COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Hale y and Senior Judge Bumgardner Argued at Chesapeake, Virginia MELVIN DEMORRIS MARSHALL MEMORANDUM OPINION * BY v. Record No. 2310-08-1 JUDGE D. ARTHUR KELSEY MARCH 23, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Thomas S. Shadrick , Judge Designate David H. Moyer (Law Office of David H. Moyer, on brief), for appellant. Eugene Murphy, Senior Assistant Attorn ey General (William C. Mims, Attorney General, on brief), for appellee. A jury convicted Melvin Demorris Marshall of aggravated malicious wounding and use of a firearm during the commissi on of a felony. On the morning of trial, Mars hall’s counsel requested a continuance of the tria l so he could locate a potential w itness. The trial court denied the request. Marshall appeals, claiming the tria l court abused its discre tion and prejudiced his defense. Because the trial court di d not abuse its discretion, we affirm.

I. Police arrested Marsha ll in July 2007 for shooting Frank Williams in the back. A grand jury indicted Marshall for aggr avated malicious wounding and fel onious use of a firearm. The trial court issued a scheduling order setting a bench trial for November 20, 2007. In October, new counsel appeared for Marshall, requested a jury trial, and obt ained a continuance of the trial to January 15, 2008. On January 15, the court continued the case by ag reement to March 25, 2008. On March 18 and again on March 24, the cour t continued the case to June 17, 2008. On

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.June 17, 2008, the trial court continued the case at Marshall’s request to September 10, 2008 — the stated reason was “Defense needs additional time to locate witness.” On September 10, 2008, the morning of trial, Marshall sought yet another continuance. His counsel proffered that the day before he had spoken over th e phone to a potential witness, Shawn Campbell, who stated he overheard the vi ctim, Frank Williams, say he was “not sure” Marshall was the person who shot him. Ne ither the Commonwealth nor Marshall had subpoenaed Campbell. Marshall’s counsel asked Ca mpbell to appear at trial the next day. “He wasn’t excited about it,” counsel said of Campbell’s response, “but he said he would.” When Campbell failed to show up on the morning of tr ial, counsel attempted to reach him by phone. When Campbell did not answer, counsel left a voice message. Campbell did not call back. Counsel did not know Campbell’s ad dress. Counsel also said Ca mpbell was in the process of moving. The prosecutor contested the proffer and claimed other witnesses, including the victim, would refute Campbell’s statement. After inquiring about prior cont inuances, the trial court stat ed: “Well, it sounds to me like this is a rather weak statem ent on the part of this potential w itness. He’s not here today. He’s not answering his phone, which makes his st atement even more suspect. Since the case has already been continued twice, I’m not inclined to continue it again.” The court, however, suggested Marshall’s counsel could continue his efforts to reach th e witness. “I would suggest,” the court stated, “defense make every effort during th e course of this trial to get him here, if they can, but I’m not inclined to continue it today.” The case proceeded to trial before a jury. The Commonwealth rested its case on the second day of the trial. Before the defense pr esented evidence, the tria l court asked Marshall’s counsel whether he had “any success in locating” Campbell. Counsel responded: “No. It’s officially a lost cause and I’m ready to go forw ard.” Trial Tr. at 241 (Sept. 11, 2008). Marshall

- 2 -was found guilty of aggravated malicious woundi ng and use of a firearm during the commission of a felony.
II. Marshall argues on appeal th e trial court erred as a matte r of law by denying his motion for a continuance. We disagree. Whether to grant or deny a continuance rest s within the “sound discretion” of the trial

court. Ortiz v. Commonwealth , 276 Va. 705, 722, 667 S.E.2d 751, 762 (2008) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs. , 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007)). An appellate court can reverse only if the trial court committed an “abuse of discretion” and caused “resulting prejudice.” Id. at 723, 667 S.E.2d at 762; Cooper v. Commonwealth , 54 Va. App. 558, 565, 680 S.E.2d 361, 364 (2009). This two-pronged test “has long been the standard under Virginia practice.” Id. “Satisfying both prongs of the te st is ‘essential to reversal.’” Id. at 565, 680 S.E.2d at 365 (citation omitted). To be sure, th e “absence of one renders inconsequential the presence of the other.” Id. (quoting Bolden v. Commonwealth , 49 Va. App. 285, 290, 640 S.E.2d 526, 529 (2007), aff’d on other grounds , 275 Va. 144, 654 S.E.2d 584 (2008)). In this case, we need not address Marshall’s claim of prejudice because he cannot show the trial court abused its discretion. Faced with a morning-of-trial request for a continuance, the trial court understandably took in to account the case had been c ontinued several times before. One such occasion, the record shows, was due to Marshall’s request for “additional time to locate [a] witness.” Continuance Order (June 17 , 2008). The case had been pending for fourteen months since Marshall’s arrest. See Johnson v. Commonwealth , 51 Va. App. 369, 376, 657 S.E.2d 812, 815 (2008) (considering “f ive prior continuances” as a factor in upholding the trial court’s denial of continuance); Feigley v. Commonwealth , 16 Va. App. 717, 721, 432 S.E.2d 520, 523 (1993) (finding the “trial date was more th an six months after Feigley’s first attorney

- 3 -had been appointed,” coupled with his last mi nute continuance request, were factors supporting the denial of his continuance). Moreover, Marshall’s counsel pro ffered little to assure the tr ial court that Campbell could be found within a reasonable time frame. After declaring he “w asn’t excited” about testifying, Campbell failed to show up for trial and failed to answer counsel’s phone calls. On the second day of trial, Marshall’ s counsel concluded it was “a lost cau se” — a realistic conclusion given that counsel had no address fo r Campbell and, to ma ke matters worse, Campbell was in the process of moving. See Chichester v. Commonwealth , 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994) (explaining “[t]he burden is on the party s eeking a continuance to show that it is likely that the witness would be present at a later date”); Shackleford v. Commonwealth , 32 Va. App. 307, 321, 528 S.E.2d 123, 130 (2000) (stating “there was no indication that had the court continued the hearing, [the missi ng witness] would have been av ailable at the future date”); see also Bryant v. Commonwealth , 248 Va. 179, 183, 445 S.E.2d 667, 669 (1994) (holding “the trial court had no reason to believe th at [the missing witness] would ha ve appeared at a later date”). Appellate review under an abuse-of-discretion standard, if nothing else, “means that the trial judge’s ruling will not be reversed simp ly because an appellate court disagrees.” Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (citation and internal quotation marks omitted), adopted upon reh’g en banc , 45 Va. App. 811, 613 S.E.2d 870 (2005). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Tynes v. Commonwealth , 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation omitted); see also Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009). Thus, by its very nature, the abuse-of-discretion standard of revi ew recognizes reasonable jurists can and do differ on a great many things.

- 4 -- 5 - Given these circumstances, we cannot conclu de the trial court abus ed its discretion. A reasonable jurist could conclude Marshall’s counsel pr ovided too weak a basis for believing he could timely secure, if ever, the presence of th e missing witness. Given the delays that had already taken place in the case, th e trial court understandably was reluctant to grant yet another continuance. Because the trial court did not abus e its discretion in coming to this conclusion, we affirm Marshall’s convictions.

Affirmed.