COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Lemons and Frank 

Argued at Norfolk, Virginia 

CATHERINE ROTHWELL, S/K/A 

 CATHERINE C. ROTHWELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1342-98-1 JUDGE ROBERT P. FRANK 

 JANUARY 4, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Joseph A. Leafe, Judge 

 Michael J. Woods for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Catherine C. Rothwell (appellant) appeals her convictions of 

two counts of child endangerment pursuant to Code § 40.1-103 and 

four counts of child cruelty pursuant to Code § 18.2-371.11 after 

a bench trial. On appeal, she contends that the trial court erred 

in denying her a continuance for a second psychological 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

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 The Court notes that the final sentencing order entered by 

the trial court erroneously reflects that the appellant was 

found guilty of six counts of child endangerment pursuant to 

Code § 40.1-103. Accordingly, this case is remanded to the 

trial court for the sole purpose of amending the final order to 

reflect that the appellant was found guilty of two counts of 

child endangerment pursuant to Code § 40.1-103 and four counts 

of child cruelty pursuant to Code § 18.2-371.1. 
evaluation, denying her due process. We disagree and affirm 

appellant's convictions. 

FACTS

 A licensed clinical psychologist, Dr. David Keenan, evaluated 

appellant's competency to stand trial in September 1997. Keenan 

concluded appellant understood the charges against her. He also 

found appellant possessed an adequate understanding of courtroom 

terms and procedures and that she had the capacity to understand 

the roles of the various courtroom personnel. Although concerned 

that appellant's condition might deteriorate under stress, Keenan 

concluded: "[G]iven the present positive relationship with her 

attorney, I would says [sic] that she presently meets competency 

to stand trial criteria at the most basic of levels." 

 The trial court appointed a new attorney for appellant on 

January 23, 1998. On May 29, 1998, counsel for appellant asked 

for a psychological re-evaluation to determine appellant's 

competency to stand trial. Counsel proffered that when he spoke 

with appellant briefly she seemed fine. After meeting with 

appellant for a longer period of time, he stated, "But on my last 

visit, I talked with her for about two hours and I found her train 

of thought to be somewhat erratic. I don't think she understands 

the seriousness of these charges." 

 Counsel proffered that appellant represented that she had 

evidence that would assist in her defense, but when he asked her 

for it, she said her sister had it and that the sister would 

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present it at trial. Counsel represented that appellant gave him 

the names of six witnesses, but that all of the witnesses were 

unfavorable, some of them witnesses for the Commonwealth. 

Appellant told counsel that "her case [was] in God's hands, and 

that God's going to look out for her." Counsel concluded: 

I just feel, from my perspective, Your Honor, 

as her counsel, that I feel that . . . I need 

a second opinion on her evaluation since I am 

new to this case . . . . I just feel, as a 

safety precaution for myself and [appellant], 

that she should be reevaluated by another 

psychologist who can see if they come to the 

same conclusion. 

 The trial court denied the appellant's motion for a "second 

opinion" at a hearing on May 29, 1998. Then, at trial, appellant 

renewed her motion and requested a continuance to obtain the 

"second opinion." The trial court denied the motion for a 

continuance and tried the case on that date. 

ANALYSIS

 "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)). 

 Code § 19.2-169.1(A) provides in part: 

If . . . the court finds, upon hearing 

evidence or representations of counsel for 

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the defendant or the attorney for the 

Commonwealth, that there is probable cause to 

believe that the defendant lacks substantial 

capacity to understand the proceedings 

against him or to assist his attorney in his 

own defense, the court shall order that a 

competency evaluation be performed. 

 At a hearing to determine competency to stand trial "the 

party alleging that the defendant is incompetent shall bear the 

burden of proving by a preponderance of the evidence the 

defendant's incompetency." Code § 19.2-169.1(E). "[T]he standard 

for competence to stand trial is whether the defendant has 

'sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding' and has 'a rational 

as well as factual understanding of the proceedings against him.'" 

Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. 

United States, 362 U.S. 402 (1960)). A trial court's 

determination of a defendant's competency to stand trial is a 

question of fact. See Delp v. Commonwealth, 172 Va. 564, 570-71, 

200 S.E. 594, 596 (1939). "[A] factual finding made by the trial 

court is binding on appeal unless plainly wrong." Naulty v. 

Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986) 

(citing McFadden v. Commonwealth, 225 Va. 103, 108, 300 S.E.2d 

924, 926 (1983)). 

 Appellant's counsel argued the following as the basis for his 

concern. First, appellant said her sister had evidence to assist 

with appellant's defense but her sister did not contact counsel. 

Second, appellant gave counsel the names of witnesses who were 

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adverse to appellant's case. Third, appellant indicated the case 

was in God's hands. Counsel further expressed concern that 

appellant's train of thought was somewhat erratic, and he did not 

think appellant understood the seriousness of the charges. 

 During the court's colloquy with appellant, it was clear that 

appellant was competent to stand trial. She understood the 

court's questions and properly responded to the questions. She 

was cogent and responsive. During the trial, appellant's 

testimony was detailed. She clearly remembered names, dates, and 

information in detail. She fully participated in the trial. The 

trial judge had the opportunity to observe and evaluate appellant 

during the trial. Appellant's counsel made no additional comments 

on his client's competency once the trial began. 

 Appellant did not assert to the trial court that her mental 

state had deteriorated since the September 1997 evaluation, but 

rather argued that she wanted a second opinion. There was no 

evidence that appellant's mental condition had changed since 

Keenan's evaluation. 

 Appellant did not satisfy the requirement of Code 

§ 19.2-169.1 because she did not show probable cause that she 

lacked substantial capacity to understand the proceedings or to 

assist counsel in her defense. 

 "'Probable cause, as the very name implies, deals with 

probabilities. These are not technical; they are the factual and 

practical considerations in every day life on which reasonable and 

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prudent men, not legal technicians, act.'" Derr v. Commonwealth, 

242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v. 

Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)). 

Probable cause is "determined by objective facts," not the 

"subjective opinion" of a police officer. Klinger v. United 

States, 409 F.2d 299, 304 (8th Cir. 1969). Therefore, it follows 

that probable cause cannot be based on the subjective conclusions 

of counsel. 

 We cannot say, as a matter of law, that the trial court's 

finding that there was no probable cause to believe that appellant 

was incompetent to stand trial was plainly wrong. 

 The record supports the trial court's ruling to deny 

appellant's motion for a second psychiatric opinion. Accordingly, 

the trial court did not abuse its discretion when it denied 

appellant's motion for a continuance. 

 For these reasons, we affirm the appellant's convictions. 

Affirmed and remanded. 

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