involving a referr al of the recantation of a co-defendant, which the circuit court found was not credib le). After conducting an evidentiary hearing, as well as reviewing in detail the evidence that was presented in the prio r trials of both Brown and Turner, the circuit court expressly found Brown credible both in his assertion that he te stified falsely to a “material” fact at his own trial and in his present statemen t that “he acted independently in murdering [Evans] and that Turner played no role in the murder or any restraint of the victim.” The Commonwealth asserts that this Court owes no deference to the factual findings of the circuit court. Much like a criminal trial does not incorporate the findings of fact adduced in a preliminary hearing unless specificall y agreed to by the parties, the Commonwealth urges this Court to disregard the factual findings adduced in an ev identiary hearing pursuant to Code § 19.2-327.12. This approach is contrary to the st atutory standard of review and is unsupported by any controlling or persuasive authority. In explaining how the “factual findings certified by the circuit court in re sponse to the Court of Appeals’ order referring certain factual issues pu rsuant to Code § 19.2-327.12” should be treated by Virginia’s appellate courts, the S upreme Court clarified th at “[s]uch factual fi ndings are similar to circuit court findings made under C ode § 8.01-654(C) in habeas corpus cases in which [the Supreme Court] ha[s] original juri sdiction and ha[s] referred certain factua l issues to the circuit court for an evidentiary hearing.” Carpitcher , 273 Va. at 342-43, 641 S.E.2d at 490 (citations omitted). In habeas corpus cases, “[t]he circuit court’s factual finding s . . . are entitled to de ference and are binding upon [the Supreme] Court unless plainly wrong or without ev idence to support them.” Hedrick v. Warden of the Sussex I State Prison , 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002). We adhere to the familiar principles giving deference to f actual findings as enunciated in Carpitcher

.-13- The Commonwealth’s argument that Brown’s account defies the medical evidence does not persuade us that the circuit court’ s findings were plainly wrong because such a view ignores significant portions of the medical expert’s testimony. Dr. Bush could not conc lusively determin e the cause of death and described multip le scenarios that could explain how Evans died. See Code § 19.2-327.11(A)(vii) (directing this Court to “consider[] . . . all of the other evidence in the current record” when determining whether a petitioner has met his statutory burd en (emphasis added)). Indeed, Brown’s version of Evans’ death aligns with Dr. Bush’s opinion regard ing the bar-arm chokehold. It is entirely plausible that Brown used his left forearm to crush Evans’ airway, thereby re stricting both the oxygen and blood flow to cause a quick death, especi ally considering that Brown weighed over 200 pounds and was fit to endure the rigorous training regimen of a Navy SEAL. We also reject the Commonwealth’s contention th at the circuit court’s factual findings were fatally incomplete and conclusory. On referra l to the circuit court for factual findings, There is no mandatory formula for a ci rcuit court’s consideration of the credibility of a particular witness. As the trier of fact, the circuit court is charged with the responsibility of co nsidering various factors, including the witness’ demeanor, his opportuni ty for knowing the things about which he testified, his bias, and any pr ior inconsistent statements relating to the subject of his present testimony. In addition, the circumstances of a particular case may raise other factors that the circuit court deems relevant in assessing a witness’ credibility. Johnson , 273 Va. at 323, 641 S.E. 2d at 485 (citations omitted). Here, the circuit court clearly answered, albeit briefly, the four questions ordered from this Court and thus fulfilled its obligations under Code § 19.2-327.12. Having fully considered the record in this case, we cannot say that the circuit court’s factual find ings are plainly wrong or without evidence to support them and, theref ore, we are bound by these findings.-14- B. TURNER’S PARTICIPAT ION IN THE CRIMES Next, we must consider whethe r Brown’s credible confession, “w hen considered with all of the other evidence in the current record, . . . prove[s] that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Turner was convicted of abduction with intent to defile, in violation of Code § 18.2-48, and murder, in vi olation of Code § 18.2-32, under the felony-murder doctrine. Thus, not only must Brown’s recantation nega te Turner’s participation in killing Evans, but it must also sever the causal connection between his conduct and the underlying crime that gave rise to the murder. Turner argues that we cannot arbitrarily di sregard Brown’s recantati on and that all other evidence must be viewed in the context of Brown’s a ssuming sole responsibility fo r the murder. To that end, Turner asserts that the Common wealth’s evidence is merely circum stantial and does not exclude the reasonable hypothesis of innocence th at Brown acted independently in murdering Evans and that Turner had no role in the murder or restraint of Evans. In opposition, the Commonwealth contends that a rational trier of fact could conclude Brown’s recantation is unreliable and, thus, Turner has failed to carry his statutory burden. 3 Alternatively, the Commonwealth argues that Brown’s r ecantation cannot be reconciled wi th the evidence established at Turner’s trial. Fitzgibbons’ tes timony, according to the Commonwealth, demonstrates Turner’s intent to engage in group sex with Brown and Evans, which pr esumably supports the conclusion that the two men acted in concert to abduct Evans with the intent to defile her.

3 As explained above, this credibility determin ation is not plainly wrong and has been approved by this Court in its entirety. See supra Part II.A. Thus, the hypothetical “rational trier of fact” posited by Code § 19.2-327.11(A)(vii) may not r eassess the credibility of the recantation testimony and must accept this testimony as true. See Commonwealth v. Jackson , 276 Va. 184, 196, 661 S.E.2d 810, 816 (2008); Blount v. Commonwealth , 213 Va. 807, 809, 195 S.E.2d 693, 695 (1973). We must view the whole record within the c ontext of Brown’s recantation, already found to be credible by the circuit court, to determine whether Turner has met his statutory burden. See Code § 19.2-327.11(A)(vii). To-15- A defendant is guilty of firs t-degree murder under Code § 18.2-32 where the killing occurs “in the commission of, or attempt to commit, arson, ra pe, forcible sodomy, inanimate or animate sexual penetration, robbery, burglary or ab duction.” The statute codifies the common law doctrine of felony murder and “elevate[s] to murder a homicide committed during the course of a felony by imputing malice to the killing.” King v. Commonwealth , 6 Va. App. 351, 354, 368 S.E.2d 704, 705 (1988). Where two or more parties engage in criminal concert of action, one who participates in the initial felony giving rise to the homicide may be f ound guilty of murder whether or not he was the one who actually dealt the killing stroke. See Rollston v. Commonwealth , 11 Va. App. 535, 543, 399 S.E.2d 823, 828 (1991) (recognizing the app lication of concert of acti on in felony-murder cases); see also Wooden v. Commonwealth , 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981); Berkeley v. Commonwealth , 19 Va. App. 279, 286-87, 451 S.E.2d 41, 45 (1994) (holding that the victim’s death resulted from her abduction so that the defendant’s participation in the continuing transaction provided sufficient evidence to affirm his conviction of firs t-degree murder). “Concer ted action is defined as ‘[a]ction that has been planned, arranged, adjusted, ag reed on and settled between parties acting together pursuant to some design or scheme.’” Rollston , 11 Va. App. at 542, 399 S.E.2d at 827 (quoting Black’s Law Dictionary 262 (5th ed. 1979)). “[W]hen the homicide is within the res gestae of the initial felony and is an emanation thereof, it is committed in the perpetration of that felony.” King , 6 Va. App. at 354, 368 S.E.2d at 705 (1988). Our courts have interpreted this concept to prohib it application of the felony- murder doctrine where the killing merely coincided with the underlying felony and was not a consequence thereof. See id. at 356, 368 S.E.2d at 707 (citing Commonwealth v. Redline , 137 A.2d 472, 476 (Pa. 1958)); see also Griffin v. Commonwealth , 33 Va. App. 413, 425, 533 S.E.2d 653, 659 (2000) (r equiring evidence that the killing

disregard the circuit court’s credibility determin ation would render the en tire evidentiary hearing meaningless.-16- “resulted from an act which was an integral part of the felony or an act in direct furtherance of or necessitated by the felony” (emphasis added)). The underlying crime used to support Turner’s c onviction for felony murder is abduction with intent to defile. “Any person who, by force, intimida tion or deception, and without legal justification or excuse, seizes, takes, transports, deta ins or secretes the person of anothe r, with the intent to deprive such other person of his personal liberty . . . shall be guilty of ‘abduction.’” Code § 18.2-47. Code § 18.2-48 provides an enhanced penalty “for the abduction of any person with inte nt to defile such person.” As a result of Turner’s petition for a writ of act ual innocence, this Court ordered the circuit court to make factual findings on four questions, only one of which related directly to the specific offenses for which Turner had been convicted, murder and abduction wi th intent to defile: “4) [I]s Brown credible in his assertion that he acted independently in murder ing the victim and that Tu rner had no role in the murder or any restraint of the victim ?” (Emphasis added). In response to that question, the circuit court determined Brown was “credible in his assertion that he acted independently in murdering the victim and that . . . Turner play ed no role in the murder or in the restraining of the victim.” (Emphasis added). Both the question and answer mu st be viewed in the contex t of the convictions Turner challenges—for murder and abduction with intent to de file. The circuit court, by referring to the murder and the restraint in the disjunctive, contemplated Brow n’s recantation in light of both the actual killing and the underlying crime of abduction. “Restrain” means “‘[t]o control’” or “‘[t]o take away freedom or liberty of.’” United States v. Stokely , 881 F.2d 114, 116 (4th Cir. 1989) (quoting Webster’s Second New Riverside University Dictionary (1984)); see also Black’s Law Dictionary 1340 (8th ed. 2004) (defining “restraint” as “[c]onfinem ent,” “limitation,” or “[p]rohibition of action”). The legislature has provided that abduction as defined in Code § 18.2-47 is synonymous with kidnapping, see Code § 18.2-47(C), which is not separately defined in the Virginia Code. At common law, kidnapping required proof of both “an unlawful restraint” and an asportation. See State v. Dix , 193 S.E.2d 897, 899 (N.C. 1973). Although our legislature, like many ot hers, now permits a conviction for abduction upon-17- proof of a detention without any asportation, see, e.g. , Scott v. Commonwealth , 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984), the statutory language provides no indication th e legislature has removed the “restraint” requirement. To the c ontrary, one who “seizes, takes, tr ansports, detains or secretes the person of another,” as those terms are used in Co de § 18.2-47, “restrains” th at person under the accepted legal definition of the term. The Supreme Court ha s recognized that a conv iction for abduction under Code § 18.2-47 requires proof of restra int of the victim eith er by asportation or detention and that the asportation or detention may be accomplishe d by force, intimidation or deception. Jerman v. Dir. of the Dep’t of Corr. , 267 Va. 432, 439, 593 S.E.2d 255, 259 (2004); see John L. Costello, Virginia Criminal Law and Procedure § 5.1[6] (2009) (“[A]bduction consists of restraints on the personal liberty of another.” (Emphasis added)). Thus, an asportation by force or deception is a type of restraint 4 and, if the other statutory elements are proved, const itutes an abduction in violation of Code § 18.2-47. Based on the crimes for which Turner was convicted, the wording of the question posed by this Court to the circuit cour t, and the accepted “assum[ption] th at trial judges have knowledge of the Commonwealth’s laws and properl y apply those laws” absent clear evidence to the contrary, Wilson v. Commonwealth , 23 Va. App. 318, 326 477 S.E.2d 7, 10 (1996), we conclude the circuit court’s use of the word “restraint” constitutes a finding that Turner did not participate with Brown in an abduction by either force or deception. The circuit court’s ruli ng therefore compels a reject ion of the theory that

4 Other states have incorporated such definitions into their statutes. See, e.g. , State v. Wilcox , 758 A.2d 824, 838 (Conn. 2000) (noting that Conn. Gen. Stat . § 53a-91 requires proof of restraint to support a conviction of abduction and defines “‘rest rain’ . . . as ‘restric ting a person’s movements intentionally and unlawfully in such a manner as to in terfere substantially with his liberty [either (1)] by moving him from one place to another [asportation], or [(2)] by confini ng him either in the place where the restriction commences or in a place to which he has been moved [deten tion], without consent’”); People v. Valero , 521 N.Y.S.2d 527, 528 (N.Y. App. Div. 1987) (holding an abduction is a “serious form of restraint” under New York law); Romero v. State , 34 S.W.3d 323, 325 (T ex. Crim. App. 2000) (noting that under Tex. Pen. Code Ann. § 20.01 abduction requires proof of restraint, which means “to restrict a person’s movements without consent, so as to interfere substantially with her liberty, [(1)] by moving her from one place to another [asportation] or [(2)] by confining her [detention]”).-18- Turner and Brown engaged in any criminal concer t of action and prevents a finding that any causal connection existed between Turn er’s conduct and Evans’ death. In light of the circuit court’s acceptance of Brow n’s testimony that Turner did not participate in the murder or the abduction leading to the murd er, the record affirmatively proves no agreement between Turner and Brown existed to undertake these acts. 5 In the absence of such an agreement, no rational trier of fact could find the men acted in c oncert to abduct or kill Evans. Because the two men each acted of their own volition, Turner’s conduct a nd Brown’s entry into the vehicle and subsequent killing were not “interdependent obj ects of a common criminal design.” Edmonds v. Commonwealth , 229 Va. 303, 310, 329 S.E.2d 807, 813 (1985). Indeed, Turn er’s waiting with Evans in his vehicle merely accounted for his “presence at the location of the [m urder], and nothing dire ctly related to the commission of the felony that caused the [murder].” King , 6 Va. App. at 358, 368 S.E.2d at 708 (finding no causal connection betwee n flying a plane containing mariju ana as part of a drug smuggling operation and the death of a co-felon cause d by crashing the plane into a mountain); see Rollston , 11 Va. App. at 542, 399 S.E.2d at 827 (“Mere presence duri ng the commission of a crime is not sufficient to render one criminally liable.”). Whatever inten tions Turner possessed when he left the club with Evans, he did not act in concert w ith Brown to lure her into leavi ng the club for the purpose of engaging in sexual intercourse against her will. Instead, Brow n, acted as an independent and superseding force so that his actions constituted a separate—and completely coincide ntal—enterprise with no causal connection to Turner’s own conduct. While Brown’s recantation has severed Turner fro m the criminal enterprise leading to Evans’ murder, we must still answer the question whether, in light of the circuit c ourt’s acceptance of Brown’s

5 As the circuit court noted, the evidence establis hing Turner’s guilt was largely circumstantial. Brown did not testify at Turner’s tr ial and did not provide his false in culpatory testimony to the jury. All of the Commonwealth’s eyewitness testimony confirmed that Evans was last seen with Turner on the night of her death, a fact Tu rner readily concedes. There ar e, however, no eyewitnesses—besides the two convicted men—who identified the actual killer.-19- recantation, a rational trier of fact could have conc luded beyond a reasonable doubt that Turner abducted Evans with intent to defile prior to and sepa rate from Brown’s acts of restraint and murder. Under Code § 18.2-47, abduction requires pr oof of an asportation or detention. See Scott , 228 Va. at 526, 323 S.E.2d at 576. The accused need not have used any actual force or restraint against the victim in order to sustain a conviction. Kent v. Commonwealth , 165 Va. 840, 841-42, 183 S.E. 177, 177-78 (1938). Instead, restraint for purposes of abduc tion includes a taking away or detention induced by fraud or deception. See Code § 18.2-47; Jerman , 267 Va. at 439, 593 S.E.2d at 259; Kent , 165 Va. at 841-42, 183 S.E. at 177-78; Costello, supra , § 5.1[6]. However, the evidence must show that the accused effected such deception with the sp ecific intent to de file the victim. See Johnson v. Commonwealth ( Johnson II ), 221 Va. 872, 879, 275 S.E.2d 592, 597 (1981); see also Simms v. Commonwealth , 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986) (equating “defile” with “sexually molest”). Unless the victim is legally unable to consent due to age or infirmity, an allegation not advanced in this case, the intent-to-defile element requ ires proof of an intent to engage in sexual contact against the will of the claimed victim. See, e.g. , Code §§ 18.2-61 (rape), -67.1 (forcible sodomy), -67.3 (aggravated sexual battery), -67.4 (sexual battery). “‘Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.’” Hughes v. Commonwealth , 18 Va. App. 510, 519, 446 S.E.2d 451, 457 (1994) (quoting David v. Commonwealth , 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986)). The state of mind of an accused may be shown by his conduct and by his statements. Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). “Circumstantial evidence is as competent and is entitled to as much weight as dir ect evidence, provided [the evidence as a whole] is sufficiently convincing to exclude every re asonable hypothesis excep t that of guilt.” Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). In its role of judging witness credibility, the fact finder is entitled to disbe lieve, in whole or in part, the self -serving testimony of the accused and to conclude that the accused is lying to conceal his guilt. Speight v. Commonwealth , 4 Va. App. 83, 88,-20- 354 S.E.2d 95, 98 (1987) (en banc). The rejection of that testimony, however, does not provide substantive evidence that the opposite is true. Tarpley v. Commonwealth , 261 Va. 251, 256-57, 542 S.E.2d 761, 764 (2001).
In Jerman , 267 Va. 432, 593 S.E.2d 255 (2004), the defendant argued that the detentions were merely incidental to the assault and murder of th e victim. The Supreme Court of Virginia disagreed, holding that the abductions were distinct from the assault and that one of the abductions was accomplished through asportation by deception. Id. at 439, 593 S.E.2d at 259. Specifically, the defendant’s co-conspirator drove the victim, a drug dealer, to he r house for the stated purpose of purchasing drugs for some of her fr iends. Instead, her actual purpose wa s to lure the victim to the house for the purpose of confronting him about an earlier drug transaction. The Court held that this conduct proved the defendant committed abduction by decep tion as a principal in the second degree. Id. at 440, 593 S.E.2d at 260. Similarly in Kent , 165 Va. 840, 183 S.E. 177 (1936), the defendant kidnapped the victim with intent to extort money for pecuniary benefit. Th e evidence showed that the defendant induced the victim to accompany him to Washington, D.C., on the a ssurance that he would obtain money to satisfy a debt he owed her. Id. at 842, 183 S.E. at 177-78. The vict im was found murdered shortly after accepting the defendant’s invitation. The evidence further demonstrated that the defendant would have benefited financially upon the victim’s death. The Court held that “such circumstances amounted to fraud and coercion on [the defendant ’s] part and for the purpose of pecuniary benefit . . . .” Id. at 842,
183 S.E. at 178. In both Kent and Jerman , the Court determined that the abductions occurred when the defendants told a specific lie that induced or coerced their respective victims into goi ng places they would not otherwise have gone. In this case, by contrast, the evidence is insufficient to support a finding beyond a reasonable doubt that Turner made any statement or engaged in any act showi ng an intent to deceive Evans for the purpose of sexually molesting her ag ainst her will. Although the evidence does not-21- preclude the possibility that Turner had such an intent, reas onable hypotheses of innocence flow from the evidence, thereby precluding any rational tr ier of fact from finding Turner guilty beyond a reasonable doubt of abduction with intent to defile. Turner’s stated purpose for leav ing the club with Evans was to wait with her in his vehicle for Burdette and McCammon to return. Although a rati onal fact finder could have rejected Turner’s testimony regarding his purpose, such a rejection doe s not support a finding that he acted instead with the requisite criminal intent to abduct Evans with an intent to defile. See Tarpley , 261 Va. at 256-57, 542 S.E.2d at 764. Fitzgibbons’ testimony also does not support such a finding. According to Fitzgibbons, Turner said that he and Brown were going to engage in group sex. However, be fore Turner spoke to Fitzgibbons, he had made arrangements with Bishop to take Brown home if Turner did not return to the club in time to do so himself. Further, Brown tes tified at the evidentiary hearing that his primary purpose that night was to drink excessi vely and not socialize with women. 6 This evidence supports the reasonable inference that Turner’s statement to Fitzgibbons about group sex was nothing more than an allusion to a prior incident in which Turner and Brown had engaged in group sex with an unrelated, willing female participant while stationed in California. Brown was standing near Turner and Fitzgibbons at the time, and whether or not Fitzgibbons was aware of th e prior incident does not negate the reasonableness of this inference. Perhaps most importantly, even if the evidence supported a finding that Turner lied to Evans about his purpose in going with her to his car and that he actually hope d to have some form of sexual

6 The scope of the circuit court’s credibility as sessment of Brown’s recantation is unclear. See Rollston , 11 Va. App. at 547, 399 S.E.2d at 830 (permitting a fact finder to believe or disbelieve in part or in whole the testimony of any witness). Howeve r, as already discussed, th e circuit court expressly found Turner “played no role” in any “restraining of the victim,” and restra int can be achieved through fraud or deception. See Wilson , 23 Va. App. at 326, 477 S.E.2d at 10 (holding the trial court is presumed to know the law absent clear evidence to the contrary). Thus, in findi ng Turner had “no role . . . in the restraining of the victim,” the circuit could necessarily concluded Turner and Brown had no agreement to lure Evans from the club to Turn er’s car to facilitate forcible sexual contact.-22- contact with her, the record contai ns no indication that Turn er acted with the intent to have that sexual contact by force if Evans had refused. In Johnson II , the Supreme Court of Virginia reversed the defendant’s conviction of a bduction where his acts of restraint were “done in furtherance of his sexual advances and not with the intent to depr ive [the victim] of her personal liberty.” 7 221 Va. at 879, 275 S.E.2d at 597. In that case, the defendant followed the victim into her kitc hen after knocking on her door. He grabbed the victim from behind, attempte d to kiss her, and rubbed his hips against her buttocks. When the victim’s landlady responded to he r cries for help, the defenda nt released the victim and walked rapidly out of the apartment. The C ourt held that the defenda nt clearly “entered the apartment with the intention of having sexual interc ourse with the [victim] a nd that the advances he made, however limited and fleeting, were designed to accomplish that purpose. However, his assault was frustrated by her resistance and stopped s hort of constituting an attempted rape.” Id. at 879, 275 S.E.2d at 596-97. On those facts, the evidence di d not prove the defendant acted with the separate intent to deprive the victim of her persona l liberty with the intent to defile. Here, the circumstantial evidence “fails ‘to form an unbroken chain which links [Turner] to the crime beyond a reasonable doubt,’” Hickson v. Commonwealth , 258 Va. 383, 388, 520 S.E.2d 643, 645 (1999) (quoting Bishop v. Commonwealth , 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)), because a rational trier of fact could find Turner acted with an intent to defile Evans only by “resorting to speculation and surmise,” Patterson v. Commonwealth , 215 Va. 698, 699, 213 S.E.2d 752, 753 (1975). There is no evidence that Turner overbore Evans’ will at any point in the night . Turner did not force Evans to stay behind; she willingly agreed to remain with him at the club and to meet her friends later during the night. Turner did not make Evans uncomfo rtable; to the contrary, she appeared to have

7 The defendant in Johnson II was charged with abduction with intent to defile, but the jury convicted him of abduction. 221 Va. at 873, 877, 275 S.E.2d at 593, 595. The Court clarified its ruling by stating that “the evidence did not support a finding that Johnson intended either to defile his victim or to deprive her of her personal liberty.” Scott , 228 Va. at 525, 323 S.E.2d at 576 (footnote omitted).-23- enjoyed his company. Moreover, Turner’s reputati on for engaging in group sex is insignificant because no evidence indicates that the alle ged prior group encounter was noncons ensual. The evidence of the condition in which Evans’ body was found supports a finding that she had b een sexually molested because her pants and underwear had been remove d and her vest had been pushed up. However, Brown’s recantation accounts for this because he fully admitted to defiling Evans’ body after he had killed her. In light of Brown’s recantation, the evidence proves beyond a reasonable doubt, at most, that when Turner invited Evans to wait in his vehicle for her friends, he did so with the hope of persuading her to have consensual sexual cont act. Other than Turner’s statem ent to Fitzgibbons about “hav[ing] a threesome,” implicitly rejected by the circuit court as a basis for convicting Turner of the murder and abduction committed solely by Brown, the record wa s devoid of evidence supporting a finding that Turner acted with the intent to force Evans into having sex against her will. Brown’s recantation negates the inculpatory evidence against Turner to such an extent that no rational trier of fact could have found him guilty beyond a reasonable doubt of abduction with intent to defile. The dissent suggests that, not withstanding Brown’s recantati on, the circumstantial evidence would allow a rational trier of fact to conclude Turner was guilty of abduction with intent to defile. In doing so, the dissent, in effect, analyzes the evidence as a typical appeal challe nging the sufficiency of the evidence, in which a single fact finder, here the jury, has made all relevant factual determinations and this Court, on review, considers all the eviden ce in the light most favorable to the Commonwealth. 8

8 This Court, in fact, applied that standard when it denied Turner’s petiti on for direct appeal of his convictions, concluding “[t]he totality of the Commonw ealth’s evidence, though circumstantial, . . . was sufficient to prove beyond a reasonable doubt that appellant was guilty of abduction and murder” as a principal in the first or second degree. Turner v. Commonwealth , No. 0381-97-1 (Va. Ct. App. Sept. 24, 1997) (order of denial on one-judge review); see Turner v. Commonwealth , No. 0381-97-1 (Va. Ct. App. Jan. 23, 1998) (order of three-judge panel adopti ng the reasoning of the one-judge denial order). Had Brown’s recantation been introduced at Turner’s original trial, the jury would have been free to assess Brown’s credibility in conjunc tion with all the evidence, and the dissent’s reasoning in the present proceeding would have supported an affirmance of Turner’s convictions in that direct appeal.-24- However, to adjudicate a petitioner’s writ of actua l innocence following a jury trial, we view all the evidence from the perspective of the hypothetical “rational trier of fact” because we must take into account the impact of the evidence ad duced at a subsequent proceedi ng, the credibility of which has been determined by a different fact fi nder, the circuit court. Without th e aid of a singular point of view, we must supplant the original ju ry verdict and then consider an ew, from the perspective of the hypothetical rational fact finder in a backward-looking fashion, whethe r the newly-discovered evidence, in combination with the evidence addu ced at trial that is not in conflict with the credible new evidence, could support a finding of guilt beyond a reasonable doubt. This subsequent evidentiary interpretation cannot conflict with the findings of the circuit court. The dissent emphasizes that a rational trier of fact “ could have found Turner guilty beyond a reasonable doubt” because “the [original] jury did.” However, as mentioned above, we must supplant the original verdict with th is credible recantation. To say that a rational trier of fact could have found the petitioner guilty because the original jury did would mandate the dismissal of every petition for a writ of actual innocence. In summation, the dissent makes a fatal leap in lo gic from Turner’s possible desire to engage in sexual intercourse to his alleged inte nt to defile Evans. Turner’s talk of engaging in a threesome, however crass and distasteful, does not establish an in tent to defile because no evidence indicates Turner would have forced Evans to engage in such an act ag ainst her will. We conclude as a matter of law that no rational trier of fact could make such an inferential leap on this record.
III.
RELIEF UNDER WRIT Pursuant to Code § 19.2-327.13: in the event that the Court finds that no rational trier of fact could have found sufficient evidence beyond a reasonable doubt as to one or more elements of the offense for which the petitioner was convicted, but the Court finds that there remains in the original trial record evidence sufficient to find the petitioner gu ilty beyond a reasonable doubt of a-25- lesser included offense, the court sh all modify the order of conviction accordingly and remand the case to the circuit court for resentencing. Our task is to determine whether under the statut ory framework, Turner is guilty of a lesser-included offense, namely of being an accessory after the fact. Turner concedes that if acce ssory after the fact is a valid lesser-included offense, the evidence is su fficient to find him guilty pursuant to Code § 19.2-327.13. After the presentation of the evidence, the par ties agreed on the jury instructions, including Instruction 11, which states: The Court instructs the jury that the defendant is charged with the crime of first-degree murder. The Commonwea lth must prove beyond a reasonable doubt each of the following elements of that crime:
* * * * * * * If you find that the Commonwealth has failed to prove beyond a reasonable doubt that the defendant is guilty of felony murder but if you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the following elements: 1. That Billy Joe Brown committed the crime of murder against Jennifer L. Evans; and 2. That the defendant knew that Billy Joe Brown had committed the murder of Jennifer L. Evans; and 3. That the defendant comforted, re lieved, hid or in any other way assisted Billy Joe Brown, with the intent of helping Billy Joe Brown escape or delay capture, prosecution or punishment; then you shall find the defendant guilty of being an accessory after the fact to the crime of murder and fix his punishment at: 1. Confinement in jail for a specific time, but not more than twelve (12) months; or 2. A fine of a specific amount , but not more than $2,500.00; 3. Confinement in jail for a specific time, but not more than twelve (12) months, and a fine of a specific amount, but not more than $2,500.00. If you find that the Commonwealth has failed to prove beyond a reasonable doubt any one or more of the above elements of the offense, then you shall find the defendant not guilty. Code § 19.2-327.13 makes clear that this Court ma y “modify the order of conviction accordingly and remand the case to the circuit court for resentenci ng” only where there is sufficient evidence “to find-26- the petitioner guilty beyond a reasonable doubt of a lesser-included offense .” (Emphasis added). In Commonwealth v. Dalton , 259 Va. 249, 254, 524 S.E.2d 860, 863 (2000), the Supreme Court of Virginia expressly held that “the crime of being an accessory after the fact is not a lesser-included offense of the crime of murder.” The Court furthe r held that “before a defendant can be tried and convicted of being an accessory after the fact , he must be charged with that offense.” 9 Id. at 255, 524 S.E.2d at 863. The question we must decide is whether the inst ruction allowing Turner to be convicted of being an accessory after the fact, generally treated as a le sser-included offense to murder at the time of Turner’s conviction, became the law of the case. “It is well settled that instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review.” Ludwig v. Commonwealth , 52 Va. App. 1, 12, 660 S.E.2d 679, 684 (2008) (quoting Owens-Illinois v. Thomas Baker Real Estate , 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989)). Here, both parties agreed to include the crime of being an accessory after th e fact as a lesser-included offense in the instruction. To that extent, Turner was on noti ce that he faced the possibili ty of criminal liability as an accessory after the fact. Cf. Dalton , 259 Va. at 255, 524 S.E.2d at 863 (“ Unless such a charge is specifically made , neither the Commonwealth nor an accused is entitled to an accessory-after-the-fact instruction.” (emphasis added)). Tu rner further concedes that, as a re sult of these jury instructions, law-of-the-case principles require us to treat the crime of being an accessory after the fact as a

9 In so ruling, the Court did not “change[] the quantum of evidence necessary to sustain a conviction,” Carmell v. Texas , 529 U.S. 513, 530, 120 S. Ct. 1620, 1631, 146 L. Ed. 2d 577, 593 (2000), but instead merely clarified an existing procedural practice of instructing th e jury on lesser-included offenses, see Pilcher v. Commonwealth , 41 Va. App. 158, 164-65, 583 S.E.2d 70, 73 (2003) (explaining that changes in procedur al laws only violate ex post facto principles “when one of four recognized categories of ex post facto law is implicated”). See generally Hopt v. Utah , 110 U.S. 574, 590, 4 S. Ct. 202, 210, 28 L. Ed. 262, 269 (1884) (“[A]lterations whic h do not increase the punishment, nor change the ingredients of the offence or th e ultimate facts necessary to estab lish guilt . . . relate to modes of procedure only . . . .”).-27- lesser-included offense of mu rder. Thus, the rule in Dalton does not apply, and we accept Turner’s concession that he is guilty of being an accessory after the fact. Code § 18.2-19 defines the crime of accessory afte r the fact as a Class 1 misdemeanor. The maximum punishment for an accessory after the fact is twelve months. Code § 18.2-11 further defines the punishment for this misdemeanor as “confinement in jail for not more than twelve months and a fine of not more than $2,500, either or bot h.” As of this date, Turner has se rved more than thirteen years in prison. Thus, he has served the statutory maximum for being an accessory afte r the fact, and remand for resentencing is unnecessary.
IV. CONCLUSION For these reasons, we hold that Turner has met his burden of proving, by clear and convincing evidence, that the recantation is truthful, and that, ha d the statement been produced at trial, “no rational trier of fact could have found proof of guilt [of fe lony murder and abduction with intent to defile] beyond a reasonable doubt.” Code § 19.2-327.11(A)(vii). Further, we hold the evidence sufficient to find Turner guilty beyond a reasonable doubt of being an accessory after the f act, a conviction allowed under the instructions agreed to at his trial, but do not remand for resentencing. Accordingly, we grant his petition for a writ of actual i nnocence and vacate Turner’s convictio ns for first-degree murder and abduction with intent to defile. We further remand this matter to the circuit court with instructions to modify the order of conviction to reflect Turner’s conviction of being an accessory after the fact.

_____________________ Powell, J., dissenting. I agree with the majority’s analysis of the applicab le standard of review in this case. But before this Court may properly grant the writ of actual innocence that peti tioner seeks, petitioner must demonstrate by clear and convincing evidence that based on all of the evidence in the record, “ no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Code-28- § 19.2-327.11(A)(vii) (emphasis added); accord Carpitcher v. Commonwealth , 273 Va. 335, 344, 641 S.E.2d 486, 491 (2007). It is this Co urt’s statutory duty to examine th e entire record, including Brown’s credible confession to murder, to determine whether Turner has met his burden. See Code §§ 19.2-327.11 to 19.2-327.14. This analysis is not as si mple as merely accepti ng the circuit court’s determination that Brown testified credibly that he acted alone when he physically committed the murder and that Turner played no role in the rest raint of Evans as clear an d convincing evidence that Turner did not abduct Evans with the intent to defile her or that he is not guilty of felony murder. 10 Unlike, the majority, I do not find that Turner has me t his statutory burden. Th erefore, I would dismiss petitioner’s request for a writ of actual i nnocence, and I respec tfully dissent.
I. ABDUCTION WITH INTENT TO DEFILE At the evidentiary hearing, the circuit court found that “Brown is credible in his assertion that he acted independently in murdering the vi ctim and that . . . Turner played no role in the murder or in the restraining of the victim.” The re levant question is not whether Brown acted alone in k illing Evans, but whether Turner abducted her w ith the intent to defile her. If he did, the fact that Brown may have acted alone in committing the murder does not absolve Turner of his guilt. I find that the facts and the law indicate that Turner is guilty of abduction with the intent to defile and therefore is also guilty of the felony murder. Turner was convicted of abduction with intent to defile pursuant to Code §§ 18.2-47 and 18.2-48. Code § 18.2-47 provides in relevant part [a]ny person who, by force, intimidation or deception and without legal justification or excuse, seizes, takes, transports, detains or secretes the person of another, with the intent to deprive such pers on of his personal liberty . . . shall be guilty of abduction.

10 The majority, in footnote 3, states that “[ t]o disregard the circuit court’s credibility determination would render the entire evidentiary hearing meaningless.” To accept the circuit court’s factual determinations divorced from their place in the entire record would render meaningless the role of this Court and the statutory scheme providing for a writ of actual innocence.-29- The majority opines that because the circuit court found that Brown was “credible in his assertion that he acted independently in murdering the victim and that . . . Turner played no role in the murder or in the restraining of the victim,” the circ uit court addressed the question as to whether Turner abducted Evans with the intent to de file in the negative. The major ity further opines that because the circuit court so found, Turner is enti tled to have his petition granted. I find that a clear reading of Code §§ 18.2-47 and 18.2-48 indicates that th e circuit court did no t address the issue of whether Turner abducted Evans with the intent to de file. Because the circui t court did not address that issue, this Court must. Moreover, because Turner is unable to pr ove by clear and convincing evidence that no rational finder of fact could have found him gu ilty, his petition should be dismissed. I agree with the majority that kidnapping, which our legislature has declared is synonymous with abduction, is not defined in the Virg inia Code. The majority relies on State v. Dix , 193 S.E.2d 897, 898 (N.C. 1973) for its position that at common law, kidnapping required proo f of both “an unlawful restraint” and “an asportation.” Dix recognized that kidnapping was de fined generally as the unlawful taking and carrying away of a human being against his will by force, threats or fraud. Id. A related offense, false imprisonment was defined as the i llegal restraint of a person against his will. Id. The court in Dix went on to recognize that thei r jurisprudence held that the unlawful detention of a human being against his will was false imprisonment, not kidnapping. Id. (citing State v. Ingland , 78 S.E.2d 577, 582 (N.C. 1911)). “The element of carrying away was the differe ntiating factor between the two offenses.” Id. at 899. Thus, the court recognized that there was some degree of tension in the definition of kidnapping, specifically with regard to the degree of asportation requi red to turn a false imprisonment into a kidnapping. The court reconcile d the tension by holding that in ad dition to unlawful restraint, the taking, carrying away, transportation or asportation of the victim from the place where seized to some other place is an essential element of common law kidnapping. Id. at 904. I agree with the majority that at common law every kidnapping involved so me degree of restraint.-30- However, in both Virginia and North Carolina, abduction has since been modified by statute. Our Supreme Court has recognized that Code § 18.2-47 supersedes the common law. Scott v. Commonwealth , 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984). To the extent that the majority would limit Code § 18.2-47 such that the only difference from the common law is that Code § 18.2-47 now allows a conviction for abduction upon proof of a detention without any asportation, stating that the statutory language provides no in dication that the legislature has removed the “restraint” requirement, the majority construes the statute t oo narrowly. Indeed, our Supreme Court has specifically stated “we shall construe [Code § 18.2-47] according to its plain meaning and evident intent. Because [Code § 1 8.2-47] casts its several prohibited acts in the disjunctive, each is independently su fficient to support a conviction.” Scott , 228 Va. at 526, 323 S.E.2d at 576; see also John L. Costello, Virginia Criminal Law and Procedure § 7.1 (2009) (“This codal section supercedes [sic] the common law, but in cludes its several offens es [false imprisonment, kidnapping and abduction] by virtue of the disjunctive presentation of the parts of each of the elements”). Our Supreme Court arrived at the holding in Scott in reliance on another North Carolina case: State v. Fulcher , 243 S.E.2d 338 (N.C. 1978). In Fulcher , the North Carolina Supreme Court considered whether one could be convicted of kidnapping where there was no asportation. 243 S.E.2d at 351. In doing so, the court interpreted a stat ute very similar to Virginia’s. As our Supreme Court stated in Scott , the North Carolina statute provid ed, in pertinent part, “[A]ny person who shall unlawfully confine, restrain or remove from one place to another, any other person . . . without the consent of such person, shall be guilty of kidnapping . . . .” 228 Va. at 525-26, 323 S.E.2d at 576 (quoting N.C. Gen. Stat. § 14-39(a)). The North Carolina Supreme Court held that their legislature rejected their previous decisions holding that there must be both detenti on and asportation of the victim, because the statute plainly stated confinement, restraint or removal. Fulcher , 243 S.E.2d at 351.-31- That court went on to define the terms used in its statute as follows: [T]he term “confine” connotes some fo rm of imprisonment within a given area, such as a room, a house or a ve hicle. The term “restrain” while broad enough to include restric tion upon freedom of movement by confinement, connotes also such a re striction by force, threat or fraud, without a confinement. Thus, one who is physically seized and held, or whose hands or feet are bound, or who, by the threatened use of a deadly weapon, is restricted in his fr eedom of motion is restrained

. . . . Id. (emphasis added). Throughout the opinion, asporta tion was defined as the carrying away of the victim. See id. at 350. The reasoning of the North Carolina Court in Fulcher , which was found persuasive by our Supreme Court in Scott , is equally applicable to the interpretati on of our statute. Because our statute is plainly written in the disjunc tive, it is clear that restraint is no longer a requirement of abduction as the legislature has declared one who se izes, takes, transports, detains, 11 or secretes for any one of the prohibited purposes commits an abduction, as each action is independently sufficient to support a conviction. Therefore, because restraint need not be an el ement of an abduction, th e majority incorrectly concludes that because we presume that the circu it court knows and correctly applied the law, we can presume that the circuit court’s conc lusion that Turner did not restrain Evans means that Turner did not abduct her with the intent to defi le. However, the circuit court wa s not asked to determine whether Turner abducted Evans with intent to defile. Thus, the majority’s presumption is based on their assumption that the circuit court knew and correctly ap plied the law to a questi on that was not asked. Our case law is clear that, under Code § 18.2-47 , an abduction occurs where the perpetrator detains or moves his victim “by force, intimidation, or deception.” Scott , 228 Va. at 526, 323 S.E.2d at

11 Clearly the word “detains” is s ynonymous with “restrains.” The majority defines “restrain” as “to ‘control’ or ‘to take away free dom or liberty of.’” Webster’s defi nes “detain” as “to hold or keep in . . . as if in custody, to keep back, to restrain.” Webster’s Third International Dictionary 616 (1993). The use of the word “detain” further indicates that “restraint” is no longer an element of kidnapping in addition to each of the enumerated acts. To so ho ld would mean that the Commonwealth would have to prove not only that the victim was “detained” but also that the vi ctim was “restrained.”-32- 576. In Jerman v. Dir. of the Dep’t. of Corr. , 267 Va. 432, 439, 593 S.E.2d 255, 259 (2004), the Supreme Court of Virginia found that an abduction o ccurred where the evidence proved that one of the petitioner’s confederates convinced the victim to come with her under the ruse of selling illegal narcotics to her and petitioner when their true intent was to harm the victim. See also Taylor v. Commonwealth , 260 Va. 683, 688, 537 S.E.2d 592, 595 (2000) (holdi ng that the appellant accomplished the abduction through the use of both deception and intimidation). Our Supreme Court made no mention of any “restraint” upon the victim in the first abduction in Jerman ; rather, the fact that the victim was tricked into getting into the vehicle and traveling with the co -conspirator was enough to prove abduction. Thus, if based on al l of the evidence before this Cour t, any rational fact finder could have concluded that Turner deceiv ed Evans into leaving the club while at the same time intending to defile her, then a writ of actua l innocence should not issue. The majority refers to Kent v. Commonwealth , 165 Va. 840, 841-42, 183 S.E. 177, 177-78 (1936), and Jerman as cases where the appellants told “sp ecific lies” to accomplish the abductions. Supra § II.B. However, Code §§ 18.2-47 and 18.2-48 do not require that the deception be verbalized and, certainly, it is well settled that one’s intention, such as the intent to deceive, may and often must be proven through the use of ci rcumstantial evidence. Williams v. Commonwealth , 278 Va. 190, ___, 677 S.E.2d 280, 282 (2009) (reiterating that “[a]bsent a direct admission by th e defendant, intent . . . must necessarily be proved by circumstantial evidence”). To prove that Turner abducted Evans with the intent to defile, the Commonwealth was required to pr ove that he had the specif ic intent to sexually molest her. Simms v. Commonwealth , 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986). “Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances in a particular case.” Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). Petitioner’s acts, conduct, and statements ma y be considered to discern his state of mind. Id. ; accord Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). “The [trier of fact] may consider the conduct of the person involved and all the circumstances reve aled by the evidence.”-33- Hughes v. Commonwealth , 18 Va. App. 510, 519, 446 S.E.2d 451, 457 (1994) (quoting Wynn v. Commonwealth , 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987)). When weighing the evidence, the fact finder is not required to accept entirely either part y’s account of the facts. Th e fact finder may reject that which it finds implausible, yet accep t other parts which it finds to be believable. Barnes v. Commonwealth , 33 Va. App. 619, 630, 535 S.E.2d 706, 711-12 (2000) (citing Barrett v. Commonwealth , 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)). Because it is Turner’s intent th at is relevant, Brown’s credible confession to killing Evans cannot be found to be dispositive of what Turner was thi nking when he left the club with Evans. Indeed, Brown’s confession only establishes what occurred af ter he got into the car with Turner and Evans. 12 Thus, it does not change the evidence of Turner’s intent to defile that was before the jury in Turner’s trial. That jury was instructed that abduction with the intent to defile could be accomplished by, inter alia , deception and could have found that Turner decei ved Evans into leaving the bar, his nefarious intent unbeknownst to her. 13 Thus, it cannot be said that no rational trier of fact could have found Turner guilty beyond a reasonabl e doubt as the jury did.

12 In his confession, Brown reiterates his prior statements that he did not intend to have sex that night. His recent confession, however, has no bearing on what a reasonable fact finder could find about Turner’s and Brown’s sexual intent prior to Brown joining Evans and Turner in Turner’s car because Brown’s confession focused on the details of how he killed Evans and what followed after he met them in the car. Specifically, this was not part of what the trial court was as ked to decide, nor is this issue of Brown’s sexual intent part of the circuit court’s findings. Indeed, Brow n’s protestations that he was not sexually interested in Evans are be lied by his interview with Turner’s attorney and by his own testimony at the evidentiary hearing wher e he recounts his sexual overtures toward Evans immediately upon getting into Turner’s car and admits to trying to have intercourse with Evans’ corpse twice, once before they even left the parking lot and again in the woods where they disposed of Evans’ body.

13 Though the record, unfortunately, is devoid of the closing argu ments made to the jury in Turner’s trial, it is clear from the trial court’s ru ling on Turner’s motion to strike and from the jury instructions that the abduction by de ception theory was advanced in the tr ial court. In ruling on Turner’s motion to strike, the trial court held that there wa s sufficient evidence from which a fact finder could conclude that Evans did not knowingly and willingly [go] with . . . Turner to the parking lot or to his car for the purposes of engaging in a threesome or what has-34- Moreover, a review of the entire record before this Cour t reveals that it is replete with evidence from which a rational finder of fact could reach a c onclusion that Turner deceived Evans into leaving the club with him for stated innocent purpos es while his true intent was to def ile her. Turner avowed that he only wanted to talk with Evans and that he had no sexual interest in her. Turner’s actions and, more tellingly, his own words on the night Evans was murdered belie his claim that he did not intend to have sex with Evans. Turner went out of his way to a rrange for Karen Bishop, Brown’s ex-girlfriend, to give Brown a ride home if Turner did not return to the club by closing time. During that conversation, Bishop asked Turner if she needed to give Brown a ride home because Turner “was going home with [Evans], and [Turner] said yes.” Bishop warned Turner that “if that’s what [he’s] going to do, use a condom.” Turner just smirked and laughed in response. The most telling piece of evidence is a conversation that occurre d after Turner arranged for Bishop to give Brown a ride home and after he profe ssed his intent to have sex with Evans to Bishop. Julio Fitzgibbons, a Navy SEAL, met Turner and Brow n the night Evans was murdered and they talked about the SEAL training program for some time before parting ways. Toward the end of the night and after Turner had arranged a ride for Brown, Fitzgi bbons approached Turner and Brown to see whether they had any plans for that night. While Evans wa s standing approximately fi fteen yards away, Turner told Fitzgibbons that he and Brown were going to have a “threesome” with Evans. 14 Within a few

been discussed as group sex with [T urner] and . . . Brown; but we certainly know from the evidence in this case that that was the defendant’s intent. . . . It’s cl ear from all the circumstances in evidence in this case that the defe ndant had a sexual mode; and, of course, his specific intent to defile or sexually molest . . . can be derived not only from his conduct but from his statements as well .” (Emphasis added).

14 Fitzgibbons testified that he understood “three some” to mean a sexua l encounter involving Turner, Brown, and a woman, in this instance, Evans. Though the majority suggests that this may have been an allusion to a prior incident in which Turn er and Brown engaged in a “threesome,” the argument makes no sense given that Fitzgibbons did not know Brown and Turner or their sexual histories. Such an allusion would certainly have been lost on Fitzgibbons.-35- seconds of this, Evans approached and Turner introduced her to Fitzgibbons as she stood next to Brown. Before leaving, Fitzgibbons gave them the thumbs up sign, which Turner returned. Turner had a smile on his face. 15 While Turner denies having made this statemen t, his petition for a writ of actual innocence supports this sequence of events and the fact th at there was an exchange with him, Brown, and Fitzgibbons regarding a “threesome.” In paragraph fo rty-seven of his petition, Turner states under oath Petitioner was happy with Bishop’s re sponse and he went to tell Brown about the arrangements. Petitioner remark ed that the plan was if he wasn’t back by 2:00 a.m., Bishop should take Brown home. Brown asked Petitioner where he was going with “tha t chick,” and Petitioner explained. Brown was slurring his words and aske d Petitioner what the chances were for him to “get it on with her too .” At that moment, [Fitzgibbons] walked up to them and asked what their plans were for the night. Brown said something to the effect, “I’m going to get a threesome going.” (Emphasis added). Turner confirms that he talked with Brown after the arrangements were made with Bishop to take Brown home. Based on his version of Brown’s re sponse to Turner’s descri ption of his plans with Evans, it is clear that Turner plan ned to have a sexual encounter with Evans as Brown’s response was to inquire about the chances of him “getting it on with her too .” (Emphasis added). The evidence is also clear that the plan was formulated for both Turner a nd Brown to have sex with Evans as Fitzgibbons was told that they were going to have a “threesome.” While Turner tries to attribute the “threesome” comment to Brown, Fitzgibbons was cl ear that it was a declaration ma de by Turner. Clearly, Brown and Turner made a plan before either le ft the club to have sex with Evans. 16

15 Several other witnesses also testified that Turner and Brown had a history of engaging in “threesomes.”

16 While the majority contends that Turner’s statements regarding a threesome were implicitly rejected by the circuit court and negate the inculpati ng evidence against Turner, this simply is the case. For all of the previously stated reasons, the circuit court was ne ver asked to reach, nor did it reach the issue of whether Turned abducted Evans by deception with the intent to defile.-36- Finally, Turner’s intent to have sex with Evan s, even though not even he believed Evans would agree, is clear from what was not said. Evans’ friend, Burdette, described Evans as a woman who would not speak to anyone using sexual overt ures. Burdette also testified th at she believed that Evans would not have been speaking to Turner had he made any sexual invitations to Evan s. Evans’ other friend, McCammon, similarly believed that Ev ans had no intent to have a “roman tic interlude” that night. As further proof of his intent to defile Evans, Turner conf irms these descriptions of Evans. He testified that during the course of the evening, he never discussed sex with her. He also echoed Evans’ friends with regard to her character. Specifically , he stated that in the short time he spent with her, Evans was not the kind of woman who would have engaged in a “threesom e.” Yet, he spoke to two different people about having sex with her, although she and he had not discus sed it. Moreover, he unr eservedly declared that he was going to have a “threesome” with Evans a nd Brown, even though he did not believe she would have willingly engaged in a “threesome.” From this, a rational trier of fact c ould conclude that Evans was unaware of Turner’s sexual plans for her, and w ould not have willingly e ngaged in a “threesome,” but that that was his intention. The record also contains evidence of Turner’s aggressive nature, es pecially when things were not going his way. Burdette testified that Turner wa s “exceptionally rude” to her and McCammon, that he spoke to them in a “horribly belligerent tone[,]” a nd that he “pulled the [car ] door open with surprising force” when he and Evans finally prevailed and the pl an was devised for Evans to stay with Turner for one additional hour. Turner’s callous disregard for Evans, displayed af ter her murder, is consistent with a finding that he intended to defile her before she was murdered. Within minutes of Brown killing Evans, Turner took the lead in finding an isolated spot to dispose of her body. Both men testified that Brown passed out within seconds of killing Evans. However, rather than making known what occurred, Turner drove from Virginia Beach to a secluded area in a Newport News park where it was unlikely that Evans’ body would be found. After finding the appr opriate spot, he then woke Brow n up to assist him in moving and-37- covering Evans’ body. The day after Turner clai med to have witnessed Brown end a young woman’s life without any provocation, Turner s till desired to rent an apartment with Brown. When lying to police and Federal Bureau of Investigati on officials about leaving the club separately from Evans, an FBI officer interviewing Turner found him to be “very calm, very collected.” Another police officer present for the interview said that Turner “seemed calm, cool. Had his thoughts about him and talked very straightforward.” A few days afte r the police and FBI officers visite d Turner and Brown at the naval base to interview them, the men went to Pizza Hu t with Matt Novello, a Navy boatswain mate. Brown had brought the current, local news papers with him. One of the newspapers contained a composite sketch purportedly of Turner. Throughout the meal, Turner and Br own repeatedly laughed and joked that the sketch looked nothing like Turner. Thus, the record provides ample evidence of Turn er’s determination to spend time with Evans, his aggressive demeanor toward her friends, and his unremorseful reaction af ter witnessing Brown end Evans’ life. There is also significan t, contradictory evidence of Turner’s claim that he had no interest in having sexual relations with Evans and his attempts to facilitate such relations. The evidence further proves that Turner walked Evans to his car on the pretext of waiting for her friends. He did not disclose to her his stated intention to Fitzgibbons to have a “threesome” with her and Brown. Certainly, the act of engaging in a “threesome” does not, in and of itself , provide evidence of Turn er’s intent to defile Evans. However, the evidence in the record when considered as a whole—including Turner’s belief that Evans would not be receptive to sexual advances, Tu rner’s claim to police and at trial that he had no interest in having sexual relations with Evans, and his declaration to Fitzgibbons that he intended to have a “threesome” with Evans—enables a rational trie r of fact to infer that Turner intended to have sexual relations with Ev ans against her will.
II. FELONY MURDER “[M]urder for purposes of the felony-murder st atute is common-law murder coupled with the contemporaneous commission or attempted commissi on of one of the listed felonies[,]” including-38- abduction with intent to defile. Wooden v. Commonwealth , 222 Va. 758, 761, 284 S.E.2d 811, 813 (1981). “[T]he felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise.” Haskell v. Commonwealth , 218 Va. 1033, 1044, 243 S.E.2d 477, 483 (1978). In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing . The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine . . . . “Death must be a cons equence of the felony . . . and not merely coincidence.” King v. Commonwealth , 6 Va. App. 351, 356, 368 S.E.2d 704, 707 (1988) (quoting Commonwealth v. Redline , 137 A.2d 472, 476 (Pa. 1958)). Abduction is a cont inuing offense and “‘it [is] for the fact finder to determine in each case . . . whether the [abduction] had been terminated within the purview of [Code § 18.2-32].’” Barnes , 33 Va. App. at 629, 535 S.E.2d at 711 (quoting Haskell , 218 Va. at 1043, 243 S.E.2d at 483). As discussed above, the record in toto provides sufficient evidence from which the trier of fact could conclude that Turner deceiv ed Evans into going to his car with the true intent of both he and Brown having a “threesome” with Evans against her will . The evidence further shows that when Brown joined Evans and Turner in Turner’s car, Brown as ked Evans whether she was a virgin and whether she had ever had sex with a “frogman” immediately befo re “snapping” and killing her. Moreover, Brown was present when Turner told Fitzgibbons that he and Brown intended to have a “threesome” with Evans. From this evidence, a rational trier of fact could conclude that Brown and Turner intended to forcibly have sexual relations with Evans and that Brown killed Evans when she rebuffed his advances. The trier of fact could have found that because of this shared sexual desire, the abduction had not ended. 17 Thus, I do not believe that this Court can fi nd that Brown’s credible recantation provides this

17 The majority’s determination that “[t]he ci rcuit court, by referring to the murder and the restraint in the disjunctive, contemplated Brown’s re cantation in light of both the actual killing and the underlying crime of abducti on” is unsupported and require s an inferential leap.-39- Court with clear and convincing evid ence that no rational fact finder c ould have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will and, therefore, I dissent.

____________________ Because the issues addressed he rein are of first impression and potential litigants and members of the bar may benefit from the directives herein , we direct the Clerk to publish this order.

A Copy,
Teste: original order signed by the Clerk of the Court of Appeals of Virginia at the direction of the Court Clerk