COURT OF APPEAL S 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. Kush ner, Judge Moody E. Stallings, Jr . (Cara L. Griffith; Sta llings & Bischoff, P.C., on brief), for appellant. Alice T. Armstrong, Assistan t 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 th e commission of a felony, in violation of Code § 18.2-53.1. On appeal, he contends (1) the evid ence 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 ev idence; and (3) the trial court a bused its discretion by refusing to grant his motion for a continuance. We disa gree and affirm the trial court’s judgment and appellant’s convictions. As the parties are fully conversant with th e 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’ understandin g of the disposition of this appeal.
* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - I. BACKGROUND “On appeal, we construe the evidence in th e light most favorable to the Commonwealth, granting to it all reasonable inferenc es 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 standa rd, the evidence demonstrates that on the afternoon of July 19, 2003, two a ssailants robbed Mark Velez at a carwash. Velez immediately called 911. Responding to Velez’s call within mi nutes, Chesapeake City Police Officers V.J. Matney and J.J. Blount arrived and Velez descri bed the robbery and the two assailants to the officers. Later that day, Officer Matney recorded Velez’s acc ount of the robbery in a police report, describing the first assaila nt 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 shav en head.” Four days later, Velez identified appellant as one of the robbers out of a photo identification li neup containing six black males with dreadlocks. At trial, Velez identified appellant as th e second assailant who approached him from behind and pressed a blunt object into his back, searched his pa nts, 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 descrip tions. During Officer Matney’s testimony on cross-examination, she stated that five days be fore responding to the r obbery, she had graduated from the police academy and that “it [was] possi ble” she had inadvertently transposed the first and second assailants as to who was holding the gun.- 3 - The trial court found appellant guilty of r obbery 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 ne w trial based on after-discovere d evidence. On November 20, 2006, during the course of the hearing on the mo tion to reconsider, appellant also argued a motion for continuance. That same day, the tria l 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 wa s insufficient to prove he was present at the crime scene. To support that contention, appe llant maintains that the victim’s identification of appellant as one of robbers was unreliable because appellant did no t match the description provided to police as being a “d ark skinned black male with dreadlocks and a space between his teeth” and that at trial, multiple witnesses tes tified 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’ identi fication is challenged, we look to the reliability factors set forth in Neil v. Biggers , 409 U.S. 188 (1972), as significan t 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 vi ew 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.”- 4 - 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 identificati on is to be judged according to the totality of the circumstances.”). Here, considering the totality of the circ umstances, 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 laundrom at, Velez’s observation of appellant during the robbery for “five to eight minut es” and appellant’s return to the scene to demand Velez’s cell phone, together with Velez’s description of appe llant to the officers w ithin minutes of the robbery, and Velez’s identificati on of appellant four days late r from the photo identification lineup, the evidence was sufficient to prove appe llant 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 wa s the first assailant. Appellant also contends that he has no gap between his teeth. Furthermore, appellant ar gues that he provided al ibi witnesses suggesting he was miles away from the location of the robbery. We disagree with appellant. “The credibility of the witnesses and the wei ght 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 i ssues of witness credibility ‘may only be disturbed on appeal if this Court finds that [the witness’] . . . testim ony was inherently incredible, or so contrary to human experience as to rende r it unworthy of belief.’” Moyer v. Commonwealth , 33 Va. App. 8,- 5 - 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 cred ited Velez’s testimony identifyi ng appellant as one of the assailants. During Velez’s test imony, 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 a ppellant’s alibi witnesses. Thus , the trial court “resolv[ed] the conflicts and inconsistencies [therein] agai nst [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 not hing 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 re nder 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 re fusing to grant his moti on 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.- 6 - 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 mu st establish that such evidence “(1) appears to have been disc overed subsequent to the trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by th e movant; (3) is not merely cumulative, corroborative or collat eral; 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 evid ence subsequent to the trial, satisfying the first prong of the mandatory criteria under Orndorff . Appellant, however, falls short of proving the re maining three prongs of the Orndorff test. Appellant claims that after hi s 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 maintain s 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] c onviction.” 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 bur den, 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 ha ve investigated the add itional names of possible accomplices provided by the Commonwealth. Appe llant may have discovered Day’s similarly- 7 - conducted robberies and could have presented the possibility of mi staken identity to the trial court during his trial. Accordingl y, appellant failed to act with th e reasonable diligence required under Orndorff

. Moreover, as the Commonwealth points out, appe llant does not satisfy the third or fourth mandatory criteria set forth by Orndorff , namely that the evidence was “‘not merely cumulative, corroborative or collater al’” and that the evidence was ma terial, 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 th erefore, would not have discounted that Velez explicitly identified appellant as one of the assa ilants. Thus, appellant’s evidence indicating Day participated in the robbery was collateral. Fo r the same reasons, appellant’s claim that the evidence was material such that it should have produced an oppos ite 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 disc retion in refusing to grant appella nt’s motion for reconsideration and in denying his request for a new tria l based on after-discovered evidence.
IV. MOTION FOR CONTINUANCE Appellant maintains that the trial court abus ed its discretion by refusing to grant his request for a continuance. Appella nt claims that, had the trial c ourt 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 accompli ce, and he could have discovered whether Day was related to the owner of the apartment where th e two perpetrators fled after robbing Velez. We disagree.- 8 - “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 th e prejudice allegedly resulting from the denial of a continuance cannot be based upon mere speculation. Thus, absent a showi ng of prejudice to a defendant by the denial of a continuance, an a ppellate 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 mo re than mere conjecture that Day may have perpetrated the robbery. The information appella nt claims he might have discovered with the continuance is evidence appellan t could have and should have investigated anytime before, during, or immediately after his co nviction. 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 appe llant had “been through a number of attorneys,” and had failed to present to the trial court “anythi ng 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 di d not abuse its discretion.
V. CONCLUSION For these reasons, we affirm the judgment of the trial court and appellant’s convictions. Affirmed.