COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Bray and Bumgardner Argued at Salem, Virginia

DONALD GLENN BERNARD MEMORANDUM OPINION * BY v. Record No. 1608-98-3 JU DGE JAMES W. BENTON, JR. NOVEMBER 2, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. St rauss, Judge Charles C. Cosby, Jr . (Henry G. Crider, on brief), for appellant. Leah A. Darron, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. The trial judge convicted Donald Glenn Bernard of aggravated sexual battery. Bern ard contends that, foll owing the co nviction, he met his burden of proving after-di scovered eviden ce and that the trial judge erred in denying his mo tion to se t aside the verdict. We affi rm the judgment.
I. Wendy Earles testified that in 1996 she ha d a romantic relationship with Donald Glenn Bern ard. On June 1 of that year, Bernard and his so n, who was eleven years of age, spen t the night in Earles' reside nce, a two bedroom traile r. Also present wereEarles, her eleven -year-old daught er, her ten-year -old son, and another eight-ye ar-old child. Earles te stified that her daughter reported to her the following mo rning that Bern ard touched her during the night. Earles' daughter testified that she, her brother, and Bernard's son fell asleep in the living room. Sh e slept on the floor; her brother slep t on a sofa; and Bern ard's son sl ept on a chair. She test ified that during the ni ght she was aw akened by her mother's bedroom do or, which squeak ed when opened. She then heard the sound of footsteps in the kitche n, in the living room passing by her, and th en in the bath room. After she heard the toilet flush, she saw Bernard, illuminated by a nightlig ht, coming from the bathroom. Se eing that he was nake d, she put her head under the cover. Earles' daughter te stified that after sh e put her head under the cover, she felt la rge, rough, cold hand s under her clothing and touching her vagina . She testifie d that she "mov ed and acted like [she] was having a dream or . . . felt something and then they stopped." She th en heard footst eps going toward her mother's bedroom and heard the door close. She no ticed that her brother was still asleep on the sofa and that Be rnard's son was still on the chair. Sh e then went to sleep. In the morning, she reported to her mother that Bernard had touc hed her vagina during the night.

- 2 -On cross-examin ation, she could not reca ll testifying at the preliminary he aring that she did not hear anything before being touched. She di d recall earlier testifying that she only saw the back of the pers on who entered th e room. She also recalled her earlier testim ony that she was touched fi ve or six se conds after she heard footsteps. Earles' son test ified that on th e night of June 1, he slept on the sofa in the li ving room and Bernard's son sl ept on a chair in the same room. He thought his sister slept in anot her bedroom. Earles slept in her bedr oom with Bernard. He also recalled being awakened by the squeaking noise of his mother's bedroom door opening. After he saw the person walk from the bedroom to the kitchen, he went back to sleep. A police investigator testif ied that when he questioned Bernard fifteen mo nths after that night, Bernard sa id he and Earles got up during the night be cause he heard Ea rles' daughter "fussing." Be rnard said he and Earles "went into the living room and [Earles' daughter] made an accusation that some one was messing with her." Bernard told the officer that Earles later said "someone was messing wi th [Earles' daughter's ] vagina." Bernard denied that he touche d Earles' daught er and told th e officer that after Earles' daug hter spoke with Earles, Earles' daug hter told Bernard that Bernard's son touched her. According to Bernard, his son denied touching Ea rles' daughter and said Earles' so n touched her. - 3 -After the trial judge denied Bernard's motion to strike the Commonwealth's evidence, Bernar d's son testifie d that he was awakened the night of Ju ne 1 by Bernard, who told him that Earles' daughter had accused Bern ard's son of "messing with her." He also testified that Earl es made the accusation to him the next day. He testified that he heard no one accuse hi s father of touching Earles' daughter . Bernard pres ented no other witnesses. At the conclusion of the evidence, the tr ial judge fo und that Earles' daughter was credible. He ru led that she had been molested and that the evidence proved Bernard was the perp etrator. Thus, the trial judge convicted Bernard of aggr avated sexual battery in violation of Code § 18.2-67.3. A month after the trial judge se ntenced Bernar d, Bernard filed a motion for a new tr ial. The mo tion alleged after-discovered evidence, includ ing Bernard's so n's admission, after Bernard's se ntencing, that he had touched Earles' daughter. At a hearing on the mo tion, Bernard's son testified that he had always denied touchi ng Earles' daughter prior to Bernard's conviction. He said that Bernar d's lawyer asked him prior to the verdict whether he had touched Earl es' daughter and that he denied having done so. He said, after Bern ard's convicti on and after Bernard had been releas ed from jail on an appeal bond, he told Bernard that he had touched Ea rles' daughter. He further testified that while Ea rles' daughter was asle ep he "touched the

- 4 -corner of her va gina . . . [b]ecause her brother was do ing it." Bernard's son then testified as follows on redirect examination: Q: When was . . . the first time you actually told your dad . . . that you had done this? A: At the dumpster. Q: When was that in time? Was that before or after he had been in jail? A: Before.

* * * * * * * [JUDGE]: You just testified . . . that you told him the first time before he went to jail at the dumpster. A: That was back when it first happened. [JUDGE]: Okay, so you told him back when it first happened that you had done it? A: Uh, huh. Bernard testified that the son's testimony was inaccurate in one detail. Bernard testified he talked with his son at the dumpster the morning after Earles' daughter made the accusation. His son asked him not to tell other people "that he was accused, . . . not that he had done it. He always said that he did not do it until recently." Bernard testified that after he was released from jail, his son first admitted that he touched Earles' daughter. He said before that occasion his son had denied touching her four or five times.

- 5 -II. The following well established principles govern motions for new trials: Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance. The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to the trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborate or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial. Odum v. Commonwealth , 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983) (citation omitted). The trial judge ruled that the evidence did not prove the fourth factor and denied the motion. In so ruling the trial judge "[found] the evidence . . . not very credible." The trial judge was not satisfied that the evidence was not "collusive" and that it would produce the opposite result on retrial. In Odum , the Supreme Court noted that "while the evidence, if believed, was material, the trial [judge], assessing the credibility of defendant's witnesses both at trial and at the motion hearing, properly could find that it was not such as should produce opposite results on the merits at another trial."

- 6 -225 Va. at 131, 301 S.E.2d at 149. We believe that principle is determinative in this case. The evidence at trial proved that Bernard told the police he and Earles went to the living room during the night because Earles' daughter was "fussing." Neither Earles nor her daughter testified to that fact, however. Bernard also told the police that Earles' daughter accused his son of touching her. Earles' daughter and Earles specifically denied that Earles' daughter had accused Bernard's son of touching her. Bernard further told the police that he confronted his son about touching Earles' daughter, that his son denied touching Earles' daughter, and that his son said Earles' son had touched her. All this evidence had been placed in the record when Bernard's son testified at trial. Bernard's son was not asked at trial whether he touched Earles' daughter, and he did not testify that he did. He also did not testify at trial that Earles' son touched her. Bernard's son testified at trial that Bernard woke him in the middle of the night and accused him of molesting Earles' daughter. That testimony was inconsistent with the testimony of Earles and Earles' daughter. When Bernard's son testified at the hearing on the motion for a new trial, the trial judge had the opportunity to assess his credibility and to assess it within the context of his earlier trial testimony. Thus, the trial judge could consider

- 7 -his demeanor and manner of testifying. He could consider his failure to testify at trial that Earles' son touched the girl. In addition, he could consider how the testimony was inconsistent with the testimony of Earles and Earles' daughter. "More importantly, the trial [judge] was justified in concluding that [the same result would occur on retrial] because of the positive, credible, largely unimpeached identification of defendant" as the person in the room when Earles' daughter was touched. Odum , 225 Va. at 131, 301 S.E.2d at 149. Earles' daughter testified that she was awake when she was touched, that Bernard was in the room when she was touched, that the hands were large and rough, and that her brother and Bernard's son were asleep on the sofa and chair after she was touched and as Bernard walked away. For these reasons, we hold that the trial judge did not abuse his discretion in refusing the motion for a new trial. Accordingly, we affirm the judgment. Affirmed

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