COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Clements and Haley 

Argued at Chesapeake, Virginia 

RICHARD CALEB SHELTON 

 MEMORANDUM OPINION* BY 

v. Record No. 3134-06-1 JUDGE JEAN HARRISON CLEMENTS 

 JANUARY 15, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Bruce H. Kushner, Judge 

 Moody E. Stallings, Jr. (Cara L. Griffith; Stallings & Bischoff, P.C., 

on brief), for appellant. 

 Alice T. Armstrong, Assistant Attorney General II (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Richard Caleb Shelton (appellant) was convicted in a bench trial of robbery, in violation 

of Code § 18.2-58, and of using a firearm in the commission of a felony, in violation of Code 

§ 18.2-53.1. On appeal, he contends (1) the evidence was insufficient to support his convictions; 

(2) the trial court erred in refusing to grant his motion to reconsider and in failing to order a new 

trial based on after-discovered evidence; and (3) the trial court abused its discretion by refusing 

to grant his motion for a continuance. We disagree and affirm the trial court’s judgment and 

appellant’s convictions. 

 As the parties are fully conversant with the record in this case, and because this 

memorandum opinion carries no precedential value, this opinion recites only those facts and 

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of 

this appeal. 

 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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I. BACKGROUND 

“On appeal, we construe the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth, 

13 Va. App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975)). We discard evidence favorable to the accused that 

conflicts with the Commonwealth’s evidence. Wactor v. Commonwealth, 38 Va. App. 375, 380, 

564 S.E.2d 160, 162 (2002). Viewed by that standard, the evidence demonstrates that on the 

afternoon of July 19, 2003, two assailants robbed Mark Velez at a carwash. Velez immediately 

called 911. Responding to Velez’s call within minutes, Chesapeake City Police Officers V.J. 

Matney and J.J. Blount arrived and Velez described the robbery and the two assailants to the 

officers. Later that day, Officer Matney recorded Velez’s account of the robbery in a police 

report, describing the first assailant who pulled out a revolver as “a dark skinned black male with 

medium length dreadlocks and a space between his front teeth” and the second assailant as “a 

medium complected black male with a clean shaven head.” Four days later, Velez identified 

appellant as one of the robbers out of a photo identification lineup containing six black males 

with dreadlocks. 

At trial, Velez identified appellant as the second assailant who approached him from 

behind and pressed a blunt object into his back, searched his pants, demanded that he open his 

vehicle trunk, and later returned to the scene to demand his cell phone. On cross-examination, 

Velez stated that Officer Matney could have recorded his depictions of the robbers incorrectly, 

switching the two assailants’s physical descriptions. During Officer Matney’s testimony on 

cross-examination, she stated that five days before responding to the robbery, she had graduated 

from the police academy and that “it [was] possible” she had inadvertently transposed the first 

and second assailants as to who was holding the gun. 
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The trial court found appellant guilty of robbery and of using a firearm in the commission 

of a felony on August 5, 2005. On November 8, 2006, appellant filed an amended motion to 

reconsider and requested a new trial based on after-discovered evidence. On November 20, 

2006, during the course of the hearing on the motion to reconsider, appellant also argued a 

motion for continuance. That same day, the trial court denied appellant’s motions and sentenced 

him on the convictions. 

This appeal followed. 

II. SUFFICIENCY OF THE EVIDENCE 

On appeal, appellant contends the evidence was insufficient to prove he was present at 

the crime scene. To support that contention, appellant maintains that the victim’s identification 

of appellant as one of robbers was unreliable because appellant did not match the description 

provided to police as being a “dark skinned black male with dreadlocks and a space between his 

teeth” and that at trial, multiple witnesses testified that on the day of the robbery, he was miles 

away from the crime location. We disagree. 

At trial, the Commonwealth bears the burden of proving the identity of the accused as the 

perpetrator beyond a reasonable doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 

S.E.2d 611, 613-14 (1968). In determining the sufficiency of the evidence to support a 

conviction where a witness’ identification is challenged, we look to the reliability factors set 

forth in Neil v. Biggers, 409 U.S. 188 (1972), as significant circumstances that may be 

considered along with other evidence. Charity v. Commonwealth, 24 Va. App. 258, 262-63, 482 

S.E.2d 59, 61 (1997). Those factors include: 

“the opportunity of the witness to view the criminal at the time of 

the crime, the witness’ degree of attention, the accuracy of the 

witness’ prior description of the criminal, the level of certainty 

demonstrated by the witness at the confrontation and the length of 

time between the crime and the confrontation.” 
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Currie v. Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343 (1999) (quoting Biggers, 409 

U.S. at 199-200); see also Bryant v. Commonwealth, 10 Va. App. 421, 424, 393 S.E.2d 216, 218 

(1990) (“Under Biggers, the reliability of the identification is to be judged according to the 

totality of the circumstances.”). 

Here, considering the totality of the circumstances, including Velez’s observation of 

appellant before the robbery for thirty minutes from twenty feet away, Velez’s later recognition 

of appellant sitting in front of the laundromat, Velez’s observation of appellant during the 

robbery for “five to eight minutes” and appellant’s return to the scene to demand Velez’s cell 

phone, together with Velez’s description of appellant to the officers within minutes of the 

robbery, and Velez’s identification of appellant four days later from the photo identification 

lineup, the evidence was sufficient to prove appellant committed the robbery for which he was 

convicted. 

Appellant, however, argues Velez is an unreliable witness because Velez’s testimony 

identifying appellant as the second assailant of the robbery conflicted with Officer Matney’s 

police report indicating appellant was the first assailant. Appellant also contends that he has no 

gap between his teeth. Furthermore, appellant argues that he provided alibi witnesses suggesting 

he was miles away from the location of the robbery. We disagree with appellant. 

 “The credibility of the witnesses and the weight accorded the evidence are matters solely 

for the fact finder who has the opportunity to see and hear that evidence as it is presented.” 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “The 

conclusions of the fact finder on issues of witness credibility ‘may only be disturbed on appeal if 

this Court finds that [the witness’] . . . testimony was inherently incredible, or so contrary to 

human experience as to render it unworthy of belief.’” Moyer v. Commonwealth, 33 Va. App. 8, 
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28, 531 S.E.2d 580, 590 (2000) (en banc) (quoting Robertson v. Commonwealth, 12 Va. App. 

854, 858, 406 S.E.2d 417, 419 (1991)). 

 Here, the trial court credited Velez’s testimony identifying appellant as one of the 

assailants. During Velez’s testimony, he also explained that Officer Matney confused and 

switched the physical descriptions of the assailants in the police report. Officer Matney, a 

relatively inexperienced police officer, testified that “it [was] possible” she had inadvertently 

transposed the first and second assailants as to who was holding the gun. Additionally, the trial 

court rejected the testimony of appellant’s alibi witnesses. Thus, the trial court “resolv[ed] the 

conflicts and inconsistencies [therein] against [appellant] and [found] ultimately that the 

evidence constituted proof of guilt beyond a reasonable doubt.” Lockhart v. Commonwealth, 34 

Va. App. 329, 343, 542 S.E.2d 1, 7 (2001). Finding nothing in Velez’s testimony so contrary to 

human experience as to render it inherently incredible as a matter of law, we uphold the trial 

court’s determination that the conflicts in the evidence did not render Velez’s testimony 

unworthy of belief. See id. at 343, 542 S.E.2d at 7-8. 

III. MOTION FOR RECONSIDERATION 

Appellant claims the trial court erred in refusing to grant his motion for reconsideration 

and in failing to order a new trial based on after-discovered evidence. We disagree with 

appellant. 

A motion for a new trial based on after-discovered evidence is a “matter submitted to the 

sound discretion of a [trial] court and will be granted only under unusual circumstances after 

particular care and caution has been given to the evidence presented.” Orndorff v. 

Commonwealth, 271 Va. 486, 501, 628 S.E.2d 344, 352 (2006) (citing Commonwealth v. 

Tweed, 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002); Stockton v. Commonwealth, 227 Va. 
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124, 149, 314 S.E.2d 371, 387 (1984); Fulcher v. Whitlow, 208 Va. 34, 37, 155 S.E.2d 362, 365 

(1967)). 

A moving party’s burden of proof before the [trial] court on 

a motion for a new trial based on after-discovered evidence is well 

established. The moving party must establish that such 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, corroborative or collateral; and (4) is material, and 

such as should produce opposite results on the merits at another 

trial.” 

Id. (quoting Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 (1983)). 

Here, the Commonwealth concedes that appellant discovered the evidence subsequent to 

the trial, satisfying the first prong of the mandatory criteria under Orndorff. Appellant, however, 

falls short of proving the remaining three prongs of the Orndorff test. 

Appellant claims that after his conviction, another inmate with whom he was incarcerated 

told him he knew that Wesley Day had committed the robbery for which appellant was 

convicted. Appellant maintains that the evidence could not have been discovered with 

reasonable diligence because “its discovery was the result of a lucky conversation with another 

inmate after [appellant’s] conviction.” We disagree. 

[W]hat is reasonable diligence depends upon the facts and 

circumstances of each particular case; the burden is on the mover 

to show to the court that he has exercised due or reasonable 

diligence to ascertain relevant facts before trial, and that such 

diligence did not reveal the existence of, nor show the probability 

of the existence of, the evidence now relied upon. 

Id. at 502, 628 S.E.2d at 353. 

Here, to satisfy the reasonable diligence burden, appellant could have investigated the 

trial court’s public records for robberies committed in a similar manner, in the same area, and 

during the same time frame. Appellant could have investigated the additional names of possible 

accomplices provided by the Commonwealth. Appellant may have discovered Day’s similarly 
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conducted robberies and could have presented the possibility of mistaken identity to the trial 

court during his trial. Accordingly, appellant failed to act with the reasonable diligence required 

under Orndorff. 

Moreover, as the Commonwealth points out, appellant does not satisfy the third or fourth 

mandatory criteria set forth by Orndorff, namely that the evidence was “‘not merely cumulative, 

corroborative or collateral’” and that the evidence was material, such that it “‘should produce 

opposite results on the merits at another trial.’” Id. at 501, 628 S.E.2d at 352 (quoting Odum, 

225 Va. at 130, 301 S.E.2d at 149 ). Presenting the evidence regarding Day would have 

accounted for only one of the perpetrators, and therefore, would not have discounted that Velez 

explicitly identified appellant as one of the assailants. Thus, appellant’s evidence indicating Day 

participated in the robbery was collateral. For the same reasons, appellant’s claim that the 

evidence was material such that it should have produced an opposite result on the merits at 

another trial is unfounded. 

Accordingly, because appellant fails to satisfy his burden under Orndorff, we hold the 

trial court did not abuse its discretion in refusing to grant appellant’s motion for reconsideration 

and in denying his request for a new trial based on after-discovered evidence. 

IV. MOTION FOR CONTINUANCE 

Appellant maintains that the trial court abused its discretion by refusing to grant his 

request for a continuance. Appellant claims that, had the trial court granted the continuance, he 

could have reviewed “the file in the Norfolk case which contained more recent photographs of 

Day,” he could have investigated Day’s accomplice, and he could have discovered whether Day 

was related to the owner of the apartment where the two perpetrators fled after robbing Velez. 

We disagree. 
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“Whether to grant or deny a continuance of a trial is a matter that lies within the sound 

discretion of a trial court, and its ruling will not be reversed on appeal unless it is plainly wrong.” 

Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d 146, 151 (1994) (citing Lomax v. 

Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206 

Va. 627, 631-32, 145 S.E.2d 192, 195 (1965)). 

A defendant’s right to call for evidence in his favor 

guarantees him sufficient time to investigate and evaluate the 

evidence in preparation for trial. However, the need to investigate 

and evaluate the evidence and the prejudice allegedly resulting 

from the denial of a continuance cannot be based upon mere 

speculation. Thus, absent a showing of prejudice to a defendant by 

the denial of a continuance, an appellate court will not find that a 

trial court abused its discretion. 

Id. at 509, 450 S.E.2d at 151 (citations omitted). 

In this case, appellant presented nothing more than mere conjecture that Day may have 

perpetrated the robbery. The information appellant claims he might have discovered with the 

continuance is evidence appellant could have and should have investigated anytime before, 

during, or immediately after his conviction. As the trial court noted at the hearing on the 

motions, appellant was given “an extraordinary amount of time . . . to present any evidence with 

regard to a mistaken identification,” that appellant had “been through a number of attorneys,” 

and had failed to present to the trial court “anything that would lead [the trial court] to believe 

that Mr. Velez’[s] identification was not correct.” Because we find no showing of prejudice to 

appellant by the denial of the continuance, we also find the trial court did not abuse its discretion. 

V. CONCLUSION 

For these reasons, we affirm the judgment of the trial court and appellant’s convictions. 

Affirmed.